NCIS – SABT “Mini-Manual” for NCIS Special Agent Training Program

September1 2011 NCIS-SABT “Mini-Manual” Contents - 2011 Part I — MCM Contents & Rules Pages MCM Table of Contents – Complete 1-11 Rules for Courts-Martial .... RCM 104: Unlawful Command Influence 12-13 RCM 202: Jurisdiction 14-17 RCMs 301 & 302: Apprehension Authority and Reporting of Offenses 18-20 Military Rules of Evidence 300 & 500 series .... MRE 301: Self-Incrimination 21-22 MRE 304: Confessions and Admissions 22-24 MRE 305: Rights Warnings 24-26 MRE 311: Evidence Obtained from Unlawful Searches and Seizures 26-28 MRE 312: Body Views and Intrusions 29-30 MRE 313: Inspections and Inventories 30 MRE 314: Searches not Requiring Probable Cause 30-32 MRE 315: Probable Cause Searches 32-34 MRE 316: Seizures 34 MRE 317: Interception of Wire and Oral Communications 34-35 MRE 321: Eyewitness Identification 35-36 MRE 503: Clergy Privilege 38 MRE 504: Husband-Wife Privilege 39 MRE 505: Classified Information Privilege 39-43 MRE 507: Identity of Informant Privilege 46-47 MRE 513: Psychotherapist Privilege 47-49 Part II — Punitive Articles (MCM) Complete 50-201 Part III — Items from the MCM Appendix Sample Charge Sheet 202-203 Maximum Punishment Chart by Offense (MCM Appendix) 204-211 MCM 2008 MCM 2008

CONTENTS Page (g) Concurrent jurisdiction of other military tribunals...... II-12 Page Rule 202. Persons subject to the jurisdiction of courts-martial ...... II-13 PART I PREAMBLE (a) In general...... II-13 (b) Offenses under the law of war...... II-14 1. Sources of military jurisdiction ...... I-1 (c) Attachment of jurisdiction over the person...... II-15 2. Exercise of military jurisdiction ...... I-1 Rule 203. Jurisdiction over the offense ...... II-15 (a) Kinds...... I-1 Rule 204. Jurisdiction over certain reserve component personnel (b) Agencies...... I-1 ...... II-15 (a) Service regulations...... II-15 3. Nature and purpose of military law ...... I-1 (b) Courts-Martial ...... II-15 4. Structure and application of the Manual for Courts-Martial ...... I-1 (c) Applicability...... II-16 (d) Changes in type of service...... II-16 PART II RULES FOR COURTS–MARTIAL CHAPTER III. INITIATION OF CHARGES; APPREHENSION; PRETRIAL CHAPTER I. GENERAL PROVISIONS RESTRAINT; RELATED MATTERS Rule 101. Scope, title ...... II-1 Rule 301. Report of offense ...... II-17 (a) In general...... II-1 (a) Who may report...... II-17 (b) Title...... II-1 (b) To whom reports conveyed for disposition...... II-17 Rule 102. Purpose and construction ...... II-1 Rule 302. Apprehension ...... II-17 (a) Purpose...... II-1 (a) Definition and scope...... II-17 (b) Construction...... II-1 (b) Who may apprehend...... II-17 Rule 103. Definitions and rules of construction ...... II-1 (c) Grounds for apprehension...... II-18 (d) How an apprehension may be made...... II-18 Rule 104. Unlawful command influence ...... II-4 (e) Where an apprehension may be made...... II-18 (a) General prohibitions...... II-4 (b) Prohibitions concerning evaluations...... II-5 Rule 303. Preliminary inquiry into reported offenses ...... II-19 Rule 105. Direct communications: convening authorities and staff judge Rule 304. Pretrial restraint ...... II-19 advocates; among staff judge advocates ...... II-5 (a) Types of pretrial restraint...... II-19 (a) Convening authorities and staff judge advocates...... II-5 (b) Who may order pretrial restraint...... II-20 (b) Among staff judge advocates and with the Judge Advocate General...... II-5 (c) When a person may be restrained...... II-20 (d) Procedures for ordering pretrial restraint...... II-20 Rule 106. Delivery of military offenders to civilian authorities ...... II-5 (e) Notice of basis for restraint...... II-21 Rule 107. Dismissed officer’s right to request trial by court-martial ...... II-6 (f) Punishment prohibited...... II-21 Rule 108. Rules of court ...... II-6 (g) Release...... II-21 (h) Administrative restraint...... II-21 Rule 109. Professional supervision of military judges and counsel ...... II-6 (a) In general...... II-6 Rule 305. Pretrial confinement ...... II-21 (b) Action after suspension or disbarment...... II-6 (a) In general...... II-21 (c) Investigation of judges...... II-6 (b) Who may be confined...... II-21 (c) Who may order confinement...... II-21 CHAPTER II. JURISDICTION (d) When a person may be confined...... II-21 Rule 201. Jurisdiction in general ...... II-9 (e) Advice to the accused upon confinement...... II-22 (a) Nature of courts-martial jurisdiction...... II-9 (f) Military counsel...... II-22 (b) Requisites of court-martial jurisdiction...... II-9 (g) Who may direct release from confinement...... II-22 (c) Contempt...... II-9 (h) Notification and action by commander...... II-22 (d) Exclusive and nonexclusive jurisdiction...... II-10 (i) Procedures for review of pretrial confinement...... II-23 (e) Reciprocal jurisdiction...... II-10 (j) Review by military judge...... II-24 (f) Types of courts-martial...... II-11 (k) Remedy...... II-24 i ii

MCM 2008 MCM 2008

Page Page

(l) Confinement after release...... II-24 (a) Disposition...... II-40 (m) Exceptions...... II-25 (b) National security matters...... II-41 Rule 306. Initial disposition ...... II-25 CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL; CONVENING (a) Who may dispose of offenses...... II-25 COURTS-MARTIAL (b) Policy...... II-25 (c) How offenses may be disposed of...... II-26 Rule 501. Composition and personnel of courts-martial ...... II-42 (d) National security matters...... II-26 (a) Composition of courts-martial...... II-42 (b) Counsel in general and special courts-martial...... II-42 Rule 307. Preferral of charges ...... II-27 (c) Other personnel...... II-42 (a) Who may prefer charges...... II-27 (b) How charges are preferred; oath...... II-27 Rule 502. Qualifications and duties of personnel of courts-martial ...... II-42 (c) How to allege offenses...... II-27 (a) Members...... II-42 (d) Harmless error in citation...... II-30 (b) President...... II-43 (c) Qualifications of military judge...... II-43 Rule 308. Notification to accused of charges ...... II-30 (d) Counsel...... II-43 (a) Immediate commander...... II-30 (e) Interpreters, reporters, escorts, bailiffs, clerks, and guards...... II-46 (b) Commanders at higher echelons...... II-30 (f) Action upon discovery of disqualification or lack of qualifications...... II-46 (c) Remedy...... II-30 Rule 503. Detailing members, military judge, and counsel ...... II-46 CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES (a) Members...... II-46 Rule 401. Forwarding and disposition of charges in general ...... II-31 (b) Military judge...... II-47 (a) Who may dispose of charges...... II-31 (c) Counsel...... II-47 (b) Prompt determination...... II-31 Rule 504. Convening courts-martial ...... II-48 (c) How charges may be disposed of...... II-31 (a) In general...... II-48 (d) National security matters...... II-32 (b) Who may convene courts-martial...... II-48 Rule 402. Action by commander not authorized to convene courts-martial . . . . II-32 (c) Disqualification...... II-48 (d) Convening orders...... II-49 Rule 403. Action by commander exercising summary court-martial jurisdiction II-32 (e) Place...... II-49 (a) Recording receipt...... II-32 (b) Disposition...... II-33 Rule 505. Changes of members, military judge, and counsel ...... II-49 (a) In general...... II-49 Rule 404. Action by commander exercising special court-martial jurisdiction . . II-33 (b) Procedure...... II-49 Rule 405. Pretrial investigation ...... II-34 (c) Changes of members...... II-49 (a) In general...... II-34 (d) Changes of detailed counsel...... II-50 (b) Earlier investigation...... II-34 (e) Change of military judge...... II-50 (c) Who may direct investigation...... II-34 (f) Good cause...... II-50 (d) Personnel...... II-34 Rule 506. Accused’s rights to counsel ...... II-50 (e) Scope of investigation...... II-35 (a) In general...... II-50 (f) Rights of the accused...... II-35 (b) Individual military counsel...... II-50 (g) Production of witnesses and evidence; alternatives...... II-35 (c) Excusal or withdrawal...... II-51 (h) Procedure...... II-38 (d) Waiver...... II-51 (i) Military Rules of Evidence...... II-39 (e) Nonlawyer present...... II-51 (j) Report of investigation...... II-39 (k) Waiver...... II-40 CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF Rule 406. Pretrial advice ...... II-40 CHARGES (a) In general...... II-40 Rule 601. Referral ...... II-52 (b) Contents...... II-40 (a) In general...... II-52 (c) Distribution...... II-40 (b) Who may refer...... II-52 Rule 407. Action by commander exercising general court-martial jurisdiction . II-40 (c) Disqualification...... II-52 iii iv

2011 NCIS Mini-Manual, Page 1 MCM 2008 MCM 2008

Page Page

(d) When charges may be referred...... II-52 (e) Decision to grant immunity...... II-67 (e) How charges shall be referred...... II-52 Rule 705. Pretrial agreements ...... II-68 (f) Superior convening authorities...... II-53 (a) In general...... II-68 Rule 602. Service of charges ...... II-53 (b) Nature of agreement...... II-68 Rule 603. Changes to charges and specifications ...... II-54 (c) Terms and conditions...... II-68 (a) Minor changes defined...... II-54 (d) Procedure...... II-69 (b) Minor changes before arraignment...... II-54 (e) Nondisclosure of existence of agreement...... II-69 (c) Minor changes after arraignment...... II-54 Rule 706. Inquiry into the mental capacity or mental responsibility of the accused II-70 (d) Major changes...... II-54 (a) Initial action...... II-70 Rule 604. Withdrawal of charges ...... II-54 (b) Ordering an inquiry...... II-70 (a) Withdrawal...... II-54 (c) Inquiry...... II-70 (b) Referral of withdrawn charges...... II-55 Rule 707. Speedy trial ...... II-71 (a) In general...... II-71 CHAPTER VII. PRETRIAL MATTERS (b) Accountability...... II-71 Rule 701. Discovery ...... II-56 (c) Excludable delay...... II-72 (a) Disclosure by the trial counsel...... II-56 (d) Remedy...... II-72 (b) Disclosure by the defense...... II-57 (e) Waiver...... II-73 (c) Failure to call witness...... II-58 (d) Continuing duty to disclose...... II-58 CHAPTER VIII. TRIAL PROCEDURE GENERALLY (e) Access to witnesses and evidence...... II-58 Rule 801. Military judge’s responsibilities; other matters ...... II-74 (f) Information not subject to disclosure...... II-58 (a) Responsibilities of military judge...... II-74 (g) Regulation of discovery...... II-58 (b) Rules of court; contempt...... II-74 (h) Inspect...... II-59 (c) Obtaining evidence...... II-74 Rule 702. Depositions ...... II-59 (d) Uncharged offenses...... II-74 (a) In general...... II-59 (e) Interlocutory questions and questions of law...... II-75 (b) Who may order...... II-59 (f) Rulings on record...... II-76 (c) Request to take deposition...... II-59 (g) Effect of failure to raise defenses or objections...... II-76 (d) Action when request is approved...... II-60 Rule 802. Conferences ...... II-77 (e) Notice...... II-60 (a) In general...... II-77 (f) Duties of the deposition officer...... II-60 (b) Matters on record...... II-77 (g) Procedure...... II-61 (c) Rights of parties...... II-77 (h) Objections...... II-61 (d) Accused’s presence...... II-77 (i) Deposition by agreement not precluded...... II-62 (e) Admission...... II-77 Rule 703. Production of witnesses and evidence ...... II-62 (f) Limitations...... II-77 (a) In general...... II-62 Rule 803. Court-martial sessions without members under Article 39(a) ...... II-77 (b) Right to witnesses...... II-62 Rule 804. Presence of the accused at trial proceedings ...... II-78 (c) Determining which witness will be produced...... II-63 (a) Presence required...... II-78 (d) Employment of expert witnesses...... II-63 (b) Presence by remote means...... II-78 (e) Procedures for production of witnesses...... II-63 (c) Continued presence not required...... II-78 (f) Right to evidence...... II-65 (d) Voluntary absence for limited purpose of child testimony...... II-79 Rule 704. Immunity ...... II-66 (e) Appearance and security of accused...... II-79 (a) Types of immunity...... II-66 Rule 805. Presence of military judge, members, and counsel ...... II-79 (b) Scope...... II-66 (a) Military judge...... II-79 (c) Authority to grant immunity...... II-66 (b) Members...... II-79 (d) Procedure...... II-67 (c) Counsel...... II-80

v vi

MCM 2008 MCM 2008

Page Page

(d) Effect of replacement of member or military judge...... II-80 (b) Specific grounds...... II-89 Rule 806. Public trial ...... II-80 (c) Definitions...... II-89 (a) In general...... II-80 (d) Procedure...... II-90 (b) Control of spectators and closure...... II-80 (e) Waiver...... II-90 (c) Photography and broadcasting prohibited...... II-81 Rule 903. Accused’s elections on composition of court-martial ...... II-90 (d) Protective orders...... II-81 (a) Time of elections...... II-90 Rule 807. Oaths ...... II-82 (b) Form of election...... II-90 (a) Definition...... II-82 (c) Action on election...... II-90 (b) Oaths in courts-martial...... II-82 (d) Right to withdraw request...... II-91 (e) Untimely requests...... II-91 Rule 808. Record of trial ...... II-83 (f) Scope...... II-91 Rule 809. Contempt proceedings ...... II-83 Rule 904. Arraignment ...... II-91 (a) In general...... II-83 (b) Method of disposition...... II-83 Rule 905. Motions generally ...... II-92 (c) Procedure...... II-83 (a) Definitions and form...... II-92 (d) Record; review...... II-84 (b) Pretrial motions...... II-92 (e) Sentence...... II-84 (c) Burden of proof...... II-92 (f) Informing person held in contempt...... II-84 (d) Ruling on motions...... II-93 (e) Effect of failure to raise defenses or objections...... II-93 Rule 810. Procedures for rehearings, new trials, and other trials ...... II-84 (f) Reconsideration...... II-93 (a) In general...... II-84 (g) Effect of final determinations...... II-93 (b) Composition...... II-85 (h) Written motions...... II-94 (c) Examination of record of former proceedings...... II-85 (i) Service...... II-94 (d) Sentence limitations...... II-85 (j) Application to convening authority...... II-94 (e) Definition...... II-85 (k) Production of statements on motion to suppress...... II-94 Rule 811. Stipulations ...... II-86 Rule 906. Motions for appropriate relief ...... II-94 (a) In general...... II-86 (a) In general...... II-94 (b) Authority to reject...... II-86 (b) Grounds for appropriate relief...... II-94 (c) Requirements...... II-86 (d) Withdrawal...... II-86 Rule 907. Motions to dismiss ...... II-96 (e) Effect of stipulation...... II-86 (a) In general...... II-96 (f) Procedure...... II-86 (b) Grounds for dismissal...... II-96 Rule 812. Joint and common trials ...... II-87 Rule 908. Appeal by the United States ...... II-98 (a) In general...... II-98 Rule 813. Announcing personnel of the court-martial and accused ...... II-87 (b) Procedure...... II-98 (a) Opening sessions...... II-87 (c) Appellate proceedings...... II-99 (b) Later proceedings...... II-87 (d) Military judge...... II-99 (c) Additions, replacement, and absences of personnel...... II-87 Rule 909. Capacity of the accused to stand trial by court-martial ...... II-99 CHAPTER IX. TRIAL PROCEDURES THROUGH FINDINGS (a) In general...... II-99 (b) Presumption of capacity...... II-100 Rule 901. Opening session ...... II-88 (c) Determination before referral...... II-100 (a) Call to order...... II-88 (d) Determination after referral...... II-100 (b) Announcement of parties...... II-88 (e) Incompetence determination hearing...... II-100 (c) Swearing reporter and interpreter...... II-88 (f) Hospitalization of the accused...... II-100 (d) Counsel...... II-88 (g) Excludable delay...... II-100 (e) Presence of members...... II-89 Rule 910. Pleas ...... II-100 Rule 902. Disqualification of military judge ...... II-89 (a) Alternatives...... II-100 (a) In general...... II-89 vii viii

2011 NCIS Mini-Manual, Page 2 MCM 2008 MCM 2008

Page Page

(b) Refusal to plead; irregular plea...... II-101 (b) Burden of proof...... II-110 (c) Advice to accused...... II-101 (c) Justification...... II-110 (d) Ensuring that the plea is voluntary...... II-101 (d) Obedience to orders...... II-110 (e) Determining accuracy of plea...... II-102 (e) Self-defense...... II-110 (f) Plea agreement inquiry...... II-102 (f) Accident...... II-112 (g) Findings...... II-102 (g) Entrapment...... II-112 (h) Later action...... II-102 (h) Coercion or duress...... II-112 (i) Record of proceedings...... II-103 (i) Inability...... II-112 (j) Waiver...... II-103 (j) Ignorance or mistake of fact...... II-112 Rule 911. Assembly of the court-martial ...... II-103 (k) Lack of mental responsibility...... II-113 (l) Not defenses generally...... II-114 Rule 912. Challenge of selection of members; examination and challenges of members ...... II-103 Rule 917. Motion for a finding of not guilty ...... II-114 (a) Pretrial matters...... II-103 (a) In general...... II-114 (b) Challenge of selection of members...... II-104 (b) Form of motion...... II-114 (c) Stating grounds for challenge...... II-104 (c) Procedure...... II-114 (d) Examination of members...... II-104 (d) Standard...... II-114 (e) Evidence...... II-104 (e) Motion as to greater offense...... II-114 (f) Challenges and removal for cause...... II-104 (f) Effect of ruling...... II-115 (g) Peremptory challenges...... II-105 (g) Effect of denial on review...... II-115 (h) Special courts-martial without a military judge...... II-106 Rule 918. Findings ...... II-115 (i) Definitions...... II-106 (a) General findings...... II-115 Rule 913. Presentation of the case on the merits ...... II-106 (b) Special findings...... II-115 (a) Preliminary instructions...... II-106 (c) Basis of findings...... II-116 (b) Opening statements...... II-107 Rule 919. Argument by counsel on findings ...... II-116 (c) Presentation of evidence...... II-107 (a) In general...... II-116 Rule 914. Production of statements of witnesses ...... II-108 (b) Contents...... II-116 (a) Motion for production...... II-108 (c) Waiver of objection to improper argument...... II-116 (b) Production of entire statement...... II-108 Rule 920. Instructions on findings ...... II-117 (c) Production of excised statement...... II-108 (a) In general...... II-117 (d) Recess for examination of the statement...... II-108 (b) When given...... II-117 (e) Remedy for failure to produce statement...... II-108 (c) Requests for instructions...... II-117 (f) Definition...... II-108 (d) How given...... II-117 Rule 914A. Use of remote live testimony of a child ...... II-108 (e) Required instructions...... II-117 (a) General procedures...... II-108 (f) Waiver...... II-118 (b) Definition...... II-109 Rule 921. Deliberations and voting on findings ...... II-118 (c) Prohibitions...... II-109 (a) In general...... II-118 Rule 914B. Use of remote testimony ...... II-109 (b) Deliberations...... II-118 (a) General procedures...... II-109 (c) Voting...... II-118 (b) Definition...... II-109 (d) Action after findings are reached...... II-119 Rule 915. Mistrial ...... II-109 Rule 922. Announcement of findings ...... II-119 (a) In general...... II-109 (a) In general...... II-119 (b) Procedure...... II-109 (b) Findings by members...... II-120 (c) Effect of declaration of mistrial...... II-109 (c) Findings by military judge...... II-120 (d) Erroneous announcement...... II-120 Rule 916. Defenses ...... II-110 (e) Polling prohibited...... II-120 (a) In general...... II-110

ix x

MCM 2008 MCM 2008

Page Page

Rule 923. Impeachment of findings ...... II-120 Rule 1009. Reconsideration of sentence ...... II-136 Rule 924. Reconsideration of findings ...... II-120 (a) Reconsideration...... II-136 (a) Time for reconsideration...... II-120 (b) Exceptions...... II-136 (b) Procedure...... II-120 (c) Clarification of sentence...... II-136 (c) Military judge sitting alone...... II-120 (d) Action by the convening authority...... II-136 (e) Reconsideration procedure...... II-136 CHAPTER X. SENTENCING Rule 1010. Notice concerning post-trial and appellate rights ...... II-137 Rule 1001. Presentencing procedure ...... II-122 Rule 1011. Adjournment ...... II-137 (a) In general...... II-122 (b) Matter to be presented by the prosecution...... II-122 CHAPTER XI. POST-TRIAL PROCEDURE (c) Matter to be presented by the defense...... II-124 Rule 1101. Report of result of trial; post-trial restraint; deferment of confinement, (d) Rebuttal and surrebuttal...... II-124 forfeitures and reduction in grade; waiver of Article 58b forfeitures ...... II-138 (e) Production of witnesses...... II-124 (a) Report of the result of trial...... II-138 (f) Additional matters to be considered...... II-125 (b) Post-trial confinement...... II-138 (g) Argument...... II-125 (c) Deferment of confinement, forfeitures or reduction in grade...... II-138 Rule 1002. Sentence determination ...... II-125 (d) Waiving forfeitures resulting from a sentence to confinement to provide for dependent support...... II-139 Rule 1003. Punishments ...... II-126 (a) In general...... II-126 Rule 1102. Post-trial sessions ...... II-140 (b) Authorized punishments...... II-126 (a) In general...... II-140 (c) Limits on punishments...... II-128 (b) Purpose...... II-140 (d) Circumstances permitting increased punishments...... II-129 (c) Matters not subject to post-trial sessions...... II-140 (d) When directed...... II-141 Rule 1004. Capital cases ...... II-130 (e) Procedure...... II-141 (a) In general...... II-130 (b) Procedure...... II-130 Rule 1102A. Post-trial hearing for person found not guilty only by reason of lack (c) Aggravating factors...... II-131 of mental responsibility ...... II-141 (d) Spying...... II-133 (a) In general...... II-141 (e) Other penalties...... II-133 (b) Psychiatric or psychological examination and report...... II-141 (c) Post-trial hearing...... II-141 Rule 1005. Instructions on sentence ...... II-133 (a) In general...... II-133 Rule 1103. Preparation of record of trial ...... II-141 (b) When given...... II-133 (a) In general...... II-141 (c) Requests for instructions...... II-133 (b) General courts-martial...... II-142 (d) How given...... II-133 (c) Special courts-martial...... II-143 (e) Required instructions...... II-134 (d) Summary courts-martial...... II-143 (f) Waiver...... II-134 (e) Acquittal; courts-martial resulting in findings of not guilty only by reason of lack of mental responsibility; termination prior to findings...... II-143 Rule 1006. Deliberations and voting on sentence ...... II-134 (f) Loss of notes or recordings of the proceedings...... II-143 (a) In general...... II-134 (g) Copies of the record of trial...... II-143 (b) Deliberations...... II-134 (h) Security classification...... II-144 (c) Proposal of sentences...... II-134 (i) Examination and correction before authentication...... II-144 (d) Voting...... II-135 (j) Videotape and similar records...... II-144 (e) Action after a sentence is reached...... II-135 Rule 1103A. Sealed exhibits and proceedings...... II-145 Rule 1007. Announcement of sentence ...... II-135 (a) In general...... II-145 (a) In general...... II-135 (b) Examination of sealed exhibits and proceedings...... II-145 (b) Erroneous announcement...... II-136 (c) Polling prohibited...... II-136 Rule 1104. Records of trial: Authentication; service; loss; correction; forwarding II-146 (a) Authentication...... II-146 Rule 1008. Impeachment of sentence ...... II-136 (b) Service...... II-146 xi xii

2011 NCIS Mini-Manual, Page 3 MCM 2008 MCM 2008

Page Page

(c) Loss of record...... II-147 (e) To whom submitted...... II-162 (d) Correction of record after authentication; certificate of correction...... II-147 (f) Time limit...... II-162 (e) Forwarding...... II-148 (g) Effect of waiver or withdrawal; substantial compliance required...... II-162 Rule 1105. Matters submitted by the accused ...... II-148 Rule 1111. Disposition of the record of trial after action ...... II-163 (a) In general...... II-148 (a) General courts-martial...... II-163 (b) Matters which may be submitted...... II-148 (b) Special courts-martial...... II-163 (c) Time periods...... II-148 (c) Summary courts-martial...... II-163 (d) Waiver...... II-149 Rule 1112. Review by a judge advocate ...... II-163 Rule 1106. Recommendation of the staff judge advocate or legal officer ...... II-149 (a) In general...... II-163 (a) In general...... II-149 (b) Exception...... II-163 (b) Disqualification...... II-149 (c) Disqualification...... II-163 (c) When the convening authority has no staff judge advocate...... II-149 (d) Form and content of review...... II-163 (d) Form and content of recommendation...... II-149 (e) Forwarding to officer exercising general court-martial jurisdiction...... II-164 (e) No findings of guilty; findings of not guilty only by reason of lack of mental (f) Action by officer exercising general court-martial jurisdiction...... II-164 responsibility...... II-150 (g) Forwarding following review under this rule...... II-164 (f) Service of recommendation on defense counsel and accused; defense response...... II-150 Rule 1113. Execution of sentences ...... II-165 Rule 1107. Action by convening authority ...... II-151 (a) In general...... II-165 (a) Who may take action...... II-151 (b) Punishments which the convening authority may order executed in the initial action. II-165 (b) General considerations...... II-152 (c) Punishments which the convening authority may not order executed in the initial action. II-165 (c) Action on findings...... II-153 (d) Other considerations concerning the execution of certain sentences...... II-165 (d) Action on the sentence...... II-153 Rule 1114. Promulgating orders ...... II-167 (e) Ordering rehearing or other trial...... II-154 (a) In general...... II-167 (f) Contents of action and related matters...... II-155 (b) By whom issued...... II-167 (g) Incomplete, ambiguous, or erroneous action...... II-157 (c) Contents...... II-167 (h) Service on accused...... II-157 (d) Orders containing classified information...... II-167 Rule 1108. Suspension of execution of sentence; remission ...... II-157 (e) Authentication...... II-168 (a) In general...... II-157 (f) Distribution...... II-168 (b) Who may suspend and remit...... II-157 (c) Conditions of suspension...... II-158 CHAPTER XII. APPEALS AND REVIEW (d) Limitations on suspension...... II-158 Rule 1201. Action by the Judge Advocate General ...... II-169 (e) Termination of suspension by remission...... II-158 (a) Cases required to be referred to a Court of Criminal Appeals...... II-169 Rule 1109. Vacation of suspension of sentence ...... II-158 (b) Cases reviewed by the Judge Advocate General...... II-169 (a) In general...... II-158 (c) Remission and suspension...... II-170 (b) Timeliness...... II-158 Rule 1202. Appellate counsel ...... II-170 (c) Confinement of probationer pending vacation proceedings...... II-158 (a) In general...... II-170 (d) Vacation of suspended general court-martial sentence...... II-159 (b) Duties...... II-170 (e) Vacation of a suspended special court-martial sentence wherein a bad-conduct discharge or confinement for one year was not adjudged...... II-160 Rule 1203. Review by a Court of Criminal Appeals ...... II-171 (f) Vacation of a suspended special court-martial sentence that includes a bad-conduct (a) In general...... II-171 discharge or confinement for one year...... II-160 (b) Cases reviewed by a Court of Criminal Appeals...... II-171 (g) Vacation of a suspended summary court-martial sentence...... II-161 (c) Action on cases reviewed by a Court of Criminal Appeals...... II-171 Rule 1110. Waiver or withdrawal of appellate review ...... II-161 (d) Notification to accused...... II-172 (a) In general...... II-161 (e) Cases not reviewed by the Court of Appeals for the Armed Forces...... II-173 (b) Right to counsel...... II-161 (f) Scope...... II-173 (c) Compulsion, coercion, inducement prohibited...... II-162 Rule 1204. Review by the Court of Appeals for the Armed Forces ...... II-173 (d) Form of waiver or withdrawal...... II-162 (a) Cases reviewed by the Court of Appeals for the Armed Forces...... II-173

xiii xiv

MCM 2008 MCM 2008

Page Page

(b) Petition by the accused for review by the Court of Appeals for the Armed Forces. . II-173 (b) Contents...... II-183 (c) Action on decision by the Court of Appeals for the Armed Forces...... II-174 (c) Authentication...... II-183 Rule 1205. Review by the Supreme Court ...... II-175 (d) Forwarding copies of the record...... II-183 (a) Cases subject to review by the Supreme Court...... II-175 Rule 1306. Post-trial procedure ...... II-183 (b) Action by the Supreme Court...... II-175 (a) Matters submitted by the accused...... II-183 Rule 1206. Powers and responsibilities of the Secretary ...... II-175 (b) Convening authority’s action...... II-183 (a) Sentences requiring approval by the Secretary...... II-175 (c) Review by a judge advocate...... II-183 (b) Remission and suspension...... II-175 (d) Review by the Judge Advocate General...... II-183 Rule 1207. Sentences requiring approval by the President ...... II-175 PART III MILITARY RULES OF EVIDENCE Rule 1208. Restoration ...... II-175 (a) New trial...... II-175 SECTION I GENERAL PROVISIONS (b) Other cases...... II-176 Rule 101. Scope ...... III-1 Rule 1209. Finality of courts-martial ...... II-176 (a) Applicability...... III-1 (a) When a conviction is final...... II-176 (b) Secondary Sources...... III-1 (b) Effect of finality...... II-176 (c) Rule of construction...... III-1 Rule 1210. New trial ...... II-176 Rule 102. Purpose and construction ...... III-1 (a) In general...... II-176 Rule 103. Ruling on evidence ...... III-1 (b) Who may petition...... II-176 (a) Effect of erroneous ruling...... III-1 (c) Form of petition...... II-177 (b) Record of offer and ruling...... III-1 (d) Effect of petition...... II-177 (c) Hearing of members...... III-1 (e) Who may act on petition...... II-177 (d) Plain error...... III-1 (f) Grounds for new trial...... II-177 Rule 104. Preliminary questions ...... III-1 (g) Action on the petition...... II-177 (a) Questions of admissibility generally...... III-1 (h) Action when new trial is granted...... II-178 (b) Relevancy conditioned on fact...... III-1 (c) Hearing of members...... III-2 CHAPTER XIII. SUMMARY COURTS-MARTIAL (d) Testimony by accused...... III-2 Rule 1301. Summary courts-martial generally ...... II-179 (e) Weight and credibility...... III-2 (a) Composition...... II-179 Rule 105. Limited admissibility ...... III-2 (b) Function...... II-179 (c) Jurisdiction...... II-179 Rule 106. Remainder of or related writings or recorded statements ...... III-2 (d) Punishments...... II-179 (e) Counsel...... II-179 SECTION II JUDICIAL NOTICE (f) Power to obtain witnesses and evidence...... II-180 Rule 201. Judicial notice of adjudicative facts ...... III-2 (g) Secretarial limitations...... II-180 (a) Scope of rule...... III-2 Rule 1302. Convening a summary court-martial ...... II-180 (b) Kinds of facts...... III-2 (a) Who may convene summary courts-martial...... II-180 (c) When discretionary...... III-2 (b) When convening authority is accuser...... II-180 (d) When mandatory...... III-2 (c) Procedure...... II-180 (e) Opportunity to be heard...... III-2 (f) Time of taking notice...... III-2 Rule 1303. Right to object to trial by summary court-martial ...... II-180 (g) Instructing members...... III-2 Rule 1304. Trial procedure ...... II-180 Rule 201A. Judicial notice of law ...... III-2 (a) Pretrial duties...... II-180 (a) Domestic law...... III-2 (b) Summary court-martial procedure...... II-181 (b) Foreign law...... III-2 Rule 1305. Record of trial ...... II-182 (a) In general...... II-182

xv xvi

2011 NCIS Mini-Manual, Page 4 MCM 2008 MCM 2008

Page Page

SECTION III EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF- (i) Effect of guilty plea...... III-10 INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION Rule 312. Body views and intrusions ...... III-10 Rule 301. Privilege concerning compulsory self-incrimination ...... III-3 (a) General rule...... III-11 (a) General rule...... III-3 (b) Visual examination of the body...... III-11 (b) Standing...... III-3 (c) Intrusion into body cavities...... III-11 (c) Exercise of the privilege...... III-3 (d) Extraction of body fluids...... III-11 (d) Waiver by a witness...... III-3 (e) Other intrusive searches...... III-11 (e) Waiver by the accused...... III-3 (f) Intrusions for valid medical purposes...... III-11 (f) Effect of claiming the privilege...... III-3 (g) Medical qualifications...... III-11 (g) Instructions...... III-4 Rule 313. Inspections and inventories in the armed forces ...... III-12 Rule 302. Privilege concerning mental examination of an accused ...... III-4 (a) General rule...... III-12 (a) General rule...... III-4 (b) Inspections...... III-12 (b) Exceptions...... III-4 (c) Inventories...... III-12 (c) Release of evidence...... III-4 Rule 314. Searches not requiring probable cause ...... III-12 (d) Noncompliance by the accused...... III-4 (a) General rule...... III-12 (e) Procedure...... III-4 (b) Border searches...... III-12 Rule 303. Degrading questions ...... III-4 (c) Searches upon entry to or exit from United States installations, aircraft, and vessels abroad...... III-12 Rule 304. Confessions and admissions ...... III-4 (d) Searches of government property...... III-12 (a) General rule...... III-4 (e) Consent searches...... III-13 (b) Exceptions...... III-4 (f) Searches incident to a lawful stop...... III-13 (c) Definitions...... III-5 (g) Searches incident to a lawful apprehension...... III-13 (d) Procedure...... III-5 (h) Searches within jails, confinement facilities, or similar facilities...... III-13 (e) Burden of proof...... III-5 (i) Emergency searches to save life or for related purposes...... III-14 (f) Defense evidence...... III-6 (j) Searches of open fields or woodlands...... III-14 (g) Corroboration...... III-6 (k) Other searches...... III-14 (h) Miscellaneous...... III-6 Rule 315. Probable cause searches ...... III-14 Rule 305. Warnings about rights ...... III-6 (a) General rule...... III-14 (a) General rule...... III-6 (b) Definitions...... III-14 (b) Definitions...... III-6 (c) Scope of authorization...... III-14 (c) Warnings concerning the accusation, right to remain silent, and use of statements. . . III-7 (d) Power to authorize...... III-14 (d) Counsel rights and warnings...... III-7 (e) Power to search...... III-15 (e) Presence of Counsel...... III-7 (f) Basis for Search authorizations...... III-15 (f) Exercise of rights...... III-7 (g) Exigencies...... III-15 (g) Waiver...... III-7 (h) Execution...... III-15 (h) Nonmilitary interrogations...... III-8 Rule 316. Seizures ...... III-16 Rule 306. Statements by one of several accused ...... III-8 (a) General rule...... III-16 Rule 311. Evidence obtained from unlawful searches and seizures ...... III-8 (b) Seizure of property...... III-16 (a) General rule...... III-8 (c) Apprehension...... III-16 (b) Exceptions...... III-8 (d) Seizure of property or evidence...... III-16 (c) Nature of search or seizure...... III-9 (e) Power to seize...... III-16 (d) Motions to suppress and objections...... III-9 (f) Other seizures...... III-16 (e) Burden of proof...... III-9 Rule 317. Interception of wire and oral communications ...... III-16 (f) Defense evidence...... III-10 (a) General rule...... III-16 (g) Scope of motions and objections challenging probable cause...... III-10 (b) Authorization for judicial applications in the United States...... III-16 (h) Objections to evidence seized unlawfully...... III-10 (c) Regulations...... III-16 xvii xviii

MCM 2008 MCM 2008

Page Page

Rule 321. Eyewitness identification ...... III-17 (b) Definitions...... III-23 (a) General rule...... III-17 (c) Who may claim the privilege...... III-24 (b) Definition of “unlawful”...... III-17 (d) Exceptions...... III-24 (c) Motions to suppress and objections...... III-17 Rule 503. Communications to clergy ...... III-24 (d) Burden of proof...... III-18 (a) General rule of privilege...... III-24 (e) Defense evidence...... III-18 (b) Definitions...... III-24 (f) Rulings...... III-18 (c) Who may claim the privilege...... III-24 (g) Effect of guilty pleas...... III-18 Rule 504. Husband-wife privilege ...... III-25 SECTION IV RELEVANCY AND ITS LIMITS (a) Spousal incapacity...... III-25 (b) Confidential communication made during marriage...... III-25 Rule 401. Definition of “relevant evidence” ...... III-18 (c) Exceptions...... III-25 Rule 402. Relevant evidence general admissible; irrelevant evidence inadmissible III-19 (d) Definitions...... III-25 Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or Rule 505. Classified information ...... III-25 waste of time ...... III-19 (a) General rule of privilege...... III-25 Rule 404. Character evidence not admissible to prove conduct; exceptions; other (b) Definitions...... III-25 crimes ...... III-19 (c) Who may claim the privilege...... III-26 (a) Character evidence generally...... III-19 (d) Action prior to referral of charges...... III-26 (b) Other crimes, wrongs, or acts...... III-19 (e) Pretrial session...... III-26 (f) Action after referral of charges...... III-26 Rule 405. Methods of proving character ...... III-19 (g) Disclosure of classified information to the accused...... III-26 (a) Reputation or opinion...... III-19 (h) Notice of the accused’s intention to disclose classified information...... III-27 (b) Specific instances of conduct...... III-19 (i) In camera proceedings for cases involving classified information...... III-28 (c) Affidavits...... III-19 (j) Introduction of classified information...... III-29 (d) Definitions...... III-19 (k) Security procedures to safeguard against compromise of classified information disclosed Rule 406. Habit; routine practice ...... III-19 to courts-martial...... III-29 Rule 407. Subsequent remedial measures ...... III-20 Rule 506. Government information other than classified information ...... III-29 Rule 408. Compromise and offer to compromise ...... III-20 (a) General rule of privilege...... III-29 (b) Scope...... III-29 Rule 409. Payment of medical and similar expenses ...... III-20 (c) Who may claim the privilege...... III-29 Rule 410. Inadmissibility of pleas, plea discussions, and related statements . . III-20 (d) Action prior to referral of charges...... III-29 (a) In general...... III-20 (e) Pretrial session...... III-30 (b) Definitions...... III-20 (f) Action after motion for disclosure of information...... III-30 Rule 411. Liability insurance ...... III-20 (g) Disclosure of government information to the accused...... III-30 (h) Prohibition against disclosure...... III-30 Rule 412. Sex offense cases; relevance of alleged victim’s sexual behavior or (i) In camera proceedings...... III-30 sexual predisposition ...... III-20 (j) Appeals of orders and rulings...... III-31 (a) Evidence generally inadmissible...... III-20 (k) Introduction of government information subject to a claim of privilege...... III-31 (b) Exceptions...... III-21 (l) Procedures to safeguard against compromise of government information disclosed to (c) Procedure to determine admissibility...... III-21 courts-martial...... III-32 Rule 413. Evidence of similar crimes in sexual assault cases ...... III-21 Rule 507. Identity of informant ...... III-32 Rule 414. Evidence of similar crimes in child molestation cases ...... III-22 (a) Rule of privilege...... III-32 (b) Who may claim the privilege...... III-32 SECTION V PRIVILEGES (c) Exceptions...... III-32 Rule 501. General rule ...... III-23 (d) Procedures...... III-32 Rule 502. Lawyer-client privilege ...... III-23 Rule 508. Political vote ...... III-33 (a) General rule of privilege...... III-23 xix xx

2011 NCIS Mini-Manual, Page 5 MCM 2008 MCM 2008

Page Page

Rule 509. Deliberations of courts and juries ...... III-33 Rule 612. Writing used to refresh memory ...... III-37 Rule 510. Waiver of privilege by voluntary disclosure ...... III-33 Rule 613. Prior statements of witnesses ...... III-38 Rule 511. Privileged matter disclosed under compulsion or without opportunity to (a) Examining witness concerning prior statement...... III-38 claim privilege ...... III-33 (b) Extrinsic evidence of prior inconsistent statement of witness...... III-38 Rule 512. Comment upon or inference from claim of privilege; instruction . . . . III-33 Rule 614. Calling and interrogation of witnesses by the court-martial ...... III-38 (a) Comment or inference not permitted...... III-33 (a) Calling by the court-martial...... III-38 (b) Claiming privilege without knowledge of members...... III-33 (b) Interrogation by the court-martial...... III-38 (c) Instruction...... III-33 (c) Objections...... III-38 Rule 513. Psychotherapist-patient privilege ...... III-33 Rule 615. Exclusion of witnesses ...... III-38 (a) General rule of privilege...... III-33 SECTION VII OPINIONS AND EXPERT TESTIMONY (b) Definitions...... III-34 (c) Who may claim the privilege...... III-34 Rule 701. Opinion testimony by lay witnesses ...... III-38 (d) Exceptions...... III-34 Rule 702. Testimony by experts ...... III-38 (e) Procedure to determine admissibility of patient records or communications...... III-34 Rule 703. Bases of opinion testimony by experts ...... III-39 SECTION VI WITNESSES Rule 704. Opinion on ultimate issue ...... III-39 Rule 601. General rule of competency ...... III-35 Rule 705. Disclosure of facts or data underlying expert opinion ...... III-39 Rule 602. Lack of personal knowledge ...... III-35 Rule 706. Court appointed experts ...... III-39 Rule 603. Oath or affirmation ...... III-35 (a) Appointment and compensation...... III-39 (b) Disclosure of employment...... III-39 Rule 604. Interpreters ...... III-35 (c) Accused’s experts of own selection...... III-39 Rule 605. Competency of military judge as witness ...... III-35 Rule 707. Polygraph Examinations ...... III-39 Rule 606. Competency of court member as witness ...... III-35 (a) At the court-martial...... III-35 SECTION VIII HEARSAY (b) Inquiry into validity of findings or sentence...... III-35 Rule 801. Definitions ...... III-39 Rule 607. Who may impeach ...... III-36 (a) Statement...... III-39 (b) Declarant...... III-39 Rule 608. Evidence of character, conduct, and bias of witness ...... III-36 (c) Hearsay...... III-39 (a) Opinion and reputation evidence of character...... III-36 (d) Statements which are not hearsay...... III-39 (b) Specific instances of conduct...... III-36 (c) Evidence of bias...... III-36 Rule 802. Hearsay rule ...... III-40 Rule 609. Impeachment by evidence of conviction of crime ...... III-36 Rule 803. Hearsay exceptions; availability of declarant immaterial ...... III-40 (a) General rule...... III-36 (1) Present sense impression...... III-40 (b) Time limit...... III-36 (2) Excited utterance...... III-40 (c) Effect of pardon, annulment, or certificate of rehabilitation...... III-36 (3) Then existing mental, emotional, or physical condition...... III-40 (d) Juvenile adjudications...... III-36 (4) Statements for purposes of medical diagnosis or treatment...... III-40 (e) Pendency of appeal...... III-36 (5) Recorded recollection...... III-40 (f) Definition...... III-37 (6) Records of regularly conducted activity...... III-40 (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). III-40 Rule 610. Religious beliefs or opinions ...... III-37 (8) Public records and reports...... III-41 Rule 611. Mode and order of interrogation and presentation ...... III-37 (9) Records of vital statistics...... III-41 (a) Control by the military judge...... III-37 (10) Absence of public record or entry...... III-41 (b) Scope of cross-examination...... III-37 (11) Records of religious organizations...... III-41 (c) Leading questions...... III-37 (12) Marriage, baptismal, and similar certificates...... III-41 (d) Remote live testimony of a child...... III-37 (13) Family records...... III-41 (14) Records of documents affecting an interest in property...... III-41 xxi xxii

MCM 2008 MCM 2008

Page Page

(15) Statements in documents affecting an interest in property...... III-41 Rule 1004. Admissibility of other evidence of contents ...... III-46 (16) Statements in ancient documents...... III-41 (1) Originals lost or destroyed...... III-46 (17) Market reports, commercial publications...... III-41 (2) Original not obtainable...... III-46 (18) Learned treatises...... III-41 (3) Original in possession of opponent...... III-46 (19) Reputation concerning personal or family history...... III-42 (4) Collateral matters...... III-46 (20) Reputation concerning boundaries or general history...... III-42 Rule 1005. Public records ...... III-46 (21) Reputation as to character...... III-42 (22) Judgment of previous conviction...... III-42 Rule 1006. Summaries ...... III-46 (23) Judgment as to personal, family or general history, or boundaries...... III-42 Rule 1007. Testimony or written admission of party ...... III-46 (24) Other exceptions...... III-42 Rule 1008. Functions of military judge and members ...... III-46 Rule 804. Hearsay exceptions; declarant unavailable ...... III-42 (a) Definitions of unavailability...... III-42 SECTION XI MISCELLANEOUS RULES (b) Hearsay exceptions...... III-42 Rule 1101. Applicability of rules ...... III-46 Rule 805. Hearsay within hearsay ...... III-43 (a) Rules applicable...... III-46 (b) Rules of privilege...... III-47 Rule 806. Attacking and supporting credibility of declarant ...... III-43 (c) Rules relaxed...... III-47 Rule 807. Residual exception...... III-43 (d) Rules inapplicable...... III-47

SECTION IX AUTHENTICATION AND IDENTIFICATION Rule 1102. Amendments...... III-47 Rule 901. Requirement of authentication or identification ...... III-43 Rule 1103. Title ...... III-47 (a) General provision...... III-43 PART IV PUNITIVE ARTICLES (STATUTORY TEXT OF EACH ARTICLE IS IN (b) Illustrations...... III-43 BOLD) Rule 902. Self-authentication ...... III-44 1. Article 77—Principals ...... IV-1 (1) Domestic public documents under seal...... III-44 a. Text of statute...... IV-1 (2) Domestic public documents not under seal...... III-44 b. Explanation...... IV-1 (3) Foreign public documents...... III-44 (4) Certified copies of public records...... III-44 2. Article 78—Accessory after the fact ...... IV-2 (4a) Documents or records of the United States accompanied by attesting certificates. . . . III-45 a. Text of statute...... IV-2 (5) Official publications...... III-45 b. Elements...... IV-2 (6) Newspapers and periodicals...... III-45 c. Explanation...... IV-2 (7) Trade inscriptions and the like...... III-45 d. Lesser included offense...... IV-3 (8) Acknowledged documents...... III-45 e. Maximum punishment...... IV-3 (9) Commercial paper and related documents...... III-45 f. Sample specification...... IV-3 (10) Presumptions under Acts of Congress and regulations...... III-45 3. Article 79—Conviction of lesser included offenses ...... IV-3 (11) Certified domestic records of regularly conducted activity...... III-45 a. Text of statute...... IV-3 Rule 903. Subscribing witness’ testimony unnecessary ...... III-45 b. Explanation...... IV-3 4. Article 80—Attempts ...... IV-4 SECTION X CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS a. Text of statute...... IV-4 Rule 1001. Definitions ...... III-45 b. Elements...... IV-4 (1) Writings and recordings...... III-45 c. Explanation...... IV-4 (2) Photographs...... III-45 d. Lesser included offenses...... IV-5 (3) Original...... III-45 e. Maximum punishment...... IV-5 (4) Duplicate...... III-45 f. Sample specification...... IV-5 Rule 1002. Requirement of an original ...... III-46 5. Article 81—Conspiracy ...... IV-5 Rule 1003. Admissibility of duplicates ...... III-46 a. Text of statute...... IV-5 b. Elements...... IV-5

xxiii xxiv

2011 NCIS Mini-Manual, Page 6 MCM 2008 MCM 2008

Page Page

c. Explanation...... IV-5 f. Sample specification...... IV-16 d. Lesser included offense...... IV-6 12. Article 88—Contempt toward officials ...... IV-16 e. Maximum punishment...... IV-6 a. Text of statute...... IV-16 f. Sample specification...... IV-6 b. Elements...... IV-17 6. Article 82—Solicitation ...... IV-7 c. Explanation...... IV-17 a. Text of statute...... IV-7 d. Lesser included offense...... IV-17 b. Elements...... IV-7 e. Maximum punishment...... IV-17 c. Explanation...... IV-7 f. Sample specification...... IV-17 d. Lesser included offense...... IV-7 13. Article 89—Disrespect toward a superior commissioned officer ...... IV-17 e. Maximum punishment...... IV-7 a. Text of statute...... IV-17 f. Sample specifications...... IV-7 b. Elements...... IV-17 7. Article 83—Fraudulent enlistment, appointment, or separation ...... IV-8 c. Explanation...... IV-17 a. Text of statute...... IV-8 d. Lesser included offenses...... IV-18 b. Elements...... IV-8 e. Maximum punishment...... IV-18 c. Explanation...... IV-8 f. Sample specification...... IV-18 d. Lesser included offense...... IV-9 14. Article 90—Assaulting or willfully disobeying superior commissioned officer IV-18 e. Maximum punishment...... IV-9 a. Text of statute...... IV-18 f. Sample specifications...... IV-9 b. Elements...... IV-18 8. Article 84—Effecting unlawful enlistment, appointment, or separation ...... IV-9 c. Explanation...... IV-19 a. Text of statute...... IV-9 d. Lesser included offenses...... IV-20 b. Elements...... IV-9 e. Maximum punishment...... IV-20 c. Explanation...... IV-9 f. Sample specifications...... IV-20 d. Lesser included offense...... IV-9 15. Article 91—Insubordinate conduct toward warrant officer, noncommissioned e. Maximum punishment...... IV-9 officer, or petty officer ...... IV-21 f. Sample specification...... IV-9 a. Text of statute...... IV-21 9. Article 85—Desertion ...... IV-9 b. Elements...... IV-21 a. Text of statute...... IV-9 c. Explanation...... IV-22 b. Elements...... IV-10 d. Lesser included offenses...... IV-22 c. Explanation...... IV-10 e. Maximum punishment...... IV-22 d. Lesser included offense...... IV-12 f. Sample specifications...... IV-23 e. Maximum punishment...... IV-12 16. Article 92—Failure to obey order or regulation ...... IV-23 f. Sample specifications...... IV-12 a. Text of statute...... IV-23 10. Article 86—Absence without leave ...... IV-12 b. Elements...... IV-23 a. Text of statute...... IV-12 c. Explanation...... IV-23 b. Elements...... IV-12 d. Lesser included offense...... IV-24 c. Explanation...... IV-13 e. Maximum punishment...... IV-24 d. Lesser included offense...... IV-15 f. Sample specifications...... IV-25 e. Maximum punishment...... IV-15 17. Article 93—Cruelty and maltreatment ...... IV-25 f. Sample specifications...... IV-15 a. Text of statute...... IV-25 11. Article 87—Missing movement ...... IV-15 b. Elements...... IV-25 a. Text of statute...... IV-15 c. Explanation...... IV-25 b. Elements...... IV-15 d. Lesser included offense...... IV-26 c. Explanation...... IV-15 e. Maximum punishment...... IV-26 d. Lesser included offenses...... IV-16 f. Sample specification...... IV-26 e. Maximum punishment...... IV-16 18. Article 94—Mutiny and sedition ...... IV-26

xxv xxvi

MCM 2008 MCM 2008

Page Page

a. Text of statute...... IV-26 e. Maximum punishment...... IV-37 b. Elements...... IV-26 f. Sample specifications...... IV-37 c. Explanation...... IV-26 25. Article 101—Improper use of countersign ...... IV-38 d. Lesser included offenses...... IV-27 a. Text of statute...... IV-38 e. Maximum punishment...... IV-27 b. Elements...... IV-38 f. Sample specifications...... IV-27 c. Explanation...... IV-38 19. Article 95—Resistance, flight, breach of arrest, and escape ...... IV-28 d. Lesser included offense...... IV-38 a. Text of statute...... IV-28 e. Maximum punishment...... IV-38 b. Elements...... IV-28 f. Sample specifications...... IV-38 c. Explanation...... IV-28 26. Article 102—Forcing a safeguard ...... IV-38 d. Lesser included offenses...... IV-30 a. Text of statute...... IV-38 e. Maximum punishment...... IV-30 b. Elements...... IV-39 f. Sample specifications...... IV-30 c. Explanation...... IV-39 20. Article 96—Releasing prisoner without proper authority ...... IV-31 d. Lesser included offense...... IV-39 a. Text of statute...... IV-31 e. Maximum punishment...... IV-39 b. Elements...... IV-31 f. Sample specification...... IV-39 c. Explanation...... IV-31 27. Article 103—Captured or abandoned property ...... IV-39 d. Lesser included offenses...... IV-31 a. Text of statute...... IV-39 e. Maximum punishment...... IV-31 b. Elements...... IV-39 f. Sample specifications...... IV-32 c. Explanation...... IV-40 21. Article 97—Unlawful detention ...... IV-32 d. Lesser included offense...... IV-40 a. Text of statute...... IV-32 e. Maximum punishment...... IV-40 b. Elements...... IV-32 f. Sample specifications...... IV-40 c. Explanation...... IV-32 28. Article 104—Aiding the enemy ...... IV-41 d. Lesser included offense...... IV-32 a. Text of statute...... IV-41 e. Maximum punishment...... IV-32 b. Elements...... IV-41 f. Sample specification...... IV-32 c. Explanation...... IV-41 22. Article 98—Noncompliance with procedural rules ...... IV-32 d. Lesser included offense...... IV-42 a. Text of statute...... IV-32 e. Maximum punishment...... IV-42 b. Elements...... IV-32 f. Sample specifications...... IV-42 c. Explanation...... IV-32 29. Article 105—Misconduct as a prisoner ...... IV-42 d. Lesser included offense...... IV-33 a. Text of statute...... IV-42 e. Maximum punishment...... IV-33 b. Elements...... IV-42 f. Sample specifications...... IV-33 c. Explanation...... IV-43 23. Article 99—Misbehavior before the enemy ...... IV-33 d. Lesser included offense...... IV-43 a. Text of statute...... IV-33 e. Maximum punishment...... IV-43 b. Elements...... IV-33 f. Sample specifications...... IV-43 c. Explanation...... IV-34 30. Article 106—Spies ...... IV-43 d. Lesser included offenses...... IV-35 a. Text of statute...... IV-43 e. Maximum punishment...... IV-36 b. Elements...... IV-44 f. Sample specifications...... IV-36 c. Explanation...... IV-44 24. Article 100—Subordinate compelling surrender ...... IV-36 d. Lesser included offenses...... IV-44 a. Text of statute...... IV-36 e. Mandatory punishment...... IV-44 b. Elements...... IV-37 f. Sample specification...... IV-44 c. Explanation...... IV-37 30a. Article 106a—Espionage ...... IV-44 d. Lesser included offense...... IV-37 xxvii xxviii

2011 NCIS Mini-Manual, Page 7 MCM 2008 MCM 2008

Page Page

a. Text of statute...... IV-44 c. Explanation...... IV-54 b. Elements...... IV-45 d. Lesser included offense...... IV-54 c. Explanation...... IV-45 e. Maximum punishment...... IV-54 d. Lesser included offense...... IV-46 f. Sample specification...... IV-54 e. Maximum punishment...... IV-46 37. Article 112a—Wrongful use, possession, etc., of controlled substances . . . IV-55 f. Sample specification...... IV-46 a. Text of statute...... IV-55 31. Article 107—False official statements ...... IV-46 b. Elements...... IV-55 a. Text of statute...... IV-46 c. Explanation...... IV-55 b. Elements...... IV-46 d. Lesser included offenses...... IV-56 c. Explanation...... IV-46 e. Maximum punishments...... IV-57 d. Lesser included offense...... IV-47 f. Sample specifications...... IV-57 e. Maximum punishment...... IV-47 38. Article 113—Misbehavior of sentinel or lookout ...... IV-58 f. Sample specification...... IV-47 a. Text of statute...... IV-58 32. Article 108—Military property of the United States—sale, loss, damage, b. Elements...... IV-58 destruction, or wrongful disposition ...... IV-47 c. Explanation...... IV-58 a. Text of statute...... IV-47 d. Lesser included offenses...... IV-58 b. Elements...... IV-47 e. Maximum punishment...... IV-59 c. Explanation...... IV-47 f. Sample specification...... IV-59 d. Lesser included offenses...... IV-48 39. Article 114—Dueling ...... IV-59 e. Maximum punishment...... IV-48 a. Text of statute...... IV-59 f. Sample specifications...... IV-49 b. Elements...... IV-59 33. Article 109—Property other than military property of the United States—waste, c. Explanation...... IV-59 spoilage, or destruction ...... IV-49 d. Lesser included offense...... IV-59 a. Text of statute...... IV-49 e. Maximum punishment...... IV-59 b. Elements...... IV-49 f. Sample specifications...... IV-59 c. Explanation...... IV-49 40. Article 115—Malingering ...... IV-60 d. Lesser included offense...... IV-50 a. Text of statute...... IV-60 e. Maximum punishment...... IV-50 b. Elements...... IV-60 f. Sample specification...... IV-50 c. Explanation...... IV-60 34. Article 110—Improper hazarding of vessel ...... IV-50 d. Lesser included offenses...... IV-60 a. Text of statute...... IV-50 e. Maximum punishment...... IV-60 b. Elements...... IV-50 f. Sample specification...... IV-60 c. Explanation...... IV-50 41. Article 116—Riot or breach of peace ...... IV-61 d. Lesser included offenses...... IV-51 a. Text of statute...... IV-61 e. Maximum punishment...... IV-51 b. Elements...... IV-61 f. Sample specifications...... IV-51 c. Explanation...... IV-61 35. Article 111–Drunken or reckless operation of vehicle, aircraft, or vessel . . IV-52 d. Lesser included offenses...... IV-61 a. Text of statute...... IV-52 e. Maximum punishment...... IV-61 b. Elements...... IV-52 f. Sample specifications...... IV-61 c. Explanation...... IV-52 42. Article 117—Provoking speeches or gestures ...... IV-62 d. Lesser included offense...... IV-53 a. Text of statute...... IV-62 e. Maximum punishment...... IV-53 b. Elements...... IV-62 f. Sample specification...... IV-54 c. Explanation...... IV-62 36. Article 112—Drunk on duty ...... IV-54 d. Lesser included offenses...... IV-62 a. Text of statute...... IV-54 e. Maximum punishment...... IV-62 b. Elements...... IV-54 xxix xxx

MCM 2008 MCM 2008

Page Page

f. Sample specification...... IV-62 a. Text of statute...... IV-89 43. Article 118—Murder ...... IV-62 b. Elements...... IV-89 a. Text of statute...... IV-62 c. Explanation...... IV-89 b. Elements...... IV-62 d. Lesser included offenses...... IV-90 c. Explanation...... IV-63 e. Maximum punishment...... IV-90 d. Lesser included offenses...... IV-64 f. Sample specifications...... IV-90 e. Maximum punishment...... IV-64 48. Article 123—Forgery ...... IV-90 f. Sample specification...... IV-64 a. Text of statute...... IV-90 44. Article 119—Manslaughter ...... IV-64 b. Elements...... IV-90 a. Text of statute...... IV-64 c. Explanation...... IV-90 b. Elements...... IV-64 d. Lesser included offense...... IV-91 c. Explanation...... IV-65 e. Maximum punishment...... IV-91 d. Lesser included offenses...... IV-65 f. Sample specifications...... IV-91 e. Maximum punishment...... IV-65 49. Article 123a—Making, drawing, or uttering check, draft, or order without f. Sample specifications...... IV-66 sufficient funds ...... IV-92 44a. Article 119a.--Death or injury of an unborn child ...... IV-66 a. Text of statute...... IV-92 a. Text of statute...... IV-66 b. Elements...... IV-92 b. Elements...... IV-66 c. Explanation...... IV-93 c. Explanation...... IV-67 d. Lesser included offenses...... IV-94 d. Lesser included offenses...... IV-67 e. Maximum punishment...... IV-94 e. Maximum punishment...... IV-68 f. Sample specifications...... IV-94 f. Sample specifications...... IV-68 50. Article 124—Maiming ...... IV-95 45. Article 120—Rape, sexual assault, and other sexual misconduct ...... IV-68 a. Text of statute...... IV-95 a. Text of statute...... IV-68 b. Elements...... IV-95 b. Elements...... IV-72 c. Explanation...... IV-95 c. Explanation...... IV-76 d. Lesser included offenses...... IV-95 d. Lesser included offenses...... IV-76 e. Maximum punishment...... IV-95 e. Additional lesser included offenses...... IV-77 f. Sample specification...... IV-95 f. Maximum punishment...... IV-78 51. Article 125—Sodomy ...... IV-96 g. Sample specifications...... IV-78 a. Text of statute...... IV-96 45a. Article 120a—Stalking ...... IV-84 b. Elements...... IV-96 a. Text of statute...... IV-84 c. Explanation...... IV-96 b. Elements...... IV-84 d. Lesser included offenses...... IV-96 c. Explanation...... IV-84 e. Maximum punishment...... IV-96 d. Lesser included offenses...... IV-84 f. Sample specification...... IV-96 e. Maximum punishment...... IV-84 52. Article 126—Arson ...... IV-96 f. Sample Specification...... IV-84 a. Text of statute...... IV-96 46. Article 121—Larceny and wrongful appropriation ...... IV-84 b. Elements...... IV-96 a. Text of statute...... IV-84 c. Explanation...... IV-97 b. Elements...... IV-85 d. Lesser included offenses...... IV-97 c. Explanation...... IV-85 e. Maximum punishment...... IV-97 d. Lesser included offenses...... IV-88 f. Sample specifications...... IV-97 e. Maximum punishment...... IV-88 53. Article 127—Extortion ...... IV-98 f. Sample specifications...... IV-89 a. Text of statute...... IV-98 47. Article 122—Robbery ...... IV-89 b. Elements...... IV-98 c. Explanation...... IV-98 xxxi xxxii

2011 NCIS Mini-Manual, Page 8 MCM 2008 MCM 2008

Page Page

d. Lesser included offenses...... IV-98 60. Article 134—General article ...... IV-111 e. Maximum punishment...... IV-98 a. Text of statute...... IV-111 f. Sample specification...... IV-98 b. Elements...... IV-112 54. Article 128—Assault ...... IV-98 c. Explanation...... IV-112 a. Text of statute...... IV-98 61. Article 134—(Abusing public animal) ...... IV-114 b. Elements...... IV-98 a. Text of statute...... IV-114 c. Explanation...... IV-99 b. Elements...... IV-114 d. Lesser included offenses...... IV-102 c. Explanation...... IV-114 e. Maximum punishment...... IV-102 d. Lesser included offenses...... IV-114 f. Sample specifications...... IV-103 e. Maximum punishment...... IV-114 55. Article 129—Burglary ...... IV-103 f. Sample specification...... IV-114 a. Text of statute...... IV-103 62. Article 134—(Adultery) ...... IV-114 b. Elements...... IV-103 a. Text of statute...... IV-114 c. Explanation...... IV-104 b. Elements...... IV-114 d. Lesser included offenses...... IV-104 c. Explanation...... IV-114 e. Maximum punishment...... IV-104 d. Lesser included offense...... IV-115 f. Sample specification...... IV-105 e. Maximum punishment...... IV-115 56. Article 130—Housebreaking ...... IV-105 f. Sample specification...... IV-115 a. Text of statute...... IV-105 63. Deleted – see Appendix 27...... IV-115 b. Elements...... IV-105 64. Article 134—(Assault—with intent to commit murder, voluntary manslaughter, c. Explanation...... IV-105 rape, robbery, sodomy, arson, burglary, or housebreaking) ...... IV-115 d. Lesser included offenses...... IV-105 a. Text of statute...... IV-115 e. Maximum punishment...... IV-105 b. Elements...... IV-115 f. Sample specification...... IV-105 c. Explanation...... IV-115 57. Article 131—Perjury ...... IV-105 d. Lesser included offenses...... IV-116 a. Text of statute...... IV-105 e. Maximum punishment...... IV-116 b. Elements...... IV-105 f. Sample specification...... IV-116 c. Explanation...... IV-106 65. Article 134—(Bigamy) ...... IV-116 d. Lesser included offense...... IV-107 a. Text of statute...... IV-116 e. Maximum punishment...... IV-107 b. Elements...... IV-116 f. Sample specifications...... IV-107 c. Explanation...... IV-116 58. Article 132—Frauds against the United States ...... IV-107 d. Lesser included offense...... IV-116 a. Text of statute...... IV-107 e. Maximum punishment...... IV-116 b. Elements...... IV-107 f. Sample specification...... IV-116 c. Explanation...... IV-108 66. Article 134—(Bribery and graft) ...... IV-116 d. Lesser included offense...... IV-109 a. Text of statute...... IV-116 e. Maximum punishment...... IV-109 b. Elements...... IV-116 f. Sample specifications...... IV-109 c. Explanation...... IV-117 59. Article 133—Conduct unbecoming an officer and gentleman ...... IV-111 d. Lesser included offenses...... IV-117 a. Text of statute...... IV-111 e. Maximum punishment...... IV-117 b. Elements...... IV-111 f. Sample specifications...... IV-117 c. Explanation...... IV-111 67. Article 134—(Burning with intent to defraud) ...... IV-117 d. Lesser included offense...... IV-111 a. Text of statute...... IV-117 e. Maximum punishment...... IV-111 b. Elements...... IV-117 f. Sample specifications...... IV-111 c. Explanation...... IV-118

xxxiii xxxiv

MCM 2008 MCM 2008

Page Page

d. Lesser included offense...... IV-118 f. Sample specification...... IV-122 e. Maximum punishment...... IV-118 73. Article 134—(Disorderly conduct, drunkenness) ...... IV-122 f. Sample specification...... IV-118 a. Text of statute...... IV-122 68. Article 134—(Check, worthless, making and uttering—by dishonorably failing b. Elements...... IV-122 to maintain funds) ...... IV-118 c. Explanation...... IV-122 a. Text of statute...... IV-118 d. Lesser included offense...... IV-122 b. Elements...... IV-118 e. Maximum punishment...... IV-122 c. Explanation...... IV-118 f. Sample specification...... IV-122 d. Lesser included offenses...... IV-118 74. Article 134—(Drinking liquor with prisoner) ...... IV-123 e. Maximum punishment...... IV-118 a. Text of statute...... IV-123 f. Sample specification...... IV-118 b. Elements...... IV-123 68a. Article 134—(Child endangerment) ...... IV-118 c. Explanation...... IV-123 a. Text of statute...... IV-118 d. Lesser included offense...... IV-123 b. Elements...... IV-118 e. Maximum punishment...... IV-123 c. Explanation...... IV-118 f. Sample specification...... IV-123 d. Lesser included offenses...... IV-119 75. Article 134—(Drunk prisoner) ...... IV-123 e. Maximum punishment...... IV-119 a. Text of statute...... IV-123 f. Sample specification...... IV-119 b. Elements...... IV-123 69. Article 134—(Cohabitation, wrongful) ...... IV-120 c. Explanation...... IV-123 a. Text of statute...... IV-120 d. Lesser included offenses...... IV-123 b. Elements...... IV-120 e. Maximum punishment...... IV-123 c. Explanation...... IV-120 f. Sample specification...... IV-123 d. Lesser included offense...... IV-120 76. Article 134—(Drunkenness—incapacitation for performance of duties through e. Maximum punishment...... IV-120 prior wrongful indulgence in intoxicating liquor or any drug) ...... IV-123 f. Sample specification...... IV-120 a. Text of statute...... IV-123 70. Article 134—(Correctional custody—offenses against) ...... IV-120 b. Elements...... IV-123 a. Text of statute...... IV-120 c. Explanation...... IV-123 b. Elements...... IV-120 d. Lesser included offense...... IV-123 c. Explanation...... IV-120 e. Maximum punishment...... IV-123 d. Lesser included offense...... IV-121 f. Sample specification...... IV-123 e. Maximum punishment...... IV-121 77. Article 134—(False or unauthorized pass offenses) ...... IV-124 f. Sample specifications...... IV-121 a. Text of statute...... IV-124 71. Article 134—(Debt, dishonorably failing to pay) ...... IV-121 b. Elements...... IV-124 a. Text of statute...... IV-121 c. Explanation...... IV-124 b. Elements...... IV-121 d. Lesser included offenses...... IV-124 c. Explanation...... IV-121 e. Maximum punishment...... IV-124 d. Lesser included offenses...... IV-121 f. Sample specifications...... IV-124 e. Maximum punishment...... IV-121 78. Article 134—(False pretenses, obtaining services under) ...... IV-125 f. Sample specification...... IV-121 a. Text of statute...... IV-125 72. Article 134—(Disloyal statements) ...... IV-121 b. Elements...... IV-125 a. Text of statute...... IV-121 c. Explanation...... IV-125 b. Elements...... IV-121 d. Lesser included offense...... IV-125 c. Explanation...... IV-122 e. Maximum punishment...... IV-125 d. Lesser included offense...... IV-122 f. Sample specification...... IV-125 e. Maximum punishment...... IV-122 79. Article 134—(False swearing) ...... IV-125

xxxv xxxvi

2011 NCIS Mini-Manual, Page 9 MCM 2008 MCM 2008

Page Page

a. Text of statute...... IV-125 d. Lesser included offenses...... IV-129 b. Elements...... IV-125 e. Maximum punishment...... IV-129 c. Explanation...... IV-125 f. Sample specification...... IV-129 d. Lesser included offense...... IV-126 86. Article 134—(Impersonating a commissioned, warrant, noncommissioned, or e. Maximum punishment...... IV-126 petty officer, or an agent or official) ...... IV-129 f. Sample specification...... IV-126 a. Text of statute...... IV-129 80. Article 134—(Firearm, discharging—through negligence) ...... IV-126 b. Elements...... IV-129 a. Text of statute...... IV-126 c. Explanation...... IV-129 b. Elements...... IV-126 d. Lesser included offense...... IV-129 c. Explanation...... IV-126 e. Maximum punishment...... IV-129 d. Lesser included offenses...... IV-126 f. Sample specification...... IV-129 e. Maximum punishment...... IV-126 87. Deleted – see Appendix 27...... IV-129 f. Sample specification...... IV-126 88. Deleted – see Appendix 27...... IV-129 81. Article 134—(Firearm, discharging—willfully, under such circumstances as to endanger human life) ...... IV-126 89. Article 134—(Indecent language) ...... IV-129 a. Text of statute...... IV-126 a. Text of statute...... IV-129 b. Elements...... IV-126 b. Elements...... IV-129 c. Explanation...... IV-126 c. Explanation...... IV-130 d. Lesser included offenses...... IV-126 d. Lesser included offenses...... IV-130 e. Maximum punishment...... IV-126 e. Maximum punishment...... IV-130 f. Sample specification...... IV-126 f. Sample specification...... IV-130 82. Article 134—(Fleeing scene of accident) ...... IV-127 90. Deleted – see Appendix 27...... IV-130 a. Text of statute...... IV-127 91. Article 134—(Jumping from vessel into the water) ...... IV-130 b. Elements...... IV-127 a. Text of statute...... IV-130 c. Explanation...... IV-127 b. Elements...... IV-130 d. Lesser included offense...... IV-127 c. Explanation...... IV-130 e. Maximum punishment...... IV-127 d. Lesser included offense...... IV-130 f. Sample specification...... IV-127 e. Maximum punishment...... IV-130 83. Article 134—(Fraternization) ...... IV-127 f. Sample specification...... IV-130 a. Text of statute...... IV-127 92. Article 134—(Kidnapping) ...... IV-130 b. Elements...... IV-127 a. Text of statute...... IV-130 c. Explanation...... IV-127 b. Elements...... IV-130 d. Lesser included offense...... IV-128 c. Explanation...... IV-130 e. Maximum punishment...... IV-128 d. Lesser included offense...... IV-131 f. Sample specification...... IV-128 e. Maximum punishment...... IV-131 84. Article 134—(Gambling with subordinate) ...... IV-128 f. Sample specification...... IV-131 a. Text of statute...... IV-128 93. Article 134—(Mail: taking, opening, secreting, destroying, or stealing) . . . . . IV-131 b. Elements...... IV-128 a. Text of statute...... IV-131 c. Explanation...... IV-128 b. Elements...... IV-131 d. Lesser included offense...... IV-128 c. Explanation...... IV-131 e. Maximum punishment...... IV-128 d. Lesser included offenses...... IV-131 f. Sample specification...... IV-128 e. Maximum punishment...... IV-131 85. Article 134—(Homicide, negligent) ...... IV-128 f. Sample specifications...... IV-131 a. Text of statute...... IV-128 94. Article 134—(Mails: depositing or causing to be deposited obscene matters in) b. Elements...... IV-128 IV-132 c. Explanation...... IV-128 a. Text of statute...... IV-132 xxxvii xxxviii

MCM 2008 MCM 2008

Page Page

b. Elements...... IV-132 f. Sample specification...... IV-136 c. Explanation...... IV-132 99. Article 134—(Public record: altering, concealing, removing, mutilating, d. Lesser included offense...... IV-132 obliterating, or destroying) ...... IV-136 e. Maximum punishment...... IV-132 a. Text of statute...... IV-136 f. Sample specification...... IV-132 b. Elements...... IV-136 95. Article 134—(Misprision of serious offense) ...... IV-132 c. Explanation...... IV-136 a. Text of statute...... IV-132 d. Lesser included offense...... IV-136 b. Elements...... IV-132 e. Maximum punishment...... IV-136 c. Explanation...... IV-132 f. Sample specification...... IV-136 d. Lesser included offense...... IV-133 100. Article 134—(Quarantine: medical, breaking) ...... IV-137 e. Maximum punishment...... IV-133 a. Text of statute...... IV-137 f. Sample specification...... IV-133 b. Elements...... IV-137 96. Article 134—(Obstructing justice) ...... IV-133 c. Explanation...... IV-137 a. Text of statute...... IV-133 d. Lesser included offenses...... IV-137 b. Elements...... IV-133 e. Maximum punishment...... IV-137 c. Explanation...... IV-133 f. Sample specification...... IV-137 d. Lesser included offenses...... IV-133 100a. Article 134—(Reckless endangerment) ...... IV-137 e. Maximum punishment...... IV-133 a. Text of statute...... IV-137 f. Sample specification...... IV-133 b. Elements...... IV-137 96a. Art 134 (Wrongful interference with an adverse administrative proceeding) IV-133 c. Explanation...... IV-137 a. Text of statute...... IV-133 d. Lesser included offenses...... IV-137 b. Elements...... IV-133 e. Maximum punishment...... IV-137 c. Explanation...... IV-134 f. Sample specification...... IV-137 d. Lesser included offenses...... IV-134 101. Article 134—(Requesting commission of an offense) ...... IV-138 e. Maximum punishment...... IV-134 f. Sample specification...... IV-134 102. Article 134—(Restriction, breaking) ...... IV-138 a. Text of statute...... IV-138 97. Article 134—(Pandering and prostitution) ...... IV-134 b. Elements...... IV-138 a. Text of statute...... IV-134 c. Explanation...... IV-138 b. Elements...... IV-134 d. Lesser included offenses...... IV-138 c. Explanation...... IV-135 e. Maximum punishment...... IV-138 d. Lesser included offense...... IV-135 f. Sample specification...... IV-138 e. Maximum punishment...... IV-135 f. Sample specifications...... IV-135 103. Article 134—(Seizure: destruction, removal, or disposal of property to prevent) ...... IV-138 97a. Article 134—(Parole, Violation of) ...... IV-135 a. Text of statute...... IV-138 a. Text of statute...... IV-135 b. Elements...... IV-138 b. Elements...... IV-135 c. Explanation...... IV-138 c. Explanation...... IV-135 d. Lesser included offense...... IV-138 d. Lesser included offense...... IV-136 e. Maximum punishment...... IV-138 e. Maximum punishment...... IV-136 f. Sample specification...... IV-138 f. Sample specifications...... IV-136 103a. Article 134—(Self-injury without intent to avoid service) ...... IV-138 98. Article 134—(Perjury: subornation of) ...... IV-136 a. Text of statute...... IV-138 a. Text of statute...... IV-136 b. Elements...... IV-138 b. Elements...... IV-136 c. Explanation...... IV-139 c. Explanation...... IV-136 d. Lesser included offense...... IV-139 d. Lesser included offense...... IV-136 e. Maximum punishment...... IV-139 e. Maximum punishment...... IV-136 xxxix xl

2011 NCIS Mini-Manual, Page 10 MCM 2008 MCM 2008

Page Page

f. Sample specification...... IV-139 a. Text of statute...... IV-143 104. Article 134—(Sentinel or lookout: offenses against or by) ...... IV-139 b. Elements...... IV-143 a. Text of statute...... IV-139 c. Explanation...... IV-143 b. Elements...... IV-139 d. Lesser included offenses...... IV-143 c. Explanation...... IV-139 e. Maximum punishment...... IV-143 d. Lesser included offenses...... IV-140 f. Sample specification...... IV-143 e. Maximum punishment...... IV-140 111. Article 134—(Unlawful entry) ...... IV-144 f. Sample specifications...... IV-140 a. Text of statute...... IV-144 105. Article 134—(Soliciting another to commit an offense) ...... IV-140 b. Elements...... IV-144 a. Text of statute...... IV-140 c. Explanation...... IV-144 b. Elements...... IV-140 d. Lesser included offense...... IV-144 c. Explanation...... IV-140 e. Maximum punishment...... IV-144 d. Lesser included offenses...... IV-140 f. Sample specification...... IV-144 e. Maximum punishment...... IV-140 112. Article 134—(Weapon: concealed, carrying) ...... IV-144 f. Sample specification...... IV-140 a. Text of statute...... IV-144 106. Article 134—(Stolen property: knowingly receiving, buying, concealing) . . IV-140 b. Elements...... IV-144 a. Text of statute...... IV-140 c. Explanation...... IV-144 b. Elements...... IV-141 d. Lesser included offense...... IV-144 c. Explanation...... IV-141 e. Maximum punishment...... IV-144 d. Lesser included offense...... IV-141 f. Sample specification...... IV-144 e. Maximum punishment...... IV-141 113. Article 134—(Wearing unauthorized insignia, decoration, badge, ribbon, f. Sample specification...... IV-141 device, or lapel button) ...... IV-144 107. Article 134—(Straggling) ...... IV-141 a. Text of statute...... IV-144 a. Text of statute...... IV-141 b. Elements...... IV-144 b. Elements...... IV-141 c. Explanation...... IV-145 c. Explanation...... IV-141 d. Lesser included offense...... IV-145 d. Lesser included offense...... IV-141 e. Maximum punishment...... IV-145 e. Maximum punishment...... IV-141 f. Sample specification...... IV-145 f. Sample specification...... IV-141 PART V NONJUDICIAL PUNISHMENT PROCEDURE 108. Article 134—(Testify: wrongful refusal) ...... IV-141 1. General ...... V-1 a. Text of statute...... IV-141 a. Authority...... V-1 b. Elements...... IV-141 b. Nature...... V-1 c. Explanation...... IV-141 c. Purpose...... V-1 d. Lesser included offenses...... IV-142 d. Policy...... V-1 e. Maximum punishment...... IV-142 e. Minor offenses...... V-1 f. Sample specification...... IV-142 f. Limitations on nonjudicial punishment...... V-1 109. Article 134—(Threat or hoax designed or intended to cause panic or public g. Relationship of nonjudicial punishment to administrative corrective measures...... V-2 fear) ...... IV-142 h. Applicable standards...... V-2 a. Text of statute...... IV-142 i. Effect of errors...... V-2 b. Elements...... IV-142 2. Who may impose nonjudicial punishment ...... V-2 c. Explanation...... IV-142 a. Commander...... V-2 d. Lesser included offenses...... IV-143 b. Officer in charge...... V-2 e. Maximum punishment...... IV-143 c. Principal assistant...... V-2 f. Sample specifications...... IV-143 3. Right to demand trial ...... V-2 110. Article 134—(Threat, communicating) ...... IV-143 4. Procedure ...... V-2 xli xlii

MCM 2008 MCM 2008

Page

a. Notice...... V-2 b. Decision by servicemember...... V-3 12. Maximum Punishment Chart c. Nonjudicial punishment accepted...... V-3 d. Nonjudicial punishment based on record of court of inquiry or other investigative body. V-4 13. Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When 5. Punishments ...... V-4 a Verbatim Record is Not Required a. General limitations...... V-4 14. Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When b. Authorized maximum punishments...... V-4 a Verbatim Record is Required c. Nature of punishment...... V-5 d. Limitations on combination of punishments...... V-6 15. Record of Trial by Summary Court-Martial (DD Form 2329) e. Punishments imposed on reserve component personnel while on inactive-duty training. V-6 16. Forms for Action f. Punishments imposed on reserve component personnel when ordered to active duty for disciplinary purposes...... V-7 17. Forms for Court-Martial Orders g. Effective date and execution of punishments...... V-7 18. Report of Proceedings to Vacate Suspension of a General Court-Martial or of a Special Court-Martial 6. Suspension, mitigation, remission, and setting aside ...... V-7 Sentence Including a Bad-Conduct Discharge or Confinement for One Year Under Article 72, a. Suspension...... V-7 UCMJ, and R.C.M. 1109 (DD Form 455) b. Mitigation...... V-7 c. Remission...... V-8 19. Waiver/Withdrawal of Appellate Rights in General and Special Courts-Martial Subject to Review by a d. Setting aside...... V-8 Court of Military Review (DD Form 2330) 7. Appeals ...... V-8 20. Waiver/Withdrawal of Appellate Rights in General Courts-Martial Subject to Examination in the Office a. In general...... V-8 of the Judge Advocate General (DD Form 2331) b. Who may act on appeal...... V-8 c. Format of appeal...... V-8 21. Analysis of Rules for Courts-Martial d. Time limit...... V-8 22. Analysis of the Military Rules of Evidence e. Legal review...... V-8 f. Action by superior authority...... V-9 23. Analysis of Punitive Articles 8. Records of nonjudicial punishment ...... V-9 24. Analysis of Nonjudicial Punishment Procedure Appendices 25. Historical Executive Orders 1. Constitution of the United States—1787 26. The Joint Service Committee on Military Justice (JSC) 2. Uniform Code of Military Justice 27. Punitive Articles Applicable to Sexual Assault Offenses Committed Prior to 1 October 2007 3. DoD Directive 5525.7 3.1 Memorandum of Understanding Between the Departments of Justice and Transportation (Coast Guard) Relating to the Investigations and Prosecution of Crimes Over Which the Two Departments Have Concurrent Jurisdiction 4. Charge Sheet (DD FORM 458) 5. Investigating Officer Report (DD FORM 457) 6. Forms for Orders Convening Courts-Martial 7. Subpoena (DD FORM 453) 8. Guide for General and Special Courts-Martial 9. Guide for Summary Courts-Martial 10. Forms of Findings

11. Forms of Sentences xliii xliv

2011 NCIS Mini-Manual, Page 11 R.C.M. 103(20)

“no person may . . .” mean that no person is required, authorized, the Marine Corps, or the Coast Guard designated as such by or permitted to do the act prescribed. appropriate authority. (30) “Includes” means “includes but is not limited to.” (5) “Superior commissioned officer” means a commis- (31) “Inactive-duty training” means— sioned officer superior in rank or command. (A) duty prescribed for Reserves by the Secretary (6) “Cadet” means a cadet of the United States Military concerned under section 206 of title 37 or any other provision of Academy, the United States Air Force Academy, or the United law; and States Coast Guard Academy. ( B ) s p e c i a l a d d i t i o n a l d u t i e s a u t h o r i z e d f o r R e - (7) “Midshipman” means a midshipman of the United serves by an authority designated by the Secretary concerned and States Naval Academy and any other midshipman on active duty performed by them on a voluntary basis in connection with the in the naval service. prescribed training or maintenance activities of the units to which (8) “Military” refers to any or all of the armed forces. they are assigned. (9) “Accuser” means a person who signs and swears to It includes those duties when performed by Reserves in their charges, any person who directs that charges nominally be signed status as members of the National Guard. and sworn to by another, and any other person who has an (32) “Spouse” means husband or wife, as the case may interest other than an official interest in the prosecution of the be. accused. (33) “Regular”, with respect to an enlistment, appoint- (10) “Military judge” means an official of a general or ment, grade, or office, means enlistment, appointment, grade, or special court-martial detailed in accordance with section 826 of office in a regular component of an armed force. this title (article 26). [See also R.C.M. 103(15).] (34) “Reserve”, with respect to an enlistment, appoint- (11) “Law specialist” means a commissioned officer of the Coast Guard designated for special duty (law). ment, grade, or office, means enlistment, appointment, grade, or (12) “Legal officer” means any commissioned officer of office held as a Reserve of an armed force. the Navy, Marine Corps, or Coast Guard designated to perform (35) “Original”, with respect to the appointment of a legal duties for a command. member of the armed forces in a regular or reserve component, (13) “Judge Advocate” means— refers to his most recent appointment in the component that is (A) an officer of the Judge Advocate General’s neither a promotion nor a demotion. Corps of the Army or Navy; (36) Repealed. (B) an officer of the Air Force or the Marine Corps (37) “Active-duty list” means a single list for the Army, who is designated as a judge advocate; or Navy, Air Force or Marine Corps (required to be maintained (C) an officer of the Coast Guard who is desig- under section 620 of this title) which contains the names of all nated as a law specialist. officers of that armed force, other than officers described in (14) “Classified information” (A) means any informa- section 641 of this title, who are serving on active duty. tion or material that has been determined by an official of the (38) “Medical officer” means an officer of the Medical United States pursuant to law, an Executive Order, or regulation Corps of the Army, an officer of the Medical Corps of the Navy, to require protection against unauthorized disclosure for reasons or an officer in the Air Force designated as a medical officer. of national security, and (B) any restricted data, as defined in (39) “Dental officer” means an officer of the Dental section 2014(y) of title 42, United States Code. Corps of the Army, an officer of the Dental Corps of the Navy, or (15) “National security” means the national defense and an officer of the Air Force designated as a dental officer. foreign relations of the United States. (40) “General officer” means an officer of the Army, Air Force, or Marine Corps serving in or having the grade of general, lieutenant general, major general, or brigadier general. (41) “Flag officer” means an officer of the Navy or Rule 104. Unlawful command influence Coast Guard serving in or having the grade of admiral, vice (a) General prohibitions. admiral, rear admiral, or commodore. (1) Convening authorities and commanders. No 10 U.S.C. § 801. Article 1. Definitions In this chapter: ( 1 ) “ J u d g e A d v o c a t e G e n e r a l ” m e a n s , s e v e r a l l y , t h e c o n v e n i n g a u t h o r i t y o r c o m m a n d e r m a y c e n s u r e , Judge Advocates General of the Army, Navy, and Air Force and, reprimand, or admonish a court-martial or other mil- except when the Coast Guard is operating as a service in the i t a r y t r i b u n a l o r a n y m e m b e r , m i l i t a r y j u d g e , o r Navy, an official designated to serve as Judge Advocate General counsel thereof, with respect to the findings or sen- o f t h e C o a s t G u a r d b y t h e S e c r e t a r y o f H o m e l a n d S e c u r i t y . tence adjudged by the court-martial or tribunal, or [NOTE: The Secretary of Homeland Security has designated the with respect to any other exercise of the functions of Chief Counsel, U.S. Coast Guard, to serve as the Judge Advocate General of the Coast Guard.]. the court-martial or tribunal or such persons in the (2) The Navy, the Marine Corps, and the Coast Guard conduct of the proceedings. when it is operating as a service in the Navy, shall be considered (2) All persons subject to the code. No person as one armed force. subject to the code may attempt to coerce or, by any (3) “Commanding officer” includes only commissioned officers. unauthorized means, influence the action of a court- (4) “Officer in charge” means a member of the Navy, martial or any other military tribunal or any member II-4

2011 NCIS Mini-Manual, Page 12 R.C.M. 106 thereof, in reaching the findings or sentence in any judge detailed to a general court-martial, which re- case or the action of any convening, approving, or lates to the performance of duty as a military judge. reviewing authority with respect to such authority’s (B) Special courts-martial. The convening au- judicial acts. thority may not prepare or review any report con- (3) Exceptions. cerning the effectiveness, fitness, or efficiency of a (A) Instructions. Subsections (a)(1) and (2) of m i l i t a r y j u d g e d e t a i l e d t o a s p e c i a l c o u r t - m a r t i a l the rule do not prohibit general instructional or in- which relates to the performance of duty as a mili- f o r m a t i o n a l c o u r s e s i n m i l i t a r y j u s t i c e i f s u c h t a r y j u d g e . W h e n t h e m i l i t a r y j u d g e i s n o r m a l l y courses are designed solely for the purpose of in- rated or the military judge’s report is reviewed by structing personnel of a command in the substantive the convening authority, the manner in which such and procedural aspects of courts-martial. military judge will be rated or evaluated upon the ( B ) C o u r t - m a r t i a l s t a t e m e n t s . S u b s e c t i o n s performance of duty as a military judge may be as (a)(1) and (2) of this rule do not prohibit statements prescribed in regulations of the Secretary concerned and instructions given in open session by the mili- which shall ensure the absence of any command tary judge or counsel. influence in the rating or evaluation of the military judge’s judicial performance. ( C ) P r o f e s s i o n a l s u p e r v i s i o n . S u b s e c t i o n s (a)(1) and (2) of this rule do not prohibit action by Discussion t h e J u d g e A d v o c a t e G e n e r a l c o n c e r n e d u n d e r See paragraph 22 of Part IV concerning prosecuting violations of R.C.M. 109. Article 37 under Article 98. (D) Offense. Subsection (a)(1) and (2) of this rule do not prohibit appropriate action against a per- son for an offense committed while detailed as a Rule 105. Direct communications: military judge, counsel, or member of a court-mar- convening authorities and staff judge tial, or while serving as individual counsel. advocates; among staff judge advocates (b) Prohibitions concerning evaluations. (a) Convening authorities and staff judge advocates. (1) Evaluation of member or defense counsel. In Convening authorities shall at all times communicate the preparation of an effectiveness, fitness, or effi- directly with their staff judge advocates in matters ciency report or any other report or document used relating to the administration of military justice. in whole or in part for the purpose of determining (b) Among staff judge advocates and with the Judge whether a member of the armed forces is qualified Advocate General. The staff judge advocate of any to be advanced in grade, or in determining the as- command is entitled to communicate directly with s i g n m e n t o r t r a n s f e r o f a m e m b e r o f t h e a r m e d the staff judge advocate of a superior or subordinate forces, or in determining whether a member of the command, or with the Judge Advocate General. armed forces should be retained on active duty, no person subject to the code may: Discussion (A) Consider or evaluate the performance of See R.C.M. 103(17) for a definition of staff judge advocate. duty of any such person as a member of a court- martial; or (B) Give a less favorable rating or evaluation Rule 106. Delivery of military offenders to of any defense counsel because of the zeal with civilian authorities which such counsel represented any accused. Under such regulations as the Secretary concerned (2) Evaluation of military judge. may prescribe, a member of the armed forces ac- (A) General courts-martial. Unless the general cused of an offense against civilian authority may be court-martial was convened by the President or the delivered, upon request, to the civilian authority for Secretary concerned, neither the convening authority trial. A member may be placed in restraint by mili- nor any member of the convening authority’s staff tary authorities for this purpose only upon receipt of may prepare or review any report concerning the a duly issued warrant for the apprehension of the effectiveness, fitness, or efficiency of the military member or upon receipt of information establishing II-5

2011 NCIS Mini-Manual, Page 13 R.C.M. 202(a) with respect to offenders or offenses that by statute result under Article 2(c). See discussion of “constructive enlist- or by the law of war may be tried by military com- ment” below. Similarly, if the enlistment was involuntary, court- missions, provost courts, or other military tribunals. martial jurisdiction will exist only when the coercion is removed and a “constructive enlistment” under Article 2(c) is established. Discussion Persons age 17 (but not yet 18) may not enlist without parental consent. A parent or guardian may, within 90 days of its S e e A r t i c l e s 1 0 4 a n d 1 0 6 f o r s o m e i n s t a n c e s o f c o n c u r r e n t inception, terminate the enlistment of a 17-year-old who enlisted jurisdiction. without parental consent, if the person has not yet reached the age of 18. 10 U.S.C. § 1170. See also DOD Directive 1332.14 and service regulations for specific rules on separation of persons 17 years of age on the basis of a parental request. Absent effective Rule 202. Persons subject to the jurisdiction action by a parent or guardian to terminate such an enlistment, of courts-martial court-martial jurisdiction exists over the person. An application by a parent for release does not deprive a court-martial of juris- (a) In general. Courts-martial may try any person diction to try a person for offenses committed before action is when authorized to do so under the code. completed on such an application. Even if a person lacked capacity to understand the effect of Discussion enlistment or did not enlist voluntarily, a “constructive enlist- ment” may be established under Article 2(c), which provides: (1) Authority under the code. Article 2 lists classes of per- Notwithstanding any other provision of law, a person sons who are subject to the code. These include active duty serving with an armed force who— personnel (Article 2(a)(1)); cadets, aviation cadets, and midship- (1) submitted voluntary to military authority; men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) (2) met the mental competency and minimum age quali- and (5)); members of Reserve components not on active duty fications of sections 504 and 505 of this title at the time of under some circumstances (Article 2(a)(3) and (6)); persons in the voluntary submission to military authority [that is, not insane, custody of the armed forces serving a sentence imposed by court- intoxicated, or under the age of 17] martial (Article 2(a)(7)); and, under some circumstances, speci- (3) received military pay or allowances; and fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (4) performed military duties; (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or is subject to [the code] until such person’s active service has been as persons otherwise subject to the code apparently has ended terminated in accordance with law or regulations promulgated by may, nevertheless, be amendable to trial by court-martial. See the Secretary concerned. Article 3, 4, and 73. A person need not be subject to the code to Even if a person never underwent an enlistment or induction be subject to trial by court-martial under Articles 83, 104, or 106. proceeding of any kind, court-martial jurisdiction could be estab- See also Article 48 and R.C.M. 809 concerning who may be lished under this provision. subject to the contempt powers of a court-martial. (ii) Induction. Court-martial jurisdiction does not (2) Active duty personnel. Court-martial jurisdiction is most extend to a draftee until: the draftee has completed an induction commonly exercised over active duty personnel. In general, a ceremony which was in substantial compliance with the require- person becomes subject to court-martial jurisdiction upon enlist- ments prescribed by statute and regulations; the draftee by con- ment in or induction into the armed forces, acceptance of a d u c t a f t e r a n a p p a r e n t i n d u c t i o n , h a s w a i v e d o b j e c t i o n t o commission, or entry onto active duty pursuant to orders. Court- substantive defects in it; or a “constructive enlistment” under martial jurisdiction over active duty personnel ordinarily ends on Article 2(c) exists. delivery of a discharge certificate or its equivalent to the person The fact that a person was improperly inducted (for example, concerned issued pursuant to competent orders. Orders transfer- because of incorrect classification or erroneous denial of exemp- ring a person to the inactive reserve are the equivalent of a tion) does not of itself negate court-martial jurisdiction. When a discharge certificate for purposes of jurisdiction. person has made timely and persistent efforts to correct such an These are several important qualifications and exceptions to error, court-martial jurisdiction may be defeated if improper in- these general guidelines. duction is found, depending on all the circumstances of the case. (A) Inception of court-martial jurisdiction over active (iii) Call to active duty. A member of a reserve duty personnel. component may be called or ordered to active duty for a variety (i) Enlistment. “The voluntary enlistment of any of reasons, including training, service in time of war or national person who has the capacity to understand the significance of emergency, discipline, or as a result of failure to participate satis- enlisting in the armed forces shall be valid for purposes of juris- factorily in unit activities. diction under [Article 2(a)] and a change of status from civilian to When a person is ordered to active duty for failure to satis- member of the armed forces shall be effective upon taking the factorily participate in unit activities, the order must substantially oath of enlistment.” Article 2(b). A person who is, at the time of comply with procedures prescribed by regulations, to the extent enlistment, insane, intoxicated, or under the age of 17 does not due process requires, for court-martial jurisdiction to exist. Gener- have the capacity to enlist by law. No court-martial jurisdiction ally, the person must be given notice of the activation and the over such a person may exist as long as the incapacity continues. reasons therefor, and an opportunity to object to the activation. A If the incapacity ceases to exist, a “constructive enlistment” may person waives the right to contest involuntary activation by fail- II-13

2011 NCIS Mini-Manual, Page 14 R.C.M. 202(a) ure to exercise this right within a reasonable time after notice of end of the accused’s term of enlistment for the purpose of reenlis- the right to do so. ting; (B) Termination of jurisdiction over active duty person- (2) The person remains, at the time of the nel. As indicated above, the delivery of a valid discharge certifi- court-martial, subject to the code; and cate or its equivalent ordinarily serves to terminate court-martial (3) The reenlistment occurred after 26 jurisdiction. July 1982. (i) Effect of completion of term of service. Comple- (c) Persons in the custody of the armed forces tion of an enlistment or term of service does not by itself termi- serving a sentence imposed by a court-martial remain subject to nate court-martial jurisdiction. An original term of enlistment may the code and court-martial jurisdiction. A prisoner who has re- be adjusted for a variety of reasons, such as making up time lost ceived a discharge and who remains in the custody of an armed for unauthorized absence. Even after such adjustments are consid- force may be tried for an offense committed while a member of ered, court-martial jurisdiction normally continues past the time the armed forces and before the execution of the discharge as of scheduled separation until a discharge certificate or its equiva- well as for offenses committed after it. lent is delivered or until the Government fails to act within a ( d ) A p e r s o n d i s c h a r g e d f r o m t h e a r m e d reasonable time after the person objects to continued retention. forces who is later charged with having fraudulently obtained that As indicated in subsection (c) of this rule, servicemembers discharge is, subject to the statute of limitations, subject to trial may be retained past their scheduled time of separation, over by court-martial on that charge, and is after apprehension subject protest, by action with a view to trial while they are still subject to the code while in the custody of the armed forces for trial. to the code. Thus, if action with a view to trial is initiated before Upon conviction of that charge such a person is subject to trial by discharge or the effective terminal date of self-executing orders, a court-martial for any offenses under the code committed before person may be retained beyond the date that the period of service the fraudulent discharge. would otherwise have expired or the terminal date of such orders. ( e ) N o p e r s o n w h o h a s d e s e r t e d f r o m t h e (ii) Effect of discharge and reenlistment. For of- armed forces is relieved from court-martial jurisdiction by a sepa- fenses occurring on or after 23 October 1992, under the 1992 ration from any later period of service. Amendment to Article 3(a), a person who reenlists following a (f) When a person’s discharge or other separa- discharge may be tried for offenses committed during the earlier tion does not interrupt the status as a person belonging to the term of service. For offenses occurring prior to 23 October 1992, general category of persons subject to the code, court-martial a person who reenlists following a discharge may be tried for jurisdiction over that person does not end. For example, when an offenses committed during the earlier term of service only if the officer holding a commission in a Reserve component of an offense was punishable by confinement for five (5) years or more armed force is discharged from that commission while on active and could not be tried in the courts of the United States or of a duty because of acceptance of a commission in a Regular compo- State, a Territory, or the District of Columbia. However, see nent of that armed force, without an interval between the periods (iii)(a) below. of service under the two commissions, that officer’s military sta- (iii) Exceptions. There are several exceptions to the tus does not end. There is merely a change in personnel status general principle that court-martial jurisdiction terminates on dis- from temporary to permanent officer, and court-martial jurisdic- charge or its equivalent. tion over an offense committed before the discharge is not af- (a) A person who was subject to the code at fected. the time an offense was committed may be tried by court-martial (3) Public Health Service and National Oceanic and for that offense despite a later discharge or other termination of Atmospheric Administration. Members of the Public Health Serv- that status if: ice and the National Oceanic and Atmospheric Administration (1) For offenses occurring on or after 23 become subject to the code when assigned to and serving with the October 1992, the person is, at the time of the court-martial, armed forces.  subject to the code, by reentry into the armed forces or otherwise. (4) Limitations on jurisdiction over civilians. Court- See Article 3(a) as amended by the National Defense Authoriza- martial jurisdiction over civilians under the code is limited by tion Act for Fiscal Year 1993, Pub.L. No. 102-484, 106 Stat. j u d i c i a l d e c i s i o n s . T h e e x e r c i s e o f j u r i s d i c t i o n u n d e r A r t i c l e 2315, 2505 (1992); 2 ( a ) ( 1 1 ) i n p e a c e t i m e h a s b e e n h e l d u n c o n s t i t u t i o n a l b y t h e (2) For offenses occurring before 23 Oc- Supreme Court of the United States. Article 2(a)(10) has also tober 1992, been limited. Before initiating court-martial proceedings against a (A) The offense is one for which a civilian, relevant statutes and decisions should be carefully exam- court-martial may adjudge confinement for five (5) or more years; ined. (B) The person cannot be tried in (5) Members of a Reserve Component. Members of a the courts of the United States or of a State, Territory, or the reserve component in federal service on active duty, as well as District of Columbia; and those in federal service on inactive-duty training, are subject to (C) The person is, at the time of the the code. Moreover, members of a reserve component are amena- court-martial, subject to the code, by reentry into the armed forces ble to the jurisdiction of courts-martial notwithstanding the termi- or otherwise. See Article 3(a) prior to the 1992 amendment. nation of a period of such duty. See R.C.M. 204. (b) A person who was subject to the code at the time the offense was committed is subject to trial by court- martial despite a later discharge if— (b) Offenses under the law of war. Nothing in this (1) The discharge was issued before the rule limits the power of general courts-martial to try II-14

2011 NCIS Mini-Manual, Page 15 3DJH,,

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 D 3DUDJUDSK  RIWKH'LVFXVVLRQLPPHGLDWHO\DIWHU5&0 D LVDPHQGHGWRUHDGDVIROORZV

 /LPLWDWLRQVRQMXULVGLFWLRQRYHUFLYLOLDQV&RXUW0DUWLDOMXULVGLFWLRQRYHUFLYLOLDQVXQGHUWKHFRGHLVOLPLWHGE\WKH&RQVWLWXWLRQDQGRWKHUDSSOLFDEOHODZVLQFOXGLQJDVFRQVWUXHGLQMXGLFLDOGHFLVLRQV7KHH[HUFLVH RIMXULVGLFWLRQXQGHU$UWLFOH D  LQSHDFHWLPHKDVEHHQKHOGXQFRQVWLWXWLRQDOE\WKH6XSUHPH&RXUWRIWKH8QLWHG6WDWHV%HIRUHLQLWLDWLQJFRXUWPDUWLDOSURFHHGLQJVDJDLQVWDFLYLOLDQUHOHYDQWVWDWXWHVGHFLVLRQV VHUYLFHUHJXODWLRQVDQGSROLF\PHPRUDQGXPVKRXOGEHFDUHIXOO\H[DPLQHG  Executive Order: 2010 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 16 R.C.M. 204(b)(1) p e r s o n s u n d e r t h e l a w o f w a r . S e e R . C . M . (b) Pleading and proof. Normally, the inclusion of the ac- 201(f)(1)(B). cused’s rank or grade will be sufficient to plead the service status of the accused. Ordinarily, no allegation of the accused’s armed (c) Attachment of jurisdiction over the person. force or unit is necessary for military members on active duty. (1) In general. Court-martial jurisdiction attaches See R.C.M. 307 regarding required specificity of pleadings. over a person when action with a view to trial of that person is taken. Once court-martial jurisdiction over a person attaches, such jurisdiction shall con- Rule 204. Jurisdiction over certain reserve tinue for all purposes of trial, sentence, and punish- component personnel ment, notwithstanding the expiration of that person’s ( a ) S e r v i c e r e g u l a t i o n s . T h e S e c r e t a r y c o n c e r n e d term of service or other period in which that person shall prescribe regulations setting forth rules and was subject to the code or trial by court-martial. procedures for the exercise of court-martial jurisdic- When jurisdiction attaches over a servicemember on tion and nonjudicial punishment authority over re- active duty, the servicemember may be held on ac- serve component personnel under Article 2(a)(3) and tive duty over objection pending disposition of any 2(d), subject to the limitations of this Manual and offense for which held and shall remain subject to the UCMJ. the code during the entire period. Discussion Discussion Such regulations should describe procedures for ordering a re- Court-martial jurisdiction exists to try a person as long as that servist to active duty for disciplinary action, for the preferral, person occupies a status as a person subject to the code. See also investigation, forwarding, and referral of charges, designation of Article 104 and 106. Thus, a servicemember is subject to court- c o n v e n i n g a u t h o r i t i e s a n d c o m m a n d e r s a u t h o r i z e d t o c o n d u c t martial jurisdiction until lawfully discharged or, when the ser- nonjudicial punishment proceedings, and for other appropriate vicemember’s term of service has expired, the government fails to purposes. act within a reasonable time on objection by the servicemember See definitions in R.C.M. 103 (Discussion). See paragraph 5e to continued retention. and f, Part V, concerning limitations on nonjudicial punishments Court-martial jurisdiction attaches over a person upon action imposed on reservists while on inactive-duty training. with a view to trial. Once court-martial jurisdiction attaches, it Members of the Army National Guard and the Air National continues throughout the trial and appellate process, and for pur- Guard are subject to Federal court-martial jurisdiction only when poses of punishment. the offense concerned is committed while the member is in Fed- If jurisdiction has attached before the effective terminal date eral service. of self-executing orders, the person may be held for trial by court- martial beyond the effective terminal date. (b) Courts-Martial (1) General and special court-martial proceed- (2) Procedure. Actions by which court-martial ju- ings. A member of a reserve component must be on risdiction attaches include: apprehension; imposition active duty prior to arraignment at a general or spe- of restraint, such as restriction, arrest, or confine- cial court-martial. A member ordered to active duty ment; and preferral of charges. pursuant to Article 2(d) may be retained on active duty to serve any adjudged confinement or other Rule 203. Jurisdiction over the offense restriction on liberty if the order to active duty was T o t h e e x t e n t p e r m i t t e d b y t h e C o n s t i t u t i o n , a p p r o v e d i n a c c o r d a n c e w i t h A r t i c l e 2 ( d ) ( 5 ) , b u t courts-martial may try any offense under the code such member may not be retained on active duty and, in the case of general courts-martial, the law of pursuant to Article 2(d) after service of the confine- war. ment or other restriction on liberty. All punishments remaining unserved at the time the member is re- Discussion leased from active duty may be carried over to sub- (a) In general. Courts-martial have power to try any offense sequent periods of inactive-duty training or active under the code except when prohibited from so doing by the duty. Constitution. The rule enunciated in Solorio v. United States, 483 U.S. 435 (1987) is that jurisdiction of courts-martial depends Discussion solely on the accused’s status as a person subject to the Uniform Code of Military Justice, and not on the “service-connection” of An accused ordered to active duty pursuant to Article 2(d) may the offense charged. be retained on active duty after service of the punishment if II-15

2011 NCIS Mini-Manual, Page 17 CHAPTER III. INITIATION OF CHARGES; APPREHENSION; PRETRIAL RESTRAINT; RELATED MATTERS

Rule 301. Report of offense short period of custody. Furthermore, an extensive search of the (a) Who may report. Any person may report an of- person is not authorized incident to an investigative detention, as it is with an apprehension. See Mil. R. Evid. 314(f) and (g). This fense subject to trial by court-martial. rule does not affect any seizure of the person less severe than (b) To whom reports conveyed for disposition. Ordi- apprehension. narily, any military authority who receives a report Evidence obtained as the result of an apprehension which is of an offense shall forward as soon as practicable in violation of this rule may be challenged under Mil. R. Evid. 311(c)(1). Evidence obtained as the result of an unlawful civilian the report and any accompanying information to the arrest may be challenged under Mil. R. Evid. 311(c)(1), (2). immediate commander of the suspect. Competent a u t h o r i t y s u p e r i o r t o t h a t c o m m a n d e r m a y d i r e c t otherwise. (2) Scope. This rule applies only to apprehensions made by persons authorized to do so under subsec- Discussion tion (b) of this rule with respect to offenses subject Any military authority may receive a report of an offense. Typi- to trial by court-martial. Nothing in this rule limits cally such reports are made to law enforcement or investigative the authority of federal law enforcement officials to personnel, or to appropriate persons in the chain of command. A apprehend persons, whether or not subject to trial by report may be made by any means, and no particular format is court-martial, to the extent permitted by applicable required. When a person who is not a law enforcement official enabling statutes and other law. receives a report of an offense, that person should forward the report to the immediate commander of the suspect unless that Discussion person believes it would be more appropriate to notify law en- forcement or investigative authorities. R.C.M. 302 does not affect the authority of any official to detain, If the suspect is unidentified, the military authority who arrest, or apprehend persons not subject to trial under the code. receives the report should refer it to a law enforcement or inves- The rule does not apply to actions taken by any person in a tigative agency. private capacity. Upon receipt of a report, the immediate commander of a Several federal agencies have broad powers to apprehend suspect should refer to R.C.M. 306 (Initial disposition). See also persons for violations of federal laws, including the Uniform R.C.M. 302 (Apprehension); R.C.M. 303 (Preliminary inquiry); Code of Military Justice. For example, agents of the Federal R.C.M. 304, 305 (Pretrial restraint, confinement). Bureau of Investigation, United States Marshals, and agents of the Secret Service may apprehend persons for any offenses commit- ted in their presence and for felonies. 18 U.S.C. §§ 3052, 3053, Rule 302. Apprehension 3056. Other agencies have apprehension powers include the Gen- eral Services Administration, 40 U.S.C. § 318 and the Veterans (a) Definition and scope. Administration, 38 U.S.C. § 218. The extent to which such agen- (1) Definition. Apprehension is the taking of a cies become involved in the apprehension of persons subject to trial by courts-martial may depend on the statutory authority of person into custody. the agency and the agency’s formal or informal relationships with the Department of Defense. Discussion Apprehension is the equivalent of “arrest” in civilian terminology. (In military terminology, “arrest” is a form of restraint. See Arti- ( b ) W h o m a y a p p r e h e n d . T h e f o l l o w i n g o f f i c i a l s cle 9; R.C.M. 304.) See subsection (c) of this rule concerning the may apprehend any person subject to trial by court- bases for apprehension. An apprehension is not required in every martial: case; the fact that an accused was never apprehended does not ( 1 ) M i l i t a r y l a w e n f o r c e m e n t o f f i c i a l s . S e c u r i t y affect the jurisdiction of a court-martial to try the accused. How- ever, see R.C.M. 202(c) concerning attachment of jurisdiction. police, military police, master at arms personnel, An apprehension is different from detention of a person for members of the shore patrol, and persons designated investigative purposes, although each involves the exercise of by proper authorities to perform military criminal government control over the freedom of movement of a person. investigative, guard, or police duties, whether sub- An apprehension must be based on probable cause, and the cus- ject to the code or not, when in each of the forego- tody initiated in an apprehension may continue until proper au- t h o r i t y i s n o t i f i e d a n d a c t s u n d e r R . C . M . 3 0 4 o r 3 0 5 . A n ing instances, the official making the apprehension investigative detention may be made on less than probable cause is in the execution of law enforcement duties; (see Mil. R. Evid. 314(f)), and normally involves a relatively

II-17

2011 NCIS Mini-Manual, Page 18 R.C.M. 302(b)(1) Discussion Discussion Whenever enlisted persons, including police and guards, and ci- “Reasonable grounds” means that there must be the kind of relia- vilian police and guards apprehend any commissioned or warrant ble information that a reasonable, prudent person would rely on officer, such persons should make an immediate report to the which makes it more likely than not that something is true. A commissioned officer to whom the apprehending person is re- mere suspicion is not enough but proof which would support a sponsible. conviction is not necessary. A person who determines probable The phrase “persons designated by proper authority to per- cause may rely on the reports of others. f o r m m i l i t a r y c r i m i n a l i n v e s t i g a t i v e , g u a r d o r p o l i c e d u t i e s ” i n c l u d e s s p e c i a l a g e n t s o f t h e D e f e n s e C r i m i n a l I n v e s t i g a t i v e (d) How an apprehension may be made. Service. ( 1 ) I n g e n e r a l . A n a p p r e h e n s i o n i s m a d e b y clearly notifying the person to be apprehended that (2) Commissioned, warrant, petty, and noncom- person is in custody. This notice should be given missioned officers. All commissioned, warrant, pet- orally or in writing, but it may be implied by the ty, and noncommissioned officers on active duty or circumstances. inactive duty training; (2) Warrants. Neither warrants nor any other au- t h o r i z a t i o n s h a l l b e r e q u i r e d f o r a n a p p r e h e n s i o n Discussion under these rules except as required in subsection Noncommissioned and petty officers not otherwise performing (e)(2) of this rule. law enforcement duties should not apprehend a commissioned (3) Use of force. Any person authorized under officer unless directed to do so by a commissioned officer or in these rules to make an apprehension may use such order to prevent disgrace to the service or the escape of one who force and means as reasonably necessary under the has committed a serious offense. circumstances to effect the apprehension. Discussion (3) Civilians authorized to apprehend deserters. Under Article 8, any civilian officer having authority In addition to any other action required by law or regulation or to apprehend offenders under laws of the United p r o p e r m i l i t a r y o f f i c i a l s , a n y p e r s o n m a k i n g a n a p p r e h e n s i o n under these rules should: maintain custody of the person appre- States or of a State, Territory, Commonwealth, or hended; and inform as promptly as possible the immediate com- possession, or the District of Columbia, when the mander of the person apprehended, or any official higher in the apprehension is of a deserter from the armed forces. chain of command of the person apprehended if it is impractical to inform the immediate commander. Discussion The code specifically provides that any civil officer, whether of a (e) Where an apprehension may be made. State, Territory, district, or of the United States may apprehend (1) In general. An apprehension may be made at any deserter.However, this authority does not permit state and any place, except as provided in subsection (e)(2) of local law enforcement officers to apprehend persons for other this rule. violations of the code. See Article 8. (2) Private dwellings. A private dwelling includes dwellings, on or off a military installation, such as (c) Grounds for apprehension. A person subject to single family houses, duplexes, and apartments. The the code or trial thereunder may be apprehended for quarters may be owned, leased, or rented by the an offense triable by court-martial upon probable residents, or assigned, and may be occupied on a cause to apprehend. Probable cause to apprehend temporary or permanent basis. “Private dwelling” exists when there are reasonable grounds to believe does not include the following, whether or not sub- that an offense has been or is being committed and divided into individual units: living areas in military the person to be apprehended committed or is com- barracks, vessels, aircraft, vehicles, tents, bunkers, mitting it. Persons authorized to apprehend under field encampments, and similar places. No person subsection (b)(2) of this rule may also apprehend may enter a private dwelling for the purpose of persons subject to the code who take part in quar- making an apprehension under these rules unless: rels, frays, or disorders, wherever they occur. (A) Pursuant to consent under Mil. R. Evid. 314(e) of 316(d)(2);

II-18

2011 NCIS Mini-Manual, Page 19 R.C.M. 304(a)(1)

(B) Under exigent circumstances described in authority must derive from an appropriate Federal or state proce- Mil. R. Evid. 315(g) or 316(d)(4)(B); dure. See e.g. Fed. R. Crim. P. 41 and 28 C.F.R. 60.1. (C) In the case of a private dwelling which is military property or under military control, or non- Rule 303. Preliminary inquiry into reported military property in a foreign country. offenses (i) if the person to be apprehended is a resi- Upon receipt of information that a member of the dent of the private dwelling, there exists, at the time command is accused or suspected of committing an of the entry, reason to believe that the person to be offense or offenses triable by court-martial, the im- apprehended is present in the dwelling, and the ap- mediate commander shall make or cause to be made prehension has been authorized by an official listed a preliminary inquiry into the charges or suspected in Mil. R. Evid. 315(d) upon a determination that offenses. probable cause to apprehend the person exists; or (ii) if the person to be apprehended is not a Discussion resident of the private dwelling, the entry has been The preliminary inquiry is usually informal. It may be an exami- a u t h o r i z e d b y a n o f f i c i a l l i s t e d i n M i l . R . E v i d . nation of the charges and an investigative report or other sum- 315(d) upon a determination that probable cause ex- m a r y o f e x p e c t e d e v i d e n c e . I n o t h e r c a s e s a m o r e e x t e n s i v e ists to apprehend the person and to believe that the investigation may be necessary. Although the commander may conduct the investigation personally or with members of the com- person to be apprehended is or will be present at the mand, in serious or complex cases the commander should con- time of the entry; sider whether to seek the assistance of law enforcement personnel (D) In the case of a private dwelling not in- in conducting any inquiry or further investigation. The inquiry should gather all reasonably available evidence bearing on guilt cluded in subsection (e)(2)(C) of this rule, or innocence and any evidence relating to aggravation, extenua- (i) if the person to be apprehended is a resi- tion, or mitigation. dent of the private dwelling, there exists at the time The Military Rules of Evidence should be consulted when of the entry, reason to believe that the person to be conducting interrogations (see Mil. R. Evid. 301-306), searches (see Mil. R. Evid. 311-317), and eyewitness identifications (see apprehended is present and the apprehension is au- Mil. R. Evid. 321). thorized by an arrest warrant issued by competent If the offense is one for which the Department of Justice has civilian authority; or investigative responsibilities, appropriate coordination should be made under the Memorandum of Understanding, see Appendix 3, (ii) if the person to be apprehended is not a and any implementing regulations. resident of the private dwelling, the apprehension is If it appears that any witness may not be available for later authorized by an arrest warrant and the entry is proceedings in the case, this should be brought to the attention of authorized by a search warrant, each issued by com- appropriate authorities. See also R.C.M. 702 (depositions). A person who is an accuser (see Article 1(9)) is disqualified petent civilian authority. from convening a general or special court-martial in that case. A person who is not a resident of the private R.C.M. 504(c)(1). Therefore, when the immediate commander is dwelling entered may not challenge the legality of a general or special court-martial convening authority, the prelim- an apprehension of that person on the basis of fail- inary inquiry should be conducted by another officer of the com- m a n d . T h a t o f f i c e r m a y b e i n f o r m e d t h a t c h a r g e s m a y b e ure to secure a warrant or authorization to enter that preferred if the officer determines that preferral is warranted. dwelling, or on the basis of the sufficiency of such a warrant or authorization. Nothing in this subsection ((e)(2)) affects the legality of an apprehension which Rule 304. Pretrial restraint is incident to otherwise lawful presence in a private (a) Types of pretrial restraint. Pretrial restraint is dwelling. m o r a l o r p h y s i c a l r e s t r a i n t o n a p e r s o n ’ s l i b e r t y which is imposed before and during disposition of Discussion offenses. Pretrial restraint may consist of conditions For example, if law enforcement officials enter a private dwelling on liberty, restriction in lieu of arrest, arrest, or pursuant to a valid search warrant or search authorization, they confinement. may apprehend persons therein if grounds for an apprehension exist. This subsection is not intended to be an independent grant (1) Conditions on liberty. Conditions on liberty of authority to execute civilian arrest or search warrants. The are imposed by orders directing a person to do or II-19

2011 NCIS Mini-Manual, Page 20 M.R.E. 301(f)(2)

Rule 301. Privilege concerning compulsory ment, or failure to comply with an order to testify self-incrimination after the military judge has ruled that the privilege (a) General rule. The privileges against self-incrimi- may not be asserted by reason of immunity. nation provided by the Fifth Amendment to the Con- (2) Notification of immunity or leniency. When a stitution of the United States and Article 31 are prosecution witness before a court-martial has been applicable only to evidence of a testimonial or com- granted immunity or leniency in exchange for testi- municative nature. The privilege most beneficial to mony, the grant shall be reduced to writing and shall t h e i n d i v i d u a l a s s e r t i n g t h e p r i v i l e g e s h a l l b e be served on the accused prior to arraignment or applied. within a reasonable time before the witness testifies. (b) Standing. If notification is not made as required by this rule, the military judge may grant a continuance until (1) In general. The privilege of a witness to re- notification is made, prohibit or strike the testimony fuse to respond to a question the answer to which of the witness, or enter such other order as may be may tend to incriminate the witness is a personal required. one that the witness may exercise or waive at the discretion of the witness. (d) Waiver by a witness. A witness who answers a q u e s t i o n w i t h o u t h a v i n g a s s e r t e d t h e p r i v i l e g e (2) Judicial advice. If a witness who is apparently against self-incrimination and thereby admits a self- uninformed of the privileges under this rule appears incriminating fact may be required to disclose all likely to incriminate himself or herself, the military information relevant to that fact except when there is judge should advise the witness of the right to de- a real danger of further self-incrimination. This lim- cline to make any answer that might tend to incrimi- ited waiver of the privilege applies only at the trial n a t e t h e w i t n e s s a n d t h a t a n y s e l f - i n c r i m i n a t i n g in which the answer is given, does not extend to a answer the witness might make can later be used as rehearing or new or other trial, and is subject to Mil. evidence against the witness. Counsel for any party R. Evid. 608(b). or for the witness may request the military judge to so advise a witness provided that such a request is (e) Waiver by the accused. When an accused tes- made out of the hearing of the witness and, except tifies voluntarily as a witness, the accused thereby in a special court-martial without a military judge, waives the privilege against self-incrimination with the members. Failure to so advise a witness does not respect to the matters concerning which he or she so make the testimony of the witness inadmissible. testifies. If the accused is on trial for two or more offenses and on direct examination testifies concern- (c) Exercise of the privilege. If a witness states that ing the issue of guilt or innocence as to only one or the answer to a question may tend to incriminate some of the offenses, the accused may not be cross- him or her, the witness may not be required to an- examined as to guilt or innocence with respect to the swer unless facts and circumstances are such that no other offenses unless the cross-examination is rele- answer the witness might make to the question could vant to an offense concerning which the accused has have the effect of tending to incriminate the witness testified. This waiver is subject to Mil. R. Evid. or that the witness has, with respect to the question, 608(b). waived the privilege against self-incrimination. A witness may not assert the privilege if the witness is (f) Effect of claiming the privilege. not subject to criminal penalty as a result of an (1) Generally. The fact that a witness has asserted answer by reason of immunity, running of the statute the privilege against self-incrimination in refusing to of limitations, or similar reason. answer a question cannot be considered as raising (1) Immunity generally. The minimum grant of any inference unfavorable to either the accused or immunity adequate to overcome the privilege is that the government. which under either R.C.M. 704 or other proper au- (2) On cross-examination. If a witness asserts the thority provides that neither the testimony of the privilege against self-incrimination on cross-exami- witness nor any evidence obtained from that testi- nation, the military judge, upon motion, may strike mony may be used against the witness at any subse- the direct testimony of the witness in whole or in quent trial other than in a prosecution for perjury, part, unless the matters to which the witness refuses false swearing, the making of a false official state- to testify are purely collateral. III-3

2011 NCIS Mini-Manual, Page 21 M.R.E. 301(f)(3)

(3) Pretrial. The fact that the accused during offi- such examination, the military judge may upon mo- cial questioning and in exercise of rights under the tion order the disclosure of such statements made by Fifth Amendment to the Constitution of the United the accused and contained in the report as may be States or Article 31, remained silent, refused to an- necessary in the interests of justice. swer a certain question, requested counsel, or re- ( d ) N o n c o m p l i a n c e b y t h e a c c u s e d . T h e m i l i t a r y q u e s t e d t h a t t h e q u e s t i o n i n g b e t e r m i n a t e d i s judge may prohibit an accused who refuses to coop- inadmissible against the accused. e r a t e i n a m e n t a l e x a m i n a t i o n a u t h o r i z e d u n d e r (g) Instructions. When the accused does not testify R.C.M. 706 from presenting any expert medical tes- at trial, defense counsel may request that the mem- timony as to any issue that would have been the bers of the court be instructed to disregard that fact subject of the mental examination. and not to draw any adverse inference from it. De- (e) Procedure. The privilege in this rule may be fense counsel may request that the members not be claimed by the accused only under the procedure set so instructed. Defense counsel’s election shall be forth in Mil. R. Evid. 304 for an objection or a binding upon the military judge except that the mili- motion to suppress. tary judge may give the instruction when the instruc- tion is necessary in the interests of justice. Rule 303. Degrading questions No person may be compelled to make a statement Rule 302. Privilege concerning mental or produce evidence before any military tribunal if examination of an accused the statement or evidence is not material to the issue (a) General rule. The accused has a privilege to and may tend to degrade that person. prevent any statement made by the accused at a mental examination ordered under R.C.M. 706 and Rule 304. Confessions and admissions a n y d e r i v a t i v e e v i d e n c e o b t a i n e d t h r o u g h u s e o f (a) General rule. Except as provided in subsection such a statement from being received into evidence (b), an involuntary statement or any derivative evi- against the accused on the issue of guilt or inno- dence therefrom may not be received in evidence cence or during sentencing proceedings. This privi- against an accused who made the statement if the lege may be claimed by the accused notwithstanding accused makes a timely motion to suppress or an the fact that the accused may have been warned of objection to the evidence under this rule. the rights provided by Mil. R. Evid. 305 at the (b) Exceptions. examination. (1) Where the statement is involuntary only in (b) Exceptions. terms of noncompliance with the requirements of (1) There is no privilege under this rule when the Mil. R. Evid. 305(c) or 305(f), or the requirements accused first introduces into evidence such state- c o n c e r n i n g c o u n s e l u n d e r M i l . R . E v i d . 3 0 5 ( d ) , ments or derivative evidence. 305(e), and 305(g), this rule does not prohibit use of (2) An expert witness for the prosecution may the statement to impeach by contradiction the in- testify as to the reasons for the expert’s conclusions court testimony of the accused or the use of such and the reasons therefor as to the mental state of the statement in a later prosecution against the accused accused if expert testimony offered by the defense for perjury, false swearing, or the making of a false as to the mental condition of the accused has been official statement. received in evidence, but such testimony may not (2) Evidence that was obtained as a result of an extend to statements of the accused except as pro- involuntary statement may be used when the evi- vided in (1). dence would have been obtained even if the involun- (c) Release of evidence. If the defense offers expert tary statement had not been made. testimony concerning the mental condition of the ( 3 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l - accused, the military judge, upon motion, shall order lenged under this rule as derivative evidence may be the release to the prosecution of the full contents, admitted against the accused if the military judge other than any statements made by the accused, of finds by a preponderance of the evidence that the any report prepared pursuant to R.C.M. 706. If the statement was made voluntarily, that the evidence defense offers statements made by the accused at was not obtained by use of the statement, or that the III-4

2011 NCIS Mini-Manual, Page 22 M.R.E. 304(e)(2) evidence would have been obtained even if the state- defense moves to suppress or object to evidence. If ment had not been made. defense counsel, despite the exercise of due dili- (c) Definitions. As used in these rules: gence, has been unable to interview adequately those (1) Confession. A “confession” is an acknowledg- persons involved in the taking of a statement, the military judge may make any order required in the ment of guilt. interests of justice, including authorization for the (2) Admission. An “admission” is a self-incrimi- defense to make a general motion to suppress or nating statement fallingshort of an acknowledgment general objection. of guilt, even if it was intended by its maker to be (4) Rulings. A motion to suppress or an objection exculpatory. to evidence made prior to plea shall be ruled upon (3) Involuntary. A statement is “involuntary” if it prior to plea unless the military judge, for good i s o b t a i n e d i n v i o l a t i o n o f t h e s e l f - i n c r i m i n a t i o n cause, orders that it be deferred for determination at privilege or due process clause of the Fifth Amend- trial, but no such determination shall be deferred if a ment to the Constitution of the United States, Article party’s right to appeal the ruling is affected adverse- 31, or through the use of coercion, unlawful influ- ly. Where factual issues are involved in ruling upon ence, or unlawful inducement. such motion or objection, the military judge shall (d) Procedure. state essential findings of fact on the record. (1) Disclosure. Prior to arraignment, the prosecu- (5) Effect of guilty plea. Except as otherwise ex- tion shall disclose to the defense the contents of all p r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f statements, oral or written, made by the accused that guilty to an offense that results in a finding of guilty are relevant to the case, known to the trial counsel, waives all privileges against self-incrimination and and within the control of the armed forces. a l l m o t i o n s a n d o b j e c t i o n s u n d e r t h i s r u l e w i t h (2) Motions and objections. respect to that offense regardless of whether raised (A) Motions to suppress or objections under prior to plea. this rule or Mil. R. Evid. 302 or 305 to statements (e) Burden of proof. When an appropriate motion or that have been disclosed shall be made by the de- objection has been made by the defense under this fense prior to submission of a plea. In the absence of rule, the prosecution has the burden of establishing such motion or objection, the defense may not raise the admissibility of the evidence. When a specific the issue at a later time except as permitted by the motion or objection has been required under subdivi- military judge for good cause shown. Failure to so sion (d)(3), the burden on the prosecution extends move or object constitutes a waiver of the objection. only to the grounds upon which the defense moved to suppress or object to the evidence. (B) If the prosecution intends to offer against the accused a statement made by the accused that (1) In general. The military judge must find by a was not disclosed prior to arraignment, the prosecu- preponderance of the evidence that a statement by tion shall provide timely notice to the military judge the accused was made voluntarily before it may be and to counsel for the accused. The defense may received into evidence. When trial is by a special enter an objection at that time and the military judge court-martial without a military judge, a determina- tion by the president of the court that a statement may make such orders as are required in the inter- was made voluntarily is subject to objection by any ests of justice. member of the court. When such objection is made, (C) If evidence is disclosed as derivative evi- it shall be resolved pursuant to R.C.M. 801(e)(3)(C). dence under this subdivision prior to arraignment, (2) Weight of the evidence. If a statement is ad- any motion to suppress or objection under this rule mitted into evidence, the military judge shall permit or Mil. R. Evid. 302 or 305 shall be made in accord- the defense to present relevant evidence with respect ance with the procedure for challenging a statement to the voluntariness of the statement and shall in- under (A). If such evidence has not been so dis- struct the members to give such weight to the state- closed prior to arraignment, the requirements of (B) m e n t a s i t d e s e r v e s u n d e r a l l t h e c i r c u m s t a n c e s . apply. When trial is by military judge without members, (3) Specificity. The military judge may require the military judge shall determine the appropriate the defense to specify the grounds upon which the weight to give the statement. III-5

2011 NCIS Mini-Manual, Page 23 M.R.E. 304(e)(3)

( 3 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l - m i s s i o n o r c o n f e s s i o n . T h e i n d e p e n d e n t e v i d e n c e lenged under this rule as derivative evidence may be need raise only an inference of the truth of the admitted against the accused if the military judge essential facts admitted. The amount and type of finds by a preponderance of the evidence that the evidence introduced as corroboration is a factor to statement was made voluntarily, that the evidence be considered by the trier of fact in determining the was not obtained by use of the statement, or that the w e i g h t , i f a n y , t o b e g i v e n t o t h e a d m i s s i o n o r evidence would have been obtained even if the state- confession. ment had not been made. (2) Procedure. The military judge alone shall de- (f) Defense evidence. The defense may present evi- termine when adequate evidence of corroboration dence relevant to the admissibility of evidence as to has been received. Corroborating evidence usually is which there has been an objection or motion to sup- to be introduced before the admission or confession press under this rule. An accused may testify for the is introduced but the military judge may admit evi- limited purpose of denying that the accused made dence subject to later corroboration. the statement or that the statement was made volun- (h) Miscellaneous. tarily. Prior to the introduction of such testimony by (1) Oral statements. A voluntary oral confession the accused, the defense shall inform the military or admission of the accused may be proved by the judge that the testimony is offered under this subdi- testimony of anyone who heard the accused make it, vision. When the accused testifies under this subdi- even if it was reduced to writing and the writing is vision, the accused may be cross-examined only as not accounted for. to the matter on which he or she testifies. Nothing (2) Completeness. If only part of an alleged ad- said by the accused on either direct or cross-exami- mission or confession is introduced against the ac- nation may be used against the accused for any c u s e d , t h e d e f e n s e , b y c r o s s - e x a m i n a t i o n o r purpose other than in a prosecution for perjury, false otherwise, may introduce the remaining portions of swearing, or the making of a false official statement. the statement. (g) Corroboration. An admission or a confession of ( 3 ) C e r t a i n a d m i s s i o n s b y s i l e n c e . A p e r s o n ’ s the accused may be considered as evidence against failure to deny an accusation of wrongdoing con- the accused on the question of guilt or innocence cerning an offense for which at the time of the only if independent evidence, either direct or cir- alleged failure the person was under official investi- cumstantial, has been introduced that corroborates gation or was in confinement, arrest, or custody does the essential facts admitted to justify sufficiently an not support an inference of an admission of the truth inference of their truth. Other uncorroborated con- of the accusation. fessions or admissions of the accused that would themselves require corroboration may not be used to (4) Refusal to obey order to submit body sub- supply this independent evidence. If the independent stance. If an accused refuses a lawful order to sub- evidence raises an inference of the truth of some but mit for chemical analysis a sample of his or her not all of the essential facts admitted, then the con- blood, breath, urine or other body substance, evi- fession or admission may be considered as evidence dence of such refusal may be admitted into evidence against the accused only with respect to those essen- on: tial facts stated in the confession or admission that (A) A charge of violating an order to submit are corroborated by the independent evidence. Cor- such a sample; or roboration is not required for a statement made by (B) Any other charge on which the results of the accused before the court by which the accused is the chemical analysis would have been admissible. being tried, for statements made prior to or contem- poraneously with the act, or for statements offered Rule 305. Warnings about rights under a rule of evidence other than that pertaining to (a) General rule. A statement obtained in violation the admissibility of admissions or confessions. of this rule is involuntary and shall be treated under (1) Quantum of evidence needed. The independ- Mil. R. Evid. 304. e n t e v i d e n c e n e c e s s a r y t o e s t a b l i s h c o r r o b o r a t i o n (b) Definitions. As used in this rule: need not be sufficient of itself to establish beyond a (1) Person subject to the code. A “person subject reasonable doubt the truth of facts stated in the ad- to the code” includes a person acting as a knowing III-6

2011 NCIS Mini-Manual, Page 24 M.R.E. 305(g)(2)(A) agent of a military unit or of a person subject to the gation may proceed. In addition to counsel supplied code. by the United States, the person may retain civilian ( 2 ) I n t e r r o g a t i o n . “ I n t e r r o g a t i o n ” i n c l u d e s a n y counsel at no expense to the United States. Unless formal or informal questioning in which an incrimi- otherwise provided by regulations of the Secretary nating response either is sought or is a reasonable concerned, an accused or suspect does not have a consequence of such questioning. right under this rule to have military counsel of his ( c ) W a r n i n g s c o n c e r n i n g t h e a c c u s a t i o n , r i g h t t o or her own selection. remain silent, and use of statements. A person sub- (e) Presence of Counsel. ject to the code who is required to give warnings ( 1 ) C u s t o d i a l i n t e r r o g a t i o n . A b s e n t a v a l i d under Article 31 may not interrogate or request any waiver of counsel under subdivision (g)(2)(B), when statement from an accused or a person suspected of an accused or person suspected of an offense is an offense without first: subjected to custodial interrogation under circum- (1) informing the accused or suspect of the nature stances described under subdivision (d)(1)(A) of this of the accusation; rule, and the accused or suspect requests counsel, (2) advising the accused or suspect that the ac- counsel must be present before any subsequent cus- cused or suspect has the right to remain silent; and todial interrogation may proceed. (3) advising the accused or suspect that any state- (2) Post-preferral interrogation. Absent a valid ment made may be used as evidence against the waiver of counsel under subdivision (g)(2)(C), when accused or suspect in a trial by court-martial. an accused or person suspected of an offense is subjected to interrogation under circumstances de- (d) Counsel rights and warnings. scribed in subdivision (d)(1)(B) of this rule, and the (1) General rule. When evidence of a testimonial accused or suspect either requests counsel or has an or communicative nature within the meaning of the appointed or retained counsel, counsel must be pres- Fifth Amendment to the Constitution of the United ent before any subsequent interrogation concerning States either is sought or is a reasonable conse- that offense may proceed. quence of an interrogation, an accused or a person (f) Exercise of rights. suspected of an offense is entitled to consult with counsel as provided by paragraph (2) of this subdivi- (1) The privilege against self-incrimination. If a sion, to have such counsel present at the interroga- person chooses to exercise the privilege against self- tion, and to be warned of these rights prior to the incrimination under this rule, questioning must cease interrogation if— immediately. (A) The interrogation is conducted by a person (2) The right to counsel. If a person subjected to subject to the code who is required to give warnings interrogation under the circumstances described in under Article 31 and the accused or suspect is in subdivision (d)(1) of this rule chooses to exercise custody, could reasonably believe himself or herself the right to counsel, questioning must cease until to be in custody, or is otherwise deprived of his or counsel is present. her freedom of action in any significant way; or (g) Waiver. (B) The interrogation is conducted by a person (1) General rule. After receiving applicable warn- subject to the code acting in a law enforcement ings under this rule, a person may waive the rights capacity, or the agent of such a person, the interro- described therein and in Mil. R. Evid. 301 and make gation is conducted subsequent to the preferral of a statement. The waiver must be made freely, know- charges, and the interrogation concerns the offenses ingly, and intelligently. A written waiver is not re- or matters that were the subject of the preferral of quired. The accused or suspect must acknowledge the charges. affirmatively that he or she understands the rights (2) Counsel. When a person entitled to counsel involved, affirmatively decline the right to counsel under this rule requests counsel, a judge advocate or and affirmatively consent to making a statement. an individual certified in accordance with Article (2) Counsel. 27(b) shall be provided by the United States at no (A) If the right to counsel in subdivision (d) is expense to the person and without regard to the applicable and the accused or suspect does not de- person’s indigency or lack thereof before the interro- cline affirmatively the right to counsel, the prosecu- III-7

2011 NCIS Mini-Manual, Page 25 M.R.E. 305(g)(2)(A) tion must demonstrate by a preponderance of the ence, or unlawful inducement. An interrogation is e v i d e n c e t h a t t h e i n d i v i d u a l w a i v e d t h e r i g h t t o not “participated in” by military personnel or their counsel. agents or by the officials or agents listed in subdivi- (B) If an accused or suspect interrogated under sion (h)(1) merely because such a person was pres- circumstances described in subdivision (d)(1)(A) re- ent at an interrogation conducted in a foreign nation quests counsel, any subsequent waiver of the right to by officials of a foreign government or their agents, c o u n s e l o b t a i n e d d u r i n g a c u s t o d i a l i n t e r r o g a t i o n or because such a person acted as an interpreter or concerning the same or different offenses is invalid took steps to mitigate damage to property or physi- unless the prosecution can demonstrate by a prepon- cal harm during the foreign interrogation. derance of the evidence that— (i) the accused or suspect initiated the com- Rule 306. Statements by one of several munication leading to the waiver; or accused ( i i ) t h e a c c u s e d o r s u s p e c t h a s n o t c o n - When two or more accused are tried at the same tinuously had his or her freedom restricted by con- trial, evidence of a statement made by one of them finement, or other means, during the period between which is admissible only against him or her or only the request for counsel and the subsequent waiver. against some but not all of the accused may not be (C) If an accused or suspect interrogated under received in evidence unless all references inculpat- circumstances described in subdivision (d)(1)(B) re- ing an accused against whom the statement is inad- quests counsel, any subsequent waiver of the right to missible are deleted effectively or the maker of the counsel obtained during an interrogation concerning statement is subject to cross-examination. the same offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence Rule 311. Evidence obtained from unlawful that the accused or suspect initiated the communica- searches and seizures tion leading to the waiver. (a) General rule. Evidence obtained as a result of an (h) Nonmilitary interrogations. unlawful search or seizure made by a person acting (1) General rule. When a person subject to the in a governmental capacity is inadmissible against code is interrogated by an official or agent of the the accused if: United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United (1) Objection. The accused makes a timely mo- States, or any political subdivision of such a State, tion to suppress or an objection to the evidence Commonwealth, or possession, and such official or under this rule; and agent is not required to give warning under subdivi- (2) Adequate interest. The accused had a reasona- sion (c), the person’s entitlement to rights warnings ble expectation of privacy in the person, place or and the validity of any waiver of applicable rights property searched; the accused had a legitimate in- shall be determined by the principles of law gener- terest in the property or evidence seized when chal- ally recognized in the trial of criminal cases in the lenging a seizure; or the accused would otherwise U n i t e d S t a t e s d i s t r i c t c o u r t s i n v o l v i n g s i m i l a r have grounds to object to the search or seizure under interrogations. the Constitution of the United States as applied to ( 2 ) F o r e i g n i n t e r r o g a t i o n s . N e i t h e r w a r n i n g s members of the armed forces. under subdivisions (c) or (d), nor notice to counsel (b) Exceptions. under subdivision (e) are required during an interro- (1) Evidence that was obtained as a result of an gation conducted abroad by officials of a foreign unlawful search or seizure may be used to impeach government or their agents unless such interrogation b y c o n t r a d i c t i o n t h e i n - c o u r t t e s t i m o n y o f t h e is conducted, instigated, or participated in by mili- accused. tary personnel or their agents or by those officials or agents listed in subdivision (h)(1). A statement ob- (2) Evidence that was obtained as a result of an tained during such an interrogation is involuntary unlawful search or seizure may be used when the within the meaning of Mil. R. Evid. 304(b)(3) if it is evidence would have been obtained even if such obtained through the use of coercion, unlawful influ- unlawful search or seizure had not been made. III-8

2011 NCIS Mini-Manual, Page 26 M.R.E. 311(e)

(3) Evidence that was obtained as a result of an from the person or property of the accused, or be- unlawful search or seizure may be used if: lieved to be owned by the accused, that it intends to (A) The search or seizure resulted from an au- offer into evidence against the accused at trial. thorization to search, seize or apprehend issued by (2) Motion or objection. an individual competent to issue the authorization (A) When evidence has been disclosed under under Mil. R. Evid. 315(d) or from a search warrant subdivision (d)(1), any motion to suppress or objec- o r a r r e s t w a r r a n t i s s u e d b y c o m p e t e n t c i v i l i a n tion under this rule shall be made by the defense authority; prior to submission of a plea. In the absence of such (B) The individual issuing the authorization or motion or objection, the defense may not raise the warrant had a substantial basis for determining the issue at a later time except as permitted by the existence of probable cause; and military judge for good cause shown. Failure to so (C) The officials seeking and executing the au- move or object constitutes a waiver of the motion or t h o r i z a t i o n o r w a r r a n t r e a s o n a b l y a n d w i t h g o o d objection. faith relied on the issuance of the authorization or (B) If the prosecution intends to offer evidence warrant. Good faith shall be determined on an objec- seized from the person or property of the accused tive standard. that was not disclosed prior to arraignment, the pros- (c) Nature of search or seizure. A search or seizure ecution shall provide timely notice to the military is “unlawful” if it was conducted, instigated, or par- judge and to counsel for the accused. The defense ticipated in by: may enter an objection at that time and the military (1) Military personnel. Military personnel or their judge may make such orders as are required in the agents and was in violation of the Constitution of interest of justice. t h e U n i t e d S t a t e s a s a p p l i e d t o m e m b e r s o f t h e (C) If evidence is disclosed as derivative evi- armed forces, an Act of Congress applicable to trials dence under this subdivision prior to arraignment, by court-martial that requires exclusion of evidence any motion to suppress or objection under this rule o b t a i n e d i n v i o l a t i o n t h e r e o f , o r M i l . R . E v i d . shall be made in accordance with the procedure for 312–317; challenging evidence under (A). If such evidence (2) Other officials. Other officials or agents of the has not been so disclosed prior to arraignment, the United States, of the District of Columbia, or of a requirements of (B) apply. State, Commonwealth, or possession of the United (3) Specificity. The military judge may require States or any political subdivision of such a State, the defense to specify the grounds upon which the Commonwealth, or possession and was in violation defense moves to suppress or object to evidence. If of the Constitution of the United States, or is unlaw- defense counsel, despite the exercise of due dili- ful under the principles of law generally applied in gence, has been unable to interview adequately those the trial of criminal cases in the United States dis- persons involved in the search or seizure, the mili- trict courts involving a similar search or seizure; or tary judge may enter any order required by the inter- (3) Officials of a foreign government. Officials of e s t s o f j u s t i c e , i n c l u d i n g a u t h o r i z a t i o n f o r t h e a foreign government or their agents and was ob- defense to make a general motion to suppress or a tained as a result of a foreign search or seizure general objection. w h i c h s u b j e c t e d t h e a c c u s e d t o g r o s s a n d b r u t a l (4) Rulings. A motion to suppress or an objection m a l t r e a t m e n t . A s e a r c h o r s e i z u r e i s n o t “ p a r - to evidence made prior to plea shall be ruled upon ticipated in” merely because a person is present at a prior to plea unless the military judge, for good search or seizure conducted in a foreign nation by cause, orders that it be deferred for determination at officials of a foreign government or their agents, or the trial of the general issue or until after findings, because a person acted as an interpreter or took but no such determination shall be deferred if a steps to mitigate damage to property or physical party’s right to appeal the ruling is affected adverse- harm during the foreign search or seizure. ly. Where factual issues are involved in ruling upon (d) Motions to suppress and objections. such motion or objection, the military judge shall (1) Disclosure. Prior to arraignment, the prosecu- state essential findings of fact on the record. tion shall disclose to the defense all evidence seized (e) Burden of proof. III-9

2011 NCIS Mini-Manual, Page 27 M.R.E. 311(e)(1)

(1) In general. When an appropriate motion or said by the accused on either direct or cross-exami- objection has been made by the defense under subdi- nation may be used against the accused for any vision (d), the prosecution has the burden of proving purpose other than in a prosecution for perjury, false by a preponderance of the evidence that the evi- swearing, or the making of a false official statement. dence was not obtained as a result of an unlawful ( g ) S c o p e o f m o t i o n s a n d o b j e c t i o n s c h a l l e n g i n g search or seizure, that the evidence would have been probable cause. obtained even if the unlawful search or seizure had (1) Generally. If the defense challenges evidence not been made, or that the evidence was obtained by officials who reasonably and with good faith relied seized pursuant to a search warrant or search author- on the issuance of an authorization to search, seize, ization on the grounds that the warrant or authoriza- o r a p p r e h e n d o r a s e a r c h w a r r a n t o r a n a r r e s t t i o n w a s n o t b a s e d u p o n p r o b a b l e c a u s e , t h e warrant. evidence relevant to the motion is limited to evi- dence concerning the information actually presented ( 2 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l - to or otherwise known by the authorizing officer, lenged under this rule as derivative evidence may be admitted against the accused if the military judge except as provided in paragraph (2). finds by a preponderance of the evidence that the (2) False statements. If the defense makes a sub- evidence was not obtained as a result of an unlawful s t a n t i a l p r e l i m i n a r y s h o w i n g t h a t a g o v e r n m e n t search or seizure, that the evidence ultimately would agent included a false statement knowingly and in- have been obtained by lawful means even if the tentionally or with reckless disregard for the truth in unlawful search or seizure had not been made, or the information presented to the authorizing officer, that the evidence was obtained by officials who rea- and if the allegedly false statement is necessary to sonably and with good faith relied on the issuance of the finding of probable cause, the defense, upon an authorization to search, seize or apprehend or a request, shall be entitled to a hearing. At the hear- search warrant or an arrest warrant. Notwithstanding ing, the defense has the burden of establishing by a other provisions of this Rule, an apprehension made p r e p o n d e r a n c e o f t h e e v i d e n c e t h e a l l e g a t i o n o f in a dwelling in a manner that violates R.C.M. 302 knowing and intentional falsity or reckless disregard (d)(2) and (e) does not preclude the admission into for the truth. If the defense meets its burden, the e v i d e n c e o f a s t a t e m e n t o f a n i n d i v i d u a l a p p r e - prosecution has the burden of proving by a prepon- hended provided (1) that the apprehension was based derance of the evidence, with the false information on probable cause, (2) that the statement was made set aside, that the remaining information presented subsequent to the apprehension at a location outside to the authorizing officer is sufficient to establish the dwelling, and (3) that the statement was other- probable cause. If the prosecution does not meet its wise in compliance with these rules. burden, the objection or motion shall be granted (3) Specific motions or objections. When a spe- unless the search is otherwise lawful under these cific motion or objection has been required under rules. subdivision (d)(3), the burden on the prosecution (h) Objections to evidence seized unlawfully. If a extends only to the grounds upon which the defense defense motion or objection under this rule is sus- moved to suppress or object to the evidence. tained in whole or in part, the members may not be (f) Defense evidence. The defense may present evi- informed of that fact except insofar as the military dence relevant to the admissibility of evidence as to j u d g e m u s t i n s t r u c t t h e m e m b e r s t o d i s r e g a r d which there has been an appropriate motion or ob- evidence. jection under this rule. An accused may testify for the limited purpose of contesting the legality of the (i) Effect of guilty plea. Except as otherwise ex- search or seizure giving rise to the challenged evi- p r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f dence. Prior to the introduction of such testimony by guilty to an offense that results in a finding of guilty the accused, the defense shall inform the military waives all issues under the Fourth Amendment to judge that the testimony is offered under this subdi- the Constitution of the United States and Mil. R. vision. When the accused testifies under this subdi- Evid. 311-317 with respect to the offense whether or vision, the accused may be cross-examined only as not raised prior to plea. to the matter on which he or she testifies. Nothing III-10

2011 NCIS Mini-Manual, Page 28 M.R.E. 312(g)

Rule 312. Body views and intrusions by a search warrant or search authorization under ( a ) G e n e r a l r u l e . E v i d e n c e o b t a i n e d f r o m b o d y Mil. R. Evid. 315 and conducted by a person with views and intrusions conducted in accordance with appropriate medical qualifications. this rule is admissible at trial when relevant and not Notwithstanding this rule, a search under Mil. R. otherwise inadmissible under these rules. Evid. 314(h) may be made without a search warrant or authorization if such search is based on a reasona- (b) Visual examination of the body. ble suspicion that the individual is concealing weap- ( 1 ) C o n s e n s u a l . V i s u a l e x a m i n a t i o n o f t h e u n - ons, contraband, or evidence of crime. clothed body may be made with the consent of the (d) Extraction of body fluids. Nonconsensual extrac- individual subject to the inspection in accordance tion of body fluids, including blood and urine, may with Mil. R. Evid. 314(e). be made from the body of an individual pursuant to (2) Involuntary. An involuntary display of the un- a search warrant or a search authorization under Mil. c l o t h e d b o d y , i n c l u d i n g a v i s u a l e x a m i n a t i o n o f R. Evid. 315. Nonconsensual extraction of body flu- body cavities, may be required only if conducted in ids may be made without such warrant or authoriza- reasonable fashion and authorized under the follow- t i o n , n o t w i t h s t a n d i n g M i l . R . E v i d . 3 1 5 ( g ) , o n l y ing provisions of the Military Rules of Evidence: when there is clear indication that evidence of crime inspections and inventories under Mil. R. Evid. 313; will be found and that there is reason to believe that searches under Mil. R. Evid. 314(b) and 314(c) if the delay that would result if a warrant or authoriza- there is a reasonable suspicion that weapons, contra- tion were sought could result in the destruction of band, or evidence of crime is concealed on the body the evidence. Involuntary extraction of body fluids of the person to be searched; searches within jails under this rule must be done in a reasonable fashion and similar facilities under Mil. R. Evid. 314(h) if by a person with appropriate medical qualifications. reasonably necessary to maintain the security of the (e) Other intrusive searches. Nonconsensual intru- institution or its personnel; searches incident to law- sive searches of the body made to locate or obtain ful apprehension under Mil. R. Evid. 314(g); emer- weapons, contraband, or evidence of crime and not g e n c y s e a r c h e s u n d e r M i l . R . E v i d . 3 1 4 ( i ) ; a n d within the scope of subdivisions (b) or (c) may be probable cause searches under Mil. R. Evid. 315. An made only upon search warrant or search authoriza- examination of the unclothed body under this rule tion under Mil. R. Evid. 315 and only if such search should be conducted whenever practicable by a per- is conducted in a reasonable fashion by a person son of the same sex as that of the person being with appropriate medical qualifications and does not examined; provided, however, that failure to comply endanger the health of the person to be searched. with this requirement does not make an examination Compelling a person to ingest substances for the an unlawful search within the meaning of Mil. R. purposes of locating the property described above or Evid. 311. to compel the bodily elimination of such property is (c) Intrusion into body cavities. A reasonable non- a search within the meaning of this section. Notwith- consensual physical intrusion into the mouth, nose, standing this rule, a person who is neither a suspect and ears may be made when a visual examination of nor an accused may not be compelled to submit to the body under subdivision (b) is permissible. Non- an intrusive search of the body for the sole purpose consensual intrusions into other body cavities may of obtaining evidence of crime. be made: (f) Intrusions for valid medical purposes. Nothing (1) For purposes of seizure. When there is a clear in this rule shall be deemed to interfere with the indication that weapons, contraband, or other evi- lawful authority of the armed forces to take what- dence or crime is present, to remove weapons, con- ever action may be necessary to preserve the health t r a b a n d , o r e v i d e n c e o f c r i m e d i s c o v e r e d u n d e r of a servicemember. Evidence or contraband ob- subdivisions (b) and (c)(2) of this rule or under Mil. tained from an examination or intrusion conducted R. Evid. 316(d)(4)(C) if such intrusion is made in a for a valid medical purpose may be seized and is not r e a s o n a b l e f a s h i o n b y a p e r s o n w i t h a p p r o p r i a t e evidence obtained from an unlawful search or sei- medical qualifications; or zure within the meaning of Mil. R. Evid. 311. (2) For purposes of search. To search for weap- (g) Medical qualifications. The Secretary concerned ons, contraband, or evidence of crime if authorized may prescribe appropriate medical qualifications for III-11

2011 NCIS Mini-Manual, Page 29 M.R.E. 312(g) persons who conduct searches and seizures under other evidence of crime located during an inspection this rule. may be seized. (c) Inventories. Unlawful weapons, contraband, or Rule 313. Inspections and inventories in the other evidence of crime discovered in the process of armed forces an inventory, the primary purpose of which is ad- (a) General rule. Evidence obtained from inspec- ministrative in nature, may be seized. Inventories tions and inventories in the armed forces conducted shall be conducted in a reasonable fashion and shall in accordance with this rule is admissible at trial comply with Mil. R. Evid. 312, if applicable. An when relevant and not otherwise inadmissible under examination made for the primary purpose of obtain- these rules. ing evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory (b) Inspections. An “inspection” is an examination within the meaning of this rule. of the whole or part of a unit, organization, installa- tion, vessel, aircraft, or vehicle, including an exami- Rule 314. Searches not requiring probable n a t i o n c o n d u c t e d a t e n t r a n c e a n d e x i t p o i n t s , conducted as an incident of command the primary cause purpose of which is to determine and to ensure the (a) General rule. Evidence obtained from reasona- security, military fitness, or good order and disci- ble searches not requiring probable cause conducted pline of the unit, organization, installation, vessel, pursuant to this rule is admissible at trial when rele- aircraft, or vehicle. An inspection may include but is v a n t a n d n o t o t h e r w i s e i n a d m i s s i b l e u n d e r t h e s e not limited to an examination to determine and to rules. ensure that any or all of the following requirements (b) Border searches. Border searches for customs or are met: that the command is properly equipped, immigration purposes may be conducted when au- functioning properly, maintaining proper standards thorized by Act of Congress. o f r e a d i n e s s , s e a o r a i r w o r t h i n e s s , s a n i t a t i o n a n d ( c ) S e a r c h e s u p o n e n t r y t o o r e x i t f r o m U n i t e d cleanliness, and that personnel are present, fit, and States installations, aircraft, and vessels abroad. In ready for duty. An inspection also includes an exam- a d d i t i o n t o t h e a u t h o r i t y t o c o n d u c t i n s p e c t i o n s ination to locate and confiscate unlawful weapons u n d e r M i l . R . E v i d . 3 1 3 ( b ) , a c o m m a n d e r o f a and other contraband. An order to produce body United States military installation, enclave, or air- fluids, such as urine, is permissible in accordance craft on foreign soil, or in foreign or international with this rule. An examination made for the primary airspace, or a United States vessel in foreign or purpose of obtaining evidence for use in a trial by international waters, may authorize appropriate per- court-martial or in other disciplinary proceedings is sonnel to search persons or the property of such not an inspection within the meaning of this rule. If persons upon entry to or exit from the installation, a purpose of an examination is to locate weapons or enclave, aircraft, or vessel to ensure the security, contraband, and if: (1) the examination was directed military fitness, or good order and discipline of the immediately following a report of a specific offense command. Such searches may not be conducted at a in the unit, organization, installation, vessel, aircraft, time or in a manner contrary to an express provision or vehicle and was not previously scheduled; (2) of a treaty or agreement to which the United States specific individuals are selected for examination; or is a party. Failure to comply with a treaty or agree- (3) persons examined are subjected to substantially ment, however, does not render a search unlawful different intrusions during the same examination, the within the meaning of Mil. R. Evid. 311. A search prosecution must prove by clear and convincing evi- made for the primary purpose of obtaining evidence dence that the examination was an inspection within for use in a trial by court-martial or other discipli- the meaning of this rule. Inspections shall be con- n a r y p r o c e e d i n g i s n o t a u t h o r i z e d b y t h i s ducted in a reasonable fashion and shall comply subdivision. with Mil. R. Evid. 312, if applicable. Inspections (d) Searches of government property. Government may utilize any reasonable natural or technological property may be searched under this rule unless the aid and may be conducted with or without notice to person to whom the property is issued or assigned those inspected. Unlawful weapons, contraband, or has a reasonable expectation of privacy therein at III-12

2011 NCIS Mini-Manual, Page 30 M.R.E. 314(h) the time of the search. Under normal circumstances, (2) Frisks. When a lawful stop is performed, the a person does not have a reasonable expectation of person stopped may be frisked for weapons when privacy in government property that is not issued for that person is reasonably believed to be armed and personal use. Wall or floor lockers in living quarters presently dangerous. Contraband or evidence located issued for the purpose of storing personal posses- in the process of a lawful frisk may be seized. sions normally are issued for personal use; but the ( 3 ) M o t o r v e h i c l e s . W h e n a p e r s o n l a w f u l l y determination as to whether a person has a reasona- stopped is the driver or a passenger in a motor ble expectation of privacy in government property vehicle, the passenger compartment of the vehicle issued for personal use depends on the facts and may be searched for weapons if the official who circumstances at the time of the search. made the stop has a reasonable belief that the person (e) Consent searches. stopped is dangerous and that the person stopped (1) General rule. Searches may be conducted of may gain immediate control of a weapon. any person or property with lawful consent. (g) Searches incident to a lawful apprehension. (2) Who may consent. A person may consent to a (1) General rule. A person who has been lawfully search of his or her person or property, or both, apprehended may be searched. unless control over such property has been given to (2) Search for weapons and destructible evidence. another. A person may grant consent to search prop- A search may be conducted for weapons or destruct- erty when the person exercises control over that ible evidence, in the area within the immediate con- property. trol of a person who has been apprehended. The area (3) Scope of consent. Consent may be limited in within the person’s “immediate control” is the area any way by the person granting consent, including which the individual searching could reasonably be- limitations in terms of time, place, or property and lieve that the person apprehended could reach with a may be withdrawn at any time. sudden movement to obtain such property; provided, (4) Voluntariness. To be valid, consent must be that the passenger compartment of an automobile, given voluntarily. Voluntariness is a question to be a n d c o n t a i n e r s w i t h i n t h e p a s s e n g e r c o m p a r t m e n t determined from all the circumstances. Although a may be searched as a contemporaneous incident of person’s knowledge of the right to refuse to give the apprehension of an occupant of the automobile, consent is a factor to be considered in determining regardless whether the person apprehended has been v o l u n t a r i n e s s , t h e p r o s e c u t i o n i s n o t r e q u i r e d t o removed from the vehicle. demonstrate such knowledge as a prerequisite to es- (3) Examination for other persons. tablishing a voluntary consent. Mere submission to (A) When an apprehension takes place at a lo- the color of authority of personnel performing law cation in which other persons might be present who enforcement duties or acquiescence in an announced might endanger those conducting the apprehension or indicated purpose to search is not a voluntary and others in the area of the apprehension, a reason- consent. able examination may be made of the general area in (5) Burden of proof. Consent must be shown by which such other persons might be located. A rea- clear and convincing evidence. The fact that a per- sonable examination under this rule is permitted if son was in custody while granting consent is a factor the apprehending officials have a reasonable suspi- to be considered in determining the voluntariness of cion based on specific and articulable facts that the consent, but it does not affect the burden of proof. area to be examined harbors an individual posing a (f) Searches incident to a lawful stop. danger to those in the area of the apprehension. ( 1 ) S t o p s . A p e r s o n a u t h o r i z e d t o a p p r e h e n d (B) Apprehending officials may, incident to ap- under R.C.M. 302(b) and others performing law en- prehension, as a precautionary matter and without forcement duties may stop another person temporar- probable cause or reasonable suspicion, look in clos- ily when the person making the stop has information ets and other spaces immediately adjoining the place or observes unusual conduct that leads him or her of apprehension from which an attack could be im- reasonably to conclude in light of his or her experi- mediately launched. ence that criminal activity may be afoot. The pur- (h) Searches within jails, confinement facilities, or pose of the stop must be investigatory in nature. similar facilities. Searches within jails, confinement III-13

2011 NCIS Mini-Manual, Page 31 M.R.E. 314(h) facilities, or similar facilities may be authorized by any other location under military control, wherever persons with authority over the institution. located; or (i) Emergency searches to save life or for related (4) Nonmilitary property within a foreign coun- purposes. In emergency circumstances to save life or try. for a related purpose, a search may be conducted of (A) Property owned, used, occupied by, or in persons or property in a good faith effort to render the possession of an agency of the United States immediate medical aid, to obtain information that other than the Department of Defense when situated will assist in the rendering of such aid, or to prevent in a foreign country. A search of such property may immediate or ongoing personal injury. not be conducted without the concurrence of an ap- (j) Searches of open fields or woodlands. A search p r o p r i a t e r e p r e s e n t a t i v e o f t h e a g e n c y c o n c e r n e d . o f o p e n f i e l d s o r w o o d l a n d s i s n o t a n u n l a w f u l Failure to obtain such concurrence, however, does search within the meaning of Mil. R. Evid. 311. not render a search unlawful within the meaning of Mil. R. Evid. 311. (k) Other searches. A search of a type not otherwise i n c l u d e d i n t h i s r u l e a n d n o t r e q u i r i n g p r o b a b l e (B) Other property situated in a foreign coun- cause under Mil. R. Evid. 315 may be conducted try. If the United States is a party to a treaty or w h e n p e r m i s s i b l e u n d e r t h e C o n s t i t u t i o n o f t h e agreement that governs a search in a foreign coun- United States as applied to members of the armed try, the search shall be conducted in accordance with forces. the treaty or agreement. If there is no treaty or agreement, concurrence should be obtained from an a p p r o p r i a t e r e p r e s e n t a t i v e o f t h e f o r e i g n c o u n t r y Rule 315. Probable cause searches with respect to a search under paragraph (4)(B) of (a) General rule. Evidence obtained from searches this subdivision. Failure to obtain such concurrence requiring probable cause conducted in accordance or noncompliance with a treaty or agreement, how- with this rule is admissible at trial when relevant and ever, does not render a search unlawful within the not otherwise inadmissible under these rules. meaning of Mil. R. Evid. 311. (b) Definitions. As used in these rules: (d) Power to authorize. Authorization to search pur- (1) Authorization to search. An “authorization to suant to this rule may be granted by an impartial search” is an express permission, written or oral, individual in the following categories: issued by competent military authority to search a (1) Commander. A commander or other person person or an area for specified property or evidence serving in a position designated by the Secretary or for a specific person and to seize such property, concerned as either a position analogous to an offi- evidence, or person. It may contain an order direct- cer in charge or a position of command, who has ing subordinate personnel to conduct a search in a control over the place where the property or person specified manner. to be searched is situated or found, or, if that place (2) Search warrant. A “search warrant” is an ex- is not under military control, having control over press permission to search and seize issued by com- persons subject to military law or the law of war; or petent civilian authority. (2) Military judge. A military judge or magistrate (c) Scope of authorization. A search authorization i f a u t h o r i z e d u n d e r r e g u l a t i o n s p r e s c r i b e d b y t h e may be issued under this rule for a search of: Secretary of Defense or the Secretary concerned. An otherwise impartial authorizing official does not lose (1) Persons. The person of anyone subject to mil- the character merely because he or she is present at itary law or the law of war wherever found; the scene of a search or is otherwise readily availa- ( 2 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y o f t h e b l e t o p e r s o n s w h o m a y s e e k t h e i s s u a n c e o f a United States or of nonappropriated fund activities search authorization; nor does such an official lose of an armed force of the United States wherever i m p a r t i a l c h a r a c t e r m e r e l y b e c a u s e t h e o f f i c i a l located; previously and impartially authorized investigative (3) Persons and property within military control. activities when such previous authorization is similar Persons or property situated on or in a military in- in intent or function to a pretrial authorization made stallation, encampment, vessel, aircraft, vehicle, or by the United States district courts. III-14

2011 NCIS Mini-Manual, Page 32 M.R.E. 315(h)(4)

( e ) P o w e r t o s e a r c h . A n y c o m m i s s i o n e d o f f i c e r , tion, or concealment of the property or evidence warrant officer, petty officer, noncommissioned offi- sought; cer, and, when in the execution of guard or police (3) Search of operable vehicle. An operable vehi- duties, any criminal investigator, member of the Air cle is to be searched, except in the circumstances Force security police, military police, or shore pa- where a search warrant or authorization is required trol, or person designated by proper authority to by the Constitution of the United States, this Manu- perform guard or police duties, or any agent of any al, or these rules; or s u c h p e r s o n , m a y c o n d u c t o r a u t h o r i z e a s e a r c h (4) Not required by the Constitution. A search when a search authorization has been granted under warrant or authorization is not otherwise required by this rule or a search would otherwise be proper the Constitution of the United States as applied to under subdivision (g). members of the armed forces. For purpose of this (f) Basis for Search authorizations. rule, a vehicle is “operable” unless a reasonable per- (1) Probable cause requirement. A search author- son would have known at the time of search that the ization issued under this rule must be based upon v e h i c l e w a s n o t f u n c t i o n a l f o r p u r p o s e s o f probable cause. transportation. (2) Probable cause determination. Probable cause (h) Execution. to search exists when there is a reasonable belief (1) Notice. If the person whose property is to be that the person, property, or evidence sought is lo- searched is present during a search conducted pur- cated in the place or on the person to be searched. A suant to a search authorization granted under this search authorization may be based upon hearsay evi- rule, the person conducting the search should when dence in whole or in part. A determination of proba- possible notify him or her of the act of authorization ble cause under this rule shall be based upon any or and the general substance of the authorization. Such all of the following: notice may be made prior to or contemporaneously ( A ) W r i t t e n s t a t e m e n t s c o m m u n i c a t e d t o t h e with the search. Failure to provide such notice does authorizing officer; not make a search unlawful within the meaning of Mil. R. Evid. 311. ( B ) O r a l s t a t e m e n t s c o m m u n i c a t e d t o t h e authorizing official in person, via telephone, or by (2) Inventory. Under regulations prescribed by the other appropriate means of communication; or Secretary concerned, and with such exceptions as may be authorized by the Secretary, an inventory of (C) Such information as may be known by the the property seized shall be made at the time of a authorizing official that would not preclude the offi- seizure under this rule or as soon as practicable cer from acting in an impartial fashion. The Secre- thereafter. At an appropriate time, a copy of the t a r y o f D e f e n s e o r t h e S e c r e t a r y c o n c e r n e d m a y inventory shall be given to a person from whose prescribe additional requirements. possession or premises the property was taken. Fail- (g) Exigencies. A search warrant or search authori- ure to make an inventory, furnish a copy thereof, or zation is not required under this rule for a search otherwise comply with this paragraph does not ren- based on probable cause when: der a search or seizure unlawful within the meaning (1) Insufficient time. There is a reasonable belief of Mil. R. Evid. 311. that the delay necessary to obtain a search warrant (3) Foreign searches. Execution of a search au- or search authorization would result in the removal, thorization outside the United States and within the destruction, or concealment of the property or evi- jurisdiction of a foreign nation should be in con- dence sought; formity with existing agreements between the United (2) Lack of communications. There is a reasona- States and the foreign nation. Noncompliance with ble military operational necessity that is reasonably such an agreement does not make an otherwise law- believed to prohibit or prevent communication with ful search unlawful. a person empowered to grant a search warrant or ( 4 ) S e a r c h w a r r a n t s . A n y c i v i l i a n o r m i l i t a r y authorization and there is a reasonable belief that the c r i m i n a l i n v e s t i g a t o r a u t h o r i z e d t o r e q u e s t s e a r c h delay necessary to obtain a search warrant or search warrants pursuant to applicable law or regulation is authorization would result in the removal, destruc- authorized to serve and execute search warrants. The III-15

2011 NCIS Mini-Manual, Page 33 M.R.E. 315(h)(4) execution of a search warrant affects admissibility ( 5 ) T e m p o r a r y d e t e n t i o n . N o t h i n g i n t h i s r u l e only insofar as exclusion of evidence is required by shall prohibit temporary detention of property on the Constitution of the United States or an applica- less than probable cause when authorized under the ble Act of Congress. Constitution of the United States. (e) Power to seize. Any commissioned officer, war- Rule 316. Seizures rant officer, petty officer, noncommissioned officer, (a) General rule. Evidence obtained from seizures and, when in the execution of guard or police duties, conducted in accordance with this rule is admissible any criminal investigator, member of the Air Force at trial if the evidence was not obtained as a result security police, military police, or shore patrol, or of an unlawful search and if the evidence is relevant individual designated by proper authority to perform and not otherwise inadmissible under these rules. guard or police duties, or any agent of any such person, may seize property pursuant to this rule. ( b ) S e i z u r e o f p r o p e r t y . P r o b a b l e c a u s e t o s e i z e property or evidence exists when there is a reasona- (f) Other seizures. A seizure of a type not otherwise ble belief that the property or evidence is an unlaw- included in this rule may be made when permissible ful weapon, contraband, evidence of crime, or might under the Constitution of the United States as ap- be used to resist apprehension or to escape. plied to members of the armed forces. ( c ) A p p r e h e n s i o n . A p p r e h e n s i o n i s g o v e r n e d b y R.C.M. 302. Rule 317. Interception of wire and oral communications (d) Seizure of property or evidence. (a) General rule. Wire or oral communications con- ( 1 ) A b a n d o n e d p r o p e r t y . A b a n d o n e d p r o p e r t y stitute evidence obtained as a result of an unlawful may be seized without probable cause and without a search or seizure within the meaning of Mil. R. search warrant or search authorization. Such seizure Evid. 311 when such evidence must be excluded may be made by any person. under the Fourth Amendment to the Constitution of (2) Consent. Property or evidence may be seized t h e U n i t e d S t a t e s a s a p p l i e d t o m e m b e r s o f t h e with consent consistent with the requirements appli- armed forces or if such evidence must be excluded cable to consensual searches under Mil. R. Evid. under a statute applicable to members of the armed 314. forces. ( 3 ) G o v e r n m e n t p r o p e r t y . G o v e r n m e n t p r o p e r t y ( b ) A u t h o r i z a t i o n f o r j u d i c i a l a p p l i c a t i o n s i n t h e may be seized without probable cause and without a United States. Under 18 U.S.C. § 2516(1), the Attor- search warrant or search authorization by any person ney General, or any Assistant Attorney General spe- listed in subdivision (e), unless the person to whom c i a l l y d e s i g n a t e d b y t h e A t t o r n e y G e n e r a l m a y the property is issued or assigned has a reasonable authorize an application to a federal judge of compe- expectation of privacy therein, as provided in Mil. tent jurisdiction for, and such judge may grant in R. Evid. 314(d), at the time of the seizure. c o n f o r m i t y w i t h 1 8 U . S . C . § 2 5 1 8 , a n o r d e r (4) Other property. Property or evidence not in- authorizing or approving the interception of wire or cluded in paragraph (1)-(3) may be seized for use in oral communications by the Department of Defense, evidence by any person listed in subdivision (e) if: the Department of Homeland Security, or any Mili- (A) Authorization. The person is authorized to tary Department for purposes of obtaining evidence seize the property or evidence by a search warrant or concerning the offenses enumerated in 18 U.S.C. § a search authorization under Mil. R. Evid. 315; 2516(1), to the extent such offenses are punishable ( B ) E x i g e n t c i r c u m s t a n c e s . T h e p e r s o n h a s under the Uniform Code of Military Justice. probable cause to seize the property or evidence and (c) Regulations. Notwithstanding any other provi- u n d e r M i l . R . E v i d . 3 1 5 ( g ) a s e a r c h w a r r a n t o r sion of these rules, members of the armed forces or search authorization is not required; or their agents may not intercept wire or oral communi- (C) Plain view. The person while in the course cations for law enforcement purposes unless such of otherwise lawful activity observes in a reasonable interception: fashion property or evidence that the person has (1) takes place in the United States and is author- probable cause to seize. ized under subdivision (b);

III-16

2011 NCIS Mini-Manual, Page 34 M.R.E. 321(c)(2)(A)

(2) takes place outside the United States and is lineup or other identification process is “unlawful” if authorized under regulations issued by the Secretary the identification is unreliable. An identification is of Defense or the Secretary concerned; or unreliable if the lineup or other identification proc- (3) is authorized under regulations issued by the ess, under the circumstances, is so suggestive as to Secretary of Defense or the Secretary concerned and create a substantial likelihood of misidentification. is not unlawful under 18 U.S.C. § 2511. (2) Lineups: right to counsel. A lineup is “unlaw- ful” if it is conducted in violation of the following Rule 321. Eyewitness identification rights to counsel: (a) General rule. (A) Military lineups. An accused or suspect is ( 1 ) A d m i s s i b i l i t y . T e s t i m o n y c o n c e r n i n g a r e l e - entitled to counsel if, after preferral of charges or vant out of court identification by any person is imposition of pretrial restraint under R.C.M. 304 for admissible, subject to an appropriate objection under the offense under investigation, the accused is sub- this rule, if such testimony is otherwise admissible jected by persons subject to the code or their agents under these rules. The witness making the identifica- to a lineup for the purpose of identification. When a tion and any person who has observed the previous person entitled to counsel under this rule requests identification may testify concerning it. When in tes- counsel, a judge advocate or a person certified in timony a witness identifies the accused as being, or accordance with Article 27(b) shall be provided by not being, a participant in an offense or makes any the United States at no expense to the accused or other relevant identification concerning a person in s u s p e c t a n d w i t h o u t r e g a r d t o i n d i g e n c y o r l a c k the courtroom, evidence that on a previous occasion thereof before the lineup may proceed. The accused the witness made a similar identification is admissi- or suspect may waive the rights provided in this rule ble to corroborate the witness’ testimony as to iden- if the waiver is freely, knowingly, and intelligently tity even if the credibility of the witness has not made. been attacked directly, subject to appropriate objec- (B) Nonmilitary lineups. When a person sub- tion under this rule. ject to the code is subjected to a lineup for purposes (2) Exclusionary rule. An identification of the ac- of identification by an official or agent of the United cused as being a participant in an offense, whether States, of the District of Columbia, or of a State, such identification is made at the trial or otherwise, Commonwealth, or possession of the United States, is inadmissible against the accused if: or any political subdivision of such a State, Com- (A) The accused makes a timely motion to sup- monwealth, or possession, and the provisions of par- press or an objection to the evidence under this rule agraph (A) do not apply, the person’s entitlement to and if the identification is the result of an unlawful counsel and the validity of any waiver of applicable lineup or other unlawful identification process con- rights shall be determined by the principles of law ducted by the United States or other domestic au- generally recognized in the trial of criminal cases in thorities; or the United States district courts involving similar lineups. (B) Exclusion of the evidence is required by the due process clause of the Fifth Amendment to (c) Motions to suppress and objections. the Constitution of the United States as applied to (1) Disclosure. Prior to arraignment, the prosecu- members of the armed forces. Evidence other than tion shall disclose to the defense all evidence of a an identification of the accused that is obtained as a prior identification of the accused as a lineup or result of the unlawful lineup or unlawful identifica- other identification process that it intends to offer tion process is inadmissible against the accused if into evidence against the accused at trial. the accused makes a timely motion to suppress or an (2) Motion or objection. objection to the evidence under this rule and if ex- (A) When such evidence has been disclosed, clusion of the evidence is required under the Consti- any motion to suppress or objection under this rule tution of the United States as applied to members of shall be made by the defense prior to submission of the armed forces. a plea. In the absence of such motion or objection, (b) Definition of “unlawful”. the defense may not raise the issue at a later time (1) Lineups and other identification processes. A except as permitted by the military judge for good III-17

2011 NCIS Mini-Manual, Page 35 M.R.E. 321(c)(2)(A) c a u s e s h o w n . F a i l u r e t o s o m o v e c o n s t i t u t e s a raises the issue of an unreliable identification, the waiver of the motion or objection. prosecution must prove by a preponderance of the (B) If the prosecution intends to offer such evi- evidence that the identification was reliable under dence and the evidence was not disclosed prior to the circumstances; provided, however, that if the a r r a i g n m e n t , t h e p r o s e c u t i o n s h a l l p r o v i d e t i m e l y military judge finds the evidence of identification notice to the military judge and counsel for the ac- inadmissible under this subdivision, a later identifi- cused. The defense may enter an objection at that cation may be admitted if the prosecution proves by time and the military judge may make such orders as clear and convincing evidence that the later identifi- are required in the interests of justice. c a t i o n i s n o t t h e r e s u l t o f t h e i n a d m i s s i b l e (C) If evidence is disclosed as derivative evi- identification. dence under this subdivision prior to arraignment, (e) Defense evidence. The defense may present evi- any motion to suppress or objection under this rule dence relevant to the issue of the admissibility of shall be made in accordance with the procedure for evidence as to which there has been an appropriate challenging evidence under (A). If such evidence motion or objection under this rule. An accused may has not been so disclosed prior to arraignment, the testify for the limited purpose of contesting the le- requirements of (B) apply. gality of the lineup or identification process giving (3) Specificity. The military judge may require rise to the challenged evidence. Prior to the intro- the defense to specify the grounds upon which the duction of such testimony by the accused, the de- defense moves to suppress or object to evidence. If f e n s e s h a l l i n f o r m t h e m i l i t a r y j u d g e t h a t t h e defense counsel, despite the exercise of due dili- testimony is offered under this subdivision. When gence, has been unable to interview adequately those the accused testifies under this subdivision, the ac- persons involved in the lineup or other identification cused may be cross-examined only as to the matter process, the military judge may enter any order re- on which he or she testifies. Nothing said by the quired by the interests of justice, including authori- accused on either direct or cross-examination may zation for the defense to make a general motion to be used against the accused for any purpose other suppress or a general objection. than in a prosecution for perjury, false swearing, or the making of a false official statement. (d) Burden of proof. When a specific motion or objection has been required under subdivision (c)(3), (f) Rulings. A motion to suppress or an objection to the burden on the prosecution extends only to the evidence made prior to plea under this rule shall be grounds upon which the defense moved to suppress ruled upon prior to plea unless the military judge, or object to the evidence. When an appropriate ob- for good cause, orders that it be deferred for deter- jection under this rule has been made by the de- mination at the trial of the general issue or until fense, the issue shall be determined by the military after findings, but no such determination shall be judge as follows: deferred if a party’s right to appeal the ruling is affected adversely. Where factual issues are involved (1) Right to counsel. When an objection raises the in ruling upon such motion or objection, the military right to presence of counsel under this rule, the judge shall state his or her essential findings of fact prosecution must prove by a preponderance of the on the record. evidence that counsel was present at the lineup or that the accused, having been advised of the right to (g) Effect of guilty pleas. Except as otherwise ex- the presence of counsel, voluntarily and intelligently p r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f waived that right prior to the lineup. When the mili- guilty to an offense that results in a finding of guilty tary judge determines that an identification is the waives all issues under this rule with respect to that result of a lineup conducted without the presence of offense whether or not raised prior to the plea. counsel or an appropriate waiver, any later identifi- cation by one present at such unlawful lineup is also SECTION IV a result thereof unless the military judge determines RELEVANCY AND ITS LIMITS that the contrary has been shown by clear and con- vincing evidence. Rule 401. Definition of “relevant evidence” (2) Unreliable identification. When an objection “Relevant evidence” means evidence having any III-18

2011 NCIS Mini-Manual, Page 36 M.R.E. 502(b)(2)

(2) contact between the mouth and the penis, the ognized in the trial of criminal cases in the United mouth and the vulva, or the mouth and the anus; States district courts pursuant to rule 501 of the (3) the penetration, however slight, of the anal or Federal Rules of Evidence insofar as the application genital opening of another by a hand or finger or by of such principles in trials by courts-martial is prac- any object, with an intent to abuse, humiliate, har- ticable and not contrary to or inconsistent with the ass, degrade, or arouse or gratify the sexual desire of code, these rules, or this Manual. any person; or (b) A claim of privilege includes, but is not limited ( 4 ) t h e i n t e n t i o n a l t o u c h i n g , n o t t h r o u g h t h e to, the assertion by any person of a privilege to: clothing, of the genitalia of another person who has (1) Refuse to be a witness; not attained the age of 16 years, with an intent to (2) Refuse to disclose any matter; abuse, humiliate, harass, degrade, or arouse or grat- (3) Refuse to produce any object or writing; or ify the sexual desire of any person. (4) Prevent another from being a witness or dis- (f) For purposes of this rule, the term “sexual con- c l o s i n g a n y m a t t e r o r p r o d u c i n g a n y o b j e c t o r tact” means the intentional touching, either directly writing. or through clothing, of the genitalia, anus, groin, (c) The term “person” includes an appropriate repre- breast, inner thigh, or buttocks of any person with an sentative of the Federal Government, a State, or po- intent to abuse, humiliate, harass, degrade, or arouse l i t i c a l s u b d i v i s i o n t h e r e o f , o r a n y o t h e r e n t i t y or gratify the sexual desire of any person. claiming to be the holder of a privilege. (g) For purposes of this rule, the term “sexually ( d ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f t h e s e explicit conduct” means actual or simulated: rules, information not otherwise privileged does not ( 1 ) s e x u a l i n t e r c o u r s e , i n c l u d i n g g e n i t a l - g e n i t a l , become privileged on the basis that it was acquired oral-genital, anal-genital, or oral-anal, whether be- b y a m e d i c a l o f f i c e r o r c i v i l i a n p h y s i c i a n i n a tween person of the same or opposite sex; professional capacity. (2) bestiality; (3) masturbation; Rule 502. Lawyer-client privilege (4) sadistic or masochistic abuse; or (a) General rule of privilege. A client has a privi- lege to refuse to disclose and to prevent any other (5) lascivious exhibition of the genitals or pubic person from disclosing confidential communications area of any person. made for the purpose of facilitating the rendition of (h) For purposes of this rule, the term “State” in- professional legal services to the client, (1) between cludes a State of the United States, the District of the client or the client’s representative and the law- Columbia, Puerto Rico, Guam, the Virgin Islands, yer or the lawyer’s representative, (2) between the and any other territory or possession of the United lawyer and the lawyer’s representative, (3) by the States. client or the client’s lawyer to a lawyer representing another in a matter of common interest, (4) between SECTION V representatives of the client or between the client PRIVILEGES and a representative of the client, or (5) between lawyers representing the client. Rule 501. General rule (b) Definitions. As used in this rule: (a) A person may not claim a privilege with respect (1) A “client” is a person, public officer, corpora- to any matter except as required by or provided for tion, association, organization, or other entity, either in: public or private, who receives professional legal (1) The Constitution of the United States as ap- services from a lawyer, or who consults a lawyer plied to members of the armed forces; with a view to obtaining professional legal services (2) An Act of Congress applicable to trials by from the lawyer. courts-martial; (2) A “lawyer” is a person authorized, or reasona- (3) These rules or this Manual; or bly believed by the client to be authorized, to prac- tice law; or a member of the armed forces detailed, (4) The principles of common law generally rec- assigned, or otherwise provided to represent a per- III-23

2011 NCIS Mini-Manual, Page 37 M.R.E. 502(b)(2) son in a court-martial case or in any military investi- duty by the lawyer to the client or by the client to gation or proceeding. The term “lawyer” does not the lawyer; include a member of the armed forces serving in a (4) Document attested by lawyer. As to a commu- capacity other than as a judge advocate, legal offi- nication relevant to an issue concerning an attested cer, or law specialist as defined in Article 1, unless document to which the lawyer is an attesting wit- the member: (a) is detailed, assigned, or otherwise ness; or provided to represent a person in a court-martial (5) Joint clients. As to a communication relevant case or in any military investigation or proceeding; to a matter of common interest between two or more (b) is authorized by the armed forces, or reasonably believed by the client to be authorized, to render clients if the communication was made by any of professional legal services to members of the armed them to a lawyer retained or consulted in common, forces; or (c) is authorized to practice law and ren- w h e n o f f e r e d i n a n a c t i o n b e t w e e n a n y o f t h e d e r s p r o f e s s i o n a l l e g a l s e r v i c e s d u r i n g o f f - d u t y clients. employment. (3) A “representative” of a lawyer is a person Rule 503. Communications to clergy employed by or assigned to assist a lawyer in pro- (a) General rule of privilege. A person has a privi- viding professional legal services. lege to refuse to disclose and to prevent another (4) A communication is “confidential” if not in- from disclosing a confidential communication by the tended to be disclosed to third persons other than person to a clergyman or to a clergyman’s assistant, those to whom disclosure is in furtherance of the if such communication is made either as a formal act rendition of professional legal services to the client of religion or as a matter of conscience. or those reasonably necessary for the transmission of (b) Definitions. As used in this rule: the communication. ( 1 ) A “ c l e r g y m a n ” i s a m i n i s t e r , p r i e s t , r a b b i , (c) Who may claim the privilege. The privilege may chaplain, or other similar functionary of a religious be claimed by the client, the guardian or conservator organization, or an individual reasonably believed to of the client, the personal representative of a de- be so by the person consulting the clergyman. ceased client, or the successor, trustee, or similar ( 2 ) A “ c l e r g y m a n ’ s a s s i s t a n t ” i s a p e r s o n e m - representative of a corporation, association, or other ployed by or assigned to assist a clergyman in his organization, whether or not in existence. The law- capacity as a spiritual advisor. yer or the lawyer’s representative who received the communication may claim the privilege on behalf of (3) A communication is “confidential” if made to the client. The authority of the lawyer to do so is a clergyman in the clergyman’s capacity as a spirit- presumed in the absence of evidence to the contrary. ual adviser or to a clergyman’s assistant in the as- sistant’s official capacity and is not intended to be (d) Exceptions. There is no privilege under this rule disclosed to third persons other than those to whom under the following circumstances: disclosure is in furtherance of the purpose of the (1) Crime or fraud. If the communication clearly communication or to those reasonably necessary for contemplated the future commission of a fraud or the transmission of the communication. crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan (c) Who may claim the privilege. The privilege may t o c o m m i t w h a t t h e c l i e n t k n e w o r r e a s o n a b l y be claimed by the person, by the guardian, or con- should have known to be a crime or fraud; servator, or by a personal representative if the per- s o n i s d e c e a s e d . T h e c l e r g y m a n o r c l e r g y m a n ’ s (2) Claimants through same deceased client. As a s s i s t a n t w h o r e c e i v e d t h e c o m m u n i c a t i o n m a y to a communication relevant to an issue between claim the privilege on behalf of the person. The parties who claim through the same deceased client, regardless of whether the claims are by testate or authority of the clergyman or clergyman’s assistant intestate succession or by inter vivos transaction; to do so is presumed in the absence of evidence to the contrary. (3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of III-24

2011 NCIS Mini-Manual, Page 38 M.R.E. 505(b)(1)

Rule 504. Husband-wife privilege statement of one of the parties is to be introduced (a) Spousal incapacity. A person has a privilege to against the other; or with respect to the privilege in refuse to testify against his or her spouse. subdivision (b), the relationship was a sham at the (b) Confidential communication made during mar- time of the communication; or riage. ( C ) I n p r o c e e d i n g s i n w h i c h a s p o u s e i s ( 1 ) G e n e r a l r u l e o f p r i v i l e g e . A p e r s o n h a s a charged, in accordance with Article 133 or 134, with privilege during and after the marital relationship to importing the other spouse as an alien for prostitu- refuse to disclose, and to prevent another from dis- t i o n o r o t h e r i m m o r a l p u r p o s e i n v i o l a t i o n o f 8 closing, any confidential communication made to the U.S.C. § 1328; with transporting the other spouse in spouse of the person while they were husband and interstate commerce for immoral purposes or other wife and not separated as provided by law. offense in violation of 18 U.S.C. §§ 2421–2424; or with violation of such other similar statutes under (2) Definition. A communication is “confidential” which such privilege may not be claimed in the trial if made privately by any person to the spouse of the of criminal cases in the United States district courts. person and is not intended to be disclosed to third persons other than those reasonably necessary for (d) Definitions. As used in this rule: transmission of the communication. (1) The term “a child of either” includes not only (3) Who may claim the privilege. The privilege a biological child, adopted child, or ward of one of may be claimed by the spouse who made the com- the spouses but also includes a child who is under munication or by the other spouse on his or her the permanent or temporary physical custody of one behalf. The authority of the latter spouse to do so is of the spouses, regardless of the existence of a legal presumed in the absence of evidence of a waiver. parent-child relationship. For purposes of this rule The privilege will not prevent disclosure of the com- only, a child is: (i) an individual under the age of munication at the request of the spouse to whom the 18; or (ii) an individual with a mental handicap who communication was made if that spouse is an ac- functions under the age of 18. cused regardless of whether the spouse who made (2) The term “temporary physical custody” in- the communication objects to its disclosure. cludes instances where a parent entrusts his or her (c) Exceptions. child with another. There is no minimum amount of (1) Spousal incapacity only. There is no privilege time necessary to establish temporary physical cus- under subdivision (a) when, at the time the testi- tody nor must there be a written agreement. Rather, mony of one of the parties to the marriage is to be the focus is on the parent’s agreement with another introduced in evidence against the other party, the for assuming parental responsibility for the child. p a r t i e s a r e d i v o r c e d o r t h e m a r r i a g e h a s b e e n For example, temporary physical custody may in- annulled. clude instances where a parent entrusts another with the care of their child for recurring care or during (2) Spousal incapacity and confidential communi- absences due to temporary duty or deployments. cations. There is no privilege under subdivisions (a) or (b): Rule 505. Classified information ( A ) I n p r o c e e d i n g s i n w h i c h o n e s p o u s e i s charged with a crime against the person or property (a) General rule of privilege. Classified information of the other spouse or a child of either, or with a is privileged from disclosure if disclosure would be crime against the person or property of a third per- detrimental to the national security. As with other son committed in the course of committing a crime rules of privilege this rule applies to all stages of the against the other spouse; proceedings. (B) When the marital relationship was entered (b) Definitions. As used in this rule: into with no intention of the parties to live together ( 1 ) C l a s s i f i e d i n f o r m a t i o n . “ C l a s s i f i e d i n f o r m a - as spouses, but only for the purpose of using the tion” means any information or material that has purported marital relationship as a sham, and with been determined by the United States Government respect to the privilege in subdivision (a), the rela- pursuant to an executive order, statute, or regula- tionship remains a sham at the time the testimony or tions, to require protection against unauthorized dis- III-25

2011 NCIS Mini-Manual, Page 39 M.R.E. 505(b)(1) closure for reasons of national security, and any late to classified information or that may promote a restricted data, as defined in 42 U.S.C. § 2014(y). fair and expeditious trial. (2) National security. “National security” means (f) Action after referral of charges. If a claim of t h e n a t i o n a l d e f e n s e a n d f o r e i g n r e l a t i o n s o f t h e privilege has been made under this rule with respect United States. to classified information that apparently contains ev- (c) Who may claim the privilege. The privilege may idence that is relevant and necessary to an element be claimed by the head of the executive or military of the offense or a legally cognizable defense and is department or government agency concerned based otherwise admissible in evidence in the court-martial on a finding that the information is properly classi- proceeding, the matter shall be reported to the con- fied and that disclosure would be detrimental to the vening authority. The convening authority may: national security. A person who may claim the privi- (1) institute action to obtain the classified infor- lege may authorize a witness or trial counsel to mation for the use by the military judge in making a claim the privilege on his or her behalf. The author- determination under subdivision (i); ity of the witness or trial counsel to do so is pre- (2) dismiss the charges; sumed in the absence of evidence to the contrary. (3) dismiss the charges or specifications or both (d) Action prior to referral of charges. Prior to re- to which the information relates; or ferral of charges, the convening authority shall re- (4) take such other action as may be required in spond in writing to a request by the accused for the interests of justice. classified information if the privilege in this rule is If, after a reasonable period of time, the information claimed for such information. The convening author- is not provided to the military judge in circum- ity may: stances where proceeding with the case without such (1) Delete specified items of classified informa- information would materially prejudice a substantial tion from documents made available to the accused; right of the accused, the military judge shall dismiss (2) Substitute a portion or summary of the infor- the charges or specifications or both to which the mation for such classified documents; classified information relates. (3) Substitute a statement admitting relevant facts (g) Disclosure of classified information to the ac- that the classified information would tend to prove; cused. (4) Provide the document subject to conditions (1) Protective order. If the Government agrees to that will guard against the compromise of the infor- disclose classified information to the accused, the mation disclosed to the accused; or military judge, at the request of the Government, shall enter an appropriate protective order to guard ( 5 ) W i t h h o l d d i s c l o s u r e i f a c t i o n s u n d e r ( 1 ) against the compromise of the information disclosed through (4) cannot be taken without causing identifi- to the accused. The terms of any such protective able damage to the national security. order may include provisions: Any objection by the accused to withholding of information or to the conditions of disclosure shall (A) Prohibiting the disclosure of the informa- be raised through a motion for appropriate relief at a tion except as authorized by the military judge; pretrial session. (B) Requiring storage of material in a manner appropriate for the level of classification assigned to (e) Pretrial session. At any time after referral of the documents to be disclosed; charges and prior to arraignment, any party may move for a session under Article 39(a) to consider (C) Requiring controlled access to the material matters relating to classified information that may during normal business hours and at other times arise in connection with the trial. Following such upon reasonable notice; motion or sua sponte, the military judge promptly (D) All persons requiring security clearances shall hold a session under Article 39(a) to establish shall cooperate with investigatory personnel in any the timing of requests for discovery, the provision of investigations which are necessary to obtain a secu- notice under subdivision (h), and the initiation of the rity clearance. procedure under subdivision (i). In addition, the mil- (E) Requiring the maintenance of logs regard- itary judge may consider any other matters that re- ing access by all persons authorized by the military III-26

2011 NCIS Mini-Manual, Page 40 M.R.E. 505(h)(4) judge to have access to the classified information in excise the portion from the statement. With such connection with the preparation of the defense; material excised, the military judge shall then direct ( F ) R e g u l a t i n g t h e m a k i n g a n d h a n d l i n g o f delivery of such statement to the accused for use by notes taken from material containing classified infor- the accused. If the military judge finds that such mation; or portion of the statement is inconsistent with the wit- (G) Requesting the convening authority to au- ness’ testimony, the Government may move for a thorize the assignment of government security per- proceeding under subdivision (i). s o n n e l a n d t h e p r o v i s i o n o f g o v e r n m e n t s t o r a g e (4) Record of trial. If, under this subdivision, any facilities. information is withheld from the accused, the ac- (2) Limited disclosure. The military judge, upon cused objects to such withholding, and the trial is motion of the Government, shall authorize (A) the continued to an adjudication of guilt of the accused, deletion of specified items of classified information the entire unaltered text of the relevant documents as from documents to be made available to the defend- well as the Government’s motion and any materials ant, (B) the substitution of a portion or summary of submitted in support thereof shall be sealed and at- the information for such classified documents, or (C) tached to the record of trial as an appellate exhibit. the substitution of a statement admitting relevant Such material shall be made available to reviewing facts that the classified information would tend to authorities in closed proceedings for the purpose of prove, unless the military judge determines that dis- reviewing the determination of the military judge. closure of the classified information itself is neces- ( h ) N o t i c e o f t h e a c c u s e d ’ s i n t e n t i o n t o d i s c l o s e sary to enable the accused to prepare for trial. The classified information. Government’s motion and any materials submitted (1) Notice by the accused. If the accused reasona- in support thereof shall, upon request of the Govern- bly expects to disclose or to cause the disclosure of ment, be considered by the military judge in camera classified information in any manner in connection and shall not be disclosed to the accused. with a court-martial proceeding, the accused shall ( 3 ) D i s c l o s u r e a t t r i a l o f c e r t a i n s t a t e m e n t s notify the trial counsel in writing of such intention previously made by a witness. and file a copy of such notice with the military (A) Scope. After a witness called by the Gov- judge. Such notice shall be given within the time ernment has testified on direct examination, the mili- specified by the military judge under subdivision (e) tary judge, on motion of the accused, may order or, if no time has been specified, prior to arraign- production of statements in the possession of the ment of the accused. U n i t e d S t a t e s u n d e r R . C . M . 9 1 4 . T h i s p r o v i s i o n (2) Continuing duty to notify. Whenever the ac- does not preclude discovery or assertion of a privi- cused learns of classified information not covered by lege otherwise authorized under these rules or this a notice under (1) that the accused reasonably ex- Manual. pects to disclose at any such proceeding, the accused (B) Closed session. If the privilege in this rule shall notify the trial counsel and the military judge is invoked during consideration of a motion under in writing as soon as possible thereafter. R.C.M. 914, the Government may deliver such state- (3) Content of notice. The notice required by this ment for the inspection only by the military judge in camera and may provide the military judge with an subdivision shall include a brief description of the affidavit identifying the portions of the statement classified information. The description, to be suffi- that are classified and the basis for the classification cient, must be more than a mere general statement assigned. If the military judge finds that disclosure of the areas about which evidence may be intro- of any portion of the statement identified by the duced. The accused must state, with particularity, Government as classified could reasonably be ex- which items of classified information he reasonably pected to cause damage to the national security in expects will be revealed by his defense. the degree required to warrant classification under (4) Prohibition against disclosure. The accused the applicable executive order, statute, or regulation may not disclose any information known or believed and that such portion of the statement is consistent to be classified until notice has been given under with the witness’ testimony, the military judge shall this subdivision and until the Government has been III-27

2011 NCIS Mini-Manual, Page 41 M.R.E. 505(h)(4) afforded a reasonable opportunity to seek a determi- s i f i e d i n f o r m a t i o n w h e n t h e G o v e r n m e n t h a s n o t nation under subdivision (i). previously made the information available to the ac- (5) Failure to comply. If the accused fails to com- cused in connection with pretrial proceedings. Fol- ply with the requirements of this subdivision, the lowing briefing and argument by the parties in the in military judge may preclude disclosure of any classi- camera proceeding the military judge shall deter- fied information not made the subject of notification mine whether the information may be disclosed at and may prohibit the examination by the accused of t h e c o u r t - m a r t i a l p r o c e e d i n g . W h e r e t h e G o v e r n - any witness with respect to any such information. ment’s motion under this subdivision is filed prior to (i) In camera proceedings for cases involving clas- the proceeding at which disclosure is sought, the sified information. military judge shall rule prior to the commencement of the relevant proceeding. (1) Definition. For purposes of this subdivision, an “in camera proceeding” is a session under Article ( B ) S t a n d a r d . C l a s s i f i e d i n f o r m a t i o n i s n o t 39(a) from which the public is excluded. subject to disclosure under this subdivision unless (2) Motion for in camera proceeding. Within the the information is relevant and necessary to an ele- time specified by the military judge for the filing of ment of the offense or a legally cognizable defense a motion under this rule, the Government may move and is otherwise admissible in evidence. In presen- for an in camera proceeding concerning the use at tencing proceedings, relevant and material classified any proceeding of any classified information. There- information pertaining to the appropriateness of, or after, either prior to or during trial, the military the appropriate degree of, punishment shall be ad- judge for good cause shown or otherwise upon a mitted only if no unclassified version of such infor- claim of privilege under this rule may grant the mation is available. G o v e r n m e n t l e a v e t o m o v e f o r a n i n c a m e r a (C) Ruling. Unless the military judge makes a proceeding concerning the use of additional classi- written determination that the information meets the fied information. standard set forth in (B), the information may not be (3) Demonstration of national security nature of d i s c l o s e d o r o t h e r w i s e e l i c i t e d a t a c o u r t - m a r t i a l the information. In order to obtain an in camera proceeding. The record of the in camera proceeding proceeding under this rule, the Government shall shall be sealed and attached to the record of trial as submit the classified information and an affidavit ex an appellate exhibit. The accused may seek recon- parte for examination by the military judge only. sideration of the determination prior to or during The affidavit shall demonstrate that disclosure of the trial. information reasonably could be expected to cause (D) Alternatives to full disclosure. If the mili- damage to the national security in the degree re- tary judge makes a determination under this subdivi- quired to warrant classification under the applicable sion that would permit disclosure of the information executive order, statute, or regulation. or if the Government elects not to contest the rele- (4) In camera proceeding. vance, necessity, and admissibility of any classified (A) Procedure. Upon finding that the Govern- information, the Government may proffer a state- ment has met the standard set forth in subdivision ment admitting for purposes of the proceeding any (i)(3) with respect to some or all of the classified relevant facts such information would tend to prove information at issue, the military judge shall conduct or may submit a portion of summary to be used in an in camera proceeding. Prior to the in camera lieu of the information. The military judge shall or- proceeding, the Government shall provide the ac- der that such statement, portion, or summary by cused with notice of the information that will be at used by the accused in place of the classified infor- issue. This notice shall identify the classified infor- mation unless the military judge finds that use of the mation that will be at issue whenever that informa- classified information itself is necessary to afford the t i o n p r e v i o u s l y h a s b e e n m a d e a v a i l a b l e t o t h e accused a fair trial. accused in connection with proceedings in the same (E) Sanctions. If the military judge determines case. The Government may describe the information that alternatives to full disclosure may not be used by generic category, in such form as the military and the Government continues to object to disclo- judge may approve, rather than identifying the clas- sure of the information, the military judge shall issue III-28

2011 NCIS Mini-Manual, Page 42 M.R.E. 506(d)(1) any order that the interests of justice require. Such with a proffer of the nature of the information the an order may include an order: accused seeks to elicit. (i) striking or precluding all or part of the (5) Closed session. The military judge may ex- testimony of a witness; clude the public during that portion of the presenta- (ii) declaring a mistrial; t i o n o f e v i d e n c e t h a t d i s c l o s e s c l a s s i f i e d information. (iii) finding against the Government on any issue as to which the evidence is relevant and mate- ( 6 ) R e c o r d o f t r i a l . T h e r e c o r d o f t r i a l w i t h rial to the defense; respect to any classified matter will be prepared under R.C.M. 1103(h) and 1104(b)(1)(D). (iv) dismissing the charges, with or without prejudice; or (k) Security procedures to safeguard against com- p r o m i s e o f c l a s s i f i e d i n f o r m a t i o n d i s c l o s e d t o (v) dismissing the charges or specifications courts-martial. The Secretary of Defense may pre- or both to which the information relates. scribe security procedures for protection against the A n y s u c h o r d e r s h a l l p e r m i t t h e G o v e r n m e n t t o compromise of classified information submitted to avoid the sanction for nondisclosure by permitting courts-martial and appellate authorities. the accused to disclose the information at the perti- nent court-martial proceeding. Rule 506. Government information other (j) Introduction of classified information. than classified information ( 1 ) C l a s s i f i c a t i o n s t a t u s . W r i t i n g s , r e c o r d i n g s , (a) General rule of privilege. Except where disclo- a n d p h o t o g r a p h s c o n t a i n i n g c l a s s i f i e d i n f o r m a t i o n sure is required by an Act of Congress, government may be admitted into evidence without change in information is privileged from disclosure if disclo- their classification status. sure would be detrimental to the public interest. (2) Precautions by the military judge. In order to (b) Scope. “Government information” includes offi- prevent unnecessary disclosure of classified informa- cial communication and documents and other infor- tion, the military judge may order admission into mation within the custody or control of the Federal evidence of only part of a writing, recording, or Government. This rule does not apply to classified photograph or may order admission into evidence of information (Mil. R. Evid. 505) or to the identity of the whole writing, recording, or photograph with an informant (Mil. R. Evid. 507). excision of some or all of the classified information (c) Who may claim the privilege. The privilege may contained therein. be claimed by the head of the executive or military ( 3 ) C o n t e n t s o f w r i t i n g , r e c o r d i n g , o r p h o t o - department or government agency concerned. The graph. The military judge may permit proof of the privilege for records and information of the Inspec- contents of a writing, recording, or photograph that tor General may be claimed by the immediate supe- contains classified information without requiring in- rior of the inspector general officer responsible for t r o d u c t i o n i n t o e v i d e n c e o f t h e o r i g i n a l o r a creation of the records or information, the Inspector duplicate. General, or any other superior authority. A person (4) Taking of testimony. During the examination who may claim the privilege may authorize a wit- of a witness, the Government may object to any ness or the trial counsel to claim the privilege on his question or line of inquiry that may require the wit- or her behalf. The authority of a witness or the trial ness to disclose classified information not previously counsel to do so is presumed in the absence of found to be relevant and necessary to the defense. evidence to the contrary. Following such an objection, the military judge shall (d) Action prior to referral of charges. Prior to re- take such suitable action to determine whether the ferral of charges, the Government shall respond in response is admissible as will safeguard against the writing to a request for government information if compromise of any classified information. Such ac- the privilege in this rule is claimed for such informa- tion may include requiring the Government to pro- tion. The Government shall: vide the military judge with a proffer or the witness’ (1) delete specified items of government informa- response to the question or line of inquiry and re- tion claimed to be privileged from documents made quiring the accused to provide the military judge available to the accused; III-29

2011 NCIS Mini-Manual, Page 43 M.R.E. 506(d)(2)

(2) substitute a portion or summary of the infor- cused. The terms of any such protective order may mation for such documents; include provisions: (3) substitute a statement admitting relevant facts (1) Prohibiting the disclosure of the information t h a t t h e g o v e r n m e n t i n f o r m a t i o n w o u l d t e n d t o except as authorized by the military judge; prove; (2) Requiring storage of the material in a manner (4) provide the document subject to conditions appropriate for the nature of the material to be dis- similar to those set forth in subdivision (g) of this closed; upon reasonable notice; rule; or ( 3 ) R e q u i r i n g c o n t r o l l e d a c c e s s t o t h e m a t e r i a l ( 5 ) w i t h h o l d d i s c l o s u r e i f a c t i o n s u n d e r ( 1 ) during normal business hours and at other times through (4) cannot be taken without causing identifi- upon reasonable notice; able damage to the public interest. (4) Requiring the maintenance of logs recording (e) Pretrial session. At any time after referral of access by persons authorized by the military judge charges and prior to arraignment, any party may to have access to the government information in move for a session under Article 39(a) to consider connection with the preparation of the defense; matters relating to government information that may (5) Regulating the making and handling of notes arise in connection with the trial. Following such taken from material containing government informa- motion, or sua sponte, the military judge promptly tion; or shall hold a pretrial session under Article 39(a) to (6) Requesting the convening authority to author- establish the timing of requests for discovery, the ize the assignment of government security personnel provision of notice under subdivision (h), and the and the provision of government storage facilities. initiation of the procedure under subdivision (i). In addition, the military judge may consider any other (h) Prohibition against disclosure. The accused may matters that relate to government information or that not disclose any information known or believed to may promote a fair and expeditious trial. be subject to a claim of privilege under this rule unless the military judge authorizes such disclosure. (f) Action after motion for disclosure of informa- tion. After referral of charges, if the defense moves (i) In camera proceedings. for disclosure of government information for which (1) Definition. For the purpose of this subdivi- a claim of privilege has been made under this rule, sion, an “in camera proceeding” is a session under the matter shall be reported to the convening author- Article 39(a) from which the public is excluded. ity. The convening authority may: (2) Motion for in camera proceeding. Within the (1) institute action to obtain the information for time specified by the military judge for the filing of use by the military judge in making a determination a motion under this rule, the Government may move under subdivision (i); for an in camera proceeding concerning the use at (2) dismiss the charges; any proceeding of any government information that (3) dismiss the charges or specifications or both may be subject to a claim of privilege. Thereafter, to which the information relates; or either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of (4) take other action as may be required in the privilege may grant the Government leave to move interests of justice. for an in camera proceeding concerning the use of If, after a reasonable period of time, the information additional government information. is not provided to the military judge, the military judge shall dismiss the charges or specifications or (3) Demonstration of public interest nature of the both to which the information relates. i n f o r m a t i o n . I n o r d e r t o o b t a i n a n i n c a m e r a proceeding under this rule, the Government shall (g) Disclosure of government information to the ac- demonstrate, through the submission of affidavits cused. If the Government agrees to disclose govern- and information for examination only by the military ment information to the accused subsequent to a judge, that disclosure of the information reasonably claim of privilege under this rule, the military judge, could be expected to cause identifiable damage to at the request of the Government, shall enter an the public interest. a p p r o p r i a t e p r o t e c t i v e o r d e r t o g u a r d a g a i n s t t h e compromise of the information disclosed to the ac- (4) In camera proceeding. III-30

2011 NCIS Mini-Manual, Page 44 M.R.E. 506(k)(1)

(A) Finding of identifiable damage. Upon find- shall order that such statement, portion, summary, or ing that the disclosure of some or all of the informa- some other form of information which the military tion submitted by the Government under subsection judge finds to be consistent with the interests of (i)(3) reasonably could be expected to cause identifi- justice, be used by the accused in place of the gov- able damage to the public interest, the military judge ernment information, unless the military judge finds shall conduct an in camera proceeding. that use of the government information itself is nec- (B) Disclosure of the information to the de- essary to afford the accused a fair trial. fense. Subject to subdivision (F), below, the Govern- ( F ) S a n c t i o n s . G o v e r n m e n t i n f o r m a t i o n m a y m e n t s h a l l d i s c l o s e g o v e r n m e n t i n f o r m a t i o n f o r not be disclosed over the Government’s objection. If which a claim of privilege has been made to the the Government continues to object to disclosure of a c c u s e d , f o r t h e l i m i t e d p u r p o s e o f l i t i g a t i n g , i n the information following rulings by the military camera, the admissibility of the information at trial. judge, the military judge shall issue any order that The military judge shall enter an appropriate protec- the interests of justice require. Such an order may tive order to the accused and all other appropriate include: trial participants concerning the disclosure of the (i) striking or precluding all or part of the information according to subsection (g), above. The testimony of a witness; accused shall not disclose any information provided under this subsection unless, and until, such infor- (ii) declaring a mistrial; mation has been admitted into evidence by the mili- (iii) finding against the Government on any tary judge. In the in camera proceeding, both parties issue as to which the evidence is relevant and neces- shall have the opportunity to brief and argue the sary to the defense; admissibility of the government information at trial. (iv) dismissing the charges, with or without (C) Standard. Government information is sub- prejudice; or j e c t t o d i s c l o s u r e a t t h e c o u r t - m a r t i a l p r o c e e d i n g (v) dismissing the charges or specifications under this subsection if the party making the request or both to which the information relates. demonstrates a specific need for information con- (j) Appeals of orders and rulings. In a court-martial taining evidence that is relevant to the guilt or inno- in which a punitive discharge may be adjudged, the c e n c e o r t o p u n i s h m e n t o f t h e a c c u s e d , a n d i s Government may appeal an order or ruling of the otherwise admissible in the court-martial proceeding. military judge that terminates the proceedings with (D) Ruling. No information may be disclosed respect to a charge or specification, directs the dis- at the court-martial proceeding or otherwise unless closure of government information, or imposes sanc- the military judge makes a written determination that tions for nondisclosure of government information. the information is subject to disclosure under the The government may also appeal an order or ruling standard set forth in subsection (C), above. The mili- in which the military judge refuses to issue a protec- tary judge will specify in writing any information tive order sought by the United States to prevent the that he or she determines is subject to disclosure. disclosure of government information, or to enforce The record of the in camera proceeding shall be such an order previously issued by appropriate au- sealed and attached to the record of trial as an appel- thority. The Government may not appeal an order or late exhibit. The accused may seek reconsideration ruling that is, or amounts to, a finding of not guilty of the determination prior to or during trial. with respect to the charge or specification. (E) Alternatives to full disclosure. If the mili- tary judge makes a determination under this subsec- (k) Introduction of government information subject tion that the information is subject to disclosure, or to a claim of privilege. if the Government elects not to contest the rele- (1) Precautions by military judge. In order to pre- vance, necessity, and admissibility of the govern- vent unnecessary disclosure of government informa- ment information, the Government may proffer a tion after there has been a claim of privilege under statement admitting for purposes of the court-martial this rule, the military judge may order admission any relevant facts such information would tend to into evidence of only part of a writing, recording, or prove or may submit a portion or summary to be photograph or may order admission into evidence of used in lieu of the information. The military judge the whole writing, recording, or photograph with III-31

2011 NCIS Mini-Manual, Page 45 M.R.E. 506(k)(1) excision of some or all of the government informa- State or subdivision thereof. The privilege may be tion contained therein. claimed by an appropriate representative of a State ( 2 ) C o n t e n t s o f w r i t i n g , r e c o r d i n g , o r p h o t o - or subdivision if the information was furnished to an graph. The military judge may permit proof of the officer thereof, except the privilege shall not be al- contents of a writing, recording, or photograph that lowed if the prosecution objects. contains government information that is the subject (c) Exceptions. of a claim of privilege under this rule without re- (1) Voluntary disclosures; informant as witness. quiring introduction into evidence of the original or No privilege exists under this rule: (A) if the identity a duplicate. of the informant has been disclosed to those who (3) Taking of testimony. During examination of a would have cause to resent the communication by a witness, the prosecution may object to any question holder of the privilege or by the informant’s own or line of inquiry that may require the witness to action; or (B) if the informant appears as a witness d i s c l o s e g o v e r n m e n t i n f o r m a t i o n n o t p r e v i o u s l y for the prosecution. found relevant and necessary to the defense if such (2) Testimony on the issue of guilt or innocence. information has been or is reasonably likely to be If a claim of privilege has been made under this the subject of a claim of privilege under this rule. rule, the military judge shall, upon motion by the Following such an objection, the military judge shall accused, determine whether disclosure of the iden- take such suitable action to determine whether the tity of the informant is necessary to the accused’s response is admissible as will safeguard against the defense on the issue of guilt or innocence. Whether compromise of any government information. Such such a necessity exists will depend on the particular action may include requiring the Government to pro- circumstances of each case, taking into consideration vide the military judge with a proffer of the witness’ the offense charged, the possible defense, the possi- response to the question or line of inquiry and re- ble significance of the informant’s testimony, and quiring the accused to provide the military judge other relevant factors. If it appears from the evi- with a proffer of the nature of the information the dence in the case or from other showing by a party accused seeks to elicit. that an informant may be able to give testimony (l) Procedures to safeguard against compromise of necessary to the accused’s defense on the issue of government information disclosed to courts-martial. guilt or innocence, the military judge may make any The Secretary of Defense may prescribe procedures order required by the interests of justice. for protection against the compromise of govern- (3) Legality of obtaining evidence. If a claim of ment information submitted to courts-martial and ap- privilege has been made under this rule with respect pellate authorities after a claim of privilege. to a motion under Mil. R. Evid. 311, the military judge shall, upon motion of the accused, determine Rule 507. Identity of informant whether disclosure of the identity of the informant is required by the Constitution of the United States as (a) Rule of privilege. The United States or a State or applied to members of the armed forces. In making subdivision thereof has a privilege to refuse to dis- this determination, the military judge may make any close the identity of an informant. An “informant” is order required by the interests of justice. a person who has furnished information relating to (d) Procedures. If a claim of privilege has been or assisting in an investigation of a possible viola- made under this rule, the military judge may make tion of law to a person whose official duties include any order required by the interests of justice. If the the discovery, investigation, or prosecution of crime. military judge determines that disclosure of the iden- Unless otherwise privileged under these rules, the tity of the informant is required under the standards communications of an informant are not privileged set forth in this rule, and the prosecution elects not except to the extent necessary to prevent the disclo- to disclose the identity of the informant, the matter sure of the informant’s identity. shall be reported to the convening authority. The (b) Who may claim the privilege. The privilege may convening authority may institute action to secure be claimed by an appropriate representative of the disclosure of the identity of the informant, terminate United States, regardless of whether information was the proceedings, or take such other action as may be furnished to an officer of the United States or a appropriate under the circumstances. If, after a rea- III-32

2011 NCIS Mini-Manual, Page 46 M.R.E. 513(a) sonable period of time disclosure is not made, the o f t h e p r i v i l e g e i f d i s c l o s u r e w a s c o m p e l l e d e r - military judge, sua sponte or upon motion of either roneously or was made without an opportunity for counsel and after a hearing if requested by either the holder of the privilege to claim the privilege. party, may dismiss the charge or specifications or (b) The telephonic transmission of information oth- both to which the information regarding the inform- erwise privileged under these rules does not affect ant would relate if the military judge determines that its privileged character. Use of electronic means of f u r t h e r p r o c e e d i n g s w o u l d m a t e r i a l l y p r e j u d i c e a communication other than the telephone for trans- substantial right of the accused. mission of information otherwise privileged under these rules does not affect the privileged character of Rule 508. Political vote such information if use of such means of communi- A person has a privilege to refuse to disclose the c a t i o n i s n e c e s s a r y a n d i n f u r t h e r a n c e o f t h e tenor of the person’s vote at a political election communication. conducted by secret ballot unless the vote was cast illegally. Rule 512. Comment upon or inference from claim of privilege; instruction Rule 509. Deliberations of courts and juries (a) Comment or inference not permitted. Except as provided in Mil. R. Evid. 606, the de- ( 1 ) T h e c l a i m o f a p r i v i l e g e b y t h e a c c u s e d liberations of courts and grand and petit juries are whether in the present proceeding or upon a prior privileged to the extent that such matters are privi- occasion is not a proper subject of comment by the leged in trial of criminal cases in the United States military judge or counsel for any party. No inference district courts, but the results of the deliberations are may be drawn therefrom. not privileged. (2) The claim of a privilege by a person other than the accused whether in the present proceeding Rule 510. Waiver of privilege by voluntary or upon a prior occasion normally is not a proper disclosure subject of comment by the military judge or counsel for any party. An adverse inference may not be (a) A person upon whom these rules confer a privi- d r a w n t h e r e f r o m e x c e p t w h e n d e t e r m i n e d b y t h e lege against disclosure of a confidential matter or military judge to be required by the interests of communication waives the privilege if the person or justice. the person’s predecessor while holder of the privi- (b) Claiming privilege without knowledge of mem- lege voluntarily discloses or consents to disclosure bers. In a trial before a court-martial with members, of any significant part of the matter or communica- proceedings shall be conducted, to the extent practi- tion under such circumstances that it would be inap- cable, so as to facilitate the making of claims of propriate to allow the claim of privilege. This rule privilege without the knowledge of the members. does not apply if the disclosure is itself a privileged This subdivision does not apply to a special court- communication. martial without a military judge. (b) Unless testifying voluntarily concerning a privi- ( c ) I n s t r u c t i o n . U p o n r e q u e s t , a n y p a r t y a g a i n s t leged matter or communication, an accused who tes- whom the members might draw an adverse inference tifies in his or her own behalf or a person who from a claim of privilege is entitled to an instruction testifies under a grant or promise of immunity does that no inference may be drawn therefrom except as not, merely by reason of testifying, waive a privilege provided in subdivision (a)(2). to which he or she may be entitled pertaining to the confidential matter or communication. Rule 513. Psychotherapist-patient privilege (a) General rule of privilege. A patient has a privi- Rule 511. Privileged matter disclosed under lege to refuse to disclose and to prevent any other compulsion or without opportunity to claim person from disclosing a confidential communica- privilege tion made between the patient and a psychotherapist (a) Evidence of a statement or other disclosure of or an assistant to the psychotherapist, in a case aris- privileged matter is not admissible against the holder ing under the UCMJ, if such communication was III-33

2011 NCIS Mini-Manual, Page 47 M.R.E. 513(a) made for the purpose of facilitating diagnosis or crime against the person of the other spouse or a t r e a t m e n t o f t h e p a t i e n t ’ s m e n t a l o r e m o t i o n a l child of either spouse; condition. (3) when federal law, state law, or service regula- (b) Definitions. As used in this rule of evidence: tion imposes a duty to report information contained (1) A “patient” is a person who consults with or in a communication; is examined or interviewed by a psychotherapist for ( 4 ) w h e n a p s y c h o t h e r a p i s t o r a s s i s t a n t t o a p u r p o s e s o f a d v i c e , d i a g n o s i s , o r t r e a t m e n t o f a psychotherapist believes that a patient’s mental or mental or emotional condition. emotional condition makes the patient a danger to (2) A “psychotherapist” is a psychiatrist, clinical any person, including the patient; psychologist, or clinical social worker who is li- (5) if the communication clearly contemplated the censed in any state, territory, possession, the District future commission of a fraud or crime or if the of Columbia or Puerto Rico to perform professional services of the psychotherapist are sought or ob- services as such, or who holds credentials to provide tained to enable or aid anyone to commit or plan to such services from any military health care facility, commit what the patient knew or reasonably should or is a person reasonably believed by the patient to have known to be a crime or fraud; have such license or credentials. (6) when necessary to ensure the safety and secu- (3) An “assistant to a psychotherapist” is a person rity of military personnel, military dependents, mili- directed by or assigned to assist a psychotherapist in t a r y p r o p e r t y , c l a s s i f i e d i n f o r m a t i o n , o r t h e providing professional services, or is reasonably be- accomplishment of a military mission; lieved by the patient to be such. (7) when an accused offers statements or other (4) A communication is “confidential” if not in- evidence concerning his mental condition in defense, tended to be disclosed to third persons other than extenuation, or mitigation, under circumstances not those to whom disclosure is in furtherance of the covered by R.C.M. 706 or Mil. R. Evid. 302. In rendition of professional services to the patient or such situations, the military judge may, upon mo- those reasonably necessary for such transmission of tion, order disclosure of any statement made by the the communication. accused to a psychotherapist as may be necessary in (5) “Evidence of a patient’s records or communi- the interests of justice; or cations” is testimony of a psychotherapist, or assist- (8) when admission or disclosure of a communi- ant to the same, or patient records that pertain to cation is constitutionally required. communications by a patient to a psychotherapist, or (e) Procedure to determine admissibility of patient assistant to the same for the purposes of diagnosis or records or communications. t r e a t m e n t o f t h e p a t i e n t ’ s m e n t a l o r e m o t i o n a l (1) In any case in which the production or admis- condition. sion of records or communications of a patient other (c) Who may claim the privilege. The privilege may than the accused is a matter in dispute, a party may be claimed by the patient or the guardian or conser- seek an interlocutory ruling by the military judge. In vator of the patient. A person who may claim the order to obtain such a ruling, the party shall: p r i v i l e g e m a y a u t h o r i z e t r i a l c o u n s e l o r d e f e n s e (A) file a written motion at least 5 days prior counsel to claim the privilege on his or her behalf. to entry of pleas specifically describing the evidence T h e p s y c h o t h e r a p i s t o r a s s i s t a n t t o t h e and stating the purpose for which it is sought or p s y c h o t h e r a p i s t w h o r e c e i v e d t h e c o m m u n i c a t i o n offered, or objected to, unless the military judge, for may claim the privilege on behalf of the patient. The good cause shown, requires a different time for fil- authority of such a psychotherapist, assistant, guardi- ing or permits filing during trial; and an, or conservator to so assert the privilege is pre- (B) serve the motion on the opposing party, the sumed in the absence of evidence to the contrary. military judge and, if practical, notify the patient or (d) Exceptions. There is no privilege under this rule: the patient’s guardian, conservator, or representative (1) when the patient is dead; that the motion has been filed and that the patient ( 2 ) w h e n t h e c o m m u n i c a t i o n i s e v i d e n c e o f has an opportunity to be heard as set forth in sub- s p o u s e a b u s e , c h i l d a b u s e , o r n e g l e c t o r i n a paragraph (e)(2). proceeding in which one spouse is charged with a (2) Before ordering the production or admission III-34

2011 NCIS Mini-Manual, Page 48 M.R.E. 606(b) of evidence of a patient’s records or communication, to awaken the witness’s conscience and impress the the military judge shall conduct a hearing. Upon the witness’s mind with the duty to do so. motion of counsel for either party and upon good cause shown, the military judge may order the hear- Rule 604. Interpreters ing closed. At the hearing, the parties may call wit- An interpreter is subject to the provisions of these nesses, including the patient, and offer other relevant rules relating to qualifications as an expert and the evidence. The patient shall be afforded a reasonable administration of an oath or affirmation that the in- opportunity to attend the hearing and be heard at the terpreter will make a true translation. patient’s own expense unless the patient has been otherwise subpoenaed or ordered to appear at the Rule 605. Competency of military judge as hearing. However, the proceedings shall not be un- witness duly delayed for this purpose. In a case before a c o u r t - m a r t i a l c o m p o s e d o f a m i l i t a r y j u d g e a n d (a) The military judge presiding at the court-martial members, the military judge shall conduct the hear- may not testify in that court-martial as a witness. No ing outside the presence of the members. objection need be made to preserve the point. (3) The military judge shall examine the evidence (b) This rule does not preclude the military judge or a proffer thereof in camera, if such examination from placing on the record matters concerning do- is necessary to rule on the motion. cketing of the case. ( 4 ) T o p r e v e n t u n n e c e s s a r y d i s c l o s u r e o f e v i - dence of a patient’s records or communications, the Rule 606. Competency of court member as military judge may issue protective orders or may witness admit only portions of the evidence. (a) At the court-martial. A member of the court- (5) The motion, related papers, and the record of martial may not testify as a witness before the other the hearing shall be sealed and shall remain under members in the trial of the case in which the mem- seal unless the military judge or an appellate court ber is sitting. If the member is called to testify, the orders otherwise. o p p o s i n g p a r t y , e x c e p t i n a s p e c i a l c o u r t - m a r t i a l without a military judge, shall be afforded an oppor- SECTION VI tunity to object out of the presence of the members. WITNESSES ( b ) I n q u i r y i n t o v a l i d i t y o f f i n d i n g s o r s e n t e n c e . Upon an inquiry into the validity of the findings or Rule 601. General rule of competency sentence, a member may not testify as to any matter or statement occurring during the course of the de- Every person is competent to be a witness except liberations of the members of the court-martial or, to as otherwise provided in these rules. the effect of anything upon the member’s or any other member’s mind or emotions as influencing the Rule 602. Lack of personal knowledge member to assent to or dissent from the findings or A witness may not testify to a matter unless evi- sentence or concerning the member’s mental process dence is introduced sufficient to support a finding in connection therewith, except that a member may that the witness has personal knowledge of the mat- testify on the question whether extraneous prejudi- ter. Evidence to prove personal knowledge may, but cial information was improperly brought to the at- need not, consist of the testimony of the witness. tention of the members of the court-martial, whether This rule is subject to the provisions of Mil. R. Evid. a n y o u t s i d e i n f l u e n c e w a s i m p r o p e r l y b r o u g h t t o 7 0 3 , r e l a t i n g t o o p i n i o n t e s t i m o n y b y e x p e r t bear upon any member, or whether there was unlaw- witnesses. ful command influence. Nor may the member’s affi- davit or evidence of any statement by the member Rule 603. Oath or affirmation concerning a matter about which the member would Before testifying, every witness shall be required be precluded from testifying be received for these to declare that the witness will testify truthfully, by purposes. oath or affirmation administered in a form calculated III-35

2011 NCIS Mini-Manual, Page 49 PART IV PUNITIVE ARTICLES (Statutory text of each Article is in bold)

Discussion commits it directly, and may be punished to the Paragraphs 1 and 2 discuss the two articles of the code that same extent. are located in the punitive article subchapter of the code, but Article 77 eliminates the common law distinc- which are not punitive as such: Article 77, principals; and Article tions between principal in the first degree (“per- 79, lesser included offenses. petrator”); principal in the second degree (one who R.C.M. 307 prescribes rules for preferral of charges. The aids, counsels, commands, or encourages the com- discussion under that rule explains how to allege violations under mission of an offense and who is present at the the code using the format of charge and specification. scene of the crime—commonly known as an “aider Beginning with paragraph 3, the punitive articles of the code are discussed using the following sequence: and abettor”); and accessory before the fact (one a. Text of the article who aids, counsels, commands, or encourages the b. Elements of the offense or offenses commission of an offense and who is not present at c. Explanation t h e s c e n e o f t h e c r i m e ) . A l l o f t h e s e a r e n o w d. Lesser included offenses “principals.” e. Maximum punishment f. Sample specifications (2) Who may be liable for an offense. (a) Perpetrator. A perpetrator is one who actu- The term “elements,” as used in Part IV, includes both the ally commits the offense, either by the perpetrator’s statutory elements of the offense and any aggravating factors own hand, or by causing an offense to be committed listed under the President’s authority which increases the maxi- by knowingly or intentionally inducing or setting in mum permissible punishment when specified aggravating factors are pleaded and proven. motion acts by an animate or inanimate agency or The prescriptions of maximum punishments in subparagraph instrumentality which result in the commission of an e of each paragraph of this part must be read in conjunction with offense. For example, a person who knowingly con- R.C.M. 1003, which prescribes additional punishments that may ceals contraband drugs in an automobile, and then be available and additional limitations on punishments. The sam- induces another person, who is unaware and has no ple specifications provided in subparagraph f of each paragraph in reason to know of the presence of drugs, to drive the this part are guides. The specifications may be varied in form and content as necessary. See R.C.M. 307 for additional guidance. automobile onto a military installation, is, although not present in the automobile, guilty of wrongful introduction of drugs onto a military installation. (On these facts, the driver would be guilty of no 1. Article 77—Principals crime.) Similarly, if, upon orders of a superior, a a. Text of statute. Any person punishable under soldier shot a person who appeared to the soldier to this chapter who— be an enemy, but was known to the superior as a ( 1 ) c o m m i t s a n o f f e n s e p u n i s h a b l e b y t h i s friend, the superior would be guilty of murder (but chapter, or aids, abets, counsels, commands, or the soldier would be guilty of no offense). procures its commission; or (b) Other Parties. If one is not a perpetrator, to (2) causes an act to be done which if directly be guilty of an offense committed by the perpetrator, performed by him would be punishable by this the person must: chapter; is a principal. (i) Assist, encourage, advise, instigate, coun- b. Explanation. sel, command, or procure another to commit, or as- s i s t , e n c o u r a g e , a d v i s e , c o u n s e l , o r c o m m a n d (1) Purpose. Article 77 does not define an of- another in the commission of the offense; and fense. Its purpose is to make clear that a person need (ii) Share in the criminal purpose of design. not personally perform the acts necessary to consti- One who, without knowledge of the criminal tute an offense to be guilty of it. A person who aids, venture or plan, unwittingly encourages or renders abets, counsels, commands, or procures the commis- assistance to another in the commission of an of- sion of an offense, or who causes an act to be done fense is not guilty of a crime. See the parentheticals which, if done by that person directly, would be an i n t h e e x a m p l e s i n p a r a g r a p h 1 b ( 2 ) ( a ) a b o v e . I n offense is equally guilty of the offense as one who some circumstances, inaction may make one liable

IV-1

2011 NCIS Mini-Manual, Page 50 ¶1.b.(2)(b)(ii) as a party, where there is a duty to act. If a person murder. (see also paragraph 5 concerning liability (for example, a security guard) has a duty to inter- for offenses committed by co-conspirators.) fere in the commission of an offense, but does not (6) Principals independently liable. One may be a interfere, that person is a party to the crime if such a principal, even if the perpetrator is not identified or noninterference is intended to and does operate as an prosecuted, or is acquitted. aid or encouragement to the actual perpetrator. (7) Withdrawal. A person may withdraw from a (3) Presence. common venture or design and avoid liability for (a) Not necessary. Presence at the scene of the any offenses committed after the withdrawal. To be crime is not necessary to make one a party to the effective, the withdrawal must meet the following crime and liable as a principal. For example, one requirements: who, knowing that person intends to shoot another ( a ) I t m u s t o c c u r b e f o r e t h e o f f e n s e i s person and intending that such an assault be carried committed; out, provides the person with a pistol, is guilty of (b) The assistance, encouragement, advice, in- assault when the offense is committed, even though stigation, counsel, command, or procurement given not present at the scene. by the person must be effectively countermanded or (b) Not sufficient. Mere presence at the scene negated; and of a crime does not make one a principal unless the (c) The withdrawal must be clearly communi- requirements of paragraph 1b(2)(a) or (b) have been cated to the would-be perpetrators or to appropriate met. law enforcement authorities in time for the perpetra- (4) Parties whose intent differs from the perpetra- tors to abandon the plan or for law enforcement tor’s. When an offense charged requires proof of a authorities to prevent the offense. specific intent or particular state of mind as an ele- ment, the evidence must prove that the accused had 2. Article 78—Accessory after the fact that intent or state of mind, whether the accused is a. Text of statute. Any person subject to this chap- c h a r g e d a s a p e r p e t r a t o r o r a n “ o t h e r p a r t y ” t o ter who, knowing that an offense punishable by crime. It is possible for a party to have a state of this chapter has been committed, receives, com- mind more or less culpable than the perpetrator of forts, or assists the offender in order to hinder or the offense. In such a case, the party may be guilty prevent his apprehension, trial, or punishment of a more or less serious offense than that commit- shall be punished as a court-martial may direct. ted by the perpetrator. For example, when a homi- b. Elements. cide is committed, the perpetrator may act in the (1) That an offense punishable by the code was heat of sudden passion caused by adequate provoca- committed by a certain person; tion and be guilty of manslaughter, while the party (2) That the accused knew that this person had who, without such passion, hands the perpetrator a committed such offense; weapon and encourages the perpetrator to kill the victim, would be guilty of murder. On the other ( 3 ) T h a t t h e r e a f t e r t h e a c c u s e d r e c e i v e d , c o m - hand, if a party assists a perpetrator in an assault on forted, or assisted the offender; and a person who, known only to the perpetrator, is an (4) That the accused did so for the purpose of officer, the party would be guilty only of assault, hindering or preventing the apprehension, trial, or while the perpetrator would be guilty of assault on punishment of the offender. an officer. c. Explanation. (5) Responsibility for other crimes. A principal (1) In general. The assistance given a principal may be convicted of crimes committed by another by an accessory after the fact is not limited to assist- principal if such crimes are likely to result as a ance designed to effect the escape or concealment of natural and probable consequence of the criminal the principal, but also includes acts performed to venture or design. For example, the accused who is conceal the commission of the offense by the princi- a party to a burglary is guilty as a principal not only p a l ( f o r e x a m p l e , b y c o n c e a l i n g e v i d e n c e o f t h e of the offense of burglary, but also, if the perpetrator offense). kills an occupant in the course of the burglary, of (2) Failure to report offense. The mere failure to

IV-2

2011 NCIS Mini-Manual, Page 51 ¶3.b.(2) report a known offense will not make one an acces- Code of Military Justice, to wit: , did, sory after the fact. Such failure may violate a gen- (at/on board—location) (subject-matter jurisdiction eral order or regulation, however, and thus constitute data, if required), on or about 20 , an offense under Article 92. See paragraph 16. If the in order to (hinder) (prevent) the (apprehension) (tri- o f f e n s e i n v o l v e d i s a s e r i o u s o f f e n s e , f a i l u r e t o al) (punishment) of the said , (re- report it may constitute the offense of misprision of c e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e a serious offense, under Article 134. See paragraph said by . 95. (3) Offense punishable by the code. The term “of- 3. Article 79—Conviction of lesser included fense punishable by this chapter” in the text of the offenses article means any offense described in the code. a. Text of statute. An accused may be found guilty (4) Status of principal. The principal who com- of an offense necessarily included in the offense mitted the offense in question need not be subject to charged or of an attempt to commit either the the code, but the offense committed must be punish- offense charged or an offense necessarily included able by the code. therein. ( 5 ) C o n v i c t i o n o r a c q u i t t a l o f p r i n c i p a l . T h e b. Explanation. prosecution must prove that a principal committed (1) In general. A lesser offense is included in a the offense to which the accused is allegedly an charged offense when the specification contains alle- accessory after the fact. However, evidence of the gations which either expressly or by fair implication conviction or acquittal of the principal in a separate put the accused on notice to be prepared to defend trial is not admissible to show that the principal did a g a i n s t i t i n a d d i t i o n t o t h e o f f e n s e s p e c i f i c a l l y or did not commit the offense. Furthermore, an ac- charged. This requirement of notice may be met cused may be convicted as an accessory after the when: fact despite the acquittal in a separate trial of the (a) All of the elements of the lesser offense are principal whom the accused allegedly comforted, re- included in the greater offense, and the common ceived, or assisted. elements are identical (for example, larceny as a (6) Accessory after the fact not a lesser included lesser included offense of robbery); offense. The offense of being an accessory after the (b) All of the elements of the lesser offense are fact is not a lesser included offense of the primary included in the greater offense, but one or more offense. elements is legally less serious (for example, house- (7) Actual knowledge. Actual knowledge is re- breaking as a lesser included offense of burglary); or q u i r e d b u t m a y b e p r o v e d b y c i r c u m s t a n t i a l (c) All of the elements of the lesser offense are evidence. included and necessary parts of the greater offense, d. Lesser included offense. Article 80- attempts but the mental element is legally less serious (for e. Maximum punishment. Any person subject to the example, wrongful appropriation as a lesser included code who is found guilty as an accessory after the offense of larceny). fact to an offense punishable by the code shall be The notice requirement may also be met, depending subject to the maximum punishment authorized for on the allegations in the specification, even though the principal offense, except that in no case shall the an included offense requires proof of an element not death penalty nor more than one-half of the maxi- required in the offense charged. For example, assault mum confinement authorized for that offense be ad- with a dangerous weapon may be included in a judged, nor shall the period of confinement exceed robbery. 10 years in any case, including offenses for which (2) Multiple lesser included offenses. When the life imprisonment may be adjudged. offense charged is a compound offense comprising f. Sample specification. two or more included offenses, an accused may be In that (personal jurisdiction data), know- found guilty of any or all of the offenses included in i n g t h a t ( a t / o n b o a r d — l o c a t i o n ) , o n o r the offense charged. For example, robbery includes a b o u t 2 0 both larceny and assault., Therefore, in a hproper a case,d committed an offense punishable by the Uniform a court-martial may find an accused not guilty of IV-3

2011 NCIS Mini-Manual, Page 52 ¶3.b.(2) robbery, but guilty of wrongful appropriation and (2) More than preparation. Preparation consists assault. of devising or arranging the means or measures nec- (3) Findings of guilty to a lesser included offense. essary for the commission of the offense. The overt A court-martial may find an accused not guilty of act required goes beyond preparatory steps and is a the offense charged, but guilty of a lesser included direct movement toward the commission of the of- offense by the process of exception and substitution. fense. For example, a purchase of matches with the The court-martial may except (that is, delete) the intent to burn a haystack is not an attempt to commit words in the specification that pertain to the offense arson, but it is an attempt to commit arson to apply- charged and, if necessary, substitute language appro- ing a burning match to a haystack, even if no fire priate to the lesser included offense. For example, results. The overt act need not be the last act essen- the accused is charged with murder in violation of tial to the consummation of the offense. For exam- A r t i c l e 1 1 8 , b u t f o u n d g u i l t y o f v o l u n t a r y m a n - ple, an accused could commit an overt act, and then slaughter in violation of Article 119. Such a finding voluntarily decide not to go through with the in- may be worded as follows: tended offense. An attempt would nevertheless have been committed, for the combination of a specific ( 4 ) S p e c i f i c l e s s e r i n c l u d e d o f f e n s e s . S p e c i f i c intent to commit an offense, plus the commission of lesser included offenses, if any, are listed for each an overt act directly tending to accomplish it, consti- offense discussed in this Part, but the lists are not tutes the offense of attempt. Failure to complete the all-inclusive. offense, whatever the cause, is not a defense. ( 3 ) F a c t u a l i m p o s s i b i l i t y . A p e r s o n w h o p u r - 4. Article 80—Attempts posely engages in conduct which would constitute a. Text of statute. the offense if the attendant circumstances were as (a) An act, done with specific intent to commit that person believed them to be is guilty of an at- an offense under this chapter, amounting to more tempt. For example, if A, without justification or than mere preparation and tending, even though excuse and with intent to kill B, points a gun at B failing, to effect its commission, is an attempt to and pulls the trigger, A is guilty of attempt to mur- commit that offense. der, even though, unknown to A, the gun is defec- (b) Any person subject to this chapter who at- t i v e a n d w i l l n o t f i r e . S i m i l a r l y , a p e r s o n w h o tempts to commit any offense punishable by this reaches into the pocket of another with the intent to chapter shall be punished as a court-martial may steal that person’s billfold is guilty of an attempt to direct, unless otherwise specifically prescribed. commit larceny, even though the pocket is empty. (c) Any person subject to this chapter may be (4) Voluntary abandonment. It is a defense to an convicted of an attempt to commit an offense al- attempt offense that the person voluntarily and com- though it appears on the trial that the offense was p l e t e l y a b a n d o n e d t h e i n t e n d e d c r i m e , s o l e l y b e - consummated. cause of the person’s own sense that it was wrong, b. Elements. prior to the completion of the crime. The voluntary (1) That the accused did a certain overt act; abandonment defense is not allowed if the abandon- ment results, in whole or in part, from other reasons, (2) That the act was done with the specific intent for example, the person feared detection or appre- to commit a certain offense under the code; hension, decided to await a better opportunity for (3) That the act amounted to more than mere success, was unable to complete the crime, or en- preparation; and c o u n t e r e d u n a n t i c i p a t e d d i f f i c u l t i e s o r u n e x p e c t e d (4) That the act apparently tended to effect the resistance. A person who is entitled to the defense of commission of the intended offense. voluntary abandonment may nonetheless be guilty of c. Explanation. a lesser included, completed offense. For example, a ( 1 ) I n g e n e r a l . T o c o n s t i t u t e a n a t t e m p t t h e r e p e r s o n w h o v o l u n t a r i l y a b a n d o n e d a n a t t e m p t e d must be a specific intent to commit the offense ac- armed robbery may nonetheless be guilty of assault companied by an overt act which directly tends to with a dangerous weapon. accomplish the unlawful purpose. (5) Solicitation. Soliciting another to commit an IV-4

2011 NCIS Mini-Manual, Page 53 ¶5.c.(3) offense does not constitute an attempt. See para- about 20 , attempt to (describe of- graph 6 for a discussion of article 82, solicitation. fense with sufficient detail to include expressly or (6) Attempts not under Article 80. While most by necessary implication every element). attempts should be charged under Article 80, the f o l l o w i n g a t t e m p t s a r e s p e c i f i c a l l y a d d r e s s e d b y 5. Article 81—Conspiracy s o m e o t h e r a r t i c l e , a n d s h o u l d b e c h a r g e d a. Text of statute. Any person subject to this chap- accordingly: ter who conspires with any other person to com- (a) Article 85—desertion mit an offense under this chapter shall, if one or (b) Article 94—mutiny or sedition. more of the conspirators does an act to effect the object of the conspiracy, be punished as a court- (c) Article 100—subordinate compelling martial may direct. (d) Article 104—aiding the enemy b. Elements. (e) Article 106a—espionage (1) That the accused entered into an agreement (f) Article 119a-attempting to kill an unborn with one or more persons to commit an offense child under the code; and (g) Article 128—assault (2) That, while the agreement continued to exist, (7) Regulations. An attempt to commit conduct and while the accused remained a party to the agree- which would violate a lawful general order or regu- ment, the accused or at least one of the co-conspira- lation under Article 92 (see paragraph 16) should be t o r s p e r f o r m e d a n o v e r t a c t f o r t h e p u r p o s e o f charged under Article 80. It is not necessary in such bringing about the object of the conspiracy. cases to prove that the accused intended to violate c. Explanation. the order or regulation, but it must be proved that (1) Co-conspirators. Two or more persons are re- t h e a c c u s e d i n t e n d e d t o c o m m i t t h e p r o h i b i t e d quired in order to have a conspiracy. Knowledge of conduct. the identity of co-conspirators and their particular d . L e s s e r i n c l u d e d o f f e n s e s . I f t h e a c c u s e d i s connection with the criminal purpose need not be charged with an attempt under Article 80, and the e s t a b l i s h e d . T h e a c c u s e d m u s t b e s u b j e c t t o t h e offense attempted has a lesser included offense, then code, but the other co-conspirators need not be. A the offense of attempting to commit the lesser in- person may be guilty of conspiracy although incapa- cluded offense would ordinarily be a lesser included ble of committing the intended offense. For exam- offense to the charge of attempt. For example, if an ple, a bedridden conspirator may knowingly furnish accused was charged with attempted larceny, the the car to be used in a robbery. The joining of offense of attempted wrongful appropriation would another conspirator after the conspiracy has been be a lesser included offense, although it, like the established does not create a new conspiracy or af- attempted larceny, would be a violation of Article fect the status of the other conspirators. However, 80. the conspirator who joined an existing conspiracy e. Maximum punishment. Any person subject to the can be convicted of this offense only if, at or after code who is found guilty of an attempt under Article the time of joining the conspiracy, an overt act in 80 to commit any offense punishable by the code f u r t h e r a n c e o f t h e o b j e c t o f t h e a g r e e m e n t i s shall be subject to the same maximum punishment committed. authorized for the commission of the offense at- ( 2 ) A g r e e m e n t . T h e a g r e e m e n t i n a c o n s p i r a c y tempted, except that in no case shall the death pen- need not be in any particular form or manifested in alty be adjudged, nor shall any mandatory minimum any formal words. It is sufficient if the minds of the punishment provisions apply; and in no case, other parties arrive at a common understanding to accom- than attempted murder, shall confinement exceeding plish the object of the conspiracy, and this may be 20 years be adjudged. shown by the conduct of the parties. The agreement f. Sample specification. need not state the means by which the conspiracy is In that (personal jurisdiction data) to be accomplished or what part each conspirator is did, (at/on board—location) (subject-matter jurisdic- to play. t i o n d a t a , i f r e q u i r e d ) , o n o r (3) Object of the agreement. The object of the IV-5

2011 NCIS Mini-Manual, Page 54 ¶5.c.(3) agreement must, at least in part, involve the com- er, a person who has abandoned or withdrawn from mission of one or more offenses under the code. An the conspiracy is not liable for offenses committed agreement to commit several offenses is ordinarily t h e r e a f t e r b y t h e r e m a i n i n g c o n s p i r a t o r s . T h e but a single conspiracy. Some offenses require two w i t h d r a w a l o f a c o n s p i r a t o r f r o m t h e c o n s p i r a c y or more culpable actors acting in concert. There can does not affect the status of the remaining members. be no conspiracy where the agreement exists only (7) Factual impossibility. It is not a defense that between the persons necessary to commit such an the means adopted by the conspirators to achieve offense. Examples include dueling, bigamy, incest, their object, if apparently adapted to that end, were adultery, and bribery. actually not capable of success, or that the conspira- (4) Overt act. tors were not physically able to accomplish their (a) The overt act must be independent of the intended object. agreement to commit the offense; must take place at (8) Conspiracy as a separate offense. A conspir- the time of or after the agreement; must be done by acy to commit an offense is a separate and distinct one or more of the conspirators, but not necessarily offense from the offense which is the object of the the accused; and must be done to effectuate the conspiracy, and both the conspiracy and the consum- object of the agreement. mated offense which was its object may be charged, (b) The overt act need not be in itself criminal, tried, and punished. The commission of the intended but it must be a manifestation that the agreement is offense may also constitute the overt act which is an being executed. Although committing the intended element of the conspiracy to commit that offense. offense may constitute the overt act, it is not essen- (9) Special conspiracies under Article 134. The tial that the object offense be committed. Any overt United States Code prohibits conspiracies to commit act is enough, no matter how preliminary or prepara- certain specific offenses which do not require an tory in nature, as long as it is a manifestation that o v e r t a c t . T h e s e c o n s p i r a c i e s s h o u l d b e c h a r g e d the agreement is being executed. under Article 134. Examples include conspiracies to (c) An overt act by one conspirator becomes impede or injure any Federal officer in the discharge the act of all without any new agreement specifically o f d u t i e s u n d e r 1 8 U . S . C . § 3 7 2 , c o n s p i r a c i e s directed to that act and each conspirator is equally against civil rights under 18 U.S.C. § 241, and cer- guilty even though each does not participate in, or tain drug conspiracies under 21 U.S.C. § 846. See have knowledge of, all of the details of the execu- paragraph 60c(4)(c)(ii). tion of the conspiracy. d. Lesser included offense. Article 80—attempts (5) Liability for offenses. Each conspirator is lia- e. Maximum punishment. Any person subject to the ble for all offenses committed pursuant to the con- code who is found guilty of conspiracy shall be s p i r a c y b y a n y o f t h e c o - c o n s p i r a t o r s w h i l e t h e subject to the maximum punishment authorized for conspiracy continues and the person remains a party the offense which is the object of the conspiracy, to it. except that in no case shall the death penalty be (6) Withdrawal. A party to the conspiracy who imposed. abandons or withdraws from the agreement to com- f. Sample specification. mit the offense before the commission of an overt In that (personal jurisdiction data), act by any conspirator is not guilty of conspiracy. did, (at/on board—location) (subject-matter jurisdic- An effective withdrawal or abandonment must con- t i o n d a t a , i f r e q u i r e d ) , o n o r sist of affirmative conduct which is wholly inconsis- a b o u t 2 0 , c o n s p i r e tent with adherence to the unlawful agreement and w i t h ( a n d ) t o c o m m i t a n which shows that the party has severed all connec- offense under the Uniform Code of Military Justice, tion with the conspiracy. A conspirator who effec- to wit: (larceny of , of a value of (about) tively abandons or withdraws from the conspiracy $ , the property of ), and in after the performance of an overt act by one of the o r d e r t o e f f e c t t h e o b j e c t o f t h e c o n s p i r a c y t h e conspirators remains guilty of conspiracy and of any s a i d ( a n d ) offenses committed pursuant to the conspiracy up to did . the time of the abandonment or withdrawal. Howev- IV-6

2011 NCIS Mini-Manual, Page 55 ¶6.f.(1)

6. Article 82—Solicitation the solicitation or in the advising; the accused may a. Text of statute. act through other persons in committing this offense. (a) Any person subject to this chapter who so- (3) Solicitations in violation of Article 134. Solic- licits or advises another or other to desert in itation to commit offenses other than violations of violation of section 885 of this title (Article 85) or t h e f o u r o f f e n s e s n a m e d i n A r t i c l e 8 2 m a y b e mutiny in violation of section 894 of this title charged as violations of Article 134. See paragraph 105. However, some offenses require, as an element (Article 94) shall, if the offense solicited or ad- of proof, some act of solicitation by the accused. v i s e d i s a t t e m p t e d o r c o m m i t t e d , b e p u n i s h e d These offenses are separate and distinct from solici- with the punishment provided for the commission tations under Articles 82 and 134. When the ac- of the offense, but, if the offense solicited or ad- cused’s act of solicitation constitutes, by itself, a vised is not committed or attempted, he shall be separate offense, the accused should be charged with punished as a court-martial may direct. that separate, distinct offense—for example, pander- (b) Any person subject to this chapter who so- ing (see paragraph 97) and obstruction of justice ( licits or advises another or others to commit an see paragraph 96) in violation of Article 134. act of misbehavior before the enemy in violation d. Lesser included offense. Article 80—attempts of section 899 of this title (Article 99) or sedition e. Maximum punishment. If the offense solicited or in violation of section 894 of this title (Article 94) advised is committed or (in the case of soliciting shall, if the offense solicited or advised is commit- desertion or mutiny) attempted, then the accused ted, be punished with the punishment provided shall be punished with the punishment provided for for the commission of the offense, but, if the of- the commission of the offense solicited or advised. fense solicited or advised is not committed, he If the offense solicited or advised is not committed shall be punished as a court-martial may direct. or (in the case of soliciting desertion or mutiny) b. Elements. attempted, then the following punishment may be (1) That the accused solicited or advised a certain imposed: person or persons to commit any of the four offenses (1) To desert—Dishonorable discharge, forfeiture named in Article 82; and of all pay and allowances, and confinement for 3 (2) That the accused did so with the intent that years. the offense actually be committed. ( 2 ) T o m u t i n y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i - [Note: If the offense solicited or advised was at- ture of all pay and allowances, and confinement for tempted or committed, add the following element] 10 years. ( 3 ) T h a t t h e o f f e n s e s o l i c i t e d o r a d v i s e d w a s (3) To commit an act of misbehavior before the (committed) (attempted) as the proximate result of e n e m y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i t u r e o f a l l the solicitation. pay and allowances, and confinement for 10 years. (4) To commit an act of sedition—Dishonorable c. Explanation. discharge, forfeiture of all pay and allowances, and (1) Instantaneous offense. The offense is com- confinement for 10 years. plete when a solicitation is made or advice is given f. Sample specifications. with the specific wrongful intent to influence an- (1) For soliciting desertion (Article 85) or mutiny other or others to commit any of the four offenses (Article 94). named in Article 82. It is not necessary that the In that (personal jurisdiction data), person or persons solicited or advised agree to or act d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r upon the solicitation or advice. about 20 , (a time of (2) Form of solicitation. Solicitation may be by war) by (here state the manner and form of solicita- means other than word of mouth or writing. Any act t i o n o r a d v i c e ) , ( s o l i c i t ) ( a d - or conduct which reasonably may be construed as a vise) (and ) to (desert serious request or advice to commit one of the four in violation of Article 85) (mutiny in violation of offenses named in Article 82 may constitute solicita- Article 94) tion. It is not necessary that the accused act alone in [Note: If the offense solicited or advised is attempted IV-7

2011 NCIS Mini-Manual, Page 56 ¶6.f.(1) or committed, add the following at the end of the or deliberately concealed a certain material fact or specification: ] facts regarding qualifications of the accused for en- listment or appointment; and, as a result of such (solicitation) (advice), the (c) That the accused’s enlistment or appoint- o f f e n s e ( s o l i c i t e d ) ( a d v i s e d ) w a s , o n o r ment was obtained or procured by that knowingly a b o u t , 2 0 , ( a t / o n false representation or deliberate concealment; and b o a r d — l o c a t i o n ) , ( a t t e m p t e d ) ( c o m m i t t e d ) (d) That under this enlistment or appointment by (and ). that accused received pay or allowances or both. (2) For soliciting an act of misbehavior before (2) Fraudulent separation. the enemy (Article 99) or sedition (Article 94). (a) That the accused was separated from an In that (personal jurisdiction data) armed force; d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r (b) That the accused knowingly misrepresented a b o u t 2 0 , ( a t i m e o f w a r ) b y or deliberately concealed a certain material fact or (here state the manner and form of solicitation or facts about the accused’s eligibility for separation; a d v i c e ) , ( s o l i c i t ) ( a d v i s e ) , and (and ) to commit (an act of misbehavior (c) That the accused’s separation was obtained before the enemy in violation of Article 99) (sedi- or procured by that knowingly false representation tion in violation of Article 94) or deliberate concealment. [Note: If the offense solicited or advised is commit- t e d , a d d t h e f o l l o w i n g a t t h e e n d o f t h e c. Explanation. specification:] (1) In general. A fraudulent enlistment, appoint- m e n t , o r s e p a r a t i o n i s o n e p r o c u r e d b y e i t h e r a and, as a result of such (solicitation) (advice), the knowingly false representation as to any of the qual- ifications prescribed by law, regulation, or orders for o f f e n s e ( s o l i c i t e d ) ( a d v i s e d ) w a s , o n o r the specific enlistment, appointment, or separation, a b o u t 2 0 , ( a t / o n or a deliberate concealment as to any of those dis- b o a r d — l o c a t i o n ) , c o m m i t t e d qualifications. Matters that may be material to an by (and ). enlistment, appointment, or separation include any information used by the recruiting, appointing, or 7. Article 83—Fraudulent enlistment, separating officer in reaching a decision as to enlist- appointment, or separation ment, appointment, or separation in any particular a. Text of statute. case, and any information that normally would have Any person who— been so considered had it been provided to that ( 1 ) p r o c u r e s h i s o w n e n l i s t m e n t o r a p p o i n t - officer. ment in the armed forces by knowingly false rep- (2) Receipt of pay or allowances. A member of resentation or deliberate concealment as to his the armed forces who enlists or accepts an appoint- qualifications for that enlistment or appointment ment without being regularly separated from a prior and receives pay or allowances thereunder; or enlistment or appointment should be charged under ( 2 ) p r o c u r e s h i s o w n s e p a r a t i o n f r o m t h e Article 83 only if that member has received pay or armed forces by knowingly false representation allowances under the fraudulent enlistment or ap- or deliberate concealment as to his eligibility for pointment. Acceptance of food, clothing, shelter, or that separation; transportation from the government constitutes re- s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y ceipt of allowances. However, whatever is furnished direct. the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment b. Elements. or appointment is not considered an allowance. The (1) Fraudulent enlistment or appointment. receipt of pay or allowances may be proved by cir- (a) That the accused was enlisted or appointed cumstantial evidence. in an armed force; (3) One offense. One who procures one’s own (b) That the accused knowingly misrepresented e n l i s t m e n t , a p p o i n t m e n t , o r s e p a r a t i o n b y s e v e r a l IV-8

2011 NCIS Mini-Manual, Page 57 ¶9.a.(a)(2) misrepresentations or concealment as to qualifica- in or a separation from the armed forces of any tions for the one enlistment, appointment, or separa- person who is known to him to be ineligible for tion so procured, commits only one offense under that enlistment, appointment, or separation be- Article 83. cause it is prohibited by law, regulation, or order d. Lesser included offense. Article 80—attempts shall be punished as a court-martial may direct. e. Maximum punishment. b. Elements. ( 1 ) F r a u d u l e n t e n l i s t m e n t o r a p p o i n t m e n t . D i s - (1) That the accused effected the enlistment, ap- honorable discharge, forfeiture of all pay and allow- pointment, or separation of the person named; ances, and confinement for 2 years. (2) That this person was ineligible for this enlist- ( 2 ) F r a u d u l e n t s e p a r a t i o n . D i s h o n o r a b l e d i s - ment, appointment, or separation because it was pro- charge, forfeiture of all pay and allowances, and hibited by law, regulation, or order; and confinement for 5 years. (3) That the accused knew of the ineligibility at f. Sample specifications. t h e t i m e o f t h e e n l i s t m e n t , a p p o i n t m e n t , o r (1) For fraudulent enlistment or appointment. separation. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , c. Explanation. It must be proved that the enlist- d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r ment, appointment, or separation was prohibited by a b o u t 2 0 , b y m e a n s law, regulation, or order when effected and that the of (knowingly false representations that (here state a c c u s e d t h e n k n e w t h a t t h e p e r s o n e n l i s t e d , a p - the fact or facts material to qualification for enlist- pointed, or separated was ineligible for the enlist- ment or appointment which were represented), when ment, appointment, or separation. in fact (here state the true fact of facts)) (deliberate d. Lesser included offense. Article 80—attempts concealment of the fact that (here state the fact or e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , facts disqualifying the accused for enlistment or ap- forfeiture of all pay and allowances, and confine- pointment which were concealed)), procure himself/ ment for 5 years. herself to be (enlisted as a ) (appointed f. Sample specification. as a ) in the (here state the armed force I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , in which the accused procured the enlistment or ap- d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r pointment), and did thereafter, (at/on board—loca- a b o u t 2 0 , e f f e c t ( t h e t i o n ) , r e c e i v e ( p a y ) ( a l l o w a n c e s ) ( p a y a n d ( e n l i s t m e n t ) ( a p p o i n t m e n t ) o f a s allowances) under the enlistment) (appointment) so a i n ( h e r e s t a t e t h e a r m e d f o r c e i n procured. which the person was enlisted or appointed)) (the (2) For fraudulent separation. separation of from (here state the In that (personal jurisdiction data), armed force from which the person was separated)), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r then well knowing that the said was a b o u t 2 0 , b y m e a n s ineligible for such (enlistment) (appointment) (sepa- of (knowingly false representations that (here state ration) because (here state facts whereby the enlist- the fact or facts material to eligibility for separation ment, appointment, or separation was prohibited by which were represented), when in fact (here state the law, regulation, or order). true fact or facts)) (deliberate concealment of the fact that (here state the fact or facts concealed which 9. Article 85—Desertion made the accused ineligible for separation)), procure himself/herself to be separated from the (here state a. Text of statute. the armed force from which the accused procured (a) Any member of the armed forces who— his/her separation). (1) without authority goes or remains absent from his unit, organization, or place of duty with 8. Article 84—Effecting unlawful enlistment, intent to remain away therefrom permanently; appointment, or separation (2) quits his unit, organization, or place of a. Text of statute. Any person subject to this duty with intent to avoid hazardous duty or to chapter who effects an enlistment or appointment shirk important service; or IV-9

2011 NCIS Mini-Manual, Page 58 ¶9.a.(a)(3)

(3) without being regularly separated from (c) That the duty to be performed was hazard- one of the armed forces enlists or accepts an ap- ous or the service important; p o i n t m e n t i n t h e s a m e o r a n o t h e r o n e o f t h e (d) That the accused knew that he or she would armed forces without fully disclosing the fact that be required for such duty or service; and he has not been regularly separated, or enters (e) That the accused remained absent until the any foreign armed service except when author- date alleged. ized by the United States (3) Desertion before notice of acceptance of res- [Note: This provision has been held not to state a ignation. separate offense by the United States Court of M i l i t a r y A p p e a l s i n U n i t e d S t a t e s v . H u f f , 7 (a) That the accused was a commissioned offi- U.S.C.M.A. 247, 22 C.M.R. 37 (1956)]; is guilty of cer of an armed force of the United States, and had desertion. tendered his or her resignation; ( b ) A n y c o m m i s s i o n e d o f f i c e r o f t h e a r m e d (b) That before he or she received notice of the forces who, after tender of his resignation and acceptance of the resignation, the accused quit his or before notice of its acceptance, quits his post or her post or proper duties; proper duties without leave and with intent to (c) That the accused did so with the intent to remain away therefrom permanently is guilty of remain away permanently from his or her post or desertion. proper duties; and (c) Any person found guilty of desertion or at- (d) That the accused remained absent until the tempt to desert shall be punished, if the offense is date alleged. committed in time of war, by death or such other [Note: If the absence was terminated by apprehen- punishment as a court-martial may direct, but if sion, add the following element] the desertion or attempt to desert occurs at any (e) That the accused’s absence was terminated o t h e r t i m e , b y s u c h p u n i s h m e n t , o t h e r t h a n by apprehension. death, as a court-martial may direct. (4) Attempted desertion. b. Elements. (a) That the accused did a certain overt act; (1) Desertion with intent to remain away per- (b) That the act was done with the specific manently. intent to desert; (a) That the accused absented himself or her- (c) That the act amounted to more than mere self from his or her unit, organization, or place of preparation; and duty; (d) That the act apparently tended to effect the (b) That such absence was without authority; commission of the offense of desertion. (c) That the accused, at the time the absence c. Explanation. began or at some time during the absence, intended (1) Desertion with intent to remain away per- to remain away from his or her unit, organization, or manently. place of duty permanently; and (a) In general. Desertion with intent to remain (d) That the accused remained absent until the away permanently is complete when the person ab- date alleged. sents himself or herself without authority from his or [Note: If the absence was terminated by apprehen- her unit, organization, or place of duty, with the sion, add the following element] i n t e n t t o r e m a i n a w a y t h e r e f r o m p e r m a n e n t l y . A (e) That the accused’s absence was terminated prompt repentance and return, while material in ex- by apprehension. tenuation, is no defense. It is not necessary that the (2) Desertion with intent to avoid hazardous duty person be absent entirely from military jurisdiction or to shirk important service. and control. (a) That the accused quit his or her unit, organ- (b) Absence without authority —inception, du- ization, or other place of duty; ration, termination. See paragraph 10c. (b) That the accused did so with the intent to (c) Intent to remain away permanently. avoid a certain duty or shirk a certain service; (i) The intent to remain away permanently IV-10

2011 NCIS Mini-Manual, Page 59 ¶9.c.(2)(c) from the unit, organization, or place of duty may be authorized absence, even of extended duration, does formed any time during the unauthorized absence. not, without more, prove guilt of desertion. The intent need not exist throughout the absence, or (d) Effect of enlistment or appointment in the for any particular period of time, as long as it exists same or a different armed force. Article 85a(3) does at some time during the absence. not state a separate offense. Rather, it is a rule of ( i i ) T h e a c c u s e d m u s t h a v e i n t e n d e d t o evidence by which the prosecution may prove intent remain away permanently from the unit, organiza- to remain away permanently. Proof of an enlistment tion, or place of duty. When the accused had such or acceptance of an appointment in a service without an intent, it is no defense that the accused also disclosing a preexisting duty status in the same or a intended to report for duty elsewhere, or to enlist or different service provides the basis from which an accept an appointment in the same or a different inference of intent to permanently remain away from the earlier unit, organization, or place of duty may armed force. be drawn. Furthermore, if a person, without being (iii) The intent to remain away permanently regularly separated from one of the armed forces, m a y b e e s t a b l i s h e d b y c i r c u m s t a n t i a l e v i d e n c e . enlists or accepts an appointment in the same or Among the circumstances from which an inference another armed force, the person’s presence in the may be drawn that an accused intended to remain military service under such an enlistment or appoint- absent permanently or; that the period of absence ment is not a return to military control and does not was lengthy; that the accused attempted to, or did, terminate any desertion or absence without authority dispose of uniforms or other military property; that from the earlier unit or organization, unless the facts the accused purchased a ticket for a distant point or of the earlier period of service are known to military was arrested, apprehended, or surrendered a consid- authorities. If a person, while in desertion, enlists or erable distance from the accused’s station; that the a c c e p t s a n a p p o i n t m e n t i n t h e s a m e o r a n o t h e r accused could have conveniently surrendered to mil- armed force, and deserts while serving the enlist- itary control but did not; that the accused was dissat- ment or appointment, the person may be tried and isfied with the accused’s unit, ship, or with military convicted for each desertion. service; that the accused made remarks indicating an (2) Quitting unit, organization, or place of duty i n t e n t i o n t o d e s e r t ; t h a t t h e a c c u s e d w a s u n d e r with intent to avoid hazardous duty or to shirk im- charges or had escaped from confinement at the time portant service. of the absence; that the accused made preparations ( a ) H a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . indicative of an intent not to return (for example, “Hazardous duty” or “important service” may in- financial arrangements); or that the accused enlisted clude service such as duty in a combat or other or accepted an appointment in the same or another dangerous area; embarkation for certain foreign or armed force without disclosing the fact that the ac- sea duty; movement to a port of embarkation for that cused had not been regularly separated, or entered purpose; entrainment for duty on the border or coast any foreign armed service without being authorized in time of war or threatened invasion or other dis- by the United States. On the other hand, the follow- turbances; strike or riot duty; or employment in aid ing are included in the circumstances which may of the civil power in, for example, protecting proper- tend to negate an inference that the accused intended ty, or quelling or preventing disorder in times of to remain away permanently: previous long and ex- great public disaster. Such services as drill, target cellent service; that the accused left valuable per- practice, maneuvers, and practice marches are not o r d i n a r i l y “ h a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . ” sonal property in the unit or on the ship; or that the Whether a duty is hazardous or a service is impor- accused was under the influence of alcohol or drugs tant depends upon the circumstances of the particu- during the absence. These lists are illustrative only. lar case, and is a question of fact for the court- (iv) Entries on documents, such as personnel martial to decide. accountability records, which administratively refer (b) Quits. “Quits” in Article 85 means “goes to an accused as a “deserter” are not evidence of absent without authority.” intent to desert. (c) Actual knowledge. Article 85 a(2) requires (v) Proof of, or a plea of guilty to, an un- proof that the accused actually knew of the hazard- IV-11

2011 NCIS Mini-Manual, Page 60 ¶9.c.(2)(c) ous duty or important service. Actual knowledge remain so absent in desertion until (he/she was ap- may be proved by circumstantial evidence. prehended) on or about 20 . ( 3 ) A t t e m p t i n g t o d e s e r t . O n c e t h e a t t e m p t i s (2) Desertion with intent to avoid hazardous duty made, the fact that the person desists, voluntarily or or shirk important service. otherwise, does not cancel the offense. The offense I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , is complete, for example, if the person, intending to did, on or about 20 , (a time of desert, hides in an empty freight car on a military war) with intent to (avoid hazardous duty) (shirk reservation, intending to escape by being taken away important service), namely: , quit his/her in the car. Entering the car with the intent to desert ( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o is the overt act. For a more detailed discussion of wit: , located at ( ), and did attempts, see paragraph 4. For an explanation con- r e m a i n s o a b s e n t i n d e s e r t i o n u n t i l o n o r cerning intent to remain away permanently, see sub- about 20 . paragraph 9c(1)(c). (3) Desertion prior to acceptance of resignation. (4) Prisoner with executed punitive discharge. A I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) prisoner whose dismissal or dishonorable or bad- having tendered his/her resignation and prior to due conduct discharge has been executed is not a “mem- notice of the acceptance of the same, did, on or ber of the armed forces” within the meaning of Arti- about 20 , (a time of cles 85 or 86, although the prisoner may still be war) without leave and with intent to remain away subject to military law under Article 2( a)(7). If the therefrom permanently, quit his/her (post) (proper facts warrant, such a prisoner could be charged with duties), to wit: , and did remain so escape from confinement under Article 95 or an absent in desertion until (he/she was apprehended) offense under Article 134. on or about 20 . d . L e s s e r i n c l u d e d o f f e n s e . A r t i c l e 8 6 — a b s e n c e (4) Attempted desertion. without leave I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) , o n o r e. Maximum punishment. about 20 , (a time of (1) Completed or attempted desertion with intent war) attempt to (absent himself/herself from his/her to avoid hazardous duty or to shirk important serv- ( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) t o ice. Dishonorable discharge, forfeiture of all pay and wit: , without authority and with intent allowances, and confinement for 5 years. to remain away therefrom permanently) (quit his/her (2) Other cases of completed or attempted deser- ( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o tion. wit: , located at , with (a) Terminated by apprehension. Dishonorable intent to (avoid hazardous duty) (shirk important discharge, forfeiture of all pay and allowances, and service) namely ) ( ). confinement for 3 years. ( b ) T e r m i n a t e d o t h e r w i s e . D i s h o n o r a b l e d i s - 10. Article 86—Absence without leave charge, forfeiture of all pay and allowances, and a. Text of statute. Any member of the armed confinement for 2 years. forces who, without authority— (3) In time of war. Death or such other punish- (1) fails to go to his appointed place of duty at ment as a court-martial may direct. the time prescribed; f. Sample specifications. (2) goes from that place; or (1) Desertion with intent to remain away per- (3) absents himself or remains absent from his manently. unit, organization, or place of duty at which he is I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , required to be at the time prescribed; shall be did, on or about 20 , (a time of punished as a court-martial may direct. war) without authority and with intent to remain b. Elements. away therefrom permanently, absent himself/herself (1) Failure to go to appointed place of duty. from his/her (unit) (organization) (place of duty), to (a) That a certain authority appointed a certain wit: , located at ( ), and did time and place of duty for the accused; IV-12

2011 NCIS Mini-Manual, Page 61 ¶10.c.(4)(d)

(b) That the accused knew of that time and (c) That the absence was for a certain period of place; and time; (c) That the accused, without authority, failed ( d ) T h a t t h e a c c u s e d k n e w t h a t t h e a b s e n c e to go to the appointed place of duty at the time would occur during a part of a period of maneuvers prescribed. or field exercises; and (2) Going from appointed place of duty. (e) That the accused intended to avoid all or (a) That a certain authority appointed a certain part of a period of maneuvers or field exercises. time and place of duty for the accused; c. Explanation. (b) That the accused knew of that time and (1) In general. This article is designed to cover place; and every case not elsewhere provided for in which any member of the armed forces is through the mem- (c) That the accused, without authority, went ber’s own fault not at the place where the member is from the appointed place of duty after having repor- required to be at a prescribed time. It is not neces- ted at such place. sary that the person be absent entirely from military (3) Absence from unit, organization, or place of jurisdiction and control. The first part of this ar- duty. ticle—relating to the appointed place of duty—ap- (a) That the accused absented himself or her- plies whether the place is appointed as a rendezvous self from his or her unit, organization, or place of for several or for one only. duty at which he or she was required to be; (2) Actual knowledge. The offenses of failure to ( b ) T h a t t h e a b s e n c e w a s w i t h o u t a u t h o r i t y go to and going from appointed place of duty re- from anyone competent to give him or her leave; quire proof that the accused actually knew of the and appointed time and place of duty. The offense of (c) That the absence was for a certain period of absence from unit, organization, or place of duty time. [Note: if the absence was terminated by appre- with intent to avoid maneuvers or field exercises hension, add the following element] requires proof that the accused actually knew that the absence would occur during a part of a period of ( d ) T h a t t h e a b s e n c e w a s t e r m i n a t e d b y maneuvers or field exercises. Actual knowledge may apprehension. be proved by circumstantial evidence. (4) Abandoning watch or guard. (3) Intent. Specific intent is not an element of (a) That the accused was a member of a guard, unauthorized absence. Specific intent is an element watch, or duty; for certain aggravated unauthorized absences. (b) That the accused absented himself or her- ( 4 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e . self from his or her guard, watch, or duty section; There are variations of unauthorized absence under (c) That absence of the accused was without Article 86(3) which are more serious because of authority; and aggravating circumstances such as duration of the [Note: If the absence was with intent to abandon the absence, a special type of duty from which the ac- accused’s guard, watch, or duty section, add the cused absents himself or herself, and a particular following element] s p e c i f i c i n t e n t w h i c h a c c o m p a n i e s t h e a b s e n c e . These circumstances are not essential elements of a (d) That the accused intended to abandon his or violation of Article 86. They simply constitute spe- her guard, watch, or duty section. cial matters in aggravation. The following are aggra- (5) Absence from unit, organization, or place of vated unauthorized absences: duty with intent to avoid maneuvers or field exer- (a) Unauthorized absence for more than 3 days cises. (duration). (a) That the accused absented himself or her- ( b ) U n a u t h o r i z e d a b s e n c e f o r m o r e t h a n 3 0 self from his or her unit, organization, or place of days (duration). duty at which he or she was required to be; (c) Unauthorized absence from a guard, watch, (b) That the absence of the accused was with- or duty (special type of duty). out authority; (d) Unauthorized absence from guard, watch, IV-13

2011 NCIS Mini-Manual, Page 62 ¶10.c.(4)(d) or duty section with the intent to abandon it (special (8) Duration. Unauthorized absence under Article type of duty and specific intent). 86(3) is an instantaneous offense. It is complete at ( e ) U n a u t h o r i z e d a b s e n c e w i t h t h e i n t e n t t o the instant an accused absents himself or herself avoid maneuvers or field exercises (special type of without authority. Duration of the absence is a mat- duty and specific intent). ter in aggravation for the purpose of increasing the (5) Control by civilian authorities. A member of m a x i m u m p u n i s h m e n t a u t h o r i z e d f o r t h e o f f e n s e . the armed forces turned over to the civilian authori- Even if the duration of the absence is not over 3 days, it is ordinarily alleged in an Article 86(3) ties upon request under Article 14 (see R.C.M. 106) specification. If the duration is not alleged or if is not absent without leave while held by them under alleged but not proved, an accused can be convicted that delivery. When a member of the armed forces, of and punished for only 1 day of unauthorized being absent with leave, or absent without leave, is absence. held, tried, and acquitted by civilian authorities, the m e m b e r ’ s s t a t u s a s a b s e n t w i t h l e a v e , o r a b s e n t (9) Computation of duration. In computing the without leave, is not thereby changed, regardless duration of an unauthorized absence, any one contin- how long held. The fact that a member of the armed uous period of absence found that totals not more forces is convicted by the civilian authorities, or than 24 hours is counted as 1 day; any such period adjudicated to be a juvenile offender, or the case is that totals more than 24 hours and not more than 48 “diverted” out of the regular criminal process for a hours is counted as 2 days, and so on. The hours of p r o b a t i o n a r y p e r i o d d o e s n o t e x c u s e a n y u n - departure and return on different dates are assumed authorized absence, because the member’s inability to be the same if not alleged and proved. For exam- to return was the result of willful misconduct. If a ple, if an accused is found guilty of unauthorized member is released by the civilian authorities with- absence from 0600 hours, 4 April, to 1000 hours, 7 out trial, and was on authorized leave at the time of April of the same year (76 hours), the maximum arrest or detention, the member may be found guilty punishment would be based on an absence of 4 of unauthorized absence only if it is proved that the days. However, if the accused is found guilty simply member actually committed the offense for which of unauthorized absence from 4 April to 7 April, the detained, thus establishing that the absence was the maximum punishment would be based on an ab- result of the member’s own misconduct. sence of 3 days. ( 6 ) I n a b i l i t y t o r e t u r n . T h e s t a t u s o f a b s e n c e (10) Termination—methods of return to military without leave is not changed by an inability to return control. through sickness, lack of transportation facilities, or (a) Surrender to military authority. A surrender other disabilities. But the fact that all or part of a occurs when a person presents himself or herself to period of unauthorized absence was in a sense en- any military authority, whether or not a member of forced or involuntary is a factor in extenuation and the same armed force, notifies that authority of his should be given due weight when considering the or her unauthorized absence status, and submits or initial disposition of the offense. When, however, a demonstrates a willingness to submit to military con- person on authorized leave, without fault, is unable trol. Such a surrender terminates the unauthorized to return at the expiration thereof, that person has absence. not committed the offense of absence without leave. (b) Apprehension by military authority. Appre- (7) Determining the unit or organization of an hension by military authority of a known absentee accused. A person undergoing transfer between ac- terminates an unauthorized absence. tivities is ordinarily considered to be attached to the (c) Delivery to military authority. Delivery of a activity to which ordered to report. A person on known absentee by anyone to military authority ter- temporary additional duty continues as a member of minates the unauthorized absence. the regularly assigned unit and if the person is ab- (d) Apprehension by civilian authorities at the sent from the temporary duty assignment, the person request of the military. When an absentee is taken becomes absent without leave from both units, and into custody by civilian authorities at the request of may be charged with being absent without leave military authorities, the absence is terminated. from either unit. (e) Apprehension by civilian authorities with- IV-14

2011 NCIS Mini-Manual, Page 63 ¶11.b.(4) out prior military request. When an absentee is in t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d the hands of civilian authorities for other reasons ( a t / o n b o a r d — l o c a t i o n ) , o n o r and these authorities make the absentee available for about 20 , without au- return to military control, the absence is terminated thority, (fail to go at the time prescribed to) (go when the military authorities are informed of the from) his/her appointed place of duty, to wit: (here absentee’s availability. set forth the appointed place of duty). (11) Findings of more than one absence under (2) Absence from unit, organization, or place of o n e s p e c i f i c a t i o n . A n a c c u s e d m a y p r o p e r l y b e d u t y . I n t h a t ( p e r s o n a l j u r i s d i c t i o n found guilty of two or more separate unauthorized data), did, on or about 20 , with- absences under one specification, provided that each o u t a u t h o r i t y , a b s e n t h i m s e l f / h e r s e l f f r o m h i s / h e r absence is included within the period alleged in the (unit) (organization) (place of duty at which he/she specification and provided that the accused was not w a s r e q u i r e d t o b e ) , t o w i t : , l o c a t e d misled. If an accused is found guilty of two or more at , and did remain so absent until (he/ unauthorized absences under a single specification, s h e w a s a p p r e h e n d e d ) o n o r the maximum authorized punishment shall not ex- about 20 . ceed that authorized if the accused had been found (3) Absence from unit, organization, or place of guilty as charged in the specification. duty with intent to avoid maneuvers or field exer- d. Lesser included offense. Article 80—attempts c i s e s . I n t h a t ( p e r s o n a l j u r i s d i c t i o n e. Maximum punishment. data), did, on or about 20 , with- out authority and with intent to avoid (maneuvers) (1) Failing to go to, or going from, the appointed (field exercises), absent himself/herself from his/her place of duty. Confinement for 1 month and forfei- (unit) (organization) (place of duty at which he/she ture of two-thirds pay per month for 1 month. was required to be), to wit: located at ( 2 ) A b s e n c e f r o m u n i t , o r g a n i z a t i o n , o r o t h e r ( ), and did remain so absent until place of duty. on or about 20 . (a) For not more than 3 days. Confinement for ( 4 ) A b a n d o n i n g w a t c h o r g u a r d . I n t h a t - 1 month and forfeiture of two-thirds pay per month ( p e r s o n a l j u r i s d i c t i o n d a t a ) , b e i n g a for 1 month. member of the (guard) (watch) (duty (b) For more than 3 days but not more than 30 s e c t i o n ) , d i d , ( a t / o n b o a r d - l o c a t i o n ) , o n o r days. Confinement for 6 months and forfeiture of about 20 , without au- two-thirds pay per month for 6months. thority, go from his/her (guard) (watch) (duty sec- (c) For more than 30 days. Dishonorable dis- tion) (with intent to abandon the same). charge, forfeiture of all pay and allowances, and confinement for 1 year. 11. Article 87—Missing movement (d) For more than 30 days and terminated by a. Text of statute. apprehension. Dishonorable discharge, forfeiture of A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o a l l p a y a n d a l l o w a n c e s , a n d c o n f i n e m e n t f o r 1 8 through neglect or design misses the movement of months. a ship, aircraft, or unit with which he is required ( 3 ) F r o m g u a r d o r w a t c h . C o n f i n e m e n t f o r 3 in the course of duty to move shall be punished months and forfeiture of two-thirds pay per month as a court-martial may direct. for 3 months. b. Elements. (4) From guard or watch with intent to abandon. (1) That the accused was required in the course Bad-conduct discharge, forfeiture of all pay and al- of duty to move with a ship, aircraft or unit; lowances, and confinement for 6 months. ( 2 ) T h a t t h e a c c u s e d k n e w o f t h e p r o s p e c t i v e (5) With intent to avoid maneuvers or field exer- movement of the ship, aircraft or unit; cises. Bad-conduct discharge, forfeiture of all pay (3) That the accused missed the movement of the and allowances, and confinement for 6 months. ship, aircraft or unit; and f. Sample specifications. ( 4 ) T h a t t h e a c c u s e d m i s s e d t h e m o v e m e n t (1) Failing to go or leaving place of duty. In through design or neglect. IV-15

2011 NCIS Mini-Manual, Page 64 ¶11.c. c. Explanation. edge of the exact hour or even of the exact date of (1) Movement. “Movement” as used in Article 87 the scheduled movement is not required. It is suffi- includes a move, transfer, or shift of a ship, aircraft, cient if the approximate date was known by the or unit involving a substantial distance and period of accused as long as there is a causal connection be- time. Whether a particular movement is substantial tween the conduct of the accused and the missing of is a question to be determined by the court-martial the scheduled movement. Knowledge may be proved considering all the circumstances. Changes which do by circumstantial evidence. n o t c o n s t i t u t e a “ m o v e m e n t ” i n c l u d e p r a c t i c e (6) Proof of absence. That the accused actually marches of a short duration with a return to the missed the movement may be proved by documen- point of departure, and minor changes in location of tary evidence, as by a proper entry in a log or a ships, aircraft, or units, as when a ship is shifted morning report. This fact may also be proved by the from one berth to another in the same shipyard or testimony of personnel of the ship, aircraft, or unit harbor or when a unit is moved from one barracks to (or by other evidence) that the movement occurred another on the same post. at a certain time, together with evidence that the (2) Mode of movement. accused was physically elsewhere at that time. (a) Unit. If a person is required in the course of d. Lesser included offenses. duty to move with a unit, the mode of travel is not (1) Design. important, whether it be military or commercial, and ( a ) A r t i c l e 8 7 — m i s s i n g m o v e m e n t t h r o u g h includes travel by ship, train, aircraft, truck, bus, or neglect walking. The word “unit” is not limited to any spe- (b) Article 86—absence without authority cific technical category such as those listed in a (c) Article 80—attempts table of organization and equipment, but also in- cludes units which are created before the movement ( 2 ) N e g l e c t . A r t i c l e 8 6 — a b s e n c e w i t h o u t with the intention that they have organizational con- authority tinuity upon arrival at their destination regardless of e. Maximum punishment. their technical designation, and units intended to be (1) Design. Dishonorable discharge, forfeiture of disbanded upon arrival at their destination. all pay and allowances, and confinement for 2 years. (b) Ship, aircraft. If a person is assigned as a (2) Neglect. Bad-conduct discharge, forfeiture of crew member or is ordered to move as a passenger all pay and allowances, and confinement for 1 year. aboard a particular ship or aircraft, military or char- f. Sample specification. tered, then missing the particular sailing or flight is I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , e s s e n t i a l t o e s t a b l i s h t h e o f f e n s e o f m i s s i n g d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r movement. about 20 , through (neg- (3) Design. “Design” means on purpose, inten- l e c t ) ( d e s i g n ) m i s s t h e m o v e m e n t o f ( A i r c r a f t tionally, or according to plan and requires specific N o . ) ( F l i g h t ) ( t h e intent to miss the movement. USS ) (Company A, 1st Battalion, 7th In- ( 4 ) N e g l e c t . “ N e g l e c t ” m e a n s t h e o m i s s i o n t o fantry) ( ) with which he/she was take such measures as are appropriate under the cir- required in the course of duty to move. cumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or 12. Article 88—Contempt toward officials doing some act without giving attention to its proba- a. Text of statute. ble consequences in connection with the prospective Any commissioned officer who uses contemptu- movement, such as a departure from the vicinity of ous words against the President, the Vice Presi- t h e p r o s p e c t i v e m o v e m e n t t o s u c h a d i s t a n c e a s d e n t , C o n g r e s s , t h e S e c r e t a r y o f D e f e n s e , t h e would make it likely that one could not return in Secretary of a military department, the Secretary time for the movement. of Homeland Security, or the Governor or legisla- (5) Actual knowledge. In order to be guilty of the ture of any State, Territory, Commonwealth, or offense, the accused must have actually known of possession in which he is on duty or present shall the prospective movement that was missed. Knowl- be punished as a court-martial may direct. IV-16

2011 NCIS Mini-Manual, Page 65 ¶13.c.(1)(b) b. Elements. o f t h e ( S t a t e o f ) ( T e r r i t o r y (1) That the accused was a commissioned officer o f ) ( ) , a ( S t a t e ) ( T e r r i t o r y ) of the United States armed forces; ( ) i n w h i c h h e / s h e , t h e (2) That the accused used certain words against said , was then (on duty), (present)], an official or legislature named in the article; to wit: “ ,” or words to that effect. (3) That by an act of the accused these words came to the knowledge of a person other than the 13. Article 89—Disrespect toward a superior accused; and commissioned officer (4) That the words used were contemptuous, ei- a. Text of statute. ther in themselves or by virtue of the circumstances Any person subject to this chapter who be- under which they were used. haves with disrespect toward his superior com- [Note: If the words were against a Governor or leg- missioned officer shall be punished as a court- islature, add the following element] martial may direct. ( 5 ) T h a t t h e a c c u s e d w a s t h e n p r e s e n t i n t h e b. Elements. State, Territory, Commonwealth, or possession of (1) That the accused did or omitted certain acts or the Governor or legislature concerned. used certain language to or concerning a certain c. Explanation. The official or legislature against commissioned officer; whom the words are used must be occupying one of (2) That such behavior or language was directed the offices or be one of the legislatures named in toward that officer; A r t i c l e 8 8 a t t h e t i m e o f t h e o f f e n s e . N e i t h e r (3) That the officer toward whom the acts, omis- “Congress” nor “legislature” includes its members sions, or words were directed was the superior com- i n d i v i d u a l l y . “ G o v e r n o r ” d o e s n o t i n c l u d e missioned officer of the accused; “lieutenant governor.” It is immaterial whether the (4) That the accused then knew that the commis- words are used against the official in an official or sioned officer toward whom the acts, omissions, or private capacity. If not personally contemptuous, ad- w o r d s w e r e d i r e c t e d w a s t h e a c c u s e d ’ s s u p e r i o r verse criticism of one of the officials or legislatures commissioned officer; and named in the article in the course of a political d i s c u s s i o n , e v e n t h o u g h e m p h a t i c a l l y e x p r e s s e d , (5) That, under the circumstances, the behavior or may not be charged as a violation of the article. l a n g u a g e w a s d i s r e s p e c t f u l t o t h a t c o m m i s s i o n e d Similarly, expressions of opinion made in a purely officer. p r i v a t e c o n v e r s a t i o n s h o u l d n o t o r d i n a r i l y b e c. Explanation. charged. Giving broad circulation to a written publi- (1) Superior commissioned officer. cation containing contemptuous words of the kind (a) Accused and victim in same armed force. If made punishable by this article, or the utterance of the accused and the victim are in the same armed contemptuous words of this kind in the presence of force, the victim is a “superior commissioned offi- military subordinates, aggravates the offense. The cer” of the accused when either superior in rank or truth or falsity of the statements is immaterial. command to the accused; however, the victim is not d. Lesser included offense. Article 80—attempts a “superior commissioned officer” of the accused if e. Maximum punishment. Dismissal, forfeiture of all the victim is inferior in command, even though su- pay and allowances, and confinement for 1 year. perior in rank. f. Sample specification. ( b ) A c c u s e d a n d v i c t i m i n d i f f e r e n t a r m e d I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , forces. If the accused and the victim are in different d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a r m e d f o r c e s , t h e v i c t i m i s a “ s u p e r i o r c o m m i s - about 20 , [use (orally and sioned officer” of the accused when the victim is a publicly) ( ) the following contemp- commissioned officer and superior in the chain of tuous words] [in a contemptuous manner, use (orally command over the accused or when the victim, not a a n d p u b l i c l y ) ( ) t h e f o l l o w i n g w o r d s ] medical officer or a chaplain, is senior in grade to against the [(President) (Vice President) (Congress) the accused and both are detained by a hostile entity (Secretary of )] [(Governor) (legislature) so that recourse to the normal chain of command is IV-17

2011 NCIS Mini-Manual, Page 66 ¶13.c.(1)(b) prevented. The victim is not a “superior commis- about 20 , behave himself/ sioned officer” of the accused merely because the herself with disrespect toward , his/ victim is superior in grade to the accused. her superior commissioned officer, then known by (c) Execution of office. It is not necessary that the said to be his/her superior commis- the “superior commissioned officer” be in the execu- sioned officer, by (saying to him/her “ ,” t i o n o f o f f i c e a t t h e t i m e o f t h e d i s r e s p e c t f u l o r w o r d s t o t h a t e f f e c t ) ( c o n t e m p t u o u s l y t u r n i n g behavior. f r o m a n d l e a v i n g h i m / h e r w h i l e h e / s h e , t h e (2) Knowledge. If the accused did not know that s a i d , w a s t a l k i n g t o h i m / h e r , t h e the person against whom the acts or words were said ) ( ). directed was the accused’s superior commissioned officer, the accused may not be convicted of a viola- 14. Article 90—Assaulting or willfully tion of this article. Knowledge may be proved by disobeying superior commissioned officer circumstantial evidence. a. Text of statute. Any person subject to this ( 3 ) D i s r e s p e c t . D i s r e s p e c t f u l b e h a v i o r i s t h a t chapter who— which detracts from the respect due the authority (1) strikes his superior commissioned officer or and person of a superior commissioned officer. It draws or lifts up any weapon or offers any vio- may consist of acts or language, however expressed, lence against him while he is in the execution of and it is immaterial whether they refer to the supe- his office; or rior as an officer or as a private individual. Dis- (2) willfully disobeys a lawful command of his r e s p e c t b y w o r d s m a y b e c o n v e y e d b y a b u s i v e superior commissioned officer; epithets or other contemptuous or denunciatory lan- guage. Truth is no defense. Disrespect by acts in- shall be punished, if the offense is committed in cludes neglecting the customary salute, or showing a time of war, by death or such other punishment m a r k e d d i s d a i n , i n d i f f e r e n c e , i n s o l e n c e , i m p e r t i - as a court-martial may direct, and if the offense nence, undue familiarity, or other rudeness in the is committed at any other time, by such punish- presence of the superior officer. ment, other than death, as a court-martial may direct. (4) Presence. It is not essential that the disre- spectful behavior be in the presence of the superior, b. Elements. but ordinarily one should not be held accountable (1) Striking or assaulting superior commissioned under this article for what was said or done in a officer. purely private conversation. (a) That the accused struck, drew, or lifted up a (5) Special defense—unprotected victim. A supe- weapon against, or offered violence against, a cer- rior commissioned officer whose conduct in relation tain commissioned officer; to the accused under all the circumstances departs (b) That the officer was the superior commis- substantially from the required standards appropriate sioned officer of the accused; to that officer’s rank or position under similar cir- (c) That the accused then knew that the officer cumstances loses the protection of this article. That was the accused’s superior commissioned officer; accused may not be convicted of being disrespectful and to the officer who has so lost the entitlement to respect protected by Article 89. (d) That the superior commissioned officer was then in the execution of office. d. Lesser included offenses. (2) Disobeying superior commissioned officer. (1) Article 117—provoking speeches or gestures (a) That the accused received a lawful com- (2) Article 80—attempts mand from a certain commissioned officer; e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- (b) That this officer was the superior commis- ment for 1 year. sioned officer of the accused; f. Sample specification. (c) That the accused then knew that this officer I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , was the accused’s superior commissioned officer; d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r and IV-18

2011 NCIS Mini-Manual, Page 67 ¶14.c.(2)(b)

(d) That the accused willfully disobeyed the assaulting a superior commissioned officer in viola- lawful command. tion of this article, it is a defense that the accused c. Explanation. acted in the proper discharge of some duty, or that (1) Striking or assaulting superior commissioned the victim behaved in a manner toward the accused officer. such as to lose the protection of this article ( see paragraph 13c(5)). For example, if the victim initi- (a) Definitions. ated an unlawful attack on the accused, this would (i) Superior commissioned officer. The defi- deprive the victim of the protection of this article, nitions in paragraph 13c(1)(a) and( b) apply here and, in addition, could excuse any lesser included and in subparagraph c(2). offense of assault as done in self-defense, depending ( i i ) S t r i k e s . “ S t r i k e s ” m e a n s a n i n t e n t i o n a l on the circumstances ( see paragraph 54c; R.C.M. blow, and includes any offensive touching of the 916(e)). person of an officer, however slight. (2) Disobeying superior commissioned officer. (iii) Draws or lifts up any weapon against. (a) Lawfulness of the order. The phrase “draws or lifts up any weapon against” (i) Inference of lawfulness. An order requir- covers any simple assault committed in the manner ing the performance of a military duty or act may be stated. The drawing of any weapon in an aggressive inferred to be lawful and it is disobeyed at the peril manner or the raising or brandishing of the same in of the subordinate. This inference does not apply to a threatening manner in the presence of and at the a patently illegal order, such as one that directs the superior is the sort of act proscribed. The raising in commission of a crime. a threatening manner of a firearm, whether or not loaded, of a club, or of anything by which a serious (ii) Determination of lawfulness. The lawful- blow or injury could be given is included in “lifts ness of an order is a question of law to be deter- up.” mined by the military judge. (iv) Offers any violence against. The phrase (iii) Authority of issuing officer. The com- “offers any violence against” includes any form of missioned officer issuing the order must have au- battery or of mere assault not embraced in the pre- thority to give such an order. Authorization may be ceding more specific terms “strikes” and “draws or based on law, regulation, or custom of the service. lifts up.” If not executed, the violence must be phys- (iv) Relationship to military duty. The order ically attempted or menaced. A mere threatening in must relate to military duty, which includes all activ- words is not an offering of violence in the sense of ities reasonably necessary to accomplish a military this article. mission, or safeguard or promote the morale, disci- (b) Execution of office. An officer is in the pline, and usefulness of members of a command and execution of office when engaged in any act or serv- directly connected with the maintenance of good or- ice required or authorized by treaty, statute, regula- der in the service. The order may not, without such tion, the order of a superior, or military usage. In a valid military purpose, interfere with private rights general, any striking or use of violence against any or personal affairs. However, the dictates of a per- superior officer by a person over whom it is the duty son’s conscience, religion, or personal philosophy of that officer to maintain discipline at the time, cannot justify or excuse the disobedience of an oth- would be striking or using violence against the offi- erwise lawful order. Disobedience of an order which cer in the execution of office. The commanding offi- has for its sole object the attainment of some private cer on board a ship or the commanding officer of a end, or which is given for the sole purpose of in- unit in the field is generally considered to be on creasing the penalty for an offense which it is ex- duty at all times. pected the accused may commit, is not punishable (c) Knowledge. If the accused did not know the under this article. officer was the accused’s superior commissioned of- ( v ) R e l a t i o n s h i p t o s t a t u t o r y o r c o n s t i t u - ficer, the accused may not be convicted of this of- tional rights. The order must not conflict with the fense. Knowledge may be proved by circumstantial statutory or constitutional rights of the person re- evidence. ceiving the order. (d) Defenses. In a prosecution for striking or (b) Personal nature of the order. The order IV-19

2011 NCIS Mini-Manual, Page 68 ¶14.c.(2)(b)

must be directed specifically to the subordinate. Vio- ( c ) A r t i c l e 1 2 8 — a s s a u l t o r a s s a u l t c o n s u m - lations of regulations, standing orders or directives, mated by a battery upon commissioned officer not in or failure to perform previously established duties the execution of office are not punishable under this article, but may violate (d) Article 80—attempts Article 92. (2) Drawing or lifting up a weapon or offering (c) Form and transmission of the order. As violence to superior commissioned officer in execu- long as the order is understandable, the form of the tion of office. order is immaterial, as is the method by which it is ( a ) A r t i c l e 1 2 8 — a s s a u l t , a s s a u l t w i t h d a n - transmitted to the accused. gerous weapon (d) Specificity of the order. The order must be (b) Article 128—assault upon a commissioned a specific mandate to do or not to do a specific act. officer not in the execution of office An exhortation to “obey the law” or to perform (c) Article 80—attempts o n e ’ s m i l i t a r y d u t y d o e s n o t c o n s t i t u t e a n o r d e r (3) Willfully disobeying lawful order of superior under this article. commissioned officer. (e) Knowledge. The accused must have actual (a) Article 92—failure to obey lawful order knowledge of the order and of the fact that the person issuing the order was the accused’s superior (b) Article 89—disrespect to superior commis- c o m m i s s i o n e d o f f i c e r . A c t u a l k n o w l e d g e m a y b e sioned officer proved by circumstantial evidence. (c) Article 80—attempts (f) Nature of the disobedience. “Willful disobe- e. Maximum punishment. dience” is an intentional defiance of authority. Fail- (1) Striking, drawing, or lifting up any weapon or ure to comply with an order through heedlessness, offering any violence to superior commissioned offi- remissness, or forgetfulness is not a violation of this c e r i n t h e e x e c u t i o n o f o f f i c e . D i s h o n o r a b l e d i s - article but may violate Article 92. charge, forfeiture of all pay and allowances, and  (g) Time for compliance. When an order re- confinement for 10 years. quires immediate compliance, an accused’s declared (2) Willfully disobeying a lawful order of supe- intent not to obey and the failure to make any move rior commissioned officer. Dishonorable discharge, to comply constitutes disobedience. If an order does forfeiture of all pay and allowances, and confine- not indicate the time within which it is to be com- ment for 5 years. plied with, either expressly or by implication, then a (3) In time of war. Death or such other punish- reasonable delay in compliance does not violate this ment as a court-martial may direct. article. If an order requires performance in the fu- f. Sample specifications. ture, an accused’s present statement of intention to (1) Striking superior commissioned officer. disobey the order does not constitute disobedience of In that (personal jurisdiction data), that order, although carrying out that intention may. did, (at/on board—location) (subject-matter jurisdic- ( 3 ) C i v i l i a n s a n d d i s c h a r g e d p r i s o n e r s . A d i s - t i o n d a t a , i f r e q u i r e d ) , o n o r charged prisoner or other civilian subject to military a b o u t 2 0 , ( a t i m e o f w a r ) law (see Article 2) and under the command of a s t r i k e , h i s / h e r s u p e r i o r c o m m i s s i o n e d commissioned officer is subject to the provisions of officer, then known by the said to be this article. his/her superior commissioned officer, who was then d. Lesser included offenses. i n t h e e x e c u t i o n o f h i s / h e r o f f i c e , ( i n ) ( o n ) (1) Striking superior commissioned officer in exe- the with (a) (his/her) . cution of office. (2) Drawing or lifting up a weapon against supe- (a) Article 90—drawing or lifting up a weapon rior commissioned officer. In that (personal jurisdiction data), or offering violence to superior commissioned offi- did, (at/on board—location) (subject-matter jurisdic- cer in execution of office t i o n d a t a , i f r e q u i r e d ) , o n o r (b) Article 128—assault; assault consummated about 20 , (a time of war) (draw) by a battery; assault with a dangerous weapon l i f t u p ) a w e a p o n , t o w i t : a , IV-20

2011 NCIS Mini-Manual, Page 69 3DJH,9

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 D 3DUD$UWLFOH$VVDXOWLQJRUZLOOIXOO\GLVREH\LQJVXSHULRUFRPPLVVLRQHGRIILFHUSDUDJUDSKF  J LVDPHQGHGWRUHDGDVIROORZV   J 7LPHIRUFRPSOLDQFH:KHQDQRUGHUUHTXLUHVLPPHGLDWHFRPSOLDQFHDQDFFXVHG¶VGHFODUHGLQWHQWQRWWRREH\DQGWKHIDLOXUHWRPDNHDQ\PRYHWRFRPSO\FRQVWLWXWHV GLVREHGLHQFH,PPHGLDWHFRPSOLDQFHLVUHTXLUHGIRUDQ\RUGHUWKDWGRHVQRWH[SOLFLWO\RULPSOLFLWO\LQGLFDWHWKDWGHOD\HGFRPSOLDQFHLVDXWKRUL]HGRUGLUHFWHG,IDQRUGHU UHTXLUHVSHUIRUPDQFHLQWKHIXWXUHDQDFFXVHG¶VSUHVHQWVWDWHPHQWRILQWHQWLRQWRGLVREH\WKHRUGHUGRHVQRWFRQVWLWXWHGLVREHGLHQFHRIWKDWRUGHUDOWKRXJKFDUU\LQJRXWWKDW LQWHQWLRQPD\

Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 70 ¶15.b.(3)(f) against , his/her superior commissioned (b) That the accused struck or assaulted a cer- officer, then known by the said to be tain warrant, noncommissioned, or petty officer; his/her superior commissioned officer, who was then (c) That the striking or assault was committed in the execution of his/her office. while the victim was in the execution of office; and (3) Offering violence to superior commissioned (d) That the accused then knew that the person officer. struck or assaulted was a warrant, noncommissioned, In that (personal jurisdiction data), or petty officer. did, (at/on board—location) (subject-matter jurisdic- [Note: If the victim was the superior noncommis- t i o n d a t a , i f r e q u i r e d ) , o n o r sioned or petty officer of the accused, add the fol- about 20 , (a time of war) offer lowing elements] violence against , his/her superior com- (e) That the victim was the superior noncom- m i s s i o n e d o f f i c e r , t h e n k n o w n b y t h e s a i d - to be his/her superior commissioned missioned, or petty officer of the accused; and officer, who was then in the execution of his/her (f) That the accused then knew that the person office, by . struck or assaulted was the accused’s superior non- ( 4 ) W i l l f u l d i s o b e d i e n c e o f s u p e r i o r c o m m i s - commissioned, or petty officer. sioned officer. (2) Disobeying a warrant, noncommissioned, or In that (personal jurisdiction data), petty officer. h a v i n g r e c e i v e d a l a w f u l c o m m a n d (a) That the accused was a warrant officer or f r o m , h i s / h e r s u p e r i o r c o m m i s s i o n e d enlisted member; officer, then known by the said to be (b) That the accused received a certain lawful h i s / h e r s u p e r i o r c o m m i s s i o n e d o f f i c e r , order from a certain warrant, noncommissioned, or to , or words to that effect, did, (at/on petty officer; b o a r d — l o c a t i o n ) , o n o r (c) That the accused then knew that the person a b o u t 2 0 , w i l l f u l l y d i s o b e y the same. giving the order was a warrant, noncommissioned, or petty officer; 15. Article 91—Insubordinate conduct (d) That the accused had a duty to obey the toward warrant officer, noncommissioned order; and officer, or petty officer ( e ) T h a t t h e a c c u s e d w i l l f u l l y d i s o b e y e d t h e a. Text of statute. Any warrant officer or en- order. listed member who— (3) Treating with contempt or being disrespectful (1) strikes or assaults a warrant officer, non- in language or deportment toward a warrant, non- commissioned officer, or petty officer, while that commissioned, or petty officer. officer is in the execution of his office; (a) That the accused was a warrant officer or (2) willfully disobeys the lawful order of a war- enlisted member; rant officer, noncommissioned officer, or petty ( b ) T h a t t h e a c c u s e d d i d o r o m i t t e d c e r t a i n officer; or acts, or used certain language; (3) treats with contempt or is disrespectful in (c) That such behavior or language was used language or deportment toward a warrant offi- toward and within sight or hearing of a certain war- c e r , n o n c o m m i s s i o n e d o f f i c e r , o r p e t t y o f f i c e r rant, noncommissioned, or petty officer; while that officer is in the execution of his office; (d) That the accused then knew that the person shall be punished as a court-martial may direct. toward whom the behavior or language was directed b. Elements. was a warrant, noncommissioned, or petty officer; (1) Striking or assaulting warrant, noncommis- (e) That the victim was then in the execution sioned, or petty officer. of office; and (a) That the accused was a warrant officer or (f) That under the circumstances the accused, enlisted member; by such behavior or language, treated with contempt IV-21

2011 NCIS Mini-Manual, Page 71 ¶15.b.(3)(f) or was disrespectful to said warrant, noncommis- tion of his office,” see paragraph 14c. For a discus- sioned, or petty officer. sion of disrespect, see paragraph 13c. [Note: If the victim was the superior noncommis- d. Lesser included offenses. s i o n e d , o r p e t t y o f f i c e r o f t h e a c c u s e d , a d d t h e (1) Striking or assaulting warrant, noncommis- following elements] sioned, or petty officer in the execution of office. (g) That the victim was the superior noncom- (a) Article 128—assault; assault consummated missioned, or petty officer of the accused; and by a battery; assault with a dangerous weapon (h) That the accused then knew that the person ( b ) A r t i c l e 1 2 8 — a s s a u l t u p o n w a r r a n t , n o n - toward whom the behavior or language was directed commissioned, or petty officer not in the execution w a s t h e a c c u s e d ’ s s u p e r i o r n o n c o m m i s s i o n e d , o r of office petty officer. (c) Article 80—attempts c. Explanation. (2) Disobeying a warrant, noncommissioned, or (1) In general. Article 91 has the same general petty officer. objects with respect to warrant, noncommissioned, (a) Article 92—failure to obey a lawful order and petty officers as Articles 89 and 90 have with respect to commissioned officers, namely, to ensure (b) Article 80—attempts obedience to their lawful orders, and to protect them (3) Treating with contempt or being disrespectful from violence, insult, or disrespect. Unlike Articles in language or deportment toward warrant, noncom- 89 and 90, however, this article does not require a missioned, or petty officer in the execution of office. superior-subordinate relationship as an element of (a) Article 117—using provoking or reproach- any of the offenses denounced. This article does not ful speech protect an acting noncommissioned officer or acting (b) Article 80—attempts petty officer, nor does it protect military police or e. Maximum punishment. members of the shore patrol who are not warrant, (1) Striking or assaulting warrant officer. Dis- noncommissioned, or petty officers. honorable discharge, forfeiture of all pay and allow- (2) Knowledge. All of the offenses prohibited by ances, and confinement for 5 years. A r t i c l e 9 1 r e q u i r e t h a t t h e a c c u s e d h a v e a c t u a l ( 2 ) S t r i k i n g o r a s s a u l t i n g s u p e r i o r n o n c o m m i s - knowledge that the victim was a warrant, noncom- sioned or petty officer. Dishonorable discharge, for- missioned, or petty officer. Actual knowledge may feiture of all pay and allowances, and confinement be proved by circumstantial evidence. for 3 years. (3) Striking or assaulting a warrant, noncommis- (3) Striking or assaulting other noncommissioned sioned, or petty officer. For a discussion of “strikes” or petty officer. Dishonorable discharge, forfeiture of and “in the execution of office,” see paragraph 14c. all pay and allowances, and confinement for 1 year. For a discussion of “assault,” see paragraph 54c. An assault by a prisoner who has been discharged from ( 4 ) W i l l f u l l y d i s o b e y i n g t h e l a w f u l o r d e r o f a the service, or by any other civilian subject to mili- warrant officer. Dishonorable discharge, forfeiture tary law, upon a warrant, noncommissioned, or petty of all pay and allowances, and confinement for 2 officer should be charged under Article 128 or 134. years. (4) Disobeying a warrant, noncommissioned, or (5) Willfully disobeying the lawful order of a non- petty officer. See paragraph 14c(2) for a discussion c o m m i s s i o n e d o r p e t t y o f f i c e r . B a d - c o n d u c t d i s - of lawfulness, personal nature, form, transmission, charge, forfeiture of all pay and allowances, and and specificity of the order, nature of the disobedi- confinement for 1 year. ence, and time for compliance with the order. ( 6 ) C o n t e m p t o r d i s r e s p e c t t o w a r r a n t o f f i c e r . (5) Treating with contempt or being disrespectful Bad-conduct discharge, forfeiture of all pay and al- in language or deportment toward a warrant, non- lowances, and confinement for 9 months. commissioned, or petty officer. “Toward” requires (7) Contempt or disrespect to superior noncom- that the behavior and language be within the sight or missioned or petty officer. Bad-conduct discharge, hearing of the warrant, noncommissioned, or petty forfeiture of all pay and allowances, and confine- officer concerned. For a discussion of “in the execu- ment for 6 months. IV-22

2011 NCIS Mini-Manual, Page 72 ¶16.c.(1)(b)

(8) Contempt or disrespect to other noncommis- der issued by a member of the armed forces, sioned or petty officer. Forfeiture of two-thirds pay which it is his duty to obey, fails to obey the per month for 3 months, and confinement for 3 order; or months. (3) is derelict in the performance of his duties; f. Sample specifications. shall be punished as a court-martial may direct. (1) Striking or assaulting warrant, noncommis- b. Elements. sioned, or petty officer. (1) Violation of or failure to obey a lawful gen- In that (personal jurisdiction data), eral order or regulation. did, (at/on board—location) (subject-matter jurisdic- (a) That there was in effect a certain lawful t i o n d a t a , i f r e q u i r e d ) , o n o r general order or regulation; a b o u t 2 0 , ( s t r i k e ) ( a s - (b) That the accused had a duty to obey it; and s a u l t ) , a o f f i c e r , t h e n k n o w n t o t h e s a i d t o b e a ( s u p e r - (c) That the accused violated or failed to obey ior) officer who was then in the the order or regulation. e x e c u t i o n o f h i s / h e r o f f i c e , (2) Failure to obey other lawful order. b y h i m / h e r ( i n ) ( o n ) (a) That a member of the armed forces issued a ( t h e ) w i t h ( a ) ( h i s / certain lawful order; her) . ( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e (2) Willful disobedience of warrant, noncommis- order; sioned, or petty officer. (c) That the accused had a duty to obey the In that (personal jurisdiction data), order; and having received a lawful order from , (d) That the accused failed to obey the order. a officer, then known by the said- (3) Dereliction in the performance of duties. t o b e a o f f i c e r , to , an order which it was his/her duty (a) That the accused had certain duties; t o o b e y , d i d ( a t / o n b o a r d — l o c a t i o n ) , o n o r ( b ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y a b o u t 2 0 , w i l l f u l l y d i s o b e y t h e should have known of the duties; and same. (c) That the accused was (willfully) (through (3) Contempt or disrespect toward warrant, non- neglect or culpable inefficiency) derelict in the per- commissioned, or petty officer. formance of those duties. In that (personal jurisdiction data) c. Explanation. ( a t / o n b o a r d — l o c a t i o n ) , o n o r (1) Violation of or failure to obey a lawful gen- a b o u t 2 0 , [ d i d t r e a t eral order or regulation. with contempt] [was disrespectful in (language) (de- (a) Authority to issue general orders and regu- p o r t m e n t ) t o w a r d ] , lations. General orders or regulations are those or- a o f f i c e r , t h e n k n o w n b y t h e s a i d - ders or regulations generally applicable to an armed t o b e a ( s u p e r i o r ) - force which are properly published by the President officer, who was then in the execution or the Secretary of Defense, of Homeland Security, o f h i s / h e r o f f i c e , b y ( s a y i n g t o h i m / h e r , or of a military department, and those orders or “ ,” or words to that effect) (spit- regulations generally applicable to the command of ting at his/her feet) ( ) the officer issuing them throughout the command or a particular subdivision thereof which are issued by: 16. Article 92—Failure to obey order or ( i ) a n o f f i c e r h a v i n g g e n e r a l c o u r t - m a r t i a l regulation jurisdiction; a. Text of statute. Any person subject to this (ii) a general or flag officer in command; or chapter who— (iii) a commander superior to (i) or (ii). (1) violates or fails to obey any lawful general (b) Effect of change of command on validity of order or regulation; order. A general order or regulation issued by a (2) having knowledge of any other lawful or- commander with authority under Article 92(1) re- IV-23

2011 NCIS Mini-Manual, Page 73 ¶16.c.(1)(b) tains its character as a general order or regulation or a member of the armed forces police. See para- when another officer takes command, until it expires graph 15b(2) if the order was issued by a warrant, by its own terms or is rescinded by separate action, noncommissioned, or petty officer in the execution even if it is issued by an officer who is a general or of office. flag officer in command and command is assumed (3) Dereliction in the performance of duties. b y a n o t h e r o f f i c e r w h o i s n o t a g e n e r a l o r f l a g (a) Duty. A duty may be imposed by treaty, officer. statute, regulation, lawful order, standard operating (c) Lawfulness. A general order or regulation is procedure, or custom of the service. lawful unless it is contrary to the Constitution, the ( b ) K n o w l e d g e . A c t u a l k n o w l e d g e o f d u t i e s laws of the United States, or lawful superior orders may be proved by circumstantial evidence. Actual or for some other reason is beyond the authority of knowledge need not be shown if the individual rea- the official issuing it. See the discussion of lawful- sonably should have known of the duties. This may ness in paragraph 14c(2)(a). be demonstrated by regulations, training or operating (d) Knowledge. Knowledge of a general order manuals, customs of the service, academic literature o r r e g u l a t i o n n e e d n o t b e a l l e g e d o r p r o v e d , a s or testimony, testimony of persons who have held knowledge is not an element of this offense and a similar or superior positions, or similar evidence. lack of knowledge does not constitute a defense. (c) Derelict. A person is derelict in the per- (e) Enforceability. Not all provisions in general formance of duties when that person willfully or orders or regulations can be enforced under Article negligently fails to perform that person’s duties or 92(1). Regulations which only supply general guide- when that person performs them in a culpably ineffi- l i n e s o r a d v i c e f o r c o n d u c t i n g m i l i t a r y f u n c t i o n s c i e n t m a n n e r . “ W i l l f u l l y ” m e a n s i n t e n t i o n a l l y . I t may not be enforceable under Article 92(1). refers to the doing of an act knowingly and purpose- (2) Violation of or failure to obey other lawful ly, specifically intending the natural and probable order. consequences of the act. “Negligently” means an act (a) Scope. Article 92(2) includes all other law- or omission of a person who is under a duty to use ful orders which may be issued by a member of the due care which exhibits a lack of that degree of care armed forces, violations of which are not chargeable which a reasonably prudent person would have exer- under Article 90, 91, or 92(1). It includes the viola- cised under the same or similar circumstances. “Cul- tion of written regulations which are not general pable inefficiency” is inefficiency for which there is regulations. See also subparagraph (1)(e) above as no reasonable or just excuse. applicable. (d) Ineptitude. A person is not derelict in the (b) Knowledge. In order to be guilty of this performance of duties if the failure to perform those offense, a person must have had actual knowledge of duties is caused by ineptitude rather than by willful- the order or regulation. Knowledge of the order may ness, negligence, or culpable inefficiency, and may be proved by circumstantial evidence. not be charged under this article, or otherwise pun- (c) Duty to obey order. ished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is ( i ) F r o m a s u p e r i o r . A m e m b e r o f o n e not derelict in the performance of duties if the re- armed force who is senior in rank to a member of cruit fails to qualify with the weapon. another armed force is the superior of that member with authority to issue orders which that member d. Lesser included offense. Article 80—attempts has a duty to obey under the same circumstances as e. Maximum punishment. a commissioned officer of one armed force is the (1) Violation or failure to obey lawful general superior commissioned officer of a member of an- order or regulation. Dishonorable discharge, forfei- other armed force for the purposes of Articles 89 ture of all pay and allowances, and confinement for and 90. See paragraph 13c(1). 2 years. (ii) From one not a superior. Failure to obey (2) Violation of failure to obey other lawful or- the lawful order of one not a superior is an offense der. Bad-conduct discharge, forfeiture of all pay and under Article 92(2), provided the accused had a duty allowances, and confinement for 6 months. to obey the order, such as one issued by a sentinel [Note: For (1) and (2), above, the punishment set IV-24

2011 NCIS Mini-Manual, Page 74 ¶17.c.(2) forth does not apply in the following cases: if in the m e n t ) ( t o ) ( n o t t o ) absence of the order or regulation which was vio- ( ), an order which it was his/her duty to lated or not obeyed the accused would on the same obey, did (at/on board—location) (subject-matter ju- facts be subject to conviction for another specific r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r offense for which a lesser punishment is prescribed; about 20 , fail to obey the or if the violation or failure to obey is a breach of same (by (wrongfully) .) restraint imposed as a result of an order. In these (4) Dereliction in the performance of duties. instances, the maximum punishment is that specifi- In that , (personal jurisdiction da- c a l l y p r e s c r i b e d e l s e w h e r e f o r t h a t p a r t i c u l a r ta), who (knew) (should have known) of his/her du- offense.] t i e s ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - m a t t e r (3) Dereliction in the performance of duties. j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , ( o n o r (A) Through neglect or culpable inefficiency. a b o u t 2 0 ) ( f r o m Forfeiture of two-thirds pay per month for 3 months a b o u t 2 0 t o and confinement for 3 months. a b o u t 2 0 ) , w a s d e r e l i c t i n t h e p e r f o r m a n c e o f t h o s e d u t i e s i n t h a t h e / s h e (B) Willful. Bad-conduct discharge, forfeiture ( n e g l i g e n t l y ) ( w i l l f u l l y ) ( b y c u l p a b l e i n e f f i c i e n c y ) of all pay and allowances, and confinement for 6 failed , as it was his/her duty to do. months. f. Sample specifications. 17. Article 93—Cruelty and maltreatment (1) Violation or failure to obey lawful general a. Text of statute. order or regulation. A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o i s In that (personal jurisdiction data), g u i l t y o f c r u e l t y t o w a r d , o r o p p r e s s i o n o r did, (at/on board—location) (subject-matter jurisdic- maltreatment of, any person subject to his orders t i o n d a t a , i f r e q u i r e d ) , o n o r shall be punished as a court-martial may direct. about 20 , (violate) (fail to obey) a lawful general (order) (regulation), to wit: (para- b. Elements. graph , (Army) (Air Force) Regula- (1) That a certain person was subject to the or- t i o n , d a t e d 2 0 ) ders of the accused; and ( A r t i c l e , U . S . N a v y R e g u l a t i o n s , (2) That the accused was cruel toward, or op- d a t e d 2 0 ) ( G e n e r a l O r - pressed, or maltreated that person. d e r N o . , U . S . N a v y , c. Explanation. d a t e d 2 0 ) ( ) , b y (1) Nature of victim. “Any person subject to his (wrongfully) . orders” means not only those persons under the di- (2) Violation or failure to obey other lawful writ- rect or immediate command of the accused but ex- ten order. tends to all persons, subject to the code or not, who In that (personal jurisdiction data), by reason of some duty are required to obey the h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d lawful orders of the accused, regardless whether the b y , t o w i t : ( p a r a g r a p h , accused is in the direct chain of command over the ( t h e C o m b a t G r o u p R e g u l a t i o n person. N o . ) ( U S S , ( 2 ) N a t u r e o f a c t . T h e c r u e l t y , o p p r e s s i o n , o r R e g u l a t i o n t i o n ) , d a t e d ) m a l t r e a t m e n t , a l t h o u g h n o t n e c e s s a r i l y p h y s i c a l , ( ), an order which it was his/her duty to must be measured by an objective standard. Assault, obey, did, (at/on board—location) (subject-matter ju- improper punishment, and sexual harassment may r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r constitute this offense. Sexual harassment includes about 20 , fail to obey influencing, offering to influence, or threatening the the same by (wrongfully) . career, pay, or job of another person in exchange for (3) Failure to obey other lawful order. sexual favors, and deliberate or repeated offensive In that , (personal jurisdiction data) comments or gestures of a sexual nature. The impo- h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d sition of necessary or proper duties and the exaction b y ( t o s u b m i t t o c e r t a i n m e d i c a l t r e a t - of their performance does not constitute this offense IV-25

2011 NCIS Mini-Manual, Page 75 ¶17.c.(2) even though the duties are arduous or hazardous or disturbance with intent to usurp or override lawful both. military authority. d. Lesser included offense. Article 80—attempts (2) Mutiny by refusing to obey orders or perform e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , duty. forfeiture of all pay and allowances, and confine- (a) That the accused refused to obey orders or ment for 1 year. otherwise do the accused’s duty; f. Sample specification. (b) That the accused in refusing to obey orders In that (personal jurisdiction data), or perform duty acted in concert with another person (at/on board—location) (subject-matter jurisdiction or persons; and data, if required), on or about 20 , (c) That the accused did so with intent to usurp ( w a s c r u e l t o w a r d ) ( d i d ( o p p r e s s ) ( m a l - or override lawful military authority. treat)) , a person subject to his/her or- (3) Sedition. ders, by (kicking him/her in the stomach) (confining (a) That the accused created revolt, violence, or him/her for twenty-four hours without water) disturbance against lawful civil authority; ( ). (b) That the accused acted in concert with an- other person or persons; and 18. Article 94—Mutiny and sedition (c) That the accused did so with the intent to a. Text of statute. cause the overthrow or destruction of that authority. Any person subject to this chapter who— (4) Failure to prevent and suppress a mutiny or (1) with intent to usurp or override lawful mil- sedition. itary authority, refuse, in concert with any other (a) That an offense of mutiny or sedition was person, to obey orders or otherwise do his duty committed in the presence of the accused; and or creates any violence or disturbance is guilty of (b) That the accused failed to do the accused’s mutiny; u t m o s t t o p r e v e n t a n d s u p p r e s s t h e m u t i n y o r (2) with intent to cause the overthrow or de- sedition. struction of lawful civil authority, creates, in con- (5) Failure to report a mutiny or sedition. cert with any other person, revolt, violence, or ( a ) T h a t a n o f f e n s e o f m u t i n y o r s e d i t i o n other disturbance against that authority is guilty occurred; of sedition; (b) That the accused knew or had reason to (3) fails to do his utmost to prevent and sup- believe that the offense was taking place; and press a mutiny or sedition being committed in his (c) That the accused failed to take all reasona- presence, or fails to take all reasonable means to ble means to inform the accused’s superior commis- inform his superior commissioned officer or com- sioned officer or commander of the offense. manding officer of a mutiny or sedition which he (6) Attempted mutiny. knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny (a) That the accused committed a certain overt or sedition. act; (b) That the act was done with specific intent ( b ) A p e r s o n w h o i s f o u n d g u i l t y o f a t - to commit the offense of mutiny; tempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be (c) That the act amounted to more than mere punished by death or such other punishment as a preparation; and court-martial may direct. (d) That the act apparently tended to effect the commission of the offense of mutiny. b. Elements. c. Explanation. (1) Mutiny by creating violence or disturbance. (1) Mutiny. Article 94(a)(1) defines two types of (a) That the accused created violence or a dis- mutiny, both requiring an intent to usurp or override turbance; and military authority. (b) That the accused created this violence or (a) Mutiny by creating violence or disturbance. IV-26

2011 NCIS Mini-Manual, Page 76 ¶18.f.(3)

Mutiny by creating violence or disturbance may be ( b ) A r t i c l e 9 1 — a s s a u l t o n w a r r a n t , n o n c o m - committed by one person acting alone or by more missioned, or petty officer than one acting together. (c) Article 94—attempted mutiny (b) Mutiny by refusing to obey orders or per- (d) Article 116—riot; breach of peace form duties. Mutiny by refusing to obey orders or (e) Article 128—assault p e r f o r m d u t i e s r e q u i r e s c o l l e c t i v e i n s u b o r d i n a t i o n (f) Article 134—disorderly conduct and necessarily includes some combination of two or more persons in resisting lawful military authority. (2) Mutiny by refusing to obey orders or perform This concert of insubordination need not be precon- duties. ceived, nor is it necessary that the insubordination ( a ) A r t i c l e 9 0 — w i l l f u l d i s o b e d i e n c e o f c o m - be active or violent. It may consist simply of a missioned officer persistent and concerted refusal or omission to obey ( b ) A r t i c l e 9 1 — w i l l f u l d i s o b e d i e n c e o f w a r - orders, or to do duty, with an insubordinate intent, rant, noncommissioned, or petty officer that is, with an intent to usurp or override lawful (c) Article 92—failure to obey lawful order military authority. The intent may be declared in (d) Article 94—attempted mutiny words or inferred from acts, omissions, or surround- (3) Sedition. ing circumstances. (a) Article 116—riot; breach of peace (2) Sedition. Sedition requires a concert of action (b) Article 128—assault in resistance to civil authority. This differs from mutiny by creating violence or disturbance. See sub- (c) Article 134—disorderly conduct paragraph c(1)(a) above. (d) Article 80—attempts (3) Failure to prevent and suppress a mutiny or e. Maximum punishment. For all offenses under Ar- sedition. “Utmost” means taking those measures to ticle 94, death or such other punishment as a court- prevent and suppress a mutiny or sedition which martial may direct. may properly be called for by the circumstances, f. Sample specifications. including the rank, responsibilities, or employment (1) Mutiny by creating violence or disturbance. of the person concerned. “Utmost” includes the use In that (personal jurisdiction data), of such force, including deadly force, as may be with intent to (usurp) (override) (usurp and override) reasonably necessary under the circumstances to pre- lawful military authority, did, (at/on board—loca- vent and suppress a mutiny or sedition. tion) (subject-matter jurisdiction data, if required), (4) Failure to report a mutiny or sedition. Failure on or about 20 , create (violence) to “take all reasonable means to inform” includes (a disturbance) by (attacking the officers of the said failure to take the most expeditious means available. ship) (barricading himself/herself in Barracks T7, W h e n t h e c i r c u m s t a n c e s k n o w n t o t h e a c c u s e d f i r i n g h i s / h e r r i f l e a t , a n d e x h o r t i n g would have caused a reasonable person in similar o t h e r p e r s o n s t o j o i n h i m / h e r i n d e f i a n c e circumstances to believe that a mutiny or sedition of ) ( ). was occurring, this may establish that the accused (2) Mutiny by refusing to obey orders or perform had such “reason to believe” that mutiny or sedition duties. was occurring. Failure to report an impending mu- In that (personal jurisdiction data), tiny or sedition is not an offense in violation of with intent to (usurp) (override) (usurp and override) Article 94. But see paragraph 16c(3) (dereliction of lawful military authority, did, (at/on board— loca- duty). t i o n ) o n o r a b o u t 2 0 , r e - ( 5 ) A t t e m p t e d m u t i n y . F o r a d i s c u s s i o n o f a t - f u s e , i n c o n c e r t tempts, see paragraph 4. w i t h ( a n d ) ( o t h e r s whose names are unknown), to (obey the orders d. Lesser included offenses. o f t o ) ( p e r f o r m h i s / h e r (1) Mutiny by creating violence or disturbance. duty as ). ( a ) A r t i c l e 9 0 — a s s a u l t o n c o m m i s s i o n e d (3) Sedition. officer In that (personal jurisdiction data), IV-27

2011 NCIS Mini-Manual, Page 77 ¶18.f.(3) with intent to cause the (overthrow) (destruction) 19. Article 95—Resistance, flight, breach of (overthrow and destruction) of lawful civil authority, arrest, and escape t o w i t : , d i d , ( a t / o n b o a r d — l o c a t i o n ) a. Text of statute. (subject-matter jurisdiction data, if required), on or Any person subject to this chapter who— a b o u t 2 0 , i n c o n c e r t w i t h ( 1 ) r e s i s t s a p p r e h e n s i o n ; ( 2 ) f l e e s f r o m a p - ( ) a n d ( ) ( o t h e r s w h o s e prehension; (3) breaks arrest; or (4) escapes names are unknown), create (revolt) (violence) (a from custody or confinement; disturbance) against such authority by (entering the shall be punished as a court-martial may direct. Town Hall of and destroying property b. Elements. and records therein) (marching upon and compelling (1) Resisting apprehension. t h e s u r r e n d e r o f t h e p o l i c e o f ) (a) That a certain person attempted to appre- ( ). hend the accused; (4) Failure to prevent and suppress a mutiny or (b) That said person was authorized to appre- sedition. hend the accused; and In that (personal jurisdiction data), ( c ) T h a t t h e a c c u s e d a c t i v e l y r e s i s t e d t h e did, (at/on board—location) (subject-matter jurisdic- apprehension. t i o n d a t a , i f r e q u i r e d ) , o n o r (2) Flight from apprehension. about 20 , fail to do his/her ut- (a) That a certain person attempted to appre- most to prevent and suppress a (mutiny) (sedition) hend the accused; a m o n g t h e ( s o l d i e r s ) ( s a i l o r s ) ( a i r m e n ) ( m a r i n e s ) (b) That said person was authorized to appre- ( ) of , which (mutiny) (sedi- hend the accused; and tion) was being committed in his/her presence, in ( c ) T h a t t h e a c c u s e d f l e d f r o m t h e that (he/she took no means to compel the dispersal apprehension. o f t h e a s s e m b l y ) ( h e / s h e m a d e n o e f f o r t t o a s - sist who was attempting to quell the (3) Breaking arrest. mutiny) ( ). (a) That a certain person ordered the accused into arrest; (5) Failure to report a mutiny or sedition. In that (personal jurisdiction data), (b) That said person was authorized to order the accused into arrest; and did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r (c) That the accused went beyond the limits of about 20 , fail to take all reasona- a r r e s t b e f o r e b e i n g r e l e a s e d f r o m t h a t a r r e s t b y proper authority. ble means to inform his/her superior commissioned officer or his/her commander of a (mutiny) (sedi- (4) Escape from custody. tion) among the (soldiers) (sailors) (airmen) (ma- ( a ) T h a t a c e r t a i n p e r s o n a p p r e h e n d e d t h e r i n e s ) ( ) o f , w h i c h accused; ( m u t i n y ) ( s e d i t i o n ) h e / s h e , t h e (b) That said person was authorized to appre- s a i d ( k n e w ) ( h a d r e a s o n t o b e l i e v e ) hend the accused; and was taking place. (c) That the accused freed himself or herself (6) Attempted mutiny. f r o m c u s t o d y b e f o r e b e i n g r e l e a s e d b y p r o p e r In that (personal jurisdiction data), authority. with intent to (usurp) (override) (usurp and override) (5) Escape from confinement. lawful military authority, did, (at/on board— loca- (a) That a certain person ordered the accused tion) (subject-matter jurisdiction data, if required), into confinement; on or about 20 , attempt to (create (b) That said person was authorized to order ( v i o l e n c e ) ( a d i s t u r b a n c e ) the accused into confinement; and by ) ( ). (c) That the accused freed himself or herself from confinement before being released by proper authority. [Note: If the escape was post-trial confine- IV-28

2011 NCIS Mini-Manual, Page 78 ¶19.c.(5)(c) ment, add the following element] ( d ) B r e a k i n g . B r e a k i n g a r r e s t i s c o m m i t t e d (d) That the confinement was the result of a when the person in arrest infringes the limits set by court-martial conviction. orders. The reason for the infringement is immateri- c. Explanation. a l . F o r e x a m p l e , i n n o c e n c e o f t h e o f f e n s e w i t h respect to which an arrest may have been imposed is (1) Resisting apprehension. not a defense. (a) Apprehension. Apprehension is the taking (e) Illegal arrest. A person may not be con- of a person into custody. See R.C.M. 302. victed of breaking arrest if the arrest is illegal. An (b) Authority to apprehend. See R.C.M. 302(b) arrest ordered by one authorized to do so is pre- concerning who may apprehend. Whether the status sumed to be legal in the absence of some evidence of a person authorized that person to apprehend the to the contrary. Ordinarily, the legality of an arrest is accused is a question of law to be decided by the a question of law to be decided by the military military judge. Whether the person who attempted to judge. make an apprehension had such a status is a ques- (4) Escape from custody. tion of fact to be decided by the factfinder. (a) Custody. “Custody” is restraint of free loco- ( c ) N a t u r e o f t h e r e s i s t a n c e . T h e r e s i s t a n c e motion imposed by lawful apprehension. The re- must be active, such as assaulting the person at- straint may be physical or, once there has been a tempting to apprehend. Mere words of opposition, submission to apprehension or a forcible taking into argument, or abuse, and attempts to escape from custody, it may consist of control exercised in the custody after the apprehension is complete, do not presence of the prisoner by official acts or orders. constitute the offense of resisting apprehension al- Custody is temporary restraint intended to continue though they may constitute other offenses. until other restraint (arrest, restriction, confinement) (d) Mistake. It is a defense that the accused is imposed or the person is released. held a reasonable belief that the person attempting to (b) Authority to apprehend. See subparagraph apprehend did not have authority to do so. However, (1)(b) above. the accused’s belief at the time that no basis exists (c) Escape. For a discussion of escape, see sub- for the apprehension is not a defense. paragraph c(5)( c), below. (e) Illegal apprehension. A person may not be (d) Illegal custody. A person may not be con- convicted of resisting apprehension if the attempted victed of this offense if the custody was illegal. An apprehension is illegal, but may be convicted of apprehension effected by one authorized to appre- other offenses, such as assault, depending on all the hend is presumed to be lawful in the absence of circumstances. An attempted apprehension by a per- evidence to the contrary. Ordinarily, the legality of son authorized to apprehend is presumed to be legal an apprehension is a question of law to be decided in the absence of evidence to the contrary. Ordinar- by the military judge. ily the legality of an apprehension is a question of law to be decided by the military judge. (e) Correctional custody. See paragraph 70. (2) Flight from apprehension. The flight must be (5) Escape from confinement. active, such as running or driving away. (a) Confinement. Confinement is physical re- (3) Breaking arrest. straint imposed under R.C.M. 305, 1101, or para- g r a p h 5 b , P a r t V , M C M . F o r p u r p o s e s o f t h e (a) Arrest. There are two types of arrest: pre- e l e m e n t o f p o s t - t r i a l c o n f i n e m e n t ( s u b p a r a g r a p h trial arrest under Article 9 (see R.C.M. 304) and b(5)(d), above) and increased punishment therefrom arrest under Article 15 (see paragraph 5c.(3), Part V, (subparagraph e(4), below), the confinement must MCM). This article prohibits breaking any arrest. have been imposed pursuant to an adjudged sentence ( b ) A u t h o r i t y t o o r d e r a r r e s t . S e e R . C . M . of a court-martial and not as a result of pretrial 304(b) and paragraphs 2 and 5b, Part V, MCM con- restraint or nonjudicial punishment. cerning authority to order arrest. (b) Authority to order confinement. See R.C.M. (c) Nature of restraint imposed by arrest. In 304(b); 1101; and paragraphs 2 and 5b, Part V, arrest, the restraint is moral restraint imposed by MCM concerning who may order confinement. orders fixing the limits of arrest. (c) Escape. An escape may be either with or IV-29

2011 NCIS Mini-Manual, Page 79 ¶19.c.(5)(c) without force or artifice, and either with or without tions imposed pursuant to Article 15. Dishonorable the consent of the custodian. However, where a pris- discharge, forfeiture of all pay and allowances, and oner is released by one with apparent authority to do confinement for 1 year. so, the prisoner may not be convicted of escape (5) Escape from post-trial confinement. Dishonor- f r o m c o n f i n e m e n t . S e e a l s o p a r a g r a p h 2 0 c ( 1 ) ( b ) . able discharge, forfeiture of all pay and allowances, Any completed casting off of the restraint of con- and confinement for 5 years. finement, before release by proper authority, is an escape, and lack of effectiveness of the restraint f. Sample specifications. imposed is immaterial. An escape is not complete (1) Resisting apprehension. until the prisoner is momentarily free from the re- In that (personal jurisdiction data), straint. If the movement toward escape is opposed, did, (at/on board—location) (subject-matter jurisdic- or before it is completed, an immediate pursuit fol- t i o n d a t a , i f r e q u i r e d ) , o n o r lows, there is no escape until opposition is overcome a b o u t 2 0 , r e s i s t b e i n g a p p r e - or pursuit is eluded. hended by , (an armed force policeman) ( d ) S t a t u s w h e n t e m p o r a r i l y o u t s i d e c o n f i n e - ( ), a person authorized to apprehend the ment facility. A prisoner who is temporarily escorted accused. outside a confinement facility for a work detail or (2) Flight from apprehension. other reason by a guard, who has both the duty and In that (personal jurisdiction data), m e a n s t o p r e v e n t t h a t p r i s o n e r f r o m e s c a p i n g , did, (at/on board—location) (subject-matter jurisdic- remains in confinement. t i o n d a t a , i f r e q u i r e d ) , o n o r (e) Legality of confinement. A person may not a b o u t 2 0 , f l e e a p p r e h e n s i o n be convicted of escape from confinement if the con- b y , ( a n a r m e d f o r c e p o l i c e m a n ) finement is illegal. Confinement ordered by one au- ( ), a person authorized to apprehend the thorized to do so is presumed to be lawful in the accused. absence of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be (3) Breaking arrest. decided by the military judge. In that (personal jurisdiction data), having been placed in arrest (in quarters) (in his/her d. Lesser included offenses. company area) ( ) by a person authorized (1) Resisting apprehension. Article 128—assault; to order the accused into arrest, did, (at/on board— assault consummated by a battery l o c a t i o n ) o n o r (2) Breaking arrest. a b o u t 2 0 , b r e a k s a i d (a) Article 134—breaking restriction arrest. (b) Article 80—attempts (4) Escape from custody. (3) Escape from custody. Article 80—attempts In that (personal jurisdiction data), ( 4 ) E s c a p e f r o m c o n f i n e m e n t . A r t i c l e 8 0 — a t - did, (at/on board—location) (subject-matter jurisdic- tempts t i o n d a t a , i f r e q u i r e d ) , o n o r e. Maximum punishment. a b o u t 2 0 , e s c a p e f r o m t h e c u s - ( 1 ) R e s i s t i n g a p p r e h e n s i o n . B a d - c o n d u c t d i s - tody of , a person authorized to appre- charge, forfeiture of all pay and allowances, and hend the accused. confinement for 1 year. (5) Escape from confinement. (2) Flight from apprehension. Bad-conduct dis- In that (personal jurisdiction data), charge, forfeiture of all pay and allowances, and having been placed in (post-trial) confinement in confinement for 1 year. (place of confinement), by a person authorized to (3) Breaking arrest. Bad-conduct discharge, for- o r d e r s a i d a c c u s e d i n t o c o n f i n e m e n t d i d , ( a t / o n feiture of all pay and allowances, and confinement board—location) (subject-matter jurisdiction data, if for 6 months. required), on or about 20 , escape (4) Escape from custody, pretrial confinement, or from confinement. confinement on bread and water or diminished ra- IV-30

2011 NCIS Mini-Manual, Page 80 ¶20.e.(3)

20. Article 96—Releasing prisoner without post-trial prisoner is the commander who convened proper authority the court-martial which sentenced the prisoner or the a. Text of statute. officer exercising general court-martial jurisdiction Any person subject to this chapter who, with- over the prisoner. See also R.C.M. 1101. out proper authority, releases any prisoner com- (d) Committed. Once a prisoner has been con- mitted to his charge, or who through neglect or f i n e d , t h e p r i s o n e r h a s b e e n “ c o m m i t t e d ” i n t h e design suffers any such prisoner to escape, shall sense of Article 96, and only a competent authority b e p u n i s h e d a s a c o u r t - m a r t i a l m a y d i r e c t , (see subparagraph (c)) may order release, regardless whether or not the prisoner was committed in of failure to follow procedures prescribed by the strict compliance with law. code, this Manual, or other law. b. Elements. (2) Suffering a prisoner to escape through neg- (1) Releasing a prisoner without proper authori- lect. ty. (a) Suffer. “Suffer” means to allow or permit; (a) That a certain prisoner was committed to not to forbid or hinder. the charge of the accused; and (b) Neglect. “Neglect” is a relative term. It is (b) That the accused released the prisoner with- t h e a b s e n c e o f c o n d u c t w h i c h w o u l d h a v e b e e n out proper authority. taken by a reasonably careful person in the same or (2) Suffering a prisoner to escape through neg- similar circumstances. lect. ( c ) E s c a p e . E s c a p e i s d e f i n e d i n p a r a g r a p h (a) That a certain prisoner was committed to 19c(4)(c). the charge of the accused; (d) Status of prisoner after escape not a de- (b) That the prisoner escaped; fense. After escape, the fact that a prisoner returns, i s c a p t u r e d , k i l l e d , o r o t h e r w i s e d i e s i s n o t a (c) That the accused did not take such care to prevent the escape as a reasonably careful person, defense. acting in the capacity in which the accused was (3) Suffering a prisoner to escape through design. acting, would have taken in the same or similar An escape is suffered through design when it is circumstances; and intended. Such intent may be inferred from conduct (d) That the escape was the proximate result of so wantonly devoid of care that the only reasonable the neglect. inference which may be drawn is that the escape was contemplated as a probable result. (3) Suffering a prisoner to escape through design. d. Lesser included offenses. (a) That a certain prisoner was committed to the charge of the accused; (1) Releasing a prisoner without proper authori- ty. Article 80—attempts (b) That the design of the accused was to suf- fer the escape of that prisoner; and (2) Suffering a prisoner to escape through neg- lect. None (c) That the prisoner escaped as a result of the carrying out of the design of the accused. (3) Suffering a prisoner to escape through design. c. Explanation. (a) Article 96—suffering a prisoner to escape through neglect (1) Releasing a prisoner without proper authori- ty. (b) Article 80—attempts (a) Prisoner. “Prisoner” includes a civilian or e. Maximum punishment. military person who has been confined. (1) Releasing a prisoner without proper authori- (b) Release. The release of a prisoner is re- ty. Dishonorable discharge, forfeiture of all pay and moval of restraint by the custodian rather than by allowances, and confinement for 2 years. the prisoner. (2) Suffering a prisoner to escape through neg- (c) Authority to release. See R.C.M. 305(g) as lect. Bad-conduct discharge, forfeiture of all pay and to who may release pretrial prisoners. Normally, the allowances, and confinement for 1 year. l o w e s t a u t h o r i t y c o m p e t e n t t o o r d e r r e l e a s e o f a (3) Suffering a prisoner to escape through design. IV-31

2011 NCIS Mini-Manual, Page 81 ¶20.e.(3)

Dishonorable discharge, forfeiture of all pay and al- personal jurisdiction data), did, (at/on board—loca- lowances, and confinement for 2 years. tion), on or about 20 , f. Sample specifications. u n l a w f u l l y ( a p p r e h e n d ) (1) Releasing a prisoner without proper authori- ( p l a c e i n a r r e s t ) ty. (confine in ). In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r 22. Article 98—Noncompliance with about 20 , without proper procedural rules authority, release , a prisoner com- a. Text of statute. mitted to his/her charge. Any person subject to this chapter who— (2) Suffering a prisoner to escape through neglect (1) is responsible for unnecessary delay in the or design. disposition of any case of a person accused of an In that (personal jurisdiction data), offense under this chapter; or d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r ( 2 ) K n o w i n g l y a n d i n t e n t i o n a l l y f a i l s t o e n - about 20 , through (neglect) (de- force or comply with any provision of this chap- sign), suffer , a prisoner commit- ter regulating the proceedings before, during, or ted to his/her charge, to escape. after trial of an accused; shall be punished as a court-martial may direct. 21. Article 97—Unlawful detention b. Elements. a. Text of statute. (1) Unnecessary delay in disposing of case. Any person subject to this chapter who, except as provided by law, apprehends, arrests, or con- (a) That the accused was charged with a certain fines any person shall be punished as a court- duty in connection with the disposition of a case of martial may direct. a person accused of an offense under the code; b. Elements. (b) That the accused knew that the accused was charged with this duty; ( 1 ) T h a t t h e a c c u s e d a p p r e h e n d e d , a r r e s t e d , o r confined a certain person; and (c) That delay occurred in the disposition of the case; (2) That the accused unlawfully exercised the ac- cused’s authority to do so. (d) That the accused was responsible for the delay; and c. Explanation. ( e ) T h a t , u n d e r t h e c i r c u m s t a n c e s , t h e d e l a y (1) Scope. This article prohibits improper acts by was unnecessary. those empowered by the code to arrest, apprehend, or confine. See Articles 7 and 9; R.C.M. 302, 304, (2) Knowingly and intentionally failing to enforce 305, and 1101, and paragraphs 2 and 5b, Part V. It or comply with provisions of the code. does not apply to private acts of false imprisonment (a) That the accused failed to enforce or com- or unlawful restraint of another’s freedom of move- ply with a certain provision of the code regulating a ment by one not acting under such a delegation of proceeding before, during, or after a trial; authority under the code. (b) That the accused had the duty of enforcing (2) No force required. The apprehension, arrest, or complying with that provision of the code; or confinement must be against the will of the per- (c) That the accused knew that the accused was son restrained, but force is not required. charged with this duty; and (3) Defense. A reasonable belief held by the per- ( d ) T h a t t h e a c c u s e d ’ s f a i l u r e t o e n f o r c e o r son imposing restraint that it is lawful is a defense. comply with that provision was intentional. d. Lesser included offense. Article 80—attempts c. Explanation. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , (1) Unnecessary delay in disposing of case. The forfeiture of all pay and allowances, and confine- purpose of section (1) of Article 98 is to ensure ment for 3 years. expeditious disposition of cases of persons accused f. Sample specification. In that (- of offenses under the code. A person may be respon- IV-32

2011 NCIS Mini-Manual, Page 82 ¶23.b.(2)(b) sible for delay in the disposition of a case only when 23. Article 99—Misbehavior before the that person’s duties require action with respect to the enemy disposition of that case. a. Text of statute. (2) Knowingly and intentionally failing to enforce Any member of the armed forces who before or comply with provisions of the code. Section (2) of or in the presence of the enemy— Article 98 does not apply to errors made in good (1) runs away; faith before, during, or after trial. It is designed to ( 2 ) s h a m e f u l l y a b a n d o n s , s u r r e n d e r s , o r punish intentional failure to enforce or comply with delivers up any command, unit, place, or military the provisions of the code regulating the proceedings property which it is his duty to defend; before, during, and after trial. Unlawful command ( 3 ) t h r o u g h d i s o b e d i e n c e , n e g l e c t , o r i n t e n - influence under Article 37 may be prosecuted under t i o n a l m i s c o n d u c t e n d a n g e r s t h e s a f e t y o f a n y this Article. See also Article 31 and R.C.M. 104. such command, unit, place, or military property; d. Lesser included offense. Article 80—attempts (4) casts away his arms or ammunition; e. Maximum punishment. (5) is guilty of cowardly conduct; (1) Unnecessary delay in disposing of case. Bad- ( 6 ) q u i t s h i s p l a c e o f d u t y t o p l u n d e r o r conduct discharge, forfeiture of all pay and allow- pillage; ances, and confinement for 6 months. (7) causes false alarms in any command, unit, (2) Knowingly and intentionally failing to enforce or place under control of the armed forces; or comply with provisions of the code. Dishonorable (8) willfully fails to do his utmost to encounter, discharge, forfeiture of all pay and allowances, and engage, capture, or destroy any enemy troops, confinement for 5 years. combatants, vessels, aircraft, or any other thing, f. Sample specifications. which it is his duty so to encounter, engage, cap- (1) Unnecessary delay in disposing of case. ture, or destroy; or In that (personal jurisdiction data), (9) does not afford all practicable relief and being charged with the duty of ((investigating) (tak- assistance to any troops, combatants, vessels, or ing immediate steps to determine the proper disposi- a i r c r a f t o f t h e a r m e d f o r c e s b e l o n g i n g t o t h e tion of) charges preferred against , United States or their allies when engaged in bat- a person accused of an offense under the Uniform tle; shall be punished by death or such other Code of Military Justice) ( ), was, (at/on punishment as a court-martial may direct. board—location), on or about 20 , b. Elements. responsible for unnecessary delay in (investigating (1) Running away. said charges) (determining the proper disposition of (a) That the accused was before or in the pres- s a i d c h a r g e s ( ) , i n t h a t h e / s h e ence of the enemy; ( d i d ) ( f a i l e d t o ) (b) That the accused misbehaved by running ( ). away; and (2) Knowingly and intentionally failing to enforce (c) That the accused intended to avoid actual or or comply with provisions of the code. impending combat with the enemy by running away. In that (personal jurisdiction data), ( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r being charged with the duty of , did, (at/ delivering up command. o n b o a r d — l o c a t i o n ) , o n o r (a) That the accused was charged by orders or a b o u t 2 0 , k n o w i n g l y a n d i n t e n - circumstances with the duty to defend a certain com- t i o n a l l y f a i l t o ( e n f o r c e ) ( c o m p l y w i t h ) A r t i - mand, unit, place, ship, or military property; c l e , U n i f o r m C o d e o f M i l i t a r y ( b ) T h a t , w i t h o u t j u s t i f i c a t i o n , t h e a c c u s e d Justice, in that he/she . shamefully abandoned, surrendered, or delivered up that command, unit, place, ship, or military property; and

IV-33

2011 NCIS Mini-Manual, Page 83 ¶23.b.(2)(c)

(c) That this act occurred while the accused (b) That the accused had a duty to encounter, was before or in the presence of the enemy. engage, capture, or destroy certain enemy troops, ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , combatants, vessels, aircraft, or a certain other thing; place, ship, or military property. and (a) That it was the duty of the accused to de- (c) That the accused willfully failed to do the fend a certain command, unit, place, ship, or certain utmost to perform that duty. military property; (9) Failing to afford relief and assistance. (b) That the accused committed certain disobe- (a) That certain troops, combatants, vessels, or dience, neglect, or intentional misconduct; aircraft of the armed forces belonging to the United (c) That the accused thereby endangered the States or an ally of the United States were engaged safety of the command, unit, place, ship, or military in battle and required relief and assistance; property; and (b) That the accused was in a position and able (d) That this act occurred while the accused to render relief and assistance to these troops, com- was before or in the presence of the enemy. batants, vessels, or aircraft, without jeopardy to the (4) Casting away arms or ammunition. accused’s mission; (a) That the accused was before or in the pres- (c) That the accused failed to afford all practi- ence of the enemy; and cable relief and assistance; and (b) That the accused cast away certain arms or (d) That, at the time, the accused was before or ammunition. in the presence of the enemy. (5) Cowardly conduct. c. Explanation. ( a ) T h a t t h e a c c u s e d c o m m i t t e d a n a c t o f (1) Running away. cowardice; (a) Running away. “Running away” means an (b) That this conduct occurred while the ac- unauthorized departure to avoid actual or impending cused was before or in the presence of the enemy; combat. It need not, however, be the result of fear, and and there is no requirement that the accused literally (c) That this conduct was the result of fear. run. (6) Quitting place of duty to plunder or pillage. (b) Enemy. “Enemy” includes organized forces (a) That the accused was before or in the pres- of the enemy in time of war, any hostile body that ence of the enemy; our forces may be opposing, such as a rebellious (b) That the accused quit the accused’s place of mob or a band of renegades, and includes civilians duty; and a s w e l l a s m e m b e r s o f m i l i t a r y o r g a n i z a t i o n s . (c) That the accused’s intention in quitting was “Enemy” is not restricted to the enemy government to plunder or pillage public or private property. or its armed forces. All the citizens of one belliger- ent are enemies of the government and all the citi- (7) Causing false alarms. zens of the other. (a) That an alarm was caused in a certain com- mand, unit, or place under control of the armed ( c ) B e f o r e t h e e n e m y . W h e t h e r a p e r s o n i s forces of the United States; “before the enemy” is a question of tactical relation, not distance. For example, a member of an antiair- (b) That the accused caused the alarm; craft gun crew charged with opposing anticipated (c) That the alarm was caused without any rea- attack from the air, or a member of a unit about to sonable or sufficient justification or excuse; and move into combat may be before the enemy al- (d) That this act occurred while the accused though miles from the enemy lines. On the other was before or in the presence of the enemy. hand, an organization some distance from the front (8) Willfully failing to do utmost to encounter en- or immediate area of combat which is not a part of a emy. tactical operation then going on or in immediate (a) That the accused was serving before or in prospect is not “before or in the presence of the the presence of the enemy; enemy” within the meaning of this article.

IV-34

2011 NCIS Mini-Manual, Page 84 ¶23.d.(6)(a)

( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r plunder or pillage. Merely quitting with that purpose delivering up of command. is sufficient, even if the intended misconduct is not ( a ) S c o p e . T h i s p r o v i s i o n c o n c e r n s p r i m a r i l y done. c o m m a n d e r s c h a r g e a b l e w i t h r e s p o n s i b i l i t y f o r (7) Causing false alarms. This provision covers defending a command, unit, place, ship or military spreading of false or disturbing rumors or reports, as property. Abandonment by a subordinate would or- well as the false giving of established alarm signals. dinarily be charged as running away. (8) Willfully failing to do utmost to encounter en- (b) Shameful. Surrender or abandonment with- emy. Willfully refusing a lawful order to go on a out justification is shameful within the meaning of combat patrol may violate this provision. this article. (9) Failing to afford relief and assistance. ( c ) S u r r e n d e r ; d e l i v e r u p . “ S u r r e n d e r ” a n d (a) All practicable relief and assistance. “All “deliver up” are synonymous for the purposes of this practicable relief and assistance” means all relief and article. assistance which should be afforded within the limi- (d) Justification. Surrender or abandonment of tations imposed upon a person by reason of that a command, unit, place, ship, or military property by person’s own specific tasks or mission. a person charged with its can be justified only by (b) Nature of offense. This offense is limited to the utmost necessity or extremity. a failure to afford relief and assistance to forces ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , “engaged in battle.” place, ship, or military property. d. Lesser included offenses. (a) Neglect. “Neglect” is the absence of con- (1) Running away. duct which would have been taken by a reasonably (a) Article 85—desertion with intent to avoid careful person in the same or similar circumstances. hazardous or important service ( b ) I n t e n t i o n a l m i s c o n d u c t . “ I n t e n t i o n a l m i s - (b) Article 86—absence without authority; go- conduct” does not include a mere error in judgment. ing from appointed place of duty (4) Casting away arms or ammunition. Self-ex- (c) Article 80—attempts planatory. ( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r (5) Cowardly conduct. delivering up command. Article 80—attempts ( a ) C o w a r d i c e . “ C o w a r d i c e ” i s m i s b e h a v i o r ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , motivated by fear. place, ship, or military property. (b) Fear. Fear is a natural feeling of apprehen- ( a ) T h r o u g h d i s o b e d i e n c e o f o r d e r . A r t i c l e sion when going into battle. The mere display of 92—failure to obey lawful order apprehension does not constitute this offense. (b) Article 80—attempts (c) Nature of offense. Refusal or abandonment (4) Casting away arms or ammunition. of a performance of duty before or in the presence ( a ) A r t i c l e 1 0 8 — m i l i t a r y p r o p e r t y o f t h e of the enemy as a result of fear constitutes this United States—loss, damage, destruction, or wrong- offense. ful disposition. (d) Defense. Genuine and extreme illness, not (b) Article 80—attempts generated by cowardice, is a defense. (5) Cowardly conduct. (6) Quitting place of duty to plunder or pillage. (a) Article 85—desertion with intent to avoid (a) Place of duty. “Place of duty” includes any hazardous duty or important service p l a c e o f d u t y , w h e t h e r p e r m a n e n t o r t e m p o r a r y , (b) Article 86—absence without authority fixed or mobile. (c) Article 99—running away ( b ) P l u n d e r o r p i l l a g e . “ P l u n d e r o r p i l l a g e ” means to seize or appropriate public or private prop- (d) Article 80—attempts erty unlawfully. (6) Quitting place of duty to plunder or pillage. (c) Nature of offense. The essence of this of- (a) Article 86(2)—going from appointed place fense is quitting the place of duty with intent to of duty IV-35

2011 NCIS Mini-Manual, Page 85 ¶23.d.(6)(b)

(b) Article 80—attempts the presence of) the enemy, was guilty of cowardly (7) Causing false alarms. Article 80—attempts conduct as a result of fear, in that . (8) Willfully failing to do utmost to encounter en- (6) Quitting place of duty to plunder or pillage. emy. Article 80—attempts In that (personal jurisdiction data), (9) Failing to afford relief and assistance. Article d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r 80—attempts about 20 , (before) (in the presence of) the enemy, quit his/her place of e. Maximum punishment. All offenses under Article d u t y f o r t h e p u r p o s e o f ( p l u n d e r i n g ) ( p i l l a g i n g ) 99. Death or such other punishment as a court-mar- (plundering and pillaging). tial may direct. f. Sample specifications. (7) Causing false alarms. In that (personal jurisdiction data), (1) Running away. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r In that (personal jurisdiction data), about 20 , (before) (in the pres- d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r e n c e o f ) t h e e n e m y , c a u s e a f a l s e a l a r m i n about 20 , (before) (in the pres- ( F o r t ) ( t h e s a i d s h i p ) ( t h e c a m p ) ence of) the enemy, run away (from his/her compa- ( ) by (needlessly and without authority ny) (and hide) ( ), (and did not return (causing the call to arms to be sounded) (sounding u n t i l a f t e r t h e e n g a g e m e n t h a d b e e n c o n c l u d e d ) the general alarm)) ( ). ( ). (8) Willfully failing to do utmost to encounter en- ( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r emy. delivering up command. In that (personal jurisdiction data), In that (personal jurisdiction data), being (before) (in the presence of) the enemy, did, d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r ( a t / o n b o a r d — l o c a t i o n ) , o n o r about 20 , (before) (in the pres- a b o u t 2 0 , b y , ( o r d e r i n g h i s / h e r ence of) the enemy, shamefully (abandon) (surren- troops to halt their advance) der) (deliver up) , which it was his/her duty to defend. ( ), willfully fail to do his/her utmost to (encounter) (engage) (capture) (destroy), as it was ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , his/her duty to do, (certain enemy troops which were place, ship, or military property. in retreat) ( ). In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r (9) Failing to afford relief and assistance. about 20 , (before) (in In that (personal jurisdiction data), t h e p r e s e n c e o f ) t h e e n e m y , e n d a n g e r t h e s a f e t y d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r of , which it was his/her duty to defend, about 20 , (before) (in by (disobeying an order from to en- the presence of) the enemy, fail to afford all practi- gage the enemy)(neglecting his/her duty as a sentinel cable relief and assistance to (the USS , by engaging in a card game while on his/her post) which was engaged in battle and had run aground, in (intentional misconduct in that he/she became drunk that he/she failed to take her in tow) (certain troops and fired flares, thus revealing the location of his/her o f t h e g r o u n d f o r c e s o f , w h i c h unit) ( ). were engaged in battle and were pinned down by (4) Casting away arms or ammunition. enemy fire, in that he/she failed to furnish air cover) In that (personal jurisdiction data), ( ) as he/she properly should have done. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r about 20 , (before) (in 24. Article 100—Subordinate compelling the presence of) the enemy, cast away his/her (rifle) surrender (ammunition) ( ). a. Text of statute. (5) Cowardly conduct. Any person subject to this chapter who com- In that (personal jurisdiction data), pels or attempts to compel the commander of any ( a t / o n b o a r d — l o c a t i o n ) , o n o r place, vessel, aircraft, or other military property, about 20 , (before) (in or of any body of members of the armed forces, IV-36

2011 NCIS Mini-Manual, Page 86 ¶24.f.(1) to give it up to an enemy or to abandon it, or the place, military property, or command is actually who strikes the colors or flag to an enemy with- abandoned or given up to the enemy. out proper authority, shall be punished by death (b) Surrender. “Surrender” and “to give it up or such other punishment as a court-martial may to an enemy” are synonymous. direct. (c) Acts required. The surrender or abandon- b. Elements. ment must be compelled or attempted to be com- (1) Compelling surrender. pelled by acts rather than words. (a) That a certain person was in command of a (2) Attempting to compel surrender. The offense certain place, vessel, aircraft, or other military prop- of attempting to compel a surrender or abandonment erty or of a body of members of the armed forces; does not require actual abandonment or surrender, (b) That the accused did an overt act which but there must be some act done with this purpose in was intended to and did compel that commander to view, even if it does not accomplish the purpose. give it up to the enemy or abandon it; and (3) Striking the colors or flag. (c) That the place, vessel, aircraft, or other mil- (a) In general. To “strike the colors or flag” is itary property or body of members of the armed to haul down the colors or flag in the face of the f o r c e s w a s a c t u a l l y g i v e n u p t o t h e e n e m y o r enemy or to make any other offer of surrender. It is abandoned. traditional wording for an act of surrender. (2) Attempting to compel surrender. (b) Nature of offense. The offense is committed (a) That a certain person was in command of a when one assumes the authority to surrender a mili- certain place, vessel, aircraft, or other military prop- tary force or position when not authorized to do so erty or of a body of members of the armed forces; either by competent authority or by the necessities (b) That the accused did a certain overt act; of battle. If continued battle has become fruitless (c) That the act was done with the intent to and it is impossible to communicate with higher compel that commander to give up to the enemy or authority, those facts will constitute proper authority abandon the place, vessel, aircraft, or other military to surrender. The offense may be committed when- property or body of members of the armed forces; ever there is sufficient contact with the enemy to give the opportunity of making an offer of surrender (d) That the act amounted to more than mere and it is not necessary that an engagement with the preparation; and enemy be in progress. It is unnecessary to prove that ( e ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g the offer was received by the enemy or that it was about the compelling of surrender or abandonment. rejected or accepted. The sending of an emissary (3) Striking the colors or flag. charged with making the offer or surrender is an act (a) That there was an offer of surrender to an sufficient to prove the offer, even though the emis- enemy; sary does not reach the enemy. (b) That this offer was made by striking the (4) Enemy. For a discussion of “enemy,” see par- colors or flag to the enemy or in some other manner; agraph 23c(1)(b). (c) That the accused made or was responsible d. Lesser included offense. Striking the colors or for the offer; and flag. Article 80— attempts (d) That the accused did not have proper au- e. Maximum punishment. All offenses under Article thority to make the offer. 100. Death or such other punishment as a court- c. Explanation. martial may direct. (1) Compelling surrender. f. Sample specifications. (a) Nature of offense. The offenses under this (1) Compelling surrender or attempting to com- article are similar to mutiny or attempted mutiny pel surrender. designed to bring about surrender or abandonment. In that (personal jurisdiction data), Unlike some cases of mutiny, however, concert of d i d , ( a t / o n — b o a r d l o c a t i o n ) , o n o r action is not an essential element of the offenses about 20 , (attempt to) under this article. The offense is not complete until c o m p e l , t h e c o m m a n d e r IV-37

2011 NCIS Mini-Manual, Page 87 ¶24.f.(1) of , (to give up to the enemy) (to aban- (3) Who may receive countersign. The class of don) said , by . persons entitled to receive the countersign or parole (2) Striking the colors or flag. will expand and contract under the varying circum- In that (personal jurisdiction data), stances of war. Who these persons are will be deter- d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r mined largely, in any particular case, by the general about 20 , without proper author- or special orders under which the accused was act- ity, offer to surrender to the enemy by (striking the ing. Before disclosing such a word, a person subject (colors)(flag)) ( ). to military law must determine at that person’s peril that the recipient is a person authorized to receive it. 25. Article 101—Improper use of countersign (4) Intent, motive, negligence, mistake, ignorance a. Text of statute. not defense. The accused’s intent or motive in dis- Any person subject to this chapter who in time closing the countersign or parole is immaterial to the of war discloses the parole or countersign to any issue of guilt, as is the fact that the disclosure was person not entitled to receive it or who gives to negligent or inadvertent. It is no defense that the another who is entitled to receive and use the accused did not know that the person to whom the parole or countersign a different parole or coun- countersign or parole was given was not entitled to tersign from that which, to his knowledge, he was receive it. authorized and required to give, shall be pun- (5) How accused received countersign or parole. ished by death or such other punishment as a It is immaterial whether the accused had received court-martial may direct. the countersign or parole in the regular course of b. Elements. duty or whether it was obtained in some other way. (1) Disclosing the parole or countersign to one (6) In time of war. See R.C.M. 103(19). not entitled to receive it. d. Lesser included offense. Article 80—attempts (a) That, in time of war, the accused disclosed e. Maximum punishment. Death or such other pun- the parole or countersign to a person, identified or ishment as a court-martial may direct. unidentified; and f. Sample specifications. (b) That this person was not entitled to receive (1) Disclosing the parole or countersign to one it. not entitled to receive it. (2) Giving a parole or countersign different from In that (personal jurisdiction data), that authorized. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r about 20 , a time of war, disclose (a) That, in time of war, the accused knew that t h e ( p a r o l e ) ( c o u n t e r s i g n ) , t o w i t : , the accused was authorized and required to give a to , a person who was not entitled to certain parole or countersign; and receive it. (b) That the accused gave to a person entitled (2) Giving a parole or countersign different from to receive and use this parole or countersign a differ- that authorized. ent parole or countersign from that which the ac- In that (personal jurisdiction data), cused was authorized and required to give. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r c. Explanation. about 20 , a time of war, give (1) Countersign. A countersign is a word, signal, to , a person entitled to receive and use or procedure given from the principal headquarters the (parole)(countersign), a (parole) (countersign), of a command to aid guards and sentinels in their namely: which was different from that scrutiny of persons who apply to pass the lines. It which, to his/her knowledge, he/she was authorized consists of a secret challenge and a password, signal, and required to give, to wit: . or procedure. (2) Parole. A parole is a word used as a check on 26. Article 102—Forcing a safeguard the countersign; it is given only to those who are a. Text of statute. entitled to inspect guards and to commanders of Any person subject to this chapter who forces guards. a safeguard shall suffer death or such other pun- IV-38

2011 NCIS Mini-Manual, Page 88 ¶27.b.(3)(a) ishment as a court-martial may direct. at by (overwhelming the guard posted b. Elements. for the protection of the same) (1) that a safeguard had been issued or posted for ( )) ( ). the protection of a certain person or persons, place, or property; 27. Article 103—Captured or abandoned (2) That the accused knew or should have known property of the safeguard; and a. Text of statute. (3) That the accused forced the safeguard. (a) All persons subject to this chapter shall se- c. Explanation. cure all public property taken from the enemy ( 1 ) S a f e g u a r d . A s a f e g u a r d i s a d e t a c h m e n t , for the service of the United States, and shall give guard, or detail posted by a commander for the pro- n o t i c e a n d t u r n o v e r t o t h e p r o p e r a u t h o r i t y tection of persons, places, or property of the enemy, without delay all captured or abandoned prop- or of a neutral affected by the relationship of bellig- erty in their possession, custody, or control. erent forces in their prosecution of war or during (b) Any person subject to this chapter who— circumstances amounting to a state of belligerency. (1) fails to carry out the duties prescribed in The term also includes a written order left by a subsection ( a); commander with an enemy subject or posted upon (2) buys, sells, trades, or in any way deals in enemy property for the protection of that person or or disposes of captured or abandoned property, property. A safeguard is not a device adopted by a whereby he receives or expects any profit, bene- belligerent to protect its own property or nationals or fit, or advantage to himself or another directly or to ensure order within its own forces, even if those indirectly connected with himself; or forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not (3) engages in looting or pillaging; shall be e s t a b l i s h a s a f e g u a r d u n l e s s a c o m m a n d e r t a k e s punished as a court-martial may direct. those actions to protect enemy or neutral persons or b. Elements. property. The effect of a safeguard is to pledge the (1) Failing to secure public property taken from honor of the nation that the person or property shall the enemy. be respected by the national armed forces. (a) That certain public property was taken from (2) Forcing a safeguard. “Forcing a safeguard” the enemy; means to perform an act or acts in violation of the (b) That this property was of a certain value; protection of the safeguard. and (3) Nature of offense. Any trespass on the protec- (c) That the accused failed to do what was rea- tion of the safeguard will constitute an offense under sonable under the circumstances to secure this prop- this article, whether the safeguard was imposed in erty for the service of the United States. time of war or in circumstances amounting to a state (2) Failing to report and turn over captured or of belligerency short of a formal state of war. abandoned property. ( 4 ) K n o w l e d g e . A c t u a l k n o w l e d g e o f t h e safeguard is not required. It is sufficient if an ac- (a) That certain captured or abandoned public cused should have known of the existence of the or private property came into the possession, custo- safeguard. dy, or control of the accused; d. Lesser included offense. Article 80—attempts (b) That this property was of a certain value; and e. Maximum punishment. Death or such other pun- ishment as a court-martial may direct. (c) That the accused failed to give notice of its receipt and failed to turn over to proper authority, f. Sample specification. In that (- without delay, the captured or abandoned public or personal jurisdiction data), did, (at/on board—loca- private property. tion), on or about 20 , force a safeguard, (known by him/her to have been (3) Dealing in captured or abandoned property. placed over the premises occupied by - (a) That the accused bought, sold, traded, or IV-39

2011 NCIS Mini-Manual, Page 89 ¶27.b.(3)(a) otherwise dealt in or disposed of certain public or through such channels as are required by current private captured or abandoned property; regulations, orders, or the customs of the service. (b) That this property was of certain value; and (b) Proper authority. “Proper authority” is any (c) That by so doing the accused received or authority competent to order disposition of the prop- expected some profit, benefit, or advantage to the erty in question. accused or to a certain person or persons connected (3) Dealing in captured or abandoned property. directly or indirectly with the accused. “Disposed of” includes destruction or abandonment. (4) Looting or pillaging. (4) Looting or pillaging. “Looting or pillaging” (a) That the accused engaged in looting, pillag- means unlawfully seizing or appropriating property ing, or looting and pillaging by unlawfully seizing or which is located in enemy or occupied territory. appropriating certain public or private property; (5) Enemy. For a discussion of “enemy,” see par- (b) That this property was located in enemy or agraph 23c(1)(b). occupied territory, or that it was on board a seized d. Lesser included offense. Article 80—attempts or captured vessel; and e. Maximum punishment. (c) That this property was: (1) Failing to secure public property taken from (i) left behind, owned by, or in the custody the enemy; failing to secure, give notice and turn of the enemy, an occupied state, an inhabitant of an over, selling, or otherwise wrongfully dealing in or occupied state, or a person under the protection of disposing of captured or abandoned property: the enemy or occupied state, or who, immediately (a) of a value of $500.00 or less. Bad-conduct prior to the occupation of the place where the act discharge, forfeiture of all pay and allowances, and occurred, was under the protection of the enemy or confinement for 6 months. occupied state; or (b) of a value of more than $500.00 or any (ii) part of the equipment of a seized or cap- firearm or explosive. Dishonorable discharge, forfei- tured vessel; or ture of all pay and allowances, and confinement for 5 years. (iii) owned by, or in the custody of the offi- cers, crew, or passengers on board a seized or cap- (2) Looting or pillaging. Any punishment, other tured vessel. t h a n d e a t h , t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e R.C.M. 1003. c. Explanation. f. Sample specifications. (1) Failing to secure public property taken from the enemy. (1) Failing to secure public property taken from the enemy. (a) Nature of property. Unlike the remaining In that (personal jurisdiction data), offenses under this article, failing to secure public d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r property taken from the enemy involves only public about 20 , fail to secure for the property. Immediately upon its capture from the en- service of the United States certain public property emy public property becomes the property of the taken from the enemy, to wit: , of United States. Neither the person who takes it nor a value of (about) $ . a n y o t h e r p e r s o n h a s a n y p r i v a t e r i g h t i n t h i s (2) Failing to report and turn over captured or property. abandoned property. ( b ) N a t u r e o f d u t y . E v e r y p e r s o n s u b j e c t t o In that (personal jurisdiction data), military law has an immediate duty to take such d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r steps as are reasonably within that person’s power to about 20 , fail to give notice and secure public property for the service of the United turn over to proper authority without delay certain States and to protect it from destruction or loss. ( c a p t u r e d ) ( a b a n d o n e d ) p r o p e r t y w h i c h h a d c o m e (2) Failing to report and turn over captured or i n t o h i s / h e r ( p o s s e s s i o n ) ( c u s t o d y ) ( c o n t r o l ) , t o abandoned property. w i t : , o f a v a l u e o f ( a b o u t ) , (a) Reports. Reports of receipt of captured or $ . a b a n d o n e d p r o p e r t y a r e t o b e m a d e d i r e c t l y o r (3) Dealing in captured or abandoned property. IV-40

2011 NCIS Mini-Manual, Page 90 ¶28.c.(5)(a)

In that (personal jurisdiction data), about the offense of aiding the enemy with certain d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r arms, ammunition, supplies, money, or other things. a b o u t 2 0 , ( b u y ) ( s e l l ) ( t r a d e ) (3) Harboring or protecting the enemy. ( d e a l i n ) ( d i s p o s e o f ) ( ) c e r t a i n ( c a p - (a) That the accused, without proper authority, t u r e d ) ( a b a n d o n e d ) p r o p e r t y , t o harbored or protected a person; wit: , (a firearm) (an explosive), of (b) That the person so harbored or protected a value of (about) $ , thereby (re- was the enemy; and ceiving) (expecting) a (profit) (benefit) (advantage) to (himself/herself) (c) That the accused knew that the person so harbored or protected was an enemy. ( , his/her accomplice) ( , his/ her brother) (4) Giving intelligence to the enemy. ( ). (a) That the accused, without proper authority, (4) Looting or pillaging. knowingly gave intelligence information to the ene- In that (personal jurisdiction data), my; and d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r (b) That the intelligence information was true, a b o u t 2 0 , e n g a g e i n ( l o o t i n g ) or implied the truth, at least in part. (pillage) (looting and pillaging) by unlawfully (seiz- (5) Communicating with the enemy. ing) (appropriating) , (property which had (a) That the accused, without proper authority, been left behind) (the property of ), (an c o m m u n i c a t e d , c o r r e s p o n d e d , o r h e l d i n t e r c o u r s e inhabitant of ) ( )). with the enemy, and; (b) That the accused knew that the accused was 28. Article 104—Aiding the enemy c o m m u n i c a t i n g , c o r r e s p o n d i n g , o r h o l d i n g i n t e r - a. Text of statute. course with the enemy. Any person who— c. Explanation. (1) aids, or attempts to aid, the enemy with (1) Scope of Article 104. This article denounces a r m s , a m m u n i t i o n , s u p p l i e s , m o n e y , o r o t h e r offenses by all persons whether or not otherwise things; or subject to military law. Offenders may be tried by (2) without proper authority, knowingly har- court-martial or by military commission. bors or protects or gives intelligence to or com- (2) Enemy. For a discussion of “enemy,” see par- m u n i c a t e s o r c o r r e s p o n d s w i t h o r h o l d s a n y agraph 23c(1)(b). intercourse with the enemy, either directly or in- (3) Aiding or attempting to aid the enemy. It is directly; shall suffer death or such other punish- not a violation of this article to furnish prisoners of ment as a court-martial or military commission war subsistence, quarters, and other comforts or aid may direct. to which they are lawfully entitled. b. Elements. (4) Harboring or protecting the enemy. (1) Aiding the enemy. (a) Nature of offense. An enemy is harbored or (a) That the accused aided the enemy; and protected when, without proper authority, that en- emy is shielded, either physically or by use of any (b) That the accused did so with certain arms, artifice, aid, or representation from any injury or ammunition, supplies, money, or other things. misfortune which in the chance of war may occur. (2) Attempting to aid the enemy. (b) Knowledge. Actual knowledge is required, (a) That the accused did a certain overt act; but may be proved by circumstantial evidence. (b) That the act was done with the intent to aid (5) Giving intelligence to the enemy. the enemy with certain arms, ammunition, supplies, (a) Nature of offense. Giving intelligence to the money, or other things; enemy is a particular case of corresponding with the (c) That the act amounted to more than mere enemy made more serious by the fact that the com- preparation; and munication contains intelligence that may be useful ( d ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g to the enemy for any of the many reasons that make IV-41

2011 NCIS Mini-Manual, Page 91 ¶28.c.(5)(a) i n f o r m a t i o n v a l u a b l e t o b e l l i g e r e n t s . T h i s i n t e l l i - ity, knowingly (harbor) (protect) , an en- gence may be conveyed by direct or indirect means. e m y , b y ( c o n c e a l i n g t h e s a i d i n (b) Intelligence. “Intelligence” imports that the his/her house) information conveyed is true or implies the truth, at ( ). least in part. (3) Giving intelligence to the enemy. (c) Knowledge. Actual knowledge is required In that (personal jurisdiction data), but may be proved by circumstantial evidence. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r (6) Communicating with the enemy. about 20 , without proper author- ity, knowingly give intelligence to the enemy, by ( a ) N a t u r e o f t h e o f f e n s e . N o u n a u t h o r i z e d (informing a patrol of the enemy’s forces of the communication, correspondence, or intercourse with whereabouts of a military patrol of the United States the enemy is permissible. The intent, content, and forces) ( ). method of the communication, correspondence, or intercourse are immaterial. No response or receipt (4) Communicating with the enemy. by the enemy is required. The offense is complete In that (personal jurisdiction data), the moment the communication, correspondence, or d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r intercourse issues from the accused. The communi- about 20 , without proper author- cation, correspondence, or intercourse may be con- i t y , k n o w i n g l y ( c o m m u n i c a t e w i t h ) ( c o r r e s p o n d veyed directly or indirectly. A prisoner of war may with) (hold intercourse with) the enemy (by writing v i o l a t e t h i s A r t i c l e b y e n g a g i n g i n u n a u t h o r i z e d a n d t r a n s m i t t i n g s e c r e t l y t h r o u g h t h e l i n e s t o communications with the enemy. See also paragraph o n e , w h o m h e / s h e , t h e 29c(3). said , knew to be (an officer of the ene- (b) Knowledge. Actual knowledge is required my’s armed forces)( ) a communication but may be proved by circumstantial evidence. in words and figures substantially as follows, to w i t : ) ) ( ( i n d i r e c t l y b y p u b l i s h i n g (c) Citizens of neutral powers. Citizens of neu- i n , a n e w s p a p e r p u b l i s h e d tral powers resident in or visiting invaded or occu- at , a communication in words and p i e d t e r r i t o r y c a n c l a i m n o i m m u n i t y f r o m t h e figures as follows, to wit: , which customary laws of war relating to communication c o m m u n i c a t i o n w a s i n t e n d e d t o r e a c h t h e with the enemy. enemy))(( )). d. Lesser included offense. For harboring or protect- ing the enemy, giving intelligence to the enemy, or 29. Article 105—Misconduct as a prisoner c o m m u n i c a t i n g w i t h t h e e n e m y . A r t i c l e 8 0 — a t - tempts a. Text of statute. Any person subject to this chapter who, while e. Maximum punishment. Death or such other pun- in the hands of the enemy in time of war— ishment as a court-martial or military commission may direct. (1) for the purpose of securing favorable treat- ment by his captors acts without proper authority f. Sample specifications. in a manner contrary to law, custom, or regula- (1) Aiding or attempting to aid the enemy. tion, to the detriment of others of whatever na- In that (personal jurisdiction data), tionality held by the enemy as civilian or military d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r prisoners; or a b o u t 2 0 , ( a t t e m p t t o ) a i d t h e (2) while in a position of authority over such enemy with (arms) (ammunition) (supplies) (money) persons maltreats them without justifiable cause; ( ) , b y ( f u r n i s h i n g a n d d e l i v e r i n g shall be punished as a court-martial may direct. t o , m e m b e r s o f t h e e n e m y ’ s a r m e d forces ) ( ). b. Elements. (2) Harboring or protecting the enemy. (1) Acting without authority to the detriment of In that (personal jurisdiction data), another for the purpose of securing favorable treat- d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r ment. about 20 , without proper author- (a) That without proper authority the accused IV-42

2011 NCIS Mini-Manual, Page 92 ¶30.a. a c t e d i n a m a n n e r c o n t r a r y t o l a w , c u s t o m , o r ties, or voluntary election or selection by other pris- regulation; oners for their self-government. (b) That the act was committed while the ac- ( b ) M a l t r e a t m e n t . T h e m a l t r e a t m e n t m u s t b e cused was in the hands of the enemy in time of war; real, although not necessarily physical, and it must (c) That the act was done for the purpose of be without justifiable cause. Abuse of an inferior by securing favorable treatment of the accused by the inflammatory and derogatory words may, through captors; and mental anguish, constitute this offense. (d) That other prisoners held by the enemy, d. Lesser included offense. Article 80—attempts either military or civilian, suffered some detriment e . M a x i m u m p u n i s h m e n t . A n y p u n i s h m e n t o t h e r because of the accused’s act. t h a n d e a t h t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e (2) Maltreating prisoners while in a position of R.C.M. 1003. authority. f. Sample specifications. (a) That the accused maltreated a prisoner held (1) Acting without authority to the detriment of by the enemy; another for the purpose of securing favorable treat- (b) That the act occurred while the accused ment. was in the hands of the enemy in time of war; In that (personal jurisdiction data), while in the hands of the enemy, did, (at/on board— (c) That the accused held a position of author- location) on or about 20 , a time ity over the person maltreated; and of war, without proper authority and for the purpose (d) That the act was without justifiable cause. of securing favorable treatment by his/her captors, c. Explanation. ( r e p o r t t o t h e c o m m a n d e r o f (1) Enemy. For a discussion of “enemy,” see par- C a m p t h e p r e p a r a t i o n s agraph 23c(1)(b). by , a prisoner at said camp, to escape, (2) In time of war. See R.C.M. 103(19). as a result of which report the said was placed in solitary confinement) ( ). (3) Acting without authority to the detriment of another for the purpose of securing favorable treat- (2) Maltreating prisoner while in a position of ment. authority. In that (personal jurisdiction data), (a) Nature of offense. Unauthorized conduct by d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a prisoner of war must be intended to result in im- about 20 , a time of ward, while provement by the enemy of the accused’s condition in the hands, of the enemy and in a position of and must operate to the detriment of other prisoners a u t h o r i t y o v e r , a p r i s o n e r either by way of closer confinement, reduced ra- at , as (officer in charge of prisoners tions, physical punishment, or other harm. Examples a t ) ( ) , m a l t r e a t t h e of this conduct include reporting plans of escape s a i d b y ( d e p r i v i n g h i m / h e r being prepared by others or reporting secret food o f ) ( ) , w i t h o u t j u s t i f i a b l e caches, equipment, or arms. The conduct of the pris- cause. oner must be contrary to law, custom, or regulation. (b) Escape. Escape from the enemy is author- 30. Article 106—Spies ized by custom. An escape or escape attempt which a. Text of statute. r e s u l t s i n c l o s e r c o n f i n e m e n t o r o t h e r m e a s u r e s Any person who in time of war is found lurk- against fellow prisoners still in the hands of the ing as a spy or acting as a spy in or about any enemy is not an offense under this article. place, vessel, or aircraft, within the control or (4) Maltreating prisoners while in a position of jurisdiction of any of the armed forces, or in or authority. about any shipyard, any manufacturing or indus- (a) Authority. The source of authority is not trial plant, or any other place or institution en- material. It may arise from the military rank of the gaged in work in aid of the prosecution of the accused or—despite service regulations or customs war by the United States, or elsewhere, shall be to the contrary—designation by the captor authori- tried by a general court-martial or by a military IV-43

2011 NCIS Mini-Manual, Page 93 ¶30.a. commission and on conviction shall be punished spies because, while they may have resorted to con- by death. cealment, they have not acted under false pretenses. b. Elements. (b) A spy who, after rejoining the armed forces (1) That the accused was found in, about, or in to which the spy belongs, is later captured by the and about a certain place, vessel, or aircraft within enemy incurs no responsibility for previous acts of the control or jurisdiction of an armed force of the espionage. United States, or a shipyard, manufacturing or indus- (c) A person living in occupied territory who, trial plant, or other place or institution engaged in w i t h o u t l u r k i n g , o r a c t i n g c l a n d e s t i n e l y o r u n d e r work in aid of the prosecution of the war by the false pretenses, merely reports what is seen or heard United States, or elsewhere; through agents to the enemy may be charged under (2) That the accused was lurking, acting clandes- Article 104 with giving intelligence to or communi- tinely or under false pretenses; c a t i n g w i t h t h e e n e m y , b u t m a y n o t b e c h a r g e d (3) That the accused was collecting or attempting under this article as being a spy. to collect certain information; d. Lesser included offenses. None. (4) That the accused did so with the intent to e. Mandatory punishment. Death convey this information to the enemy; and f. Sample specification. In that (- (5) That this was done in time of war. personal jurisdiction data), was, (at/on board—loca- c. Explanation. tion), on or about 20 , a time of war, found (lurking) (acting) as a spy (in) (1) In time of war. See R.C.M. 103(19). (about) (in and about) , (a (fortification) (2) Enemy. For a discussion of “enemy,”see para- (port) (base) (vessel) (aircraft) ( ) within graph 23c(1)(b). the (control)(jurisdiction) (control and jurisdiction) ( 3 ) S c o p e o f o f f e n s e . T h e w o r d s “ a n y p e r s o n ” o f a n a r m e d f o r c e o f t h e U n i t e d S t a t e s , t o bring within the jurisdiction of general courts-mar- wit: ) (a (shipyard) (manufacturing tial and military commissions all persons of what- p l a n t ) ( i n d u s t r i a l p l a n t ) ( ) e n g a g e d i n ever nationality or status who commit spying. work in aid of the prosecution of the war by the (4) Nature of offense. A person can be a spy only United States) ( ), for the purpose of (col- when, acting clandestinely or under false pretenses, lecting) (attempting to collect) information in regard that person obtains or seeks to obtain information to the ((numbers) (resources) (operations) with the intent to convey it to a hostile party. It is ( ) o f t h e a r m e d f o r c e s o f t h e U n i t e d not essential that the accused obtain the information States) ((military production) ( ) of the sought or that it be communicated. The offense is United States) ( ), with intent to impart c o m p l e t e w i t h l u r k i n g o r a c t i n g c l a n d e s t i n e l y o r the same to the enemy. under false pretenses with intent to accomplish these objects. 30a. Article 106a—Espionage (5) Intent. It is necessary to prove an intent to a. Text of statute. convey information to the enemy. This intent may (a)(1) Any person subject to this chapter who, be inferred from evidence of a deceptive insinuation with intent or reason to believe that it is to be of the accused among our forces, but evidence that used to the injury of the United States or to the the person had come within the lines for a compara- a d v a n t a g e o f a f o r e i g n n a t i o n , c o m m u n i c a t e s , tively innocent purpose, as to visit family or to reach delivers, or transmits, or attempts to communi- friendly lines by assuming a disguise, is admissible cate, deliver, or transmit, to any entity described to rebut this inference. in paragraph (2), either directly or indirectly, an- (6) Persons not included under “spying”. ything described in paragraph (3) shall be pun- ( a ) M e m b e r s o f a m i l i t a r y o r g a n i z a t i o n n o t ished as a court-martial may direct, except that if wearing a disguise, dispatch drivers, whether mem- the accused is found guilty of an offense that bers of a military organization or civilians, and per- directly concerns (A) nuclear weaponry, military sons in ships or aircraft who carry out their missions spacecraft or satellites, early warning systems, or openly and who have penetrated enemy lines are not o t h e r m e a n s o f d e f e n s e o r r e t a l i a t i o n a g a i n s t IV-44

2011 NCIS Mini-Manual, Page 94 ¶30a.b.(3)(b) large scale attack, (B) war plans, (C) communica- which either a sentence of death or imprisonment tions intelligence or cryptolineart information, or for life was authorized by statute. (D) any other major weapons system or major (2) In the commission of the offense, the ac- element of defense strategy, the accused shall be cused knowingly created a grave risk of substan- punished by death or such other punishment as a tial damage to the national security. court-martial may direct. (3) In the commission of the offense, the ac- (2) An entity referred to in paragraph (1) cused knowingly created a grave risk of death to is— another person. (A) a foreign government; (4) Any other factor that may be prescribed (B) a faction or party or military or naval by the President by regulations under section 836 force within a foreign country, whether recog- of this title (Article 36). nized or unrecognized by the United States; or b. Elements. ( C ) a r e p r e s e n t a t i v e , o f f i c e r , a g e n t , e m - (1) Espionage. ployee, subject, or citizen of such a government, (a) That the accused communicated, delivered, faction, party, or force. or transmitted any document, writing, code book, (3) A thing referred to in paragraph (1) is a signal book, sketch, photograph, photolineart nega- d o c u m e n t , w r i t i n g , c o d e b o o k , s i g n a l b o o k , tive, blueprint, plan, map, model, note, instrument, sketch, photograph, photolineart negative, blue- a p p l i a n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l print, plan, map, model, note, instrument, appli- defense; a n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l ( b ) T h a t t h i s m a t t e r w a s c o m m u n i c a t e d , defense. delivered, or transmitted to any foreign government, (b)(1) No person may be sentenced by court- or to any faction or party or military or naval force martial to suffer death for an offense under this within a foreign country, whether recognized or un- section (article) unless— recognized by the United States, or to any represent- ( A ) t h e m e m b e r s o f t h e c o u r t - m a r t i a l u n - ative, officer, agent, employee, subject or citizen animously find at least one of the aggravating thereof, either directly or indirectly; and factors set out in subsection (c); and ( c ) T h a t t h e a c c u s e d d i d s o w i t h i n t e n t o r ( B ) t h e m e m b e r s u n a n i m o u s l y d e t e r m i n e reason to believe that such matter would be used to that any extenuating or mitigating circumstances the injury of the United States or to the advantage of are substantially outweighed by any aggravating a foreign nation. circumstances, including the aggravating factors (2) Attempted espionage. set out under subsection (c). (a) That the accused did a certain overt act; ( 2 ) F i n d i n g s u n d e r t h i s s u b s e c t i o n m a y b e (b) That the act was done with the intent to based on— commit the offense of espionage; (A) evidence introduced on the issue of guilt (c) That the act amounted to more than mere or innocence; preparation; and (B) evidence introduced during the sentenc- ( d ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g ing proceeding; or about the offense of espionage. (C) all such evidence. (3) Espionage as a capital offense. (3) The accused shall be given broad latitude (a) That the accused committed espionage or to present matters in extenuation and mitigation. attempted espionage; and (c) A sentence of death may be adjudged by a (b) That the offense directly concerned (1) nu- court-martial for an offense under this section c l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s , (article) only if the members unanimously find, early warning systems, or other means of defense or beyond a reasonable doubt, one or more of the retaliation against large scale attack, (2) war plans, following aggravating factors: (3) communications intelligence or cryptolineart in- (1) The accused has been convicted of an- formation, or (4) any other major weapons system or other offense involving espionage or treason for major element of defense strategy. IV-45

2011 NCIS Mini-Manual, Page 95 ¶30a.c. c. Explanation. ry) (military spacecraft) (military satellites) (early (1) Intent. “Intent or reason to believe” that the warning systems) ( , a means of de- information “is to be used to the injury of the United fense or retaliation against a large scale attack) (war S t a t e s o r t o t h e a d v a n t a g e o f a f o r e i g n n a t i o n ” plans) (communications intelligence) (cryptolineart means that the accused acted in bad faith and with- information) ( , a major weapons system) out lawful authority with respect to information that ( , a major element of defense strategy)) is not lawfully accessible to the public. to ((a representative of) (an officer of) ( 2 ) N a t i o n a l d e f e n s e i n f o r m a t i o n . “ I n s t r u m e n t , (an agent of) (an employee of) (a subject of) (a appliance, or information relating to the national de- citizen of)) ((a foreign government) (a faction within fense” includes the full range of modern technology a foreign country) (a party within a foreign country) and matter that may be developed in the future, (a military force within a foreign country) (a naval including chemical or biological agents, computer f o r c e w i t h i n a f o r e i g n c o u n t r y ) ) ( i n d i r e c t l y technology, and other matter related to the national by ). defense. 31. Article 107—False official statements (3) Espionage as a capital offense. Capital pun- ishment is authorized if the government alleges and a. Text of statute. proves that the offense directly concerned (1) nu- Any person subject to this chapter who, with c l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s , intent to deceive, signs any false record, return, early warning systems, or other means of defense or r e g u l a t i o n , o r d e r , o r o t h e r o f f i c i a l d o c u m e n t , retaliation against large scale attack, (2) war plans, knowing it to be false, or makes any other false (3) communications intelligence or cryptolineart in- official statement knowing it to be false, shall be formation, or (4) any other major weapons system or punished as a court-martial may direct. major element of defense strategy. See R.C.M. 1004 b. Elements. concerning sentencing proceedings in capital cases. (1) That the accused signed a certain official doc- d. Lesser included offense. Although no lesser in- ument or made a certain official statement; cluded offenses are set forth in the Code, federal (2) That the document or statement was false in civilian offenses on this matter may be incorporated certain particulars; through the third clause of Article 134. (3) That the accused knew it to be false at the e. Maximum punishment. time of signing it or making it; and (1) Espionage as a capital offense. Death or such ( 4 ) T h a t t h e f a l s e d o c u m e n t o r s t a t e m e n t w a s other punishment as a court-martial may direct. See made with the intent to deceive. R.C.M. 1003. c. Explanation. (2) Espionage or attempted espionage. Any pun- ( 1 ) O f f i c i a l d o c u m e n t s a n d s t a t e m e n t s . O f f i c i a l ishment, other than death, that a court-martial may documents and official statements include all docu- direct. See R.C.M. 1003. ments and statements made in the line of duty. f. Sample specification. (2) Status of victim of the deception. The rank of In that (personal jurisdiction data), any person intended to be deceived is immaterial if d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r that person was authorized in the execution of a about 20 , with intent or reason particular duty to require or receive the statement or to believe it would be used to the injury of the document from the accused. The government may U n i t e d S t a t e s o r t o t h e a d v a n t a g e be the victim of this offense. of , a foreign nation, (attempt to) ( 3 ) I n t e n t t o d e c e i v e . T h e f a l s e r e p r e s e n t a t i o n ( c o m m u n i c a t e ) ( d e l i v e r ) ( t r a n s m i t - must be made with the intent to deceive. It is not ) ( d e s c r i p t i o n o f i t e m ) , ( a d o c u - necessary that the false statement be material to the m e n t ) ( a w r i t i n g ) ( a c o d e b o o k ) ( a s k e t c h ) ( a issue inquiry. If, however, the falsity is in respect to photograph) (a photolineart negative) (a blueprint) (a a material matter, it may be considered as some plan) (a map) (a model) (a note) (an instrument) (an e v i d e n c e o f t h e i n t e n t t o d e c e i v e , w h i l e i m - appliance) (information) relating to the national de- materiality may tend to show an absence of this fense, ((which directly concerned (nuclear weapon- intent. IV-46

2011 NCIS Mini-Manual, Page 96 ¶32.c.(2)

( 4 ) M a t e r i a l g a i n . T h e e x p e c t a t i o n o f m a t e r i a l (c) That the property was military property of gain is not an element of this offense. Such expecta- the United States; and tion or lack of it, however, is circumstantial evi- (d) That the property was of a certain value. dence bearing on the element of intent to deceive. ( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y ( 5 ) K n o w l e d g e t h a t t h e d o c u m e n t o r s t a t e m e n t property. w a s f a l s e . T h e f a l s e r e p r e s e n t a t i o n m u s t b e o n e (a) That the accused, without proper authority, which the accused actually knew was false. Actual damaged or destroyed certain property in a certain knowledge may be proved by circumstantial evi- way, or lost certain property; dence. An honest, although erroneous, belief that a (b) That the property was military property of statement made is true, is a defense. the United States; d. Lesser included offense. Article 80—attempts (c) That the damage, destruction, or loss was e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , willfully caused by the accused or was the result of forfeiture of all pay and allowances, and confine- neglect by the accused; and ment for 5 years. (d) That the property was of a certain value or f. Sample specification. In that (- the damage was of a certain amount. personal jurisdiction data), did, (at/on board—loca- (3) Suffering military property to be lost, dam- tion), (subject-matter jurisdiction data, if required), aged, destroyed, sold, or wrongfully disposed of. on or about 20 , with intent to de- c e i v e , ( s i g n a n o f f i c i a l ( r e c o r d ) ( r e t u r n ) (a) That certain property (which was a firearm ( ) , t o w i t : ) ( m a k e or explosive) was lost, damaged, destroyed, sold, or t o , a n o f f i c i a l s t a t e m e n t , t o wrongfully disposed of; w i t : ) , w h i c h ( r e c o r d ) ( r e t u r n ) ( s t a t e - (b) That the property was military property of m e n t ) ( ) w a s ( t o t a l l y f a l s e ) ( f a l s e i n the United States; that ), and was then known by the said- (c) That the loss, damage, destruction, sale, or to be so false. wrongful disposition was suffered by the accused, without proper authority, through a certain omission 32. Article 108—Military property of the of duty by the accused; United States—sale, loss, damage, (d) That the omission was willful or negligent; destruction, or wrongful disposition and a. Text of statute. (e) That the property was of a certain value or Any person subject to this chapter who, with- the damage was of a certain amount. out proper authority— c. Explanation. (1) sells or otherwise disposes of; ( 1 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y i s a l l  ( 2 ) w i l l f u l l y o r t h r o u g h n e g l e c t d a m a g e s , property, real or personal, owned, held, or used by destroys, or loses; or one of the armed forces of the United States. If is (3) willfully or through neglect suffers to be i m m a t e r i a l w h e t h e r t h e p r o p e r t y s o l d , d i s p o s e d , lost, damaged, destroyed, sold, or wrongfully dis- destroyed, lost, or damaged had been issued to the p o s e d o f , a n y m i l i t a r y p r o p e r t y o f t h e U n i t e d accused, to someone else, or even issued at all. If it States, shall be punished as a court-martial may is proved by either direct or circumstantial evidence direct. that items of individual issue were issued to the accused, it may be inferred, depending on all the b. Elements. e v i d e n c e , t h a t t h e d a m a g e , d e s t r u c t i o n , o r l o s s ( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y proved was due to the neglect of the accused. Retail property. merchandise of service exchange stores is not mili- (a) That the accused sold or otherwise disposed tary property under this article. o f c e r t a i n p r o p e r t y ( w h i c h w a s a f i r e a r m o r (2) Suffering military property to be lost, dam- explosive); aged, destroyed, sold, or wrongfully disposed of. (b) That the sale or disposition was without “To suffer” means to allow or permit. The willful or proper authority; n e g l i g e n t s u f f e r a n c e s p e c i f i e d b y t h i s a r t i c l e i n - IV-47

2011 NCIS Mini-Manual, Page 97 3DJH,9

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 D 3DUD$UWLFOH0LOLWDU\3URSHUW\RIWKH8QLWHG6WDWHVVDOHORVVGDPDJHGHVWUXFWLRQRUZURQJIXOGLVSRVLWLRQSDUDJUDSKF  LVDPHQGHGWRUHDGDVIROORZV

 0LOLWDU\3URSHUW\0LOLWDU\SURSHUW\LVDOOSURSHUW\UHDORUSHUVRQDORZQHGKHOGRUXVHGE\RQHRIWKHDUPHGIRUFHVRIWKH8QLWHG6WDWHV0LOLWDU\SURSHUW\LVDWHUPRIDUW DQGVKRXOGQRWEHFRQIXVHGZLWKJRYHUQPHQWSURSHUW\7KHWHUPVDUHQRWLQWHUFKDQJHDEOH:KLOHDOOPLOLWDU\SURSHUW\LVJRYHUQPHQWSURSHUW\QRWDOOJRYHUQPHQWSURSHUW\LV PLOLWDU\SURSHUW\$QLWHPRIJRYHUQPHQWSURSHUW\LVQRWPLOLWDU\SURSHUW\XQOHVVWKHLWHPLQTXHVWLRQPHHWVWKHGHILQLWLRQSURYLGHGDERYH,WLVLPPDWHULDOZKHWKHUWKH SURSHUW\VROGGLVSRVHGGHVWUR\HGORVWRUGDPDJHGKDGEHHQLVVXHGWRWKHDFFXVHGWRVRPHRQHHOVHRUHYHQLVVXHGDWDOO,ILWLVSURYHGE\HLWKHUGLUHFWRUFLUFXPVWDQWLDO HYLGHQFHWKDWLWHPVRILQGLYLGXDOLVVXHZHUHLVVXHGWRWKHDFFXVHGLWPD\EHLQIHUUHGGHSHQGLQJRQDOOWKHHYLGHQFHWKDWWKHGDPDJHGHVWUXFWLRQRUORVVSURYHGZDVGXHWR QHJOHFWRIWKHDFFXVHG5HWDLOPHUFKDQGLVHRIVHUYLFHH[FKDQJHVWRUHVLVQRWPLOLWDU\SURSHUW\XQGHUWKLVDUWLFOH  Executive Order: 2010 Amendments to the Manual for Courts-Martial, United States 

2011 NCIS Mini-Manual, Page 98 ¶32.c.(2) cludes: deliberate violation or intentional disregard ( 5 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e of some specific law, regulation, or order; reckless destroyed. or unwarranted personal use of the property; causing (a) Article 108—through neglect suffering mil- or allowing it to remain exposed to the weather, itary property to be destroyed insecurely housed, or not guarded; permitting it to ( b ) A r t i c l e 1 0 8 — w i l l f u l l y s u f f e r i n g m i l i t a r y be consumed, wasted, or injured by other persons; or property to be damaged loaning it to a person, known to be irresponsible, by (c) Article 108—through neglect suffering mil- whom it is damaged. itary property to be damaged (3) Value and damage. In the case of loss, de- (d) Article 80—attempts struction, sale, or wrongful disposition, the value of t h e p r o p e r t y c o n t r o l s t h e m a x i m u m p u n i s h m e n t (6) Willfully losing military property. which may be adjudged. In the case of damage, the (a) Article 108—through neglect, losing mili- amount of damage controls. As a general rule, the tary property amount of damage is the estimated or actual cost of (b) Article 80—attempts repair by the government agency normally employed (7) Willfully suffering military property to be lost. in such work, or the cost of replacement, as shown ( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g by government price lists or otherwise, whichever is military property to be lost less. (b) Article 80—attempts d. Lesser included offenses. ( 8 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e (1) Sale or disposition of military property. sold. (a) Article 80—attempts ( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g (b) Article 134—sale or disposition of non-mil- military property to be sold itary government property (b) Article 80—attempts (2) Willfully damaging military property. ( 9 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e ( a ) A r t i c l e 1 0 8 — d a m a g i n g m i l i t a r y p r o p e r t y wrongfully disposed of. through neglect ( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g (b) Article 109—willfully damaging non-mili- military property to be wrongfully disposed of in the tary property manner alleged (c) Article 80—attempts (b) Article 80—attempts ( 3 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e e. Maximum punishment. damaged. ( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y (a) Article 108—through neglect suffering mil- property. itary property to be damaged (a) Of a value of $500.00 or less. Bad-conduct (b) Article 80—attempts discharge, forfeiture of all pay and allowance, and (4) Willfully destroying military property. confinement for 1 year. ( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t d e s t r o y i n g (b) Of a value of more than $500.00 or any military property firearm or explosive. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for (b) Article 109—willfully destroying non-mili- 10 years. tary property ( 2 ) T h r o u g h n e g l e c t d a m a g i n g , d e s t r o y i n g , o r ( c ) A r t i c l e 1 0 8 — w i l l f u l l y d a m a g i n g m i l i t a r y losing, or through neglect suffering to be lost, dam- property aged, destroyed, sold, or wrongfully disposed of, (d) Article 109—willfully damaging non-mili- military property. tary property (a) Of a value or damage of $500.00 or less. ( e ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t d a m a g i n g Confinement for 6 months, and forfeiture of two- military property thirds pay per month for 6 months. (f) Article 80—attempts ( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n IV-48

2011 NCIS Mini-Manual, Page 99 ¶33.c.(2)

$500.00. Bad-conduct discharge, forfeiture of all pay 33. Article 109—Property other than military and allowances, and confinement for 1 year. property of the United States—waste, (3) Willfully damaging, destroying, or losing, or spoilage, or destruction willfully suffering to be lost, damaged, destroyed, a. Text of statute. sold, or wrongfully disposed of, military property. Any person subject to this chapter who will- (a) Of a value or damage of $500.00 or less. f u l l y o r r e c k l e s s l y w a s t e s , s p o i l s , o r o t h e r w i s e Bad-conduct discharge, forfeiture of all pay and al- willfully and wrongfully destroys or damages any lowances, and confinement for 1 year. p r o p e r t y o t h e r t h a n m i l i t a r y p r o p e r t y o f t h e ( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n United States shall be punished as a court-mar- $500.00, or of any firearm or explosive. Dishonora- tial may direct. ble discharge, forfeiture of all pay and allowances, b. Elements. and confinement for 10 years. (1) Wasting or spoiling of non-military property. f. Sample specifications. ( a ) T h a t t h e a c c u s e d w i l l f u l l y o r r e c k l e s s l y (1) Selling or disposing of military property. wasted or spoiled certain real property in a certain In that (personal jurisdiction data), manner; did, (at/on board—location) (subject-matter jurisdic- (b) That the property was that of another per- t i o n d a t a , i f r e q u i r e d ) , o n o r son; and about 20 , without proper authori- (c) That the property was of a certain value. t y , ( s e l l t o ) ( d i s p o s e o f (2) Destroying or damaging non-military proper- b y ) , ( ( a f i r e a r m ) ( a n ty. explosive)) of a value of (about) $ , mil- itary property of the United States. (a) That the accused willfully and wrongfully destroyed or damaged certain personal property in a ( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y certain manner; property. In that (personal jurisdiction data), (b) That the property was that of another per- did, (at/on board—location) (subject-matter jurisdic- son; and t i o n d a t a , i f r e q u i r e d ) , o n o r (c) That the property was of a certain value or about 20 , without proper authori- the damage was of a certain amount. t y , ( ( w i l l f u l l y ) ( t h r o u g h n e g l e c t ) ) ( ( d a m a g e c. Explanation. b y ) ( d e s t r o y b y ) ) ( 1 ) W a s t i n g o r s p o i l i n g n o n - m i l i t a r y p r o p e r t y . ( l o s e ) ) ( o f a v a l u e o f ( a b o u t ) This portion of Article 109 proscribes willful or $ ,) military property of the United States reckless waste or spoliation of the real property of (the amount of said damage being in the sum of another. The terms “wastes” and “spoils” as used in (about) $ ). this article refer to such wrongful acts of voluntary (3) Suffering military property to be lost, dam- destruction of or permanent damage to real property aged, destroyed, sold, or wrongfully disposed of. as burning down buildings, burning piers, tearing In that (personal jurisdiction data), down fences, or cutting down trees. This destruction did, (at/on board—location) (subject-matter jurisdic- in punishable whether done willfully, that is inten- t i o n d a t a , i f r e q u i r e d ) , o n o r tionally, or recklessly, that is through a culpable about 20 , without proper authori- disregard of the foreseeable consequences of some t y , ( w i l l f u l l y ) ( t h r o u g h n e g l e c t ) s u f - voluntary act. fer , ((a firearm) (an explosive)) (2) Destroying or damaging non-military proper- (of a value of (about) $ ) military ty. This portion of Article 109 proscribes the willful property of the United States, to be (lost) (damaged and wrongful destruction or damage of the personal b y ) ( d e s t r o y e d b y ) ( s o l d property of another. To be destroyed, the property t o ) ( w r o n g f u l l y d i s p o s e d o f need not be completely demolished or annihilated, by ) (the amount of said damage being but must be sufficiently injured to be useless for its in the sum of (about $ ). intended purpose. Damage consists of any physical injury to the property. To constitute an offense under IV-49

2011 NCIS Mini-Manual, Page 100 ¶33.c.(2) this section, the destruction or damage of the prop- negligently hazards or suffers to be hazarded any erty must have been willful and wrongful. As used vessel of the armed forces shall be punished as a in this section “willfully” means intentionally and court-martial may direct. “wrongfully” means contrary to law, regulation, law- b. Elements. ful order, or custom. Willfulness may be proved by (1) That a vessel of the armed forces was haz- c i r c u m s t a n t i a l e v i d e n c e , s u c h a s t h e m a n n e r i n arded in a certain manner; and which the acts were done. (2) That the accused by certain acts or omissions, (3) Value and damage. In the case of destruction, willfully and wrongfully, or negligently, caused or t h e v a l u e o f t h e p r o p e r t y d e s t r o y e d c o n t r o l s t h e suffered the vessel to be hazarded. maximum punishment which may be adjudged. In c. Explanation. the case of damage, the amount of the damage con- (1) Hazard. “Hazard” means to put in danger of trols. As a general rule, the amount of damage is the loss or injury. Actual damage to, or loss of, a vessel estimated or actual cost of repair by artisans em- of the armed forces by collision, stranding, running ployed in this work who are available to the commu- upon a shoal or a rock, or by any other cause, is nity wherein the owner resides, or the replacement conclusive evidence that the vessel was hazarded but cost, whichever is less. See also paragraph 46c(1)( not of the fact of culpability on the part of any g). particular person. “Stranded” means run aground so d. Lesser included offense. Article 80—attempts t h a t t h e v e s s e l i s f a s t f o r a t i m e . I f t h e v e s s e l e. Maximum punishment. Wasting, spoiling, destroy- “ t o u c h e s a n d g o e s , ” s h e i s n o t s t r a n d e d ; i f s h e ing, or damaging any property other than military “touches and sticks,” she is. A shoal is a sand, mud, property of the United States of a value or damage. or gravel bank or bar that makes the water shallow. (1) Of $500.00 or less. Bad-conduct discharge, (2) Willfully and wrongfully. As used in this arti- forfeiture of all pay and allowances, and confine- cle, “willfully” means intentionally and “wrongful- ment for 1 year. ly” means contrary to law, regulation, lawful order, ( 2 ) O f m o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s - or custom. charge, forfeiture of all pay and allowances, and (3) Negligence. “Negligence” as used in this arti- confinement for 5 years. cle means the failure to exercise the care, prudence, f. Sample specification. or attention to duties, which the interests of the In that (personal jurisdiction data), government require a prudent and reasonable person did, (at/on board—location) (subject-matter jurisdic- to exercise under the circumstances. This negligence t i o n d a t a , i f r e q u i r e d ) , o n o r may consist of the omission to do something the about 20 , ((willfully) recklessly) prudent and reasonable person would have done, or waste) ((willfully) (recklessly) spoil) (willfully and the doing of something which such a person would w r o n g f u l l y ( d e s t r o y ) ( d a m a g e ) not have done under the circumstances. No person is by ) , (of a value of relieved of culpability who fails to perform such (about) $ ) (the amount of said damage duties as are imposed by the general responsibilities being in the sum of (about $ ), the prop- of that person’s grade or rank, or by the customs of erty of . the service for the safety and protection of vessels of the armed forces, simply because these duties are not specifically enumerated in a regulation or order. 34. Article 110—Improper hazarding of However, a mere error in judgment that a reasonably vessel able person might have committed under the same a. Text of statute. circumstances does not constitute an offense under ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o this article. willfully and wrongfully hazards or suffers to be (4) Suffer. “To suffer” means to allow or permit. hazarded any vessel of the armed forces shall A ship is willfully suffered to be hazarded by one suffer death or such other punishment as a court- who, although not in direct control of the vessel, martial may direct. knows a danger to be imminent but takes no steps to ( b ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o prevent it, as by a plotting officer of a ship under IV-50

2011 NCIS Mini-Manual, Page 101 ¶34.f.(3) way who fails to report to the officer of the deck a on 20 , while serving as navigator radar target which is observed to be on a collision of the , cruising on special service in course with, and dangerously close to, the ship. A t h e O c e a n o f f t h e c o a s t s u f f e r i n g t h r o u g h n e g l e c t i m p l i e s a n o m i s s i o n t o o f , n o t w i t h s t a n d i n g t h e f a c t t h a t a t take such measures as were appropriate under the a b o u t m i d n i g h t , 2 0 , t h e circumstances to prevent a foreseeable danger. northeast point of Island bore abeam d. Lesser included offenses. and was about six miles distant, the said ship being (1) Willfully and wrongfully hazarding a vessel. then under way and making a speed of about ten knots, and well knowing the position of the said ship (a) Article 110—negligently hazarding a vessel at the time stated, and that the charts of the locality (b) Article 80—attempts were unreliable and the currents thereabouts uncer- (2) Willfully and wrongfully suffering a vessel to tain, did then and there negligently hazard the said be hazarded. vessel by failing and neglecting to exercise proper (a) Article 110—negligently suffering a vessel care and attention in navigating said ship while ap- to be hazarded p r o a c h i n g I s l a n d , i n t h a t h e / s h e (b) Article 80—attempts neglected and failed to lay a course that would carry e. Maximum punishment. Hazarding or suffering to said ship clear of the last aforesaid island, and to be hazarded any vessel of the armed forces: change the course in due time to avoid disaster; and the said ship, as a result of said negligence on the (1) Willfully and wrongfully. Death or such other part of said , ran upon a rock off the punishment as a court-martial may direct. s o u t h w e s t c o a s t o f I s l a n d , a t ( 2 ) N e g l i g e n t l y . D i s h o n o r a b l e d i s c h a r g e , f o r f e i - a b o u t h o u r s , , ture of all pay and allowances, and confinement for 2 0 , i n c o n s e q u e n c e o f w h i c h t h e s a i d - 2 years. was lost. f. Sample specifications. (c) Example 3. (1) Hazarding or suffering to be hazarded any In that (personal jurisdiction data), vessel, willfully and wrongfully. on 20 , while serving as navigator In that (personal jurisdiction data), of the and well knowing that at about d i d , o n 2 0 , w h i l e s e r v i n g sunset of said day the said ship had nearly run her a s a b o a r d t h e i n t h e v i - e s t i m a t e d d i s t a n c e f r o m t h e p o s i t i o n , cinity of , willfully and wrongfully (haz- o b t a i n e d a n d p l o t t e d b y h i m / h e r , t o t h e p o s i t i o n ard the said vessel) (suffer the said vessel to be of , and well knowing the difficulty of h a z a r d e d ) b y ( c a u s i n g t h e s a i d v e s s e l t o c o l l i d e sighting , from a safe distance after sun- with ) (allowing the said vessel to run set, did then and there negligently hazard the said aground) ( ). vessel by failing and neglecting to advise his/her (2) Hazarding of vessel, negligently. commanding officer to lay a safe course for said (a) Example 1. ship to the northward before continuing on a west- In that (personal jurisdiction data), e r l y c o u r s e , a s i t w a s t h e d u t y o f s a i d - on 20 , while serving in command to do; in consequence of which the of the , making entrance to (Boston Har- said ship was, at about hours on the bor), did negligently hazard the said vessel by fail- day above mentioned, run upon bank i n g a n d n e g l e c t i n g t o m a i n t a i n o r c a u s e t o b e i n t h e S e a , a b o u t maintained an accurate running plot of the true posi- l a t i t u d e d e g r e e s , m i n u t e s , tion of said vessel while making said approach, as a n o r t h , a n d l o n g i t u d e d e g r e e s , result of which neglect the said , at or minutes, west, and seriously injured. about , hours on the day aforesaid, be- (3) Suffering a vessel to be hazarded, negligently. c a m e s t r a n d e d i n t h e v i c i n i t y o f ( C h a n n e l B u o y In that (personal jurisdiction data), Number Three). while serving as combat intelligence center officer (b) Example 2. on board the , making passage from In that (personal jurisdiction data), B o s t o n t o P h i l a d e l p h i a , a n d h a v i n g , b e t - IV-51

2011 NCIS Mini-Manual, Page 102 ¶34.f.(3) w e e n a n d h o u r s (2) In the case of a military installation that is in on , 20 , been duly informed more than one State, if those States have different of decreasing radar ranges and constant radar bear- blood alcohol content limits under their respec- ing indicating that the said was tive State laws, the Secretary may select one such upon a collision course approaching a radar target, blood alcohol content limit to apply uniformly on did then and there negligently suffer the said vessel that installation. to be hazarded by failing and neglecting to report (3) For purposes of paragraph (1), the blood alco- said collision course with said radar target to the hol content limit with respect to alcohol concen- officer of the deck, as it was his/her duty to do, and t r a t i o n i n a p e r s o n ’ s b l o o d i s 0 . 1 0 g r a m s o f h e / s h e , t h e s a i d , t h r o u g h n e g l i - a l c o h o l p e r 1 0 0 m i l l i l i t e r s o f b l o o d a n d w i t h gence, did cause the said to col- r e s p e c t t o a l c o h o l c o n c e n t r a t i o n i n a p e r s o n ’ s l i d e w i t h t h e a t o r breath is 0.10 grams of alcohol per 210 liters of about hours on said date, with re- breath, as shown by chemical analysis. sultant damage to both vessels. (4) In this subsection: ( A ) T h e t e r m “ b l o o d a l c o h o l c o n t e n t l i m i t ” 35. Article 111–Drunken or reckless means the amount of alcohol concentration in a operation of vehicle, aircraft, or vessel person’s blood or breath at which operation or a. Text of statute. c o n t r o l o f a v e h i c l e , a i r c r a f t , o r v e s s e l i s (a) Any person subject to this chapter who— prohibited. (1) operates or physically controls any vehicle, (B) The term “United States” includes the Dis- aircraft, or vessel in a reckless or wanton manner trict of Columbia, the Commonwealth of Puerto or while impaired by a substance described in Rico, the Virgin Islands, Guam, and American section 912a(b) of this title (Article 112a(b)); or S a m o a a n d t h e t e r m “ S t a t e ” i n c l u d e s e a c h o f those jurisdictions. (2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or b. Elements. when the alcohol concentration in the person’s (1) That the accused was operating or in physical blood or breath is equal to or exceeds the appli- control of a vehicle, aircraft, or vessel; and cable limit under subsection (b), shall be pun- (2) That while operating or in physical control of ished as a court-martial may direct. a vehicle, aircraft, or vessel, the accused: (b)(1) For purposes of subsection (a), the applica- (a) did so in a wanton or reckless manner, or ble limit on the alcohol concentration in a per- (b) was drunk or impaired, or son’s blood or breath is as follows: (c) the alcohol concentration in the accused’s (A) In the case of the operation or control of a blood or breath equaled to or exceeded the applica- vehicle, aircraft, or vessel in the United States, ble limit under subparagraph (b) of paragraph 35a. such limit is the lesser of— [ N O T E : I f i n j u r y r e s u l t e d a d d t h e f o l l o w i n g (i) the blood alcohol content limit under the element] law of the State in which the conduct occurred, (3) That the accused thereby caused the vehicle, except as may be provided under paragraph (2) aircraft, or vessel to injure a person. for conduct on a military installation that is in c. Explanation. more than one State; or (1) Vehicle. See 1 U.S.C. § 4. (ii) the blood alcohol content limit specified (2) Vessel. See. 1 U.S.C. § 3. in paragraph (3). (3) Aircraft. Any contrivance used or designed (B) In the case of the operation or control of a for transportation in the air. v e h i c l e , a i r c r a f t , o r v e s s e l o u t s i d e t h e U n i t e d (4) Operates. Operating a vehicle, aircraft, or ves- States, the applicable blood alcohol content limit sel includes not only driving or guiding a vehicle, is the blood alcohol content limit specified in par- aircraft or vessel while it is in motion, either in agraph (3) or such lower limit as the Secretary of person or through the agency of another, but also Defense may by regulation prescribe. setting of its motive power in action or the manipu- IV-52

2011 NCIS Mini-Manual, Page 103 ¶35.e.(1) lation of its controls so as to cause the particular (8) Wanton. “Wanton” includes “reckless”, but in vehicle, aircraft or vessel to move. describing the operation or physical control of a (5) Physical control and actual physical control. vehicle, vessel, or aircraft “wanton” may, in a proper These terms as used in the statute are synonymous. case, connote willfulness, or a disregard of probable They describe the present capability and power to consequences, and thus describe a more aggravated dominate, direct or regulate the vehicle, vessel, or offense. aircraft, either in person or through the agency of (9) Causation. The accused’s drunken or reckless another, regardless of whether such vehicle, aircraft, driving must be a proximate cause of injury for the or vessel is operated. For example, the intoxicated accused to be guilty of drunken or reckless driving person seated behind the steering wheel of a vehicle resulting in personal injury. To be proximate, the with the keys of the vehicle in or near the ignition accused’s actions need not be the sole cause of the but with the engine not turned on could be deemed injury, nor must they be the immediate cause of the in actual physical control of that vehicle. However, injury, that is, the latest in time and space preceding the person asleep in the back seat with the keys in the injury. A contributing cause is deemed proxi- his or her pocket would not be deemed in actual mate only if it plays a material role in the victim’s physical control. Physical control necessarily encom- injury. passes operation. (10) Separate offenses. While the same course of (6) Drunk or impaired. “Drunk” and “impaired” conduct may constitute violations of both subsec- mean any intoxication which is sufficient to impair tions (1) and (2) of the Article, e.g., both drunken the rational and full exercise of the mental or physi- and reckless operation or physical control, this arti- cal faculties. The term drunk is used in relation to cle proscribes the conduct described in both subsec- intoxication by alcohol. The term impaired is used in tions as separate offenses, which may be charged relation to intoxication by a substance described in separately. However, as recklessness is a relative Article 112(a), Uniform Code of Military Justice. m a t t e r , e v i d e n c e o f a l l t h e s u r r o u n d i n g c i r c u m - (7) Reckless. The operation or physical control of stances that made the operation dangerous, whether a vehicle, vessel, or aircraft is “reckless” when it alleged or not, may be admissible. Thus, on a charge exhibits a culpable disregard of foreseeable conse- of reckless driving, for example, evidence of drunk- quences to others from the act or omission involved. enness might be admissible as establishing one as- Recklessness is not determined solely by reason of p e c t o f t h e r e c k l e s s n e s s , a n d e v i d e n c e t h a t t h e the happening of an injury, or the invasion of the vehicle exceeded a safe speed, at a relevant prior rights of another, nor by proof alone of excessive point and time, might be admissible as corroborating speed or erratic operation, but all these factors may other evidence of the specific recklessness charged. be admissible and relevant as bearing upon the ulti- Similarly, on a charge of drunken driving, relevant mate question: whether, under all the circumstances, evidence of recklessness might have probative value the accused’s manner of operation or physical con- as corroborating other proof of drunkenness. trol of the vehicle, vessel, or aircraft was of that d. Lesser included offense. h e e d l e s s n a t u r e w h i c h m a d e i t a c t u a l l y o r i m - (1) Reckless or wanton or impaired operation or minently dangerous to the occupants, or to the rights physical control of a vessel. Article 110—improper or safety of others. It is operating or physically con- hazarding of a vessel. trolling a vehicle, vessel, or aircraft with such a high (2) Drunken operation of a vehicle, vessel, or air- degree of negligence that if death were caused, the craft while drunk or with a blood or breath alcohol a c c u s e d w o u l d h a v e c o m m i t t e d i n v o l u n t a r y m a n - concentration in violation of the described per se slaughter, at least. The nature of the conditions in standard. which the vehicle, vessel, or aircraft is operated or ( a ) A r t i c l e 1 1 0 — i m p r o p e r h a z a r d i n g o f a controlled, the time of day or night, the proximity vessel and number of other vehicles, vessels, or aircraft and the condition of the vehicle, vessel, or aircraft, are (b) Article 112—drunk on duty often matters of importance in the proof of an of- (c) Article 134—drunk on station fense charged under this article and, where they are e. Maximum punishment. of importance, may properly be alleged. ( 1 ) R e s u l t i n g i n p e r s o n a l i n j u r y . D i s h o n o r a b l e IV-53

2011 NCIS Mini-Manual, Page 104 ¶35.e.(1) discharge, forfeiture of all pay and allowances, and board a ship. In the case of other officers or enlisted confinement for 18 months. persons, “on duty” relates to duties or routine or (2) No personal injury involved. Bad-conduct dis- detail, in garrison, at a station, or in the field, and charge, forfeiture of all pay and allowances, and does not relate to those periods when, no duty being confinement for 6 months. required of them by orders or regulations, officers f. Sample specification. and enlisted persons occupy the status of leisure In that (personal jurisdiction data), known as “off duty” or “on liberty.” In a region of did (at/on board required), on or about 20 , (in active hostilities, the circumstances are often such the motor pool area) (near the Officer’s Club) (at the that all members of a command may properly be intersection of and ) (while considered as being continuously on duty within the in the Gulf of Mexico) (while in flight over North meaning of this article. So also, an officer of the day America) physically control [a vehicle, to wit: (a and members of the guard, or of the watch, are on truck) (a passenger car)( )] [an aircraft, to duty during their entire tour within the meaning of wit: (an AH-64 helicopter)(an F-14A fighter)(a KC- this article. 135 tanker)( )] [a vessel, to wit: (the air- (3) Nature of offense. It is necessary that the ac- c r a f t c a r r i e r U S S ) ( t h e C o a s t G u a r d cused be found drunk while actually on the duty Cutter)( )], [while drunk] [while impaired a l l e g e d , a n d t h e f a c t t h e a c c u s e d b e c a m e d r u n k by ] [while the alcohol concentration in his before going on duty, although material in extenua- (blood)(breath) was, as shown by chemical analysis, tion, does not affect the question of guilt. If, howev- equal to or exceeded (.10)( ) grams of alcohol er, the accused does not undertake the responsibility per (100 milliliters of blood)(210 liters of breath), or enter upon the duty at all, the accused’s conduct which is the limit under (cite applicable State law- does not fall within the terms of this article, nor )(cite applicable statute or regulation)] [in a (reck- does that of a person who absents himself or herself l e s s ) ( w a n t o n ) m a n n e r b y ( a t t e m p t i n g t o p a s s from duty and is found drunk while so absent. In- another vehicle on a sharp curve)(by ordering that cluded within the article is drunkenness while on the aircraft be flown below the authorized altitude)] duty of an anticipatory nature such as that of an [ a n d d i d t h e r e b y c a u s e s a i d ( v e h i c l e ) ( a i r c r a f t ) - aircraft crew ordered to stand by for flight duty, or (vessel) to (strike and)(injure )]. of an enlisted person ordered to stand by for guard duty. 36. Article 112—Drunk on duty (4) Defenses. If the accused is known by superior a. Text of statute. authorities to be drunk at the time a duty is assigned, Any person subject to this chapter other than and the accused is thereafter allowed to assume that sentinel or look-out, who is found drunk on duty, duty anyway, or if the drunkenness results from an shall be punished as a court-martial may direct. accidental over dosage administered for medicinal b. Elements. purposes, the accused will have a defense to this (1) That the accused was on a certain duty; and offense. But see paragraph 76 (incapacitation for (2) That the accused was found drunk while on duty). this duty. d. Lesser included offense. Article 134—drunk on c. Explanation. station (1) Drunk. See paragraph 35c(6). e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- (2) Duty. “Duty” as used in this article means ment for 9 months. military duty. Every duty which an officer or en- listed person may legally be required by superior f. Sample specification. authority to execute is necessarily a military duty. In that (personal jurisdiction data), Within the meaning of this article, when in the ac- w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r tual exercise of command, the commander of a post, a b o u t 2 0 , f o u n d or of a command, or of a detachment in the field is drunk while on duty as . constantly on duty, as is the commanding officer on IV-54

2011 NCIS Mini-Manual, Page 105 ¶37.c.(2)

37. Article 112a—Wrongful use, possession, forces or under the control of the armed forces a etc., of controlled substances certain amount of a controlled substance; and a. Text of statute. (b) That the introduction was wrongful. ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o (5) Wrongful manufacture of a controlled sub- wrongfully uses, possesses, manufactures, distrib- stance. utes, imports into the customs territory of the ( a ) T h a t t h e a c c u s e d m a n u f a c t u r e d a c e r t a i n United States, exports from the United States, or amount of a controlled substance; and introduces into an installation, vessel, vehicle, or (b) That the manufacture was wrongful. a i r c r a f t u s e d b y o r u n d e r t h e c o n t r o l o f t h e (6) Wrongful possession, manufacture, or intro- armed forces a substance described in subsection duction of a controlled substance with intent to dis- ( b ) s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y tribute. direct. ( a ) T h a t t h e a c c u s e d ( p o s s e s s e d ) ( m a n u f a c - (b) The substances referred to in subsection (a) tured) (introduced) a certain amount of a controlled are the following: substance; ( 1 ) o p i u m , h e r o i n , c o c a i n e , a m p h e t a m i n e , (b) That the (possession) (manufacture) (intro- l y s e r g i c a c i d d i e t h y l a m i d e , m e t h a m p h e t a m i n e , duction) was wrongful; and p h e n c y c l i d i n e , b a r b i t u r i c a c i d , a n d m a r i j u a n a , (c) That the (possession) (manufacture) (intro- a n d a n y c o m p o u n d o r d e r i v a t i v e o f a n y s u c h duction) was with the intent to distribute. substance. (7) Wrongful importation or exportation of a con- (2) Any substance not specified in clause (1) trolled substance. that is listed on a schedule of controlled sub- stances prescribed by the President for the pur- (a) That the accused (imported into the cus- poses of this article. toms territory of) (exported from) the United States a certain amount of a controlled substance; and ( 3 ) A n y o t h e r s u b s t a n c e n o t s p e c i f i e d i n clause (1) or contained on a list prescribed by the ( b ) T h a t t h e ( i m p o r t a t i o n ) ( e x p o r t a t i o n ) w a s President under clause (2) that is listed in Sched- wrongful. [Note: When any of the aggravating cir- ules I through V of section 202 of the Controlled cumstances listed in subparagraph e is alleged, it Substances Act (21 U.S.C. 812). must be listed as an element.] b. Elements. c. Explanation. (1) Wrongful possession of controlled substance. (1) Controlled substance. “Controlled substance” means amphetamine, cocaine, heroin, lysergic acid ( a ) T h a t t h e a c c u s e d p o s s e s s e d a c e r t a i n diethylamide, marijuana, methamphetamine, opium, amount of a controlled substance; and phencyclidine, and barbituric acid, including pheno- ( b ) T h a t t h e p o s s e s s i o n b y t h e a c c u s e d w a s b a r b i t a l a n d s e c o b a r b i t a l . “ C o n t r o l l e d s u b s t a n c e ” wrongful. a l s o m e a n s a n y s u b s t a n c e w h i c h i s i n c l u d e d i n (2) Wrongful use of controlled substance. Schedules I through V established by the Controlled ( a ) T h a t t h e a c c u s e d u s e d a c o n t r o l l e d s u b - Substances Act of 1970 (21 U.S.C. 812). stance; and (2) Possess. “Possess” means to exercise control (b) That the use by the accused was wrongful. o f s o m e t h i n g . P o s s e s s i o n m a y b e d i r e c t p h y s i c a l (3) Wrongful distribution of controlled substance. custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who ( a ) T h a t t h e a c c u s e d d i s t r i b u t e d a c e r t a i n hides an item in a locker or car to which that person amount of a controlled substance; and may return to retrieve it. Possession must be know- (b) That the distribution by the accused was ing and conscious. Possession inherently includes wrongful. the power or authority to preclude control by others. ( 4 ) W r o n g f u l i n t r o d u c t i o n o f a c o n t r o l l e d s u b - It is possible, however, for more than one person to stance. p o s s e s s a n i t e m s i m u l t a n e o u s l y , a s w h e n s e v e r a l (a) That the accused introduced onto a vessel, people share control of an item. An accused may not aircraft, vehicle, or installation used by the armed be convicted of possession of a controlled substance IV-55

2011 NCIS Mini-Manual, Page 106 ¶37.c.(2) if the accused did not know that the substance was evidence which may tend to support an inference of present under the accused’s control. Awareness of intent to distribute are: possession of a quantity of the presence of a controlled substance may be in- substance in excess of that which one would be ferred from circumstantial evidence. likely to have for personal use; market value of the (3) Distribute. “Distribute” means to deliver to substance; the manner in which the substance is the possession of another. “Deliver” means the actu- packaged; and that the accused is not a user of the al, constructive, or attempted transfer of an item, substance. On the other hand, evidence that the ac- whether or not there exists an agency relationship. cused is addicted to or is a heavy user of the sub- (4) Manufacture. “Manufacture” means the pro- stance may tend to negate an inference of intent to duction, preparation, propagation, compounding, or distribute. p r o c e s s i n g o f a d r u g o r o t h e r s u b s t a n c e , e i t h e r (7) Certain amount. When a specific amount of a d i r e c t l y o r i n d i r e c t l y o r b y e x t r a c t i o n f r o m s u b - controlled substance is believed to have been pos- stances of natural origin, or independently by means sessed, distributed, introduced, or manufactured by of chemical synthesis or by a combination of extrac- an accused, the specific amount should ordinarily be tion and chemical synthesis, and includes any pack- alleged in the specification. It is not necessary to aging or repackaging of such substance or labeling allege a specific amount, however, and a specifica- or relabeling of its container. “Production,” as used tion is sufficient if it alleges that an accused pos- in this subparagraph, includes the planting, cultivat- s e s s e d , d i s t r i b u t e d , i n t r o d u c e d , o r m a n u f a c t u r e d i n g , g r o w i n g , o r h a r v e s t i n g o f a d r u g o r o t h e r “some,” “traces of,” or “an unknown quantity of” a substance. controlled substance. (5) Wrongfulness. To be punishable under Article (8) Missile launch facility. A “missile launch fa- 112a, possession, use, distribution, introduction, or cility” includes the place from which missiles are m a n u f a c t u r e o f a c o n t r o l l e d s u b s t a n c e m u s t b e fired and launch control facilities from which the wrongful. Possession, use, distribution, introduction, launch of a missile is initiated or controlled after or manufacture of a controlled substance is wrongful launch. if it is without legal justification or authorization. (9) Customs territory of the United States. “Cus- Possession, distribution, introduction, or manufac- toms territory of the United States” includes only the ture of a controlled substance is not wrongful if such States, the District of Columbia, and Puerto Rico. act or acts are: (A) done pursuant to legitimate law (10) Use. “Use” means to inject, ingest, inhale, or enforcement activities (for example, an informant otherwise introduce into the human body, any con- who receives drugs as part of an undercover opera- trolled substance. Knowledge of the presence of the tion is not in wrongful possession); (B) done by controlled substance is a required component of use. authorized personnel in the performance of medical Knowledge of the presence of the controlled sub- duties; or (C) without knowledge of the contraband stance may be inferred from the presence of the nature of the substance (for example, a person who controlled substance in the accused’s body or from possesses cocaine, but actually believes it to be sug- other circumstantial evidence. This permissive infer- ar, is not guilty of wrongful possession of cocaine). ence may be legally sufficient to satisfy the govern- Possession, use, distribution, introduction, or manu- ment’s burden of proof as to knowledge. facture of a controlled substance may be inferred to (11) Deliberate ignorance. An accused who con- be wrongful in the absence of evidence to the con- sciously avoids knowledge of the presence of a con- trary. The burden of going forward with evidence trolled substance or the contraband nature of the with respect to any such exception in any court- substance is subject to the same criminal liability as martial or other proceeding under the code shall be one who has actual knowledge. upon the person claiming its benefit. If such an issue d. Lesser included offenses. is raised by the evidence presented, then the burden of proof is upon the United States to establish that (1) Wrongful possession of controlled substance. the use, possession, distribution, manufacture, or in- Article 80—attempts troduction was wrongful. (2) Wrongful use of controlled substance. (6) Intent to distribute. Intent to distribute may be (a) Article 112a—wrongful possession of con- inferred from circumstantial evidence. Examples of trolled substance IV-56

2011 NCIS Mini-Manual, Page 107 ¶37.f.(3)

(b) Article 80—attempts trolled substances. Dishonorable discharge, forfei- (3) Wrongful distribution of controlled substance. ture of all pay and allowances, and confinement for Article 80—attempts 10 years. ( 4 ) W r o n g f u l m a n u f a c t u r e o f c o n t r o l l e d s u b - When any offense under paragraph 37 is committed; stance. while the accused is on duty as a sentinel or look- out; on board a vessel or aircraft used by or under (a) Article 112a—wrongful possession of con- the control of the armed forces; in or at a missile trolled substance launch facility used by or under the control of the (b) Article 80—attempts armed forces; while receiving special pay under 37 ( 5 ) W r o n g f u l i n t r o d u c t i o n o f c o n t r o l l e d s u b - U.S.C. § 310; in time of war; or in a confinement stance. facility used by or under the control of the armed (a) Article 112a—wrongful possession of con- forces, the maximum period of confinement author- trolled substance ized for such offense shall be increased by 5 years. (b) Article 80—attempts f. Sample specifications. (6) Wrongful possession, manufacture, or intro- (1) Wrongful possession, manufacture, or distri- duction of a controlled substance with intent to dis- bution of controlled substance. tribute. In that (personal jurisdiction data) (a) Article 112a—wrongful possession, manu- did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r a b o u t , facture, or introduction of controlled substance 20 , wrongfully (possess) (distribute) (manufac- (b) Article 80—attempts t u r e ) ( g r a m s ) ( o u n c e s ) (7) Wrongful importation or exportation of a con- (pounds)( ) of (a schedule trolled substance. Article 80—attempts ( ) controlled substance), (with the intent e. Maximum punishments. to distribute the said controlled substance) (while on (1) Wrongful use, possession, manufacture, or in- duty as a sentinel or lookout) (while (on board a troduction of controlled substance. vessel/aircraft) (in or at a missile launch facility) ( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c used by the armed forces or under the control of the acid diethylamide, marijuana (except possession of armed forces, to wit: ) (while receiving less than 30 grams or use of marijuana), metham- special pay under 37 U.S.C. § 310) (during time of phetamine, opium, phencyclidine, secobarbital, and war). Schedule I, II, III controlled substances. Dishonora- (2) Wrongful use of controlled substance. ble discharge, forfeiture of all pay and allowances, In that (personal jurisdiction data), and confinement 5 years. did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r a b o u t , ( b ) M a r i j u a n a ( p o s s e s s i o n o f l e s s t h a n 3 0 2 0 , w r o n g f u l l y u s e ( a S c h e d - grams or use), phenobarbital, and Schedule IV and u l e c o n t r o l l e d s u b s t a n c e ) ( w h i l e o n V c o n t r o l l e d s u b s t a n c e s . D i s h o n o r a b l e d i s c h a r g e , duty as a sentinel or lookout) (while (on board a forfeiture of all pay and allowances, and confine- vessel/aircraft) (in or at a missile launch facility) ment for 2 years. used by the armed forces or under the control of the ( 2 ) W r o n g f u l d i s t r i b u t i o n , p o s s e s s i o n , m a n u f a c - armed forces, to wit: ) (while re- ture, or introduction of controlled substance with ceiving special pay under 37 U.S.C. § 310) (during intent to distribute, or wrongful importation or ex- time of war). portation of a controlled substance. ( 3 ) W r o n g f u l i n t r o d u c t i o n o f c o n t r o l l e d s u b - ( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c stance. a c i d d i e t h y l a m i d e , m a r i j u a n a , m e t h a m p h e t a m i n e , In that (personal jurisdiction data) opium, phencyclidine, secobarbital, and Schedule I, d i d , ( a t / o n b o a r d — l o c a t i o n ) o n o r II, and III controlled substances. Dishonorable dis- a b o u t , 2 0 , w r o n g f u l l y i n t r o - charge, forfeiture of all pay and allowances, and d u c e ( g r a m s ) ( o u n c e s ) ( p o u n d s ) confinement for 15 years. ( ) o f ( a S c h e d u l e (b) Phenobarbital and Schedule IV and V con- ( ) controlled substance) onto a vessel, IV-57

2011 NCIS Mini-Manual, Page 108 ¶37.f.(3) aircraft, vehicle, or installation used by the armed ties of a sentinel or lookout, nor does it include a forces or under control of the armed forces, to wit- person whose duties as a watchman or attendant do : (with the intent to distribute the said not require constant alertness. controlled substance) (while on duty as a sentinel or (2) Post. “Post” is the area where the sentinel or l o o k o u t ) ( w h i l e r e c e i v i n g s p e c i a l p a y u n d e r 3 7 lookout is required to be for the performance of U.S.C. § 310) (during a time of war). duties. It is not limited by an imaginary line, but (4) Wrongful importation or exportation of con- includes, according to orders or circumstances, such trolled substance. surrounding area as may be necessary for the proper In that (personal jurisdiction data) performance of the duties for which the sentinel or d i d , ( a t / o n b o a r d — l o c a t i o n ) o n o r lookout was posted. The offense of leaving post is a b o u t , 2 0 , w r o n g f u l l y ( i m p o r t ) not committed when a sentinel or lookout goes an ( e x p o r t ) ( g r a m s ) ( o u n c e s ) immaterial distance from the post, unless it is such a ( p o u n d s ) ( ) o f ( a distance that the ability to fully perform the duty for Schedule ( ) controlled substance) (into which posted is impaired. the customs territory of) (from) the United States (3) On post. A sentinel or lookout becomes “on (while on board a vessel/aircraft used by the armed post” after having been given a lawful order to go forces or under the control of the armed forces, to “on post” as a sentinel or lookout and being for- wit: ) (during time of war). mally or informally posted. The fact that a sentinel or lookout is not posted in the regular way is not a 38. Article 113—Misbehavior of sentinel or defense. It is sufficient, for example, if the sentinel lookout or lookout has taken the post in accordance with a. Text of statute. proper instruction, whether or not formally given. A Any sentinel or look-out who is found drunk or sentinel or lookout is on post within the meaning of sleeping upon his post, or leaves it before he is the article not only when at a post physically de- regularly relieved, shall be punished, if the of- fined, as is ordinarily the case in garrison or aboard fense is committed in time of war, by death or ship, but also, for example, when stationed in obser- such other punishment as a court-martial may vation against the approach of an enemy, or detailed d i r e c t , b u t i f t h e o f f e n s e i s c o m m i t t e d a t a n y to use any equipment designed to locate friend, foe, other time, by such punishment other than death or possible danger, or at a designated place to main- as a court-martial may direct. tain internal discipline, or to guard stores, or to b. Elements. guard prisoners while in confinement or at work. (1) That the accused was posted or on post as a (4) Sentinel or lookout. A sentinel or a lookout is sentinel or lookout; a person whose duties include the requirement to (2) That the accused was found drunk while on maintain constant alertness, be vigilant, and remain post, was found sleeping while on post, or left post awake, in order to observe for the possible approach before being regularly relieved. of the enemy, or to guard persons, property, or a [Note: If the offense was committed in time of war place and to sound the alert, if necessary. o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y (5) Drunk. For an explanation of “drunk,” see under 37 U.S.C. § 310, add the following element] paragraph 35c(3). (3) That the offense was committed (in time of (6) Sleeping. As used in this article, “sleeping” is war) (while the accused was receiving special pay that condition of insentience which is sufficient sen- under 37 U.S.C. § 310). sibly to impair the full exercise of the mental and c. Explanation. physical faculties of a sentinel or lookout. It is not (1) In general. This article defines three kinds of necessary to show that the accused was in a wholly misbehavior committed by sentinels or lookouts: be- c o m a t o s e c o n d i t i o n . T h e f a c t t h a t t h e a c c u s e d ’ s ing found drunk or sleeping upon post, or leaving it sleeping resulted from a physical incapacity caused before being regularly relieved. This article does not by disease or accident is an affirmative defense. See include an officer or enlisted person of the guard, or R.C.M. 916(i). of a ship’s watch, not posted or performing the du- d. Lesser included offenses. IV-58

2011 NCIS Mini-Manual, Page 109 ¶39.f.(1)

(1) Drunk on post. (b) That the combat was for private reasons; (a) Article 112—drunk on duty and (b) Article 92—dereliction of duty (c) That the combat was by prior agreement. (c) Article 134—drunk on station (2) Promoting a duel. (d) Article 134—drunk in uniform in a public (a) That the accused promoted a duel between place certain persons; and (2) Sleeping on post. ( b ) T h a t t h e a c c u s e d d i d s o i n a c e r t a i n (a) Article 92—dereliction of duty manner. (b) Article 134—loitering or wrongfully sitting (3) Conniving at fighting a duel. down on post (a) That certain persons intended to and were (3) Leaving post. about to engage in a duel; (a) Article 92—dereliction of duty ( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e planned duel; and (b) Article 86—going from appointed place of duty (c) That the accused connived at the fighting of the duel in a certain manner. e. Maximum punishment. (4) Failure to report a duel. (1) In time of war. Death or such other punish- ment as a court-martial may direct. (a) That a challenge to fight a duel had been sent or was about to be sent; (2) While receiving special pay under 37 U.S.C. § 310. Dishonorable discharge, forfeiture of all pay (b) That the accused had knowledge of this and allowances, and confinement for 10 years. challenge; and (3) In all other places. Dishonorable discharge, (c) That the accused failed to report this fact forfeiture of all pay and allowances, and confine- promptly to proper authority. ment for 1 year. c. Explanation. f. Sample specification. (1) Duel. A duel is combat between two persons In that (personal jurisdiction data), for private reasons fought with deadly weapons by on or about 20 (a time of war) prior agreement. (at/on board—location), (while receiving special pay (2) Promoting a duel. Urging or taunting another under 37 U.S.C. § 310), being (posted) (on post) as to challenge or to accept a challenge to duel, acting a (sentinel) (lookout) at (warehouse no. 7) (post no. as a second or as carrier of a challenge or accept- 11) (for radar observation) ( ) (was ance, or otherwise furthering or contributing to the f o u n d ( d r u n k ) ( s l e e p i n g ) u p o n h i s / h e r p o s t ) ( d i d fighting of a duel are examples of promoting a duel. l e a v e h i s / h e r p o s t b e f o r e h e / s h e w a s r e g u l a r l y (3) Conniving at fighting a duel. Anyone who has relieved). knowledge that steps are being taken or have been taken toward arranging or fighting a duel and who 39. Article 114—Dueling fails to take reasonable preventive action thereby a. Text of statute. connives at the fighting of a duel. A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o d. Lesser included offense. Article 80—attempts fights or promotes, or is concerned in or connives e . M a x i m u m p u n i s h m e n t . F o r a l l A r t i c l e 1 1 4 o f - at fighting a duel, or who, having knowledge of a fenses: dishonorable discharge, forfeiture of all pay challenge sent or about to be sent, fails to report and allowances, and confinement for 1 year. the fact promptly to the proper authority, shall f. Sample specifications. be punished as a court-martial may direct. (1) Dueling. b. Elements. In that (personal jurisdiction data) (1) Dueling. ( a n d ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) ( a ) T h a t t h e a c c u s e d f o u g h t a n o t h e r p e r s o n (subject-matter jurisdiction data, if required), on or with deadly weapons; about 20 , fight a duel IV-59

2011 NCIS Mini-Manual, Page 110 ¶39.f.(1)

(with ), using as weapons therefor (pis- or in a hostile fire pay zone, add the following tols) (swords) ( ). element] (2) Promoting a duel. (4) That the offense was committed (in time of In that (personal jurisdiction data), war) (in a hostile fire pay zone). did, (at/on board—location) (subject-matter jurisdic- c. Explanation. t i o n d a t a , i f r e q u i r e d ) , o n o r (1) Nature of offense. The essence of this offense a b o u t 2 0 , p r o m o t e a d u e l b e t - is the design to avoid performance of any work, w e e n a n d b y ( t e l l i n g duty, or service which may properly or normally be said he/she would be a coward if he/ expected of one in the military service. Whether to she failed to challenge said to a duel) avoid all duty, or only a particular job, it is the ( k n o w i n g l y c a r r y i n g f r o m s a i d t o purpose to shirk which characterizes the offense. said a challenge to fight a duel). Hence, the nature or permanency of a self-inflicted (3) Conniving at fighting a duel. injury is not material on the question of guilt, nor is In that (personal jurisdiction data), the seriousness of a physical or mental disability h a v i n g k n o w l e d g e which is a sham. Evidence of the extent of the self- that and were about inflicted injury or feigned disability may, however, t o e n g a g e i n a d u e l , d i d ( a t / o n b o a r d — l o c a t i o n ) be relevant as a factor indicating the presence or (subject-matter jurisdiction data, if required), on or absence of the purpose. a b o u t 2 0 , c o n n i v e a t t h e (2) How injury inflicted. The injury may be in- fighting of said duel by (failing to take reasonable flicted by nonviolent as well as by violent means preventive action) ( ). and may be accomplished by any act or omission (4) Failure to report a duel. which produces, prolongs, or aggravates any sick- In that (personal jurisdiction data), ness or disability. Thus, voluntary starvation which having knowledge that a challenge to fight a duel results in debility is a self-inflicted injury and when ( h a d b e e n s e n t ) ( w a s a b o u t t o b e s e n t ) done for the purpose of avoiding work, duty, or by to , did, (at/on board— service constitutes a violation of this article. l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - d. Lesser included offenses. q u i r e d ) , o n o r a b o u t 2 0 f a i l t o ( 1 ) A r t i c l e 1 3 4 — s e l f - i n j u r y w i t h o u t i n t e n t t o report that fact promptly to the proper authority. avoid service (2) Article 80—attempts 40. Article 115—Malingering e. Maximum punishment. a. Text of statute. (1) Feigning illness, physical disablement, mental Any person subject to this chapter who for the lapse, or derangement. Dishonorable discharge, for- purpose of avoiding work, duty, or service ”— feiture of all pay and allowances, and confinement (1) feigns illness, physical disablement, mental for 1 year. lapse or derangement; or (2) Feigning illness, physical disablement, mental ( 2 ) i n t e n t i o n a l l y i n f l i c t s s e l f - i n j u r y ; s h a l l b e lapse, or derangement in a hostile fire pay zone or punished as a court-martial may direct. in time of war. Dishonorable discharge, forfeiture of b. Elements. all pay and allowances, and confinement for 3 years. ( 1 ) T h a t t h e a c c u s e d w a s a s s i g n e d t o , o r w a s (3) Intentional self-inflicted injury. Dishonorable aware of prospective assignment to, or availability discharge, forfeiture of all pay and allowances, and for, the performance of work, duty, or service; confinement for 5 years. (2) That the accused feigned illness, physical dis- (4) Intentional self-inflicted injury in a hostile fire ablement, mental lapse or derangement, or intention- pay zone or in time of war. Dishonorable discharge, ally inflicted injury upon himself or herself; and forfeiture of all pay and allowances, and confine- (3) That the accused’s purpose or intent in doing ment for 10 years. so was to avoid the work, duty, or service. f. Sample specification. [Note: If the offense was committed in time of war In that (personal jurisdiction data), IV-60

2011 NCIS Mini-Manual, Page 111 ¶41.f.(1) did, (at/on board—location) (in a hostile fire pay public. It is immaterial whether the act intended was zone) (subject-matter jurisdiction data, if required) l a w f u l . F u r t h e r m o r e , i t i s n o t n e c e s s a r y t h a t t h e ( o n o r a b o u t 2 0 ) common purpose be determined before the assem- ( f r o m a b o u t 2 0 t o bly. It is sufficient if the assembly begins to execute about 20 ), (a time of war) for the in a tumultuous manner a common purpose formed purpose of avoiding (his/her duty as officer of the after it assembled. day) (his/her duty as aircraft mechanic) (work in the (2) Breach of the peace. A “breach of the peace” m e s s h a l l ) ( s e r v i c e a s a n e n l i s t e d p e r s o n ) is an unlawful disturbance of the peace by an out- ( ) (feign (a headache) (a sore back) (ill- ward demonstration of a violent or turbulent nature. n e s s ) ( m e n t a l l a p s e ) ( m e n t a l d e r a n g e m e n t ) The acts or conduct contemplated by this article are ( ) ) ( i n t e n t i o n a l l y i n j u r e h i m s e l f / those which disturb the public tranquility or impinge herself by ). upon the peace and good order to which the commu- nity is entitled. Engaging in an affray and unlawful 41. Article 116—Riot or breach of peace discharge of firearms in a public street are examples a. Text of statute. of conduct which may constitute a breach of the A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o peace. Loud speech and unruly conduct may also causes or participates in any riot or breach of the constitute a breach of the peace by the speaker. A peace shall be punished as a court-martial may speaker may also by guilty of causing a breach of direct. the peace if the speaker uses language which can reasonably be expected to produce a violent or tur- b. Elements. bulent response and a breach of the peace results. (1) Riot. The fact that the words are true or used under prov- (a) That the accused was a member of an as- ocation is not a defense, nor is tumultuous conduct sembly of three or more persons; excusable because incited by others. (b) That the accused and at least two other ( 3 ) C o m m u n i t y a n d p u b l i c . “ C o m m u n i t y ” a n d members of this group mutually intended to assist “public” include a military organization, post, camp, one another against anyone who might oppose them ship, aircraft, or station. in doing an act for some private purpose; d. Lesser included offenses. (c) That the group or some of its members, in (1) Riot. furtherance of such purpose, unlawfully committed a (a) Article 116—breach of the peace tumultuous disturbance of the peace in a violent or (b) Article 134—disorderly conduct turbulent manner; and (c) Article 80—attempts (d) That these acts terrorized the public in gen- eral in that they caused or were intended to cause (2) Breach of the peace. public alarm or terror. (a) Article 134—disorderly conduct (2) Breach of the peace. (b) Article 80—attempts (a) That the accused caused or participated in a e. Maximum punishment. certain act of a violent or turbulent nature; and (1) Riot. Dishonorable discharge, forfeiture of all ( b ) T h a t t h e p e a c e w a s t h e r e b y u n l a w f u l l y pay and allowances, and confinement for 10 years. disturbed. ( 2 ) B r e a c h o f t h e p e a c e . C o n f i n e m e n t f o r 6 c. Explanation. months and forfeiture of two-thirds pay per month (1) Riot. “Riot” is a tumultuous disturbance of the for 6 months. peace by three or more persons assembled together f. Sample specifications. i n f u r t h e r a n c e o f a c o m m o n p u r p o s e t o e x e c u t e (1) Riot. some enterprise of a private nature by concerted In that (personal jurisdiction data), action against anyone who might oppose them, com- did, (at/on board—location) (subject-matter jurisdic- mitted in such a violent and turbulent manner as to t i o n d a t a , i f r e q u i r e d ) , o n o r cause or be calculated to cause public terror. The about 20 , (cause) (participate in) gravamen of the offense of riot is terrorization of the a r i o t b y u n l a w f u l l y a s s e m b l i n g IV-61

2011 NCIS Mini-Manual, Page 112 ¶41.f.(1) w i t h ( a n d ) ( a n d ) cused have knowledge that the person toward whom ( o t h e r s t o t h e n u m b e r o f the words or gestures are directed is a person subject about whose names are unknown) to the code. f o r t h e p u r p o s e o f ( r e s i s t i n g t h e p o l i c e d. Lesser included offenses. Article 80—attempts o f ) ( a s s a u l t i n g p a s s e r s - b y ) e. Maximum punishment. Confinement for 6 months ( ), and in furtherance of said pur- and forfeiture of two-thirds pay per month for 6 pose did (fight with said police) (assault certain per- months. s o n s , t o w i t : ) ( ) , t o f. Sample specification. the terror and disturbance of . In that (personal jurisdiction data), (2) Breach of the peace. did, (at/on board—location) (subject-matter jurisdic- In that (personal jurisdiction data), t i o n d a t a , i f r e q u i r e d ) , o n o r did, (at/on board—location) (subject-matter jurisdic- a b o u t 2 0 , w r o n g f u l l y u s e ( p r o - t i o n d a t a , i f r e q u i r e d ) , o n o r v o k i n g ) ( r e p r o a c h f u l ) ( w o r d s , t o w i t ; about 20 , (cause) (participate in) “ :” or words to that effect) (and) a breach of the peace by (wrongfully engaging in a ( g e s t u r e s , t o w i t : ) t o w a r d s ( S e r - fist fight in the dayroom with ) (using geant , U.S. Air Force) ( ). t h e f o l l o w i n g p r o v o k i n g l a n g u a g e ( t o - ward ), to wit: “ ,” or 43. Article 118—Murder words to that effect) (wrongfully shouting and sing- a. Text of statute. i n g i n a p u b l i c p l a c e , t o w i t : ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o , ( ). without justification or excuse, unlawfully kills a human being, when he— 42. Article 117—Provoking speeches or (1) has a premeditated design to kill; gestures (2) intends to kill or inflict great bodily harm; a. Text of statute. (3) is engaged in an act that is inherently dan- Any person subject to this chapter who uses gerous to another and evinces a wanton disregard provoking or reproachful words or gestures to- of human life; or wards any other person subject to this chapter (4) is engaged in the perpetration or attempted shall be punished as a court-martial may direct. perpetration of burglary, sodomy, rape, rape of a b. Elements. child, aggravated sexual assault, aggravated sex- (1) That the accused wrongfully used words or ual assault of a child, aggravated sexual contact, gestures toward a certain person; aggravated sexual abuse of a child, aggravated (2) That the words or gestures used were provok- sexual contact with a child, robbery or aggra- ing or reproachful; and vated arson; is guilty of murder, and shall suffer (3) That the person toward whom the words or such punishment as a court-martial may direct, gestures were used was a person subject to the code. except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a c. Explanation. court-martial may direct. ( 1 ) I n g e n e r a l . A s u s e d i n t h i s a r t i c l e , b. Elements. “provoking” and “reproachful” describe those words (1) Premeditated murder. or gestures which are used in the presence of the person to whom they are directed and which a rea- (a) That a certain named or described person is sonable person would expect to induce a breach of dead; the peace under the circumstances. These words and ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r gestures do not include reprimands, censures, re- omission of the accused; proofs and the like which may properly be adminis- (c) That the killing was unlawful; and t e r e d i n t h e i n t e r e s t s o f t r a i n i n g , e f f i c i e n c y , o r (d) That, at the time of the killing, the accused discipline in the armed forces. had a premeditated design to kill. (2) Knowledge. It is not necessary that the ac- (2) Intent to kill or inflict great bodily harm. IV-62

2011 NCIS Mini-Manual, Page 113 ¶43.c.(3)(b)

(a) That a certain named or described person is t a t e d u n l e s s t h e t h o u g h t o f t a k i n g l i f e w a s c o n - dead; sciously conceived and the act or omission by which ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r it was taken was intended. Premeditated murder is omission of the accused; murder committed after the formation of a specific (c) That the killing was unlawful; and intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill (d) That, at the time of the killing, the accused have been entertained for any particular or consider- had the intent to kill or inflict great bodily harm able length of time. When a fixed purpose to kill has upon a person. been deliberately formed, it is immaterial how soon (3) Act inherently dangerous to another. afterwards it is put into execution. The existence of (a) That a certain named or described person is p r e m e d i t a t i o n m a y b e i n f e r r e d f r o m t h e dead; circumstances. (b) That the death resulted from the intentional ( b ) T r a n s f e r r e d p r e m e d i t a t i o n . W h e n a n a c - act of the accused; cused with a premeditated design attempted to un- (c) That this act was inherently dangerous to lawfully kill a certain person, but, by mistake or another and showed a wanton disregard for human inadvertence, killed another person, the accused is life; still criminally responsible for a premeditated mur- (d) That the accused knew that death or great der, because the premeditated design to kill is trans- bodily harm was a probable consequence of the act; ferred from the intended victim to the actual victim. and ( c ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n ( s e e R.C.M. 916( 1)(2)) not amounting to legal insanity (e) That the killing was unlawful. may reduce premeditated murder (Article 118(1)) to (4) During certain offenses. unpremeditated murder (Article 118(2) or (3)) but it (a) That a certain named or described person is does not reduce either premeditated murder or un- dead; premeditated murder to manslaughter (Article 119) ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r or any other lesser offense. omission of the accused; (3) Intent to kill or inflict great bodily harm. (c) That the killing was unlawful; and ( a ) I n t e n t . A n u n l a w f u l k i l l i n g w i t h o u t (d) That, at the time of the killing, the accused premeditation is also murder when the accused had was engaged in the perpetration or attempted perpe- either an intent to kill or inflict great bodily harm. It tration of burglary, sodomy, rape, rape of a child, may be inferred that a person intends the natural and aggravated sexual assault, aggravated sexual assault probable consequences of an act purposely done. of a child, aggravated sexual contact, aggravated Hence, if a person does an intentional act likely to sexual abuse of a child, aggravated sexual contact result in death or great bodily injury, it may be with a child, robbery, or aggravated arson. inferred that death or great bodily injury was in- c. Explanation. tended. The intent need not be directed toward the person killed, or exist for any particular time before (1) In general. Killing a human being is unlawful commission of the act, or have previously existed at w h e n d o n e w i t h o u t j u s t i f i c a t i o n o r e x c u s e . S e e all. It is sufficient that it existed at the time of the R.C.M. 916. Whether an unlawful killing constitutes act or omission (except if death is inflicted in the murder or a lesser offense depends upon the circum- h e a t o f a s u d d e n p a s s i o n c a u s e d b y a d e q u a t e stances. The offense is committed at the place of the provocation— see paragraph 44). For example, a act or omission although the victim may have died person committing housebreaking who strikes and elsewhere. Whether death occurs at the time of the kills the householder attempting to prevent flight can accused’s act or omission, or at some time thereaf- be guilty of murder even if the householder was not ter, it must have followed from an injury received seen until the moment before striking the fatal blow. b y t h e v i c t i m w h i c h r e s u l t e d f r o m t h e a c t o r omission. (b) Great bodily harm. “Great bodily harm” means serious injury; it does not include minor inju- (2) Premeditated murder. ries such as a black eye or a bloody nose, but it does (a) Premeditation. A murder is not premedi- include fractured or dislocated bones, deep cuts, torn IV-63

2011 NCIS Mini-Manual, Page 114 ¶43.c.(3)(b) members of the body, serious damage to internal (a) Article 80—attempts organs, and other serious bodily injuries. It is synon- (b) Article 119—voluntary manslaughter ymous with the term “grievous bodily harm.” (c) Article 134—assault with intent to commit ( c ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n n o t murder a m o u n t i n g t o l e g a l i n s a n i t y d o e s n o t r e d u c e u n - (d) Article 134—assault with intent to commit premeditated murder to manslaughter (Article 119) voluntary manslaughter or any other lesser offense. e. Maximum punishment. (4) Act inherently dangerous to others. (1) Article 118(1) or (4)—death. Mandatory mini- (a) Wanton disregard of human life. Intention- m u m — i m p r i s o n m e n t f o r l i f e w i t h e l i g i b i l i t y f o r a l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o parole. another—although without an intent to cause the (2) Article 118(2) or (3)—such punishment other death of or great bodily harm to any particular per- than death as a court-martial may direct. son, or even with a wish that death will not be caused—may also constitute murder if the act shows f. Sample specification. wanton disregard of human life. Such disregard is In that (personal jurisdiction data), characterized by heedlessness of the probable conse- did, (at/on board—location) (subject-matter jurisdic- quences of the act or omission, or indifference to the t i o n d a t a , i f r e q u i r e d ) , o n o r likelihood of death or great bodily harm. Examples a b o u t 2 0 , ( w i t h p r e m e d i t a t i o n ) include throwing a live grenade toward another in ( w h i l e ( p e r p e t r a t i n g ) ( a t t e m p t i n g t o p e r p e - jest or flying an aircraft very low over one or more t r a t e ) ) m u r d e r b y persons to cause alarm. m e a n s o f ( s h o o t i n g h i m / h e r w i t h a r i f l e ) (b) Knowledge. The accused must know that ( ). death or great bodily harm was a probable conse- quence of the inherently dangerous act. Such knowl- 44. Article 119—Manslaughter edge may be proved by circumstantial evidence. a. Text of statute. (5) During certain offenses. (a) Any person subject to this chapter who, (a) In general. The commission or attempted with an intent to kill or inflict great bodily harm, commission of any of the offenses listed in Article unlawfully kills a human being in the heat of 118(4) is likely to result in homicide, and when an sudden passion caused by adequate provocation unlawful killing occurs as a consequence of the per- is guilty of voluntary manslaughter and shall be petration or attempted perpetration of one of these punished as a court-martial may direct. offenses, the killing is murder. Under these circum- (b) Any person subject to this chapter who, stances it is not a defense that the killing was unin- without an intent to kill or inflict great bodily tended or accidental. harm, unlawfully kills a human being— (b) Separate offenses. The perpetration or at- (1) by culpable negligence; or tempted perpetration of the burglary, sodomy, rape, (2) while perpetrating or attempting to per- r o b b e r y , o r a g g r a v a t e d a r s o n m a y b e c h a r g e d petrate an offense, other than those named in separately from the homicide. clause (4) of section 918 of this title (article 118), d. Lesser included offenses. directly affecting the person; is guilty of involun- (1) Premeditated murder and murder during cer- tary manslaughter and shall be punished as a tain offenses. Article 118(2) and (3)—murder court-martial may direct. (2) All murders under Article 118. b. Elements.  (a) Article 119—involuntary manslaughter (1) Voluntary manslaughter. (b) Article 128—assault; assault consummated (a) That a certain named or described person is by a battery; aggravated assault dead; (c) Article 134—negligent homicide ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r (3) Murder as defined in Article 118(1), (2), and omission of the accused; (4). (c) That the killing was unlawful; and

IV-64

2011 NCIS Mini-Manual, Page 115 3DJH,9

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

Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 116 ¶44.d.(2)(b)

(d) That, at the time of the killing, the accused other injury to property are not, standing alone, ade- had the intent to kill or inflict great bodily harm quate provocation. upon the person killed. (2) Involuntary manslaughter. (2) Involuntary manslaughter. (a) Culpable negligence. (a) That a certain named or described person is (i) Nature of culpable negligence. Culpable dead; negligence is a degree of carelessness greater than ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r simple negligence. It is a negligent act or omission omission of the accused; accompanied by a culpable disregard for the foresee- (c) That the killing was unlawful; and able consequences to others of that act or omission.  (d) That this act or omission of the accused Thus, the basis of a charge of involuntary man- constituted culpable negligence, or occurred while slaughter may be a negligent act or omission which, the accused was perpetrating or attempting to perpe- w h e n v i e w e d i n t h e l i g h t o f h u m a n e x p e r i e n c e , trate an offense directly affecting the person other might foreseeably result in the death of another, than burglary, sodomy, rape, rape of a child, aggra- even though death would not necessarily be a natu- vated sexual assault, aggravated sexual assault of a ral and probable consequence of the act or omission. child, aggravated sexual contact, aggravated sexual Acts which may amount to culpable negligence in- abuse of a child, aggravated sexual contact with a clude negligently conducting target practice so that child, robbery, or aggravated arson. the bullets go in the direction of an inhabited house within range; pointing a pistol in jest at another and c. Explanation. pulling the trigger, believing, but without taking rea- (1) Voluntary manslaughter. sonable precautions to ascertain, that it would not be (a) Nature of offense. An unlawful killing, al- dangerous; and carelessly leaving poisons or dan- though done with an intent to kill or inflict great gerous drugs where they may endanger life. bodily harm, is not murder but voluntary manslaugh- (ii) Legal duty required. When there is no t e r i f c o m m i t t e d i n t h e h e a t o f s u d d e n p a s s i o n legal duty to act there can be no neglect. Thus, when caused by adequate provocation. Heat of passion a stranger makes no effort to save a drowning per- may result from fear or rage. A person may be son, or a person allows a beggar to freeze or starve provoked to such an extent that in the heat of sud- to death, no crime is committed. den passion caused by the provocation, although not  (b) Offense directly affecting the person. An in necessary defense of life or to prevent bodily “offense directly affecting the person” means one harm, a fatal blow may be struck before self-control a f f e c t i n g s o m e p a r t i c u l a r p e r s o n a s d i s t i n g u i s h e d has returned. Although adequate provocation does from an offense affecting society in general. Among not excuse the homicide, it does preclude conviction offenses directly affecting the person are the various of murder. types of assault, battery, false imprisonment, volun-  ( b ) N a t u r e o f p r o v o c a t i o n . T h e p r o v o c a t i o n tary engagement in an affray, and maiming. must be adequate to excite uncontrollable passion in d. Lesser included offenses. a reasonable person, and the act of killing must be committed under and because of the passion. How- (1) Voluntary manslaughter. ever, the provocation must not be sought or induced (a) Article 119—involuntary manslaughter as an excuse for killing or doing harm. If, judged by (b) Article 128—assault; assault consummated the standard of a reasonable person, sufficient cool- by a battery; aggravated assault ing time elapses between the provocation and the (c) Article 134—assault with intent to commit killing, the offense is murder, even if the accused’s voluntary manslaughter p a s s i o n p e r s i s t s . E x a m p l e s o f a c t s w h i c h m a y , (d) Article 134—negligent homicide depending on the circumstances, constitute adequate (e) Article 80—attempts provocation are the unlawful infliction of great bod- ily harm, unlawful imprisonment, and the sight by (2) Involuntary manslaughter. one spouse of an act of adultery committed by the (a) Article 128—assault; assault consummated other spouse. Insulting or abusive words or gestures, by a battery a slight blow with the hand or fist, and trespass or (b) Article 134—negligent homicide IV-65

2011 NCIS Mini-Manual, Page 117 3DJH,9

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 E 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKE  G LVDPHQGHGWRUHDGDVIROORZV   G 7KDWWKLVDFWRURPLVVLRQRIWKHDFFXVHGFRQVWLWXWHGFXOSDEOHQHJOLJHQFHRURFFXUUHGZKLOHWKHDFFXVHGZDVSHUSHWUDWLQJRUDWWHPSWLQJWRSHUSHWUDWHDQRIIHQVHGLUHFWO\ DIIHFWLQJWKHSHUVRQRWKHUWKDQEXUJODU\VRGRP\UDSHUDSHRIDFKLOGDJJUDYDWHGVH[XDODVVDXOWDJJUDYDWHGVH[XDODVVDXOWRIDFKLOGDJJUDYDWHGVH[XDOFRQWDFWDJJUDYDWHG VH[XDODEXVHRIDFKLOGDJJUDYDWHGVH[XDOFRQWDFWZLWKDFKLOGUREEHU\RUDJJUDYDWHGDUVRQ

Executive Order: 2010 Amendments to the Manual for Courts-Martial, United States

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 G 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKF  F LVDGGHGIROORZLQJSDUDJUDSKF  E 

F :KHQFRPPLWWHGXSRQDFKLOGXQGHU\HDUVRIDJH7KHPD[LPXPSXQLVKPHQWLVLQFUHDVHGZKHQLQYROXQWDU\PDQVODXJKWHULVFRPPLWWHGXSRQDFKLOGXQGHU\HDUV RIDJH7KHDFFXVHG¶VNQRZOHGJHWKDWWKHFKLOGZDVXQGHU\HDUVRIDJHDWWKHWLPHRIWKHRIIHQVHLVQRWUHTXLUHGIRUWKHLQFUHDVHGPD[LPXPSXQLVKPHQW  Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States 1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 F 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKF  F LVDGGHGIROORZLQJSDUDJUDSKF  E 

F :KHQFRPPLWWHGXSRQDFKLOGXQGHU\HDUVRIDJH7KHPD[LPXPSXQLVKPHQWLVLQFUHDVHGZKHQYROXQWDU\PDQVODXJKWHULVFRPPLWWHGXSRQDFKLOGXQGHU\HDUVRI DJH7KHDFFXVHG¶VNQRZOHGJHWKDWWKHFKLOGZDVXQGHU\HDUVRIDJHDWWKHWLPHRIWKHRIIHQVHLVQRWUHTXLUHGIRUWKHLQFUHDVHGPD[LPXPSXQLVKPHQW  Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 118 ¶44.e.

e. Maximum punishment. the victim of the underlying offense was preg- ( 1 ) V o l u n t a r y m a n s l a u g h t e r . D i s h o n o r a b l e d i s - nant; or charge, forfeiture of all pay and allowances, and (ii) the accused intended to cause the death confinement for 15 years. of, or bodily injury to, the unborn child.  (2) Involuntary manslaughter. Dishonorable dis- ( 3 ) I f t h e p e r s o n e n g a g i n g i n t h e c o n d u c t charge, forfeiture of all pay and allowances, and thereby intentionally kills or attempts to kill the confinement for 10 years. unborn child, that person shall, instead of being punished under paragraph (1), be punished as  f. Sample specifications. provided under sections 880, 918, and 919(a) of (1) Voluntary manslaughter. this title (articles 80, 118, and 119(a)) for inten- In that (personal jurisdiction data), t i o n a l l y k i l l i n g o r a t t e m p t i n g t o k i l l a h u m a n did, (at/on board—location) (subject-matter jurisdic- being. t i o n d a t a , i f r e q u i r e d ) , o n o r ( 4 ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f a b o u t 2 0 , w i l l f u l l y a n d u n l a w - law, the death penalty shall not be imposed for fully kill by him/her (in) an offense under this section. (on) the with a . (b) The provisions referred to in subsection (a) (2) Involuntary manslaughter. are sections 918, 919(a), 919(b)(2), 920(a), 922, In that (personal jurisdiction data), 924, 926, and 928 of this title (articles 118, 119(a), did, (at/on board—location) (subject-matter jurisdic- 119(b)(2), 120(a), 122, 124, 126, and 128). t i o n d a t a , i f r e q u i r e d ) , o n o r (c) Nothing in this section shall be construed to a b o u t 2 0 , ( b y c u l p a b l e n e g l i - permit the prosecution— gence) (while (perpetrating) (attempting to perpe- (1) of any person authorized by state or fed- t r a t e ) a n o f f e n s e d i r e c t l y a f f e c t i n g t h e p e r s o n eral law to perform abortions for conduct relat- o f , t o w i t : ( m a i m i n g ) ( a b a t t e r y ) ing to an abortion for which the consent of the ( ) ) u n l a w f u l l y pregnant woman, or a person authorized by law k i l l b y h i m / h e r ( i n ) to act on her behalf, has been obtained or for (on) the with a . which such consent is implied by law; (2) of any person for any medical treatment 44a. Article 119a.--Death or injury of an of the pregnant woman or her unborn child; or unborn child (3) of any woman with respect to her un- a. Text of statute. born child. (a)(1) Any person subject to this chapter who (d) As used in this section, the term “unborn engages in conduct that violates any of the provi- c h i l d ” m e a n s a c h i l d i n u t e r o , a n d t h e t e r m sions of law listed in subsection (b) and thereby “child in utero” or “child, who is in utero” means causes the death of, or bodily injury (as defined a member of the species homo sapiens, at any in section 1365 of title 18) to, a child, who is in s t a g e o f d e v e l o p m e n t , w h o i s c a r r i e d i n t h e utero at the time the conduct takes place, is guilty womb. of a separate offense under this section and shall, b. Elements. u p o n c o n v i c t i o n , b e p u n i s h e d b y s u c h p u n i s h - (1) Injuring an unborn child. ment, other than death, as a court-martial may ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e direct, which shall be consistent with the punish- [(murder (article 118)), (voluntary manslaughter (ar- ments prescribed by the President for that con- t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e duct had that injury or death occurred to the 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e unborn child’s mother. 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e (2) An offense under this section does not re- 128)), of] or [burning or setting afire, as arson (arti- quire proof that— cle 126), of (a dwelling inhabited by) (a structure or (i) the person engaging in the conduct had property (known to be occupied by) (belonging to))] knowledge or should have had knowledge that a woman; IV-66

2011 NCIS Mini-Manual, Page 119 3DJH,9

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 H 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKH  LVDGGHGIROORZLQJSDUDJUDSKH      9ROXQWDU\PDQVODXJKWHURIDFKLOGXQGHU\HDUVRIDJH'LVKRQRUDEOHGLVFKDUJHIRUIHLWXUHRIDOOSD\DQGDOORZDQFHVDQGFRQILQHPHQWIRU\HDUV  I 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKH  LVDGGHGIROORZLQJSDUDJUDSKH      ,QYROXQWDU\PDQVODXJKWHURIDFKLOGXQGHU\HDUVRIDJH'LVKRQRUDEOHGLVFKDUJHIRUIHLWXUHRIDOOSD\DQGDOORZDQFHVDQGFRQILQHPHQWIRU\HDUV  Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States 1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 J 3DUDJUDSK$UWLFOH0DQVODXJKWHUSDUDJUDSKILVDPHQGHGWRUHDGDVIROORZV  I6DPSOHVSHFLILFDWLRQV   9ROXQWDU\PDQVODXJKWHU ,QWKDWBBBBBBBBBBBB SHUVRQDOMXULVGLFWLRQGDWD GLG DWRQERDUG±ORFDWLRQ  VXEMHFWPDWWHUMXULVGLFWLRQGDWDLIUHTXLUHG RQRUDERXWBBBBBBBBZLOOIXOO\DQGXQODZIXOO\ NLOOBBBBBBB DFKLOGXQGHU\HDUVRIDJH E\BBBBBKLPKHU LQ  RQ WKHBBBBBBBZLWKDBBBBBBBBBB  ,QYROXQWDU\PDQVODXJKWHU ,QWKDWBBBBBBBBBBBB SHUVRQDOMXULVGLFWLRQGDWD GLG DWRQERDUG±ORFDWLRQ  VXEMHFWPDWWHUMXULVGLFWLRQGDWDLIUHTXLUHG RQRUDERXWBBBBBBBB E\FXOSDEOH QHJOLJHQFH  ZKLOH SHUSHWUDWLQJ  DWWHPSWLQJWRSHUSHWUDWH DQRIIHQVHGLUHFWO\DIIHFWLQJWKHSHUVRQRIBBBBBBBBWRZLW PDLPLQJ  DEDWWHU\  BBBBBBBBBBB XQODZIXOO\NLOO BBBBBBB DFKLOGXQGHU\HDUVRIDJH E\BBBBBBKLPKHU LQ  RQ WKHBBBBBBBBBBBBBBBZLWKDBBBBBBBBB  Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 120 ¶44a.d.(2)

(b) That the woman was then pregnant; and UCMJ); involuntary manslaughter (article 119(b)(2), (c) That the accused thereby caused bodily in- UCMJ); rape (article 120(a), UCMJ); robbery (arti- jury to the unborn child of that woman. cle 122, UCMJ); maiming (article 124, UCMJ); or (2) Killing an unborn child. assault (article 128, UCMJ) against a pregnant wom- an. For all underlying offenses, except arson, this ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e article requires that the victim of the underlying of- [(murder (article 118)), (voluntary manslaughter (ar- fense be the pregnant mother. For purposes of arson, t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e the pregnant mother must have some nexus to the 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e arson such that she sustained some “bodily injury” 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e due to the arson. For the purposes of this article the 128)), of ] or [burning or setting afire, as arson term “woman” means a female of any age. This (article 126), of (a dwelling inhabited by) (a struc- article does not permit the prosecution of any— ture or property known to (be occupied by) (belong to))] a woman; (a) person for conduct relating to an abortion for which the consent of the pregnant woman, or a (b) That the woman was then pregnant; and person authorized by law to act on her behalf, has (c) That the accused thereby caused the death been obtained or for which such consent is implied of the unborn child of that woman. by law; (3) Attempting to kill an unborn child. ( b ) p e r s o n f o r a n y m e d i c a l t r e a t m e n t o f t h e ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e pregnant woman or her unborn child; or [(murder (article 118)), (voluntary manslaughter (ar- (c) woman with respect to her unborn child. t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e (2) The offenses of “injuring an unborn child” 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e and “killing an unborn child” do not require proof 128)), of] or [burning or setting afire, as arson (arti- that— cle 126), of (a dwelling inhabited by) (a structure or (a) the person engaging in the conduct (the ac- property (known to be occupied by) (belonging to))] cused) had knowledge or should have had knowl- a woman; edge that the victim of the underlying offense was (b) That the woman was then pregnant; and pregnant; or (c) That the accused thereby intended and at- (b) the accused intended to cause the death of, tempted to kill the unborn child of that woman. or bodily injury to, the unborn child. (4) Intentionally killing an unborn child. (3) The offense of “attempting to kill an unborn child” requires that the accused intended by his con- ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e duct to cause the death of the unborn child (See [(murder (article 118)), (voluntary manslaughter (ar- paragraph b(3)(c) above). t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e (4) Bodily injury. For the purpose of this offense, 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e the term “bodily injury” is that which is provided by 128)), of] or [burning or setting afire, as arson (arti- section 1365 of title 18, to wit: a cut, abrasion, cle 126), of (a dwelling inhabited by) (a structure or bruise, burn, or disfigurement; physical pain; illness; property (known to be occupied by) (belonging to))] impairment of the function of a bodily member, or- a woman; gan, or mental faculty; or any other injury to the body, no matter how temporary. (b) That the woman was then pregnant; and (c) That the accused thereby intentionally kil- (5) Unborn child. “Unborn child” means a child led the unborn child of that woman. in utero or a member of the species homo sapiens who is carried in the womb, at any stage of develop- c. Explanation. ment, from conception to birth. (1) Nature of offense. This article makes it a sep- d. Lesser included offenses. arate, punishable crime to cause the death of or bodily injury to an unborn child while engaged in (1) Killing an unborn child. Article 119a — in- a r s o n ( a r t i c l e 1 2 6 , U C M J ) ; m u r d e r ( a r t i c l e 1 1 8 , juring an unborn child U C M J ) ; v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( a ) , (2) Intentionally killing an unborn child. IV-67

2011 NCIS Mini-Manual, Page 121 ¶44a.d.(2)(a)

(a) Article 119a — killing an unborn child tion data), did (at/on board—location), (subject-mat- (b) Article 119a — injuring an unborn child t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r (c) Article 119a — attempts (attempting to kill a b o u t 2 0 , i n t e n t i o n a l l y k i l l t h e an unborn child) unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary e. Maximum punishment. manslaughter) (rape) (robbery) (maiming) (assault) The maximum punishment for (1) Injuring an un- of] [(burning) (setting afire) of (a dwelling inhabited born child; (2) Killing an unborn child; (3) Attempt- by) (a structure or property known to (be occupied i n g t o k i l l a n u n b o r n c h i l d ; o r ( 4 ) I n t e n t i o n a l l y killing an unborn child is such punishment, other by) (belong to))] that woman. than death, as a court-martial may direct, but shall be consistent with the punishment had the bodily 45. Article 120—Rape, sexual assault, and injury, death, attempt to kill, or intentional killing other sexual misconduct occurred to the unborn child’s mother. a. Text of statute. f. Sample specifications. (a) Rape. Any person subject to this chapter (1) Injuring an unborn child. who causes another person of any age to engage In that (personal jurisdic- in a sexual act by— tion data), did (at/on board—location), (subject-mat- (1) using force against that other person; t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r ( 2 ) c a u s i n g g r i e v o u s b o d i l y h a r m t o a n y about 20 , cause bodily injury to person; the unborn child of , a pregnant woman, by engag- (3) threatening or placing that other person ing in the [(murder) (voluntary manslaughter) (invol- u n t a r y m a n s l a u g h t e r ) ( r a p e ) ( r o b b e r y ) ( m a i m i n g ) in fear that any person will be subjected to death, (assault) of] [(burning) (setting afire) of (a dwelling grievous bodily harm, or kidnapping; inhabited by) (a structure or property known to (be ( 4 ) r e n d e r i n g a n o t h e r p e r s o n u n c o n s c i o u s ; occupied by) (belong to))] that woman. or (2) Killing an unborn child. (5) administering to another person by force In that (personal jurisdic- or threat of force, or without the knowledge or tion data), did (at/on board—location), (subject-mat- permission of that person, a drug, intoxicant, or t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r other similar substance and thereby substantially about 20 , cause the death of the impairs the ability of that other person to ap- unborn child of , a pregnant woman, by engaging in praise or control conduct; is guilty of rape and the [(murder) (voluntary manslaughter) (involuntary shall be punished as a court-martial may direct. manslaughter) (rape) (robbery) (maiming) (assault) (b) Rape of a child. Any person subject to this of] [(burning) (setting afire) of (a dwelling inhabited chapter who— by) (a structure or property known to (be occupied (1) engages in a sexual act with a child who by) (belong to))] that woman. has not attained the age of 12 years; or (3) Attempting to kill an unborn child. (2) engages in a sexual act under the cir- In that (personal jurisdic- c u m s t a n c e s d e s c r i b e d i n s u b s e c t i o n ( a ) w i t h a tion data), did (at/on board—location), (subject-mat- child who has attained the age of 12 years; is t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r guilty of rape of a child and shall be punished as about 20 , attempt to kill the un- a court-martial may direct. born child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary (c) Aggravated sexual assault. Any person sub- manslaughter) (rape) (robbery) (maiming) (assault) ject to this chapter who— of] [(burning) (setting afire) of (a dwelling inhabited (1) causes another person of any age to en- by) (a structure or property known to (be occupied gage in a sexual act by— by) (belong to))] that woman. (A) threatening or placing that other per- (4) Intentionally killing an unborn child. son in fear (other than by threatening or placing In that (personal jurisdic- that other person in fear that any person will be IV-68

2011 NCIS Mini-Manual, Page 122 ¶45.a.(o)(1) subjected to death, grievous bodily harm, or kid- son subject to this chapter who engages in or napping); or causes sexual contact with or by another person, (B) causing bodily harm; or if to do so would violate subsection (d) (aggra- (2) engages in a sexual act with another per- vated sexual assault of a child) had the sexual son of any age if that other person is substantially contact been a sexual act, is guilty of abusive sexual contact with a child and shall be punished incapacitated or substantially incapable of— as a court-martial may direct. ( A ) a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l (j) Indecent liberty with a child. Any person sub- act; ject to this chapter who engages in indecent lib- ( B ) d e c l i n i n g p a r t i c i p a t i o n i n t h e s e x u a l erty in the physical presence of a child— act; or (1) with the intent to arouse, appeal to, or ( C ) c o m m u n i c a t i n g u n w i l l i n g n e s s t o e n - gratify the sexual desire of any person; or gage in the sexual act; is guilty of aggravated (2) with the intent to abuse, humiliate, or sexual assault and shall be punished as a court- degrade any person; is guilty of indecent liberty martial may direct. with a child and shall be punished as a court- (d) Aggravated sexual assault of a child. Any martial may direct. person subject to this chapter who engages in a ( k ) I n d e c e n t a c t . A n y p e r s o n s u b j e c t t o t h i s sexual act with a child who has attained the age chapter who engages in indecent conduct is guilty of 12 years is guilty of aggravated sexual assault of an indecent act and shall be punished as a of a child and shall be punished as a court-mar- court-martial may direct. tial may direct. (l) Forcible pandering. Any person subject to (e) Aggravated sexual contact. Any person sub- this chapter who compels another person to en- ject to this chapter who engages in or causes gage in an act of prostitution with another person sexual contact with or by another person, if to do to be directed to said person is guilty of forcible so would violate subsection (a) (rape) had the pandering and shall be punished as a court-mar- sexual contact been a sexual act, is guilty of ag- tial may direct. gravated sexual contact and shall be punished as (m) Wrongful sexual contact. Any person sub- a court-martial may direct. ject to this chapter who, without legal justifica- (f) Aggravated sexual abuse of a child. Any per- tion or lawful authorization, engages in sexual son subject to this chapter who engages in a lewd contact with another person without that other act with a child is guilty of aggravated sexual person’s permission is guilty of wrongful sexual abuse of a child and shall be punished as a court- contact and shall be punished as a court-martial martial may direct. may direct. (g) Aggravated sexual contact with a child. Any ( n ) I n d e c e n t e x p o s u r e . A n y p e r s o n s u b j e c t t o person subject to this chapter who engages in or this chapter who intentionally exposes, in an in- causes sexual contact with or by another person, decent manner, in any place where the conduct if to do so would violate subsection (b) (rape of a i n v o l v e d m a y r e a s o n a b l y b e e x p e c t e d t o b e child) had the sexual contact been a sexual act, is viewed by people other than members of the ac- guilty of aggravated sexual contact with a child t o r ’ s f a m i l y o r h o u s e h o l d , t h e g e n i t a l i a , a n u s , and shall be punished as a court-martial may buttocks, or female areola or nipple is guilty of direct. i n d e c e n t e x p o s u r e a n d s h a l l b e p u n i s h e d a s a (h) Abusive sexual contact. Any person subject court-martial may direct. to this chapter who engages in or causes sexual (o) Age of child. contact with or by another person, if to do so (1) Twelve years. In a prosecution under sub- would violate subsection (c) (aggravated sexual section (b) (rape of a child), subsection (g) (aggra- assault) had the sexual contact been a sexual act, vated sexual contact with a child), or subsection is guilty of abusive sexual contact and shall be (j) (indecent liberty with a child), it need not be punished as a court-martial may direct. proven that the accused knew that the other per- (i) Abusive sexual contact with a child. Any per- son engaging in the sexual act, contact, or liberty IV-69

2011 NCIS Mini-Manual, Page 123 ¶45.a.(o)(1) had not attained the age of 12 years. It is not an any other subsection, except they are an affirma- affirmative defense that the accused reasonably tive defense for the sexual conduct in issue in a believed that the child had attained the age of 12 prosecution under subsection (a) (rape), subsec- years. tion (c) (aggravated sexual assault), subsection (e) ( 2 ) S i x t e e n y e a r s . I n a p r o s e c u t i o n u n d e r (aggravated sexual contact), and subsection (h) s u b s e c t i o n ( d ) ( a g g r a v a t e d s e x u a l a s s a u l t o f a (abusive sexual contact). child), subsection (f) (aggravated sexual abuse of (s) Other affirmative defenses not precluded. The a c h i l d ) , s u b s e c t i o n ( i ) ( a b u s i v e s e x u a l c o n t a c t enumeration in this section of some affirmative with a child), or subsection (j) (indecent liberty defenses shall not be construed as excluding the with a child), it need not be proven that the ac- existence of others. cused knew that the other person engaging in the (t) Definitions. In this section: sexual act, contact, or liberty had not attained the ( 1 ) S e x u a l a c t . T h e t e r m “ s e x u a l a c t ” age of 16 years. Unlike in paragraph (1), howev- means— er, it is an affirmative defense that the accused ( A ) c o n t a c t b e t w e e n t h e p e n i s a n d t h e reasonably believed that the child had attained v u l v a , a n d f o r p u r p o s e s o f t h i s s u b p a r a g r a p h the age of 16 years. contact involving the penis occurs upon penetra- (p) Proof of threat. In a prosecution under this tion, however slight; or s e c t i o n , i n p r o v i n g t h a t t h e a c c u s e d m a d e a (B) the penetration, however slight, of the threat, it need not be proven that the accused genital opening of another by a hand or finger or actually intended to carry out the threat. by any object, with an intent to abuse, humiliate, (q) Marriage. harass, or degrade any person or to arouse or (1) In general. In a prosecution under para- gratify the sexual desire of any person. graph (2) of subsection (c) (aggravated sexual as- (2) Sexual contact. The term “sexual contact” sault), or under subsection (d) (aggravated sexual means the intentional touching, either directly or assault of a child), subsection (f) (aggravated sex- through the clothing, of the genitalia, anus, groin, ual abuse of a child), subsection (i) (abusive sex- breast, inner thigh, or buttocks of another per- ual contact with a child), subsection (j) (indecent son, or intentionally causing another person to liberty with a child), subsection (m) (wrongful touch, either directly or through the clothing, the sexual contact), or subsection (n) (indecent expo- genitalia, anus, groin, breast, inner thigh, or but- sure), it is an affirmative defense that the accused tocks of any person, with an intent to abuse, hu- and the other person when they engaged in the miliate, or degrade any person or to arouse or sexual act, sexual contact, or sexual conduct were gratify the sexual desire of any person. married to each other. (3) Grievous bodily harm. The term “grievous (2) Definition. For purposes of this subsec- bodily harm” means serious bodily injury. It in- tion, a marriage is a relationship, recognized by cludes fractured or dislocated bones, deep cuts, the laws of a competent State or foreign jurisdic- torn members of the body, serious damage to tion, between the accused and the other person as internal organs, and other severe bodily injuries. spouses. A marriage exists until it is dissolved in It does not include minor injuries such as a black accordance with the laws of a competent State or eye or a bloody nose. It is the same level of injury foreign jurisdiction. as in section 928 (article 128) of this chapter, and (3) Exception. Paragraph (1) shall not apply a lesser degree of injury than in section 2246(4) if the accused’s intent at the time of the sexual of title 18. conduct is to abuse, humiliate, or degrade any ( 4 ) D a n g e r o u s w e a p o n o r o b j e c t . T h e t e r m person. “dangerous weapon or object” means— (r) Consent and mistake of fact as to consent. ( A ) a n y f i r e a r m , l o a d e d o r n o t , a n d Lack of permission is an element of the offense in whether operable or not; subsection (m) (wrongful sexual contact). Consent (B) any other weapon, device, instrument, and mistake of fact as to consent are not an issue, material, or substance, whether animate or inani- or an affirmative defense, in a prosecution under mate, that in the manner it is used, or is intended IV-70

2011 NCIS Mini-Manual, Page 124 ¶45.a.(t)(12)(A) to be used, is known to be capable of producing subject some person to hatred, contempt, or ridi- death or grievous bodily harm; or cule; or ( C ) a n y o b j e c t f a s h i o n e d o r u t i l i z e d i n (III) through the use or abuse of mili- such a manner as to lead the victim under the t a r y p o s i t i o n , r a n k , o r a u t h o r i t y , t o a f f e c t o r circumstances to reasonably believe it to be capa- threaten to affect, either positively or negatively, ble of producing death or grievous bodily harm. the military career of some person. (5) Force. The term “force” means action to ( 8 ) B o d i l y h a r m . T h e t e r m “ b o d i l y h a r m ” compel submission of another or to overcome or means any offensive touching of another, how- prevent another’s resistance by— ever slight. (A) the use or display of a dangerous (9) Child. The term “child” means any per- weapon or object; son who has not attained the age of 16 years. (B) the suggestion of possession of a dan- (10) Lewd act. The term “lewd act” means— gerous weapon or object that is used in a manner (A) the intentional touching, not through t o c a u s e a n o t h e r t o b e l i e v e i t i s a d a n g e r o u s the clothing, of the genitalia of another person, weapon or object; or with an intent to abuse, humiliate, or degrade (C) physical violence, strength, power, or any person, or to arouse or gratify the sexual r e s t r a i n t a p p l i e d t o a n o t h e r p e r s o n , s u f f i c i e n t desire of any person; or that the other person could not avoid or escape ( B ) i n t e n t i o n a l l y c a u s i n g a n o t h e r p e r s o n the sexual conduct. to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or (6) Threatening or placing that other person in degrade any person, or to arouse or gratify the fear. The term “threatening or placing that other sexual desire of any person. person in fear” under paragraph (3) of subsec- tion (a) (rape), or under subsection (e) (aggra- (11) Indecent liberty. The term “indecent lib- vated sexual contact), means a communication or erty” means indecent conduct, but physical con- action that is of sufficient consequence to cause a tact is not required. It includes one who with the reasonable fear that non-compliance will result in requisite intent exposes one’s genitalia, anus, but- the victim or another person being subjected to tocks, or female areola or nipple to a child. An death, grievous bodily harm, or kidnapping. indecent liberty may consist of communication of indecent language as long as the communication (7) Threatening or placing that other person in is made in the physical presence of the child. If fear. words designed to excite sexual desire are spoken (A) In general. The term “threatening or to a child, or a child is exposed to or involved in placing that other person in fear” under para- s e x u a l c o n d u c t , i t i s a n i n d e c e n t l i b e r t y ; t h e graph (1)(A) of subsection (c) (aggravated sexual child’s consent is not relevant. assault), or under subsection (h) (abusive sexual ( 1 2 ) I n d e c e n t c o n d u c t . T h e t e r m “ i n d e c e n t contact), means a communication or action that is conduct” means that form of immorality relating of sufficient consequence to cause a reasonable to sexual impurity that is grossly vulgar, obscene, fear that non-compliance will result in the victim and repugnant to common propriety, and tends or another being subjected to a lesser degree of to excite sexual desire or deprave morals with h a r m t h a n d e a t h , g r i e v o u s b o d i l y h a r m , o r respect to sexual relations. Indecent conduct in- kidnapping. cludes observing, or making a videotape, photo- (B) Inclusions. Such lesser degree of harm graph, motion picture, print, negative, slide, or includes— other mechanically, electronically, or chemically (i) physical injury to another person or reproduced visual material, without another per- to another person’s property; or son’s consent, and contrary to that other person’s (ii) a threat— reasonable expectation of privacy, of— (I) to accuse any person of a crime; (A) that other person’s genitalia, anus, or (II) to expose a secret or publicize an buttocks, or (if that other person is female) that asserted fact, whether true or false, tending to person’s areola or nipple; or IV-71

2011 NCIS Mini-Manual, Page 125 ¶45.a.(t)(12)(B)

(B) that other person while that other per- cover the true facts. Negligence is the absence of son is engaged in a sexual act, sodomy (under due care. Due care is what a reasonably careful section 925 (article 125) of this chapter), or sexual person would do under the same or similar cir- contact. cumstances. The accused’s state of intoxication, if ( 1 3 ) A c t o f p r o s t i t u t i o n . T h e t e r m “ a c t o f any, at the time of the offense is not relevant to prostitution” means a sexual act, sexual contact, mistake of fact. A mistaken belief that the other or lewd act for the purpose of receiving money or person consented must be that which a reasona- other compensation. bly careful, ordinary, prudent, sober adult would ( 1 4 ) C o n s e n t . T h e t e r m “ c o n s e n t ” m e a n s have had under the circumstances at the time of w o r d s o r o v e r t a c t s i n d i c a t i n g a f r e e l y g i v e n the offense. agreement to the sexual conduct at issue by a (16) Affirmative defense. The term “affirma- competent person. An expression of lack of con- tive defense” means any special defense that, al- sent through words or conduct means there is no though not denying that the accused committed consent. Lack of verbal or physical resistance or t h e o b j e c t i v e a c t s c o n s t i t u t i n g t h e o f f e n s e submission resulting from the accused’s use of charged, denies, wholly, or partially, criminal re- force, threat of force, or placing another person sponsibility for those acts. The accused has the in fear does not constitute consent. A current or burden of proving the affirmative defense by a previous dating relationship by itself or the man- p r e p o n d e r a n c e o f e v i d e n c e . A f t e r t h e d e f e n s e ner of dress of the person involved with the ac- meets this burden, the prosecution shall have the cused in the sexual conduct at issue shall not burden of proving beyond a reasonable doubt constitute consent. A person cannot consent to that the affirmative defense did not exist. sexual activity if— b. Elements. (A) under 16 years of age; or (1) Rape. (B) substantially incapable of— (a) Rape by using force. (i) appraising the nature of the sexual (i) That the accused caused another person, conduct at issue due to— who is of any age, to engage in a sexual act by ( I ) m e n t a l i m p a i r m e n t o r u n c o n - using force against that other person. sciousness resulting from consumption of alcohol, (b) Rape by causing grievous bodily harm. drugs, a similar substance, or otherwise; or (i) That the accused caused another person, (II) mental disease or defect that ren- who is of any age, to engage in a sexual act by ders the person unable to understand the nature causing grievous bodily harm to any person. of the sexual conduct at issue; (c) Rape by using threats or placing in fear. (ii) physically declining participation in (i) That the accused caused another person, the sexual conduct at issue; or who is of any age, to engage in a sexual act by ( i i i ) p h y s i c a l l y c o m m u n i c a t i n g u n w i l l - threatening or placing that other person in fear that ingness to engage in the sexual conduct at issue. any person will be subjected to death, grievous bod- (15) Mistake of fact as to consent. The term ily harm, or kidnapping. “mistake of fact as to consent” means the accused (d) Rape by rendering another unconscious. held, as a result of ignorance or mistake, an in- (i) That the accused caused another person, correct belief that the other person engaging in who is of any age, to engage in a sexual act by the sexual conduct consented. The ignorance or rendering that other person unconscious. mistake must have existed in the mind of the accused and must have been reasonable under all (e) Rape by administration of drug, intoxicant, the circumstances. To be reasonable, the igno- or other similar substance. rance or mistake must have been based on infor- (i) That the accused caused another person, mation, or lack of it, that would indicate to a who is of any age, to engage in a sexual act by r e a s o n a b l e p e r s o n t h a t t h e o t h e r p e r s o n c o n - administering to that other person a drug, intoxicant, s e n t e d . A d d i t i o n a l l y , t h e i g n o r a n c e o r m i s t a k e or other similar substance; cannot be based on the negligent failure to dis- (ii) That the accused administered the drug, IV-72

2011 NCIS Mini-Manual, Page 126 ¶45.b.(3)(c) intoxicant or other similar substance by force or 12 years but has not attained the age of 16 years by threat of force or without the knowledge or permis- rendering that child unconscious. sion of that other person; and (i) That the accused engaged in a sexual act ( i i i ) T h a t , a s a r e s u l t , t h a t o t h e r p e r s o n ’ s with a child; ability to appraise or control conduct was substan- (ii) That at the time of the sexual act the tially impaired. child had attained the age of 12 years but had not (2) Rape of a child. attained the age of 16 years; and (a) Rape of a child who has not attained the (iii) That the accused did so by rendering age of 12 years. that child unconscious. (i) That the accused engaged in a sexual act (f) Rape of a child who has attained the age of with a child; and 12 years but has not attained the age of 16 years by (ii) That at the time of the sexual act the administration of drug, intoxicant, or other similar child had not attained the age of twelve years. substance. (i) That the accused engaged in a sexual act (b) Rape of a child who has attained the age of with a child; 12 years but has not attained the age of 16 years by using force. (ii) That at the time of the sexual act the child had attained the age of 12 years but had not (i) That the accused engaged in a sexual act attained the age of 16 years; and with a child; ( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d - (ii) That at the time of the sexual act the ministering to that child a drug, intoxicant, or other child had attained the age of 12 years but had not similar substance; attained the age of 16 years; and (b) That the accused administered the drug, (iii) That the accused did so by using force intoxicant, or other similar substance by force or against that child. threat of force or without the knowledge or permis- (c) Rape of a child who has attained the age of sion of that child; and 12 years but has not attained the age of 16 years by (c) That, as a result, that child’s ability to causing grievous bodily harm. a p p r a i s e o r c o n t r o l c o n d u c t w a s s u b s t a n t i a l l y (i) That the accused engaged in a sexual act impaired. with a child; (3) Aggravated sexual assault. (ii) That at the time of the sexual act the (a) Aggravated sexual assault by using threats child had attained the age of 12 years but had not or placing in fear. attained the age of 16 years; and (i) That the accused caused another person, ( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g who is of any age, to engage in a sexual act; and grievous bodily harm to any person. (ii) That the accused did so by threatening or (d) Rape of a child who has attained the age of placing that other person in fear that any person 12 years but has not attained the age of 16 years by would be subjected to bodily harm or other harm using threats or placing in fear. (other than by threatening or placing that other per- (i) That the accused engaged in a sexual act son in fear that any person would be subjected to with a child; death, grievous bodily harm, or kidnapping). (ii) That at the time of the sexual act the (b) Aggravated sexual assault by causing bod- child had attained the age of 12 years but had not ily harm. attained the age of 16 years; and (i) That the accused caused another person, (iii) That the accused did so by threatening who is of any age, to engage in a sexual act; and or placing that child in fear that any person will be (ii) That the accused did so by causing bod- s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r ily harm to another person. kidnapping. (c) Aggravated sexual assault upon a person (e) Rape of a child who has attained the age of substantially incapacitated or substantially incapa- IV-73

2011 NCIS Mini-Manual, Page 127 ¶45.b.(3)(c) ble of appraising the act, declining participation, or b e s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r communicating unwillingness. kidnapping. (i) That the accused engaged in a sexual act (d) Aggravated sexual contact by rendering with another person, who is of any age; and another unconscious. (Note: add one of the following elements) ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (ii) That the other person was substantially contact with another person; or incapacitated; (b) That the accused caused sexual contact (iii) That the other person was substantially with or by another person; and incapable of appraising the nature of the sexual act; (ii) That the accused did so by rendering that (iv) That the other person was substantially other person unconscious. incapable of declining participation in the sexual act; (e) Aggravated sexual contact by administra- or tion of drug, intoxicant, or other similar substance. (v) That the other person was substantially ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l incapable of communicating unwillingness to engage contact with another person; or in the sexual act. (b) That the accused caused sexual contact (4) Aggravated sexual assault of a child who has with or by another person; and attained the age of 12 years but has not attained the (ii)(a) That the accused did so by administer- age of 16 years. ing to that other person a drug, intoxicant, or other (a) That the accused engaged in a sexual act similar substance; with a child; and (b) That the accused administered the drug, (b) That at the time of the sexual act the child intoxicant, or other similar substance by force or had attained the age of 12 years but had not attained threat of force or without the knowledge or permis- the age of 16 years. sion of that other person; and (5) Aggravated sexual contact. (c) That, as a result, that other person’s abil- (a) Aggravated sexual contact by using force. ity to appraise or control conduct was substantially ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l impaired. contact with another person; or (6) Aggravated sexual abuse of a child. (b) That the accused caused sexual contact (a) That the accused engaged in a lewd act; with or by another person; and and (ii) That the accused did so by using force (b) That the act was committed with a child against that other person. who has not attained the age of 16 years. ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g (7) Aggravated Sexual Contact with a Child. grievous bodily harm. (a) Aggravated sexual contact with a child who ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l has not attained the age of 12 years. contact with another person; or ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (b) That the accused caused sexual contact contact with a child; or with or by another person; and (b) That the accused caused sexual contact ( i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g with or by a child or by another person with a child; grievous bodily harm to any person. and (c) Aggravated sexual contact by using threats (ii) That at the time of the sexual contact the or placing in fear. child had not attained the age of twelve years. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (b) Aggravated sexual contact with a child who contact with another person; or has attained the age of 12 years but has not attained (b) That the accused caused sexual contact the age of 16 years by using force. with or by another person; and ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (ii) That the accused did so by threatening or contact with a child; or placing that other person in fear that any person will (b) That the accused caused sexual contact IV-74

2011 NCIS Mini-Manual, Page 128 ¶45.b.(8)(c) with or by a child or by another person with a child; child had attained the age of 12 years but had not and attained the age of 16 years; and (ii) That at the time of the sexual contact the (iii) That the accused did so by rendering child had attained the age of 12 years but had not that child or that other person unconscious. attained the age of 16 years; and (f) Aggravated sexual contact with a child who (iii) That the accused did so by using force has attained the age of 12 years but has not attained against that child. the age of 16 years by administration of drug, intox- (c) Aggravated sexual contact with a child who icant, or other similar substance. has attained the age of 12 years but has not attained ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y contact with a child; or harm. (b) That the accused caused sexual contact ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l with or by a child or by another person with a child; contact with a child; or and (b) That the accused caused sexual contact (ii) That at the time of the sexual contact the with or by a child or by another person with a child; child had attained the age of 12 years but had not and attained the age of 16 years; and (ii) That at the time of the sexual contact the ( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d - child had attained the age of 12 years but had not ministering to that child or that other person a drug, attained the age of 16 years; and intoxicant, or other similar substance; ( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g (b) That the accused administered the drug, grievous bodily harm to any person. intoxicant, or other similar substance by force or threat of force or without the knowledge or permis- (d) Aggravated sexual contact with a child who sion of that child or that other person; and has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in (c) That, as a result, that child’s or that other person’s ability to appraise or control conduct was fear. substantially impaired. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (8) Abusive sexual contact. contact with a child; or (a) Abusive sexual contact by using threats or (b) That the accused caused sexual contact placing in fear. with or by a child or by another person with a child; and ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or (ii) That at the time of the sexual contact the child had attained the age of 12 years but had not (b) That the accused caused sexual contact attained the age of 16 years; and with or by another person; and (iii) That the accused did so by threatening (ii) That the accused did so by threatening or placing that other person in fear that any person or placing that child or that other person in fear that would be subjected to bodily harm or other harm any person will be subjected to death, grievous bod- (other than by threatening or placing that other per- ily harm, or kidnapping. son in fear that any person would be subjected to (e) Aggravated sexual contact with a child who death, grievous bodily harm, or kidnapping). has attained the age of 12 years but has not attained (b) Abusive sexual contact by causing bodily the age of 16 years by rendering another or that harm. child unconscious. ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l contact with another person; or contact with a child; or (b) That the accused caused sexual contact (b) That the accused caused sexual contact with or by another person; and with or by a child or by another person with a child; (ii) That the accused did so by causing bod- and ily harm to another person. (ii) That at the time of the sexual contact the (c) Abusive sexual contact upon a person sub- IV-75

2011 NCIS Mini-Manual, Page 129 ¶45.b.(8)(c) stantially incapacitated or substantially incapable of (12) Forcible pandering. appraising the act, declining participation, or com- (a) That the accused compelled a certain per- municating unwillingness. son to engage in an act of prostitution; and ( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l (b) That the accused directed another person to contact with another person; or s a i d p e r s o n , w h o t h e n e n g a g e d i n a n a c t o f (b) That the accused caused sexual contact prostitution. with or by another person; and (13) Wrongful sexual contact. (Note: add one of the following elements) (a) That the accused had sexual contact with (ii) That the other person was substantially another person; incapacitated; (b) That the accused did so without that other (iii) That the other person was substantially person’s permission; and i n c a p a b l e o f a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l (c) That the accused had no legal justification contact; or lawful authorization for that sexual contact. (iv) That the other person was substantially (14) Indecent exposure. incapable of declining participation in the sexual ( a ) T h a t t h e a c c u s e d e x p o s e d h i s o r h e r contact; or genitalia, anus, buttocks, or female areola or nipple; (v) That the other person was substantially (b) That the accused’s exposure was in an in- incapable of communicating unwillingness to engage decent manner; in the sexual contact. (9) Abusive sexual contact with a child. ( c ) T h a t t h e e x p o s u r e o c c u r r e d i n a p l a c e where the conduct involved could reasonably be ex- (i)(a) That the accused engaged in sexual con- pected to be viewed by people other than the ac- tact with a child; or cused’s family or household; and (b) That the accused caused sexual contact (d) That the exposure was intentional. with or by a child or by another person with a child; and c. Explanation. (ii) That at the time of the sexual contact the (1) Definitions. The terms are defined in Para- child had attained the age of 12 years but had not graph 45a.(t), supra. attained the age of 16 years. (2) Character of victim. See Mil. R. Evid. 412 (10) Indecent liberty with a child. concerning rules of evidence relating to the character of the victim of an alleged sexual offense. (a) That the accused committed a certain act or communication; (3) Indecent. In conduct cases, “indecent” gener- ally signifies that form of immorality relating to ( b ) T h a t t h e a c t o r c o m m u n i c a t i o n w a s sexual impurity that is not only grossly vulgar, ob- indecent; scene, and repugnant to common propriety, but also (c) That the accused committed the act or com- tends to excite lust and deprave the morals with m u n i c a t i o n i n t h e p h y s i c a l p r e s e n c e o f a c e r t a i n respect to sexual relations. Language is indecent if it child; tends reasonably to corrupt morals or incite libidi- (d) That the child was under 16 years of age; nous thoughts. The language must violate commu- and nity standards. (e) That the accused committed the act or com- d. Lesser included offenses. The following lesser in- munication with the intent to: cluded offenses are based on internal cross-refer- (i) arouse, appeal to, or gratify the sexual ences provided in the statutory text of Article 120. desires of any person; or See subsection (e) for a further listing of possible (ii) abuse, humiliate, or degrade any person. lesser included offenses. (11) Indecent act. (1) Rape. (a) That the accused engaged in certain con- (a) Article 120—Aggravated sexual contact duct; and (b) Article 134—Assault with intent to commit (b) That the conduct was indecent conduct. rape IV-76

2011 NCIS Mini-Manual, Page 130 ¶45.e.(1)(e)

(c) Article 128—Aggravated assault; Assault; (a) Article 120—Indecent act Assault consummated by a battery ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - (d) Article 80—Attempts mated by a battery; Assault consummated by a bat- (2) Rape of a child. tery upon a child under 16 ( a ) A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l c o n t a c t (c) Article 80—Attempts with a child; Indecent act (10) Indecent liberty with a child. (b) Article 134—Assault with intent to commit (a) Article 120—Indecent act rape (b) Article 80—Attempts (c) Article 128—Aggravated assault; Assault; (11) Indecent act. Article 80—Attempts Assault consummated by a battery; Assault consum- (12) Forcible pandering. Article 80—Attempts mated by a battery upon a child under 16 ( 1 3 ) W r o n g f u l s e x u a l c o n t a c t A r t i c l e 8 0 — A t - (d) Article 80—Attempts tempts (3) Aggravated sexual assault. (14) Indecent exposure. Article 80—Attempts (a) Article 120—Abusive sexual contact e. Additional lesser included offenses. Depending on (b) Article 128—Aggravated assault; Assault; the factual circumstances in each case, to include the Assault consummated by a battery type of act and level of force involved, the following (c) Article 80—Attempts offenses may be considered lesser included in addi- (4) Aggravated sexual assault of a child. tion to those offenses listed in subsection d. (See subsection (d) for a listing of the offenses that are (a) Article 120—Abusive sexual contact with a specifically cross-referenced within the statutory text child; Indecent act of Article 120.) The elements of the proposed lesser (b) Article 128—Aggravated assault; Assault; included offense should be compared with the ele- Assault consummated by a battery; Assault consum- ments of the greater offense to determine if the ele- mated by a battery upon a child under 16 ments of the lesser offense are derivative of the (c) Article 80—Attempts greater offense and vice versa. See Appendix 23 for (5) Aggravated sexual contact. further explanation of lesser included offenses. (a) Article 128—Aggravated assault; Assault; (1)(a) Rape by using force. Article 120—Indecent Assault consummated by a battery act; Wrongful sexual contact (b) Article 80—Attempts (1)(b) Rape by causing grievous bodily harm. Ar- (6) Aggravated sexual abuse of a child. t i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y c a u s i n g b o d i l y h a r m ; A b u s i v e s e x u a l c o n t a c t b y c a u s i n g (a) Article 120—Indecent act bodily harm; Indecent act; Wrongful sexual contact ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - (1)(c) Rape by using threats or placing in fear. mated by a battery; Assault consummated by a bat- A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y u s i n g tery upon a child under 16 threats or placing in fear; Abusive sexual contact by (c) Article 80—Attempts u s i n g t h r e a t s o r p l a c i n g i n f e a r ; I n d e c e n t a c t ; (7) Aggravated sexual contact with a child. Wrongful sexual contact (a) Article 120—Indecent act ( 1 ) ( d ) R a p e b y r e n d e r i n g a n o t h e r u n c o n s c i o u s . ( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - Article 120—Aggravated sexual assault upon a per- mated by a battery; Assault consummated by a bat- son substantially incapacitated; Abusive sexual con- tery upon a child under 16 t a c t u p o n a p e r s o n s u b s t a n t i a l l y i n c a p a c i t a t e d ; (c) Article 80—Attempts Indecent act; Wrongful sexual contact (8) Abusive sexual contact. (1)(e) Rape by administration of drug, intoxicant, or other similar substance. Article 120—Aggravated ( a ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m - sexual assault upon a person substantially incapaci- mated by a battery tated; Abusive sexual contact upon a person substan- (b) Article 80—Attempts tially incapacitated; Indecent act; Wrongful sexual (9) Abusive sexual contact with a child. contact IV-77

2011 NCIS Mini-Manual, Page 131 ¶45.e.(2)(a) - (f)

(2)(a) - (f) Rape of a child who has not attained (2) Aggravated sexual assault. Dishonorable dis- 12 years; Rape of a child who has attained the age charge, forfeiture of all pay and allowances, and of 12 years but has not attained the age of 16 years. confinement for 30 years. Article 120—Aggravated sexual assault of a child; (3) Aggravated sexual assault of a child who has Aggravated sexual abuse of a child; Abusive sexual attained the age of 12 years but has not attained the contact with a child; Indecent liberty with a child; age of 16 years, aggravated sexual abuse of a child, Wrongful sexual contact aggravated sexual contact, and aggravated sexual ( 3 ) A g g r a v a t e d s e x u a l a s s a u l t . A r t i c l e 1 2 0 — contact with a child. Dishonorable discharge, forfei- Wrongful sexual contact; Indecent act ture of all pay and allowances, and confinement for (4) Aggravated sexual assault of a child. Article 20 years. 120—Aggravated sexual abuse of a child; Indecent (4) Abusive sexual contact with a child and inde- liberty with a child; Wrongful sexual contact cent liberty with a child. Dishonorable discharge, (5)(a) Aggravated sexual contact by force. Article forfeiture of all pay and allowances, and confine- 120—Indecent act; Wrongful sexual contact ment for 15 years. ( 5 ) ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g ( 5 ) A b u s i v e s e x u a l c o n t a c t . D i s h o n o r a b l e d i s - grievous bodily harm. Article 120—Abusive sexual charge, forfeiture of all pay and allowances, and c o n t a c t b y c a u s i n g b o d i l y h a r m ; I n d e c e n t a c t ; confinement for 7 years. Wrongful sexual contact (6) Indecent act or forcible pandering. Dishonor- (5)(c) Aggravated sexual contact by using threats able discharge, forfeiture of all pay and allowances, or placing in fear. Article 120—Abusive sexual con- and confinement for 5 years. tact by using threats or placing in fear; Indecent act; (7) Wrongful sexual contact or indecent exposure. Wrongful sexual contact Dishonorable discharge, forfeiture of all pay and al- ( 5 ) ( d ) A g g r a v a t e d s e x u a l c o n t a c t b y r e n d e r i n g lowances, and confinement for 1 year. another unconscious. Article 120—Abusive sexual g. Sample specifications. contact upon a person substantially incapacitated; (1) Rape. Indecent act; Wrongful sexual contact (a) Rape by using force. (5)(e) Aggravated sexual contact by administra- ( i ) R a p e b y u s e o r d i s p l a y o f d a n g e r o u s tion of drug, intoxicant, or other similar substance. weapon or object. In that (personal ju- Article 120—Abusive sexual contact upon a person risdiction data), did (at/on board-location) (subject- substantially incapacitated; Indecent act; Wrongful m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r sexual contact about 20 , cause to en- (6) Aggravated sexual abuse of a child. Article gage in a sexual act, to wit: , by (using 120—Aggravated sexual contact with a child; Ag- a d a n g e r o u s w e a p o n o r o b j e c t , t o gravated sexual abuse of a child; Indecent liberty w i t : a g a i n s t ( h i m ) ( h e r ) ) ( d i s p l a y i n g a with a child; Wrongful sexual contact dangerous weapon or object, to wit: to (7) Aggravated sexual contact with a child. Arti- (him)(her)). cle 120—Abusive sexual contact with a child; Inde- (ii) Rape by suggestion of possession of dan- cent liberty with a child; Wrongful sexual contact g e r o u s w e a p o n o r o b j e c t . I n t h a t ( - (8) Abusive sexual contact. Article 120—Wrong- personal jurisdiction data), did (at/on board-location) ful sexual contact; Indecent act (subject-matter jurisdiction data, if required), on or (9) Abusive sexual contact with a child. Article about 20 , cause to en- 120—Indecent liberty with a child; Wrongful sexual gage in a sexual act, to wit: , by the contact suggestion of possession of a dangerous weapon or (10) Indecent liberty with a child. Article 120— an object that was used in a manner to cause (him- Wrongful sexual contact ) ( h e r ) t o b e l i e v e i t w a s a d a n g e r o u s w e a p o n o r object. f. Maximum punishment. ( i i i ) R a p e b y u s i n g p h y s i c a l v i o l e n c e , (1) Rape and rape of a child. Death or such other strength, power, or restraint to any person. In that- punishment as a court martial may direct. (personal jurisdiction data), did (at/on IV-78

2011 NCIS Mini-Manual, Page 132 ¶45.g.(2)(c) board-location) (subject-matter jurisdiction data, if to wit: with , a child who r e q u i r e d ) , o n o r a b o u t 2 0 , had not attained the age of 12 years. c a u s e t o e n g a g e i n a s e x u a l a c t , t o (b) Rape of a child who has attained the age of w i t : , b y u s i n g ( p h y s i c a l v i o l e n c e ) 12 years but has not attained the age of 16 years by (strength) (power) (restraint applied to ), using force. sufficient that (he)(she) could not avoid or escape (i) Rape of a child who has attained the age the sexual conduct. of 12 years but has not attained the age of 16 years (b) Rape by causing grievous bodily harm. In by use or display of dangerous weapon or object. In t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n (at/on board-location) (subject-matter jurisdiction da- board-location) (subject-matter jurisdiction data, if ta, if required), on or about 20 , required), on or about 20 , engage in a c a u s e t o e n g a g e i n a s e x u a l a c t , t o sexual act, to wit: , with , a child who had wit: , by causing grievous bodily harm attained the age of 12 years, but had not attained the upon (him)(her)( ), to wit: a (broken leg- age of 16 years, by (using a dangerous weapon or )(deep cut)(fractured skull)( ). object, to wit: against (him)(her)) (displaying a d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o (c) Rape by using threats or placing in fear. In (him)(her)). t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d (at/on board-location) (subject-matter jurisdiction da- (ii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years ta, if required), on or about 20 , by suggestion of possession of dangerous weapon or c a u s e t o e n g a g e i n a s e x u a l a c t , t o o b j e c t . I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , w i t : , b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m - did (at/on board-location) (subject-matter jurisdiction )(her) in fear] that (he)(she) ( ) will be data, if required), on or about 20 , en- subjected to (death)(grievous bodily harm) (kidnap- gage in a sexual act, to wit: , with , a ping) by . child who had attained the age of 12 years, but had (d) Rape by rendering another unconscious. In not attained the age of 16 years, by the suggestion of t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d possession of a dangerous weapon or an object that (at/on board-location) (subject-matter jurisdiction da- was used in a manner to cause (him)(her) to believe ta, if required), on or about 20 , it was a dangerous weapon or object. c a u s e t o e n g a g e i n a s e x u a l a c t , t o (iii) Rape of a child who has attained the w i t : , b y r e n d e r i n g ( h i m ) ( h e r ) age of 12 years but has not attained the age of 16 unconscious. years by using physical violence, strength, power, or (e) Rape by administration of drug, intoxicant, restraint to any person. In that (personal ju- or other similar substance. In that (personal risdiction data), did (at/on board-location) (subject- jurisdiction data), did (at/on board-location) (subject- m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r about 20 , engage in a sexual act, to about 20 , cause to en- wit: with , a child who had attained the gage in a sexual act, to wit: , by ad- age of 12 years, but had not attained the age of 16 ministering to (him)(her) a drug, intoxicant, or other y e a r s , b y u s i n g ( p h y s i c a l v i o l e n c e ) ( s t r e n g t h ) similar substance, (by force) (by threat of force) (power) (restraint applied to ) sufficient that (without (his)(her) knowledge or permission), and ( h e ) ( s h e ) c o u l d n o t a v o i d o r e s c a p e t h e s e x u a l thereby substantially impaired (his)(her) ability to conduct. [(appraise) (control)][(his) (her)] conduct. (c) Rape of a child who has attained the age of (2) Rape of a child. 12 years but has not attained the age of 16 years by causing grievous bodily harm. In that (per- (a) Rape of a child who has not attained the sonal jurisdiction data), did (at/on board-location) age of 12 years. In that (personal juris- (subject-matter jurisdiction data, if required), on or d i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t - about 20 , engage in a sexual act, to m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r wit: , with , a child who had attained about 20 , engage in a sexual act, the age of 12 years, but had not attained the age of IV-79

2011 NCIS Mini-Manual, Page 133 ¶45.g.(2)(c)

16 years, by causing grievous bodily harm upon (b) Aggravated sexual assault by causing bod- ( h i m ) ( h e r ) ( ) , t o w i t : a ( b r o k e n l e g ) ( d e e p ily harm. In that (personal jurisdiction data), cut)(fractured skull)( ). did (at/on board-location) (subject-matter jurisdiction (d) Rape of a child who has attained the age of d a t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 , 12 years but has not attained the age of 16 years by cause to engage in a sexual act, to wit: , using threats or placing in fear. In that (per- by causing bodily harm upon (him)(her)( ), to sonal jurisdiction data), did (at/on board-location) wit: . (subject-matter jurisdiction data, if required), on or (c) Aggravated sexual assault upon a person about 20 , engage in a sexual act, to substantially incapacitated or substantially incapa- wit: , with , a child who had attained ble of appraising the act, declining participation, or the age of 12 years, but had not attained the age of c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( p - 1 6 y e a r s , b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m ) ( h e r ) i n ersonal jurisdiction data), did (at/on board-location) fear] that (he)(she) ( ) would be subjected to (subject-matter jurisdiction data, if required), on or ( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g ) about 20 , engage in a sexual act, to by . wit: with , who was (substantially in- (e) Rape of a child who has attained the age of capacitated) [substantially incapable of (appraising 12 years but has not attained the age of 16 years by the nature of the sexual act)(declining participation rendering that child unconscious. In that (per- in the sexual act) (communicating unwillingness to sonal jurisdiction data), did (at/on board-location) engage in the sexual act)]. (subject-matter jurisdiction data, if required), on or (4) Aggravated sexual assault of a child who has about 20 , engage in a sexual act, to attained the age of 12 years but has not attained the wit: , with , a child who had attained age of 16 years. In that (personal jurisdiction the age of 12 years, but had not attained the age of data), did (at/on board-location) (subject-matter ju- 16 years, by rendering (him)(her) unconscious. r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r about 20 , engage in a sexual act, to (f) Rape of a child who has attained the age of wit: with , who had attained the age 12 years but has not attained the age of 16 years by of 12 years, but had not attained the age of 16 years. administration of drug, intoxicant, or other similar substance. In that (personal jurisdiction da- (5) Aggravated sexual contact. ta), did (at/on board-location) (subject-matter juris- (a) Aggravated sexual contact by using force. d i c t i o n d a t a , i f r e q u i r e d ) , o n o r (i) Aggravated sexual contact by use or dis- about 20 , engage in a sexual act, to p l a y o f d a n g e r o u s w e a p o n o r o b j e c t . I n t h a t - wit: ,with , a child who had attained the (personal jurisdiction data), did (at/on board- age of 12 years, but had not attained the age of 16 l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - years, by administering to (him)(her) a drug, intoxi- q u i r e d ) , o n o r a b o u t 2 0 , [ ( e n g a g e i n cant, or other similar substance (by force) (by threat sexual contact, to wit: with ) (cause of force) (without (his)(her) knowledge or permis- t o e n g a g e i n s e x u a l c o n t a c t , t o w i t : , sion), and thereby substantially impaired (his)(her) with ) (cause sexual contact with or by , ability to [(appraise)(control)][(his)(her)] conduct. to wit: )] by (using a dangerous weapon or (3) Aggravated sexual assault. object, to wit: against (him)(her)) (displaying a d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o (a) Aggravated sexual assault by using threats (him)(her)). or placing in fear. In that (personal jurisdic- tion data), did (at/on board-location) (subject-matter (ii) Aggravated sexual contact by suggestion j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r of possession of dangerous weapon or object. In about 20 , cause to engage in a t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n s e x u a l a c t , t o w i t : , b y [ t h r e a t e n i n g ] board-location) (subject-matter jurisdiction data, if [ p l a c i n g ( h i m ) ( h e r ) i n f e a r o f ] [ ( p h y s i c a l i n j u r y required), on or about 20 , [(engage in to ) (injury to ’s property)(accusation of s e x u a l c o n t a c t , t o w i t : w i t h - c r i m e ) ( e x p o s i t i o n o f s e c r e t ) ( a b u s e o f m i l i t a r y )(cause to engage in sexual contact, to position)( )]. wit: , with ) (cause sexual contact with or by , to wit: )] by the suggestion of IV-80

2011 NCIS Mini-Manual, Page 134 ¶45.g.(7)(b)(i) possession of a dangerous weapon or an object that In that (personal jurisdiction data), did (at/on was used in a manner to cause (him)(her)( ) to board-location) (subject-matter jurisdiction data, if believe it was a dangerous weapon or object. required), on or about 20 , [(engage in ( i i i ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g s e x u a l c o n t a c t , t o w i t : w i t h - physical violence, strength, power, or restraint to )(cause to engage in sexual contact, to any person. In that (personal jurisdiction da- wit: , with ) (cause sexual contact with ta), did (at/on board-location) (subject-matter juris- or by , to wit: )] by administering to d i c t i o n d a t a , i f r e q u i r e d ) , o n o r (him)(her)( ) a drug, intoxicant, or other similar about 20 , [(engage in sexual contact, to substance, (by force) (by threat of force) (without w i t : w i t h ) ( c a u s e t o e n g a g e i n ( h i s ) ( h e r ) ( ) k n o w l e d g e o r p e r m i s s i o n ) , a n d s e x u a l c o n t a c t , t o w i t : , w i t h ) ( c a u s e thereby substantially impaired (his)(her)( ) abil- sexual contact with or by , to wit: )] ity to [(appraise) (control)] [(his) (her)] conduct. by using (physical violence) (strength) (power) (re- ( 6 ) A g g r a v a t e d s e x u a l a b u s e o f a c h i l d . I n s t r a i n t a p p l i e d t o ) , s u f f i c i e n t t h a t t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n (he)(she)( ) could not avoid or escape the sex- board-location) (subject-matter jurisdiction data, if ual conduct. required), on or about 20 , engage in a ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g lewd act, to wit: with , a child who had grievous bodily harm. In that (personal juris- not attained the age of 16 years. d i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t - (7) Aggravated sexual contact with a child. m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r (a) Aggravated sexual contact with a child who about 20 , [(engage in sexual contact, to has not attained the —age of 12 years. In that wit: with )(cause to engage in sex- (personal jurisdiction data), did (at/on board-loca- ual contact, to wit: , with ) (cause sexual tion) (subject-matter jurisdiction data, if required), contact with or by , to wit: )] by causing on or about 20 , [(engage in sexual con- g r i e v o u s b o d i l y h a r m u p o n ( h i m ) ( h e r ) ( ) , t o tact, to wit: with , a child who had not wit: a (broken leg)(deep cut)(fractured skull)( ). attained the age of 12 years)(cause to engage (c) Aggravated sexual contact by using threats in sexual contact, to wit: , with , a child or placing in fear. In that (personal jurisdic- who had not attained the age of 12 years) (cause tion data), did (at/on board-location) (subject-matter sexual contact with or by , a child who had j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r not attained the age of 12 years, to wit: )]. about 20 , [(engage in sexual contact, to (b) Aggravated sexual contact with a child who w i t : w i t h ) ( c a u s e t o e n g a g e i n has attained the age of 12 years but has not attained sexual contact, to wit: , with ) (cause the age of 16 years by using force. sexual contact with or by , to wit: )] by (i) Aggravated sexual contact with a child [(threatening (him)(her)( )] [(placing(him)(her) who has attained the age of 12 years but has not ( ) in fear] that (he)(she)( ) will be sub- attained the age of 16 years by use or display of jected to (death)(grievous bodily harm)(kidnapping) dangerous weapon or object. In that (personal by . jurisdiction data), did (at/on board-location) (subject- (d) Aggravated sexual contact by rendering an- m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r other unconscious. In that (personal jurisdic- about 20 , [(engage in sexual contact, to tion data), did (at/on board-location) (subject-matter wit: with , a child who had attained j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r the age of 12 years, but had not attained the age of about 20 , [(engage in sexual contact, to 16 years)(cause to engage in sexual contact, w i t : w i t h ) ( c a u s e t o e n g a g e i n to wit: , with , a child who had attained sexual contact, to wit: , with ) (cause the age of 12 years, but had not attained the age of sexual contact with or by , to wit: )] by 16 years) (cause sexual contact with or by , a rendering (him)(her)( ) unconscious. child who had attained the age of 12 years, but had (e) Aggravated sexual contact by administra- not attained the age of 16 years, to wit: )] by tion of drug, intoxicant, or other similar substance. ( u s i n g a d a n g e r o u s w e a p o n o r o b j e c t , t o IV-81

2011 NCIS Mini-Manual, Page 135 ¶45.g.(7)(b)(i) wit: against (him)(her)( )) (displaying a years)(cause to engage in sexual contact, to d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o wit: , with , a child who had attained (him)(her)( )). the age of 12 years, but had not attained the age of (ii) Aggravated sexual contact with a child 16 years) (cause sexual contact with or by , a who has attained the age of 12 years but has not child who had attained the age of 12 years, but had attained the age of 16 years by suggestion of posses- not attained the age of 16 years, to wit: )] by sion of dangerous weapon or object. In that c a u s i n g g r i e v o u s b o d i l y h a r m u p o n ( h i m - (personal jurisdiction data), did (at/on board-loca- )(her)( ), to wit: a (broken leg)(deep cut)(fr- tion) (subject-matter jurisdiction data, if required), actured skull)( ). on or about 20 , [(engage in sexual con- (d) Aggravated sexual contact with a child who tact, to wit: with , a child who had at- has attained the age of 12 years but has not attained tained the age of 12 years, but had not attained the the age of 16 years by using threats or placing in age of 16 years)(cause to engage in sexual fear. In that (personal jurisdiction data), did contact, to wit: , with , a child who had (at/on board-location) (subject-matter jurisdiction da- attained the age of 12 years, but had not attained the ta, if required), on or about 20 , [(engage a g e o f 1 6 y e a r s ) ( c a u s e s e x u a l c o n t a c t w i t h o r in sexual contact, to wit: with , a child by , a child who had attained the age of 12 who had attained the age of 12 years, but had not years, but had not attained the age of 16 years, to attained the age of 16 years)(cause to engage wit: )] by the suggestion of possession of a in sexual contact, to wit: , with , a child dangerous weapon or an object that was used in a who had attained the age of 12 years, but had not manner to cause (him)(her)( ) to believe it was attained the age of 16 years) (cause sexual contact a dangerous weapon or object. with or by , a child who had attained the age of (iii) Aggravated sexual contact with a child 12 years, but had not attained the age of 16 years, to who has attained the age of 12 years but has not w i t : ) ] b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m - attained the age of 16 years by using physical vio- )(her)( ) in fear] that (he)(she)( ) will be lence, strength, power, or restraint to any person. In s u b j e c t e d t o ( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n - t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n apping) by . board-location) (subject-matter jurisdiction data, if (e) Aggravated sexual contact with a child who required), on or about 20 , [(engage in has attained the age of 12 years but has not attained sexual contact, to wit: with , a child the age of 16 years by rendering that child or an- who had attained the age of 12 years, but had not other unconscious. In that (personal jurisdic- attained the age of 16 years)(cause to engage tion data), did (at/on board-location) (subject-matter in sexual contact, to wit: , with , a child j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r who had attained the age of 12 years, but had not about 20 , [(engage in sexual contact, to attained the age of 16 years) (cause sexual contact wit: with , a child who had attained with or by , a child who had not attained the the age of 12 years, but had not attained the age of age of 12 years, but had not attained the age of 16 16 years)(cause to engage in sexual contact, years, to wit: )] by using (physical violence) to wit: , with , a child who had attained (strength) (power) (restraint applied to ) suffi- the age of 12 years, but had not attained the age of cient that (he)(she)( ) could not avoid or escape 16 years) (cause sexual contact with or by , a the sexual conduct. child who had attained the age of 12 years, but had (c) Aggravated sexual contact with a child who not attained the age of 16 years, to wit: )] by has attained the age of 12 years but has not attained rendering (him)(her)( ) unconscious. t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y (f) Aggravated sexual contact with a child who harm. In that (personal jurisdiction data), did has attained the age of 12 years but has not attained (at/on board-location) (subject-matter jurisdiction da- the age of 16 years by administration of drug, intox- t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 , icant, or other similar substance. In that (per- [ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t - sonal jurisdiction data), did (at/on board-location) : with , a child who had attained the (subject-matter jurisdiction data, if required), on or age of 12 years, but had not attained the age of 16 about 20 , [(engage in sexual contact, to IV-82

2011 NCIS Mini-Manual, Page 136 ¶45.g.(14) wit: with , a child who had attained the sexual contact) (communicating unwillingness to the age of 12 years but had not attained the age of engage in the sexual contact)]. 16 years)(cause to engage in sexual contact, to (9) Abusive sexual contact with a child. In that- wit: , with , a child who had attained ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n the age of 12 years but had not attained the age of board-location) (subject-matter jurisdiction data, if 16 years) (cause sexual contact with or by , a required), on or about 20 , [(engage in child who had attained the age of 12 years but had sexual contact, to wit: with , a child not attained the age of 16 years, to wit: )] by who had attained the age of 12 years but had not administering to (him)(her)( ) a drug, intoxi- attained the age of 16 years)(cause to engage cant, or other similar substance (by force) (by threat in sexual contact, to wit: , with , a child of force) (without (his)(her)( ) knowledge or who had attained the age of 12 years but had not p e r m i s s i o n ) , a n d t h e r e b y s u b s t a n t i a l l y i m p a i r e d attained the age of 16 years) (cause sexual contact ( h i s ) ( h e r ) ( ) a b i l i t y t o [ ( a p p r a i s e ) ( c o n t r o l ) ] with or by , a child who had attained the age [(his) (her)] conduct. of 12 years but had not attained the age of 16 years, (8) Abusive sexual contact. to wit: )]. (a) Abusive sexual contact by using threats or ( 1 0 ) I n d e c e n t l i b e r t i e s w i t h a c h i l d . I n t h a t - placing in fear. In that (personal jurisdiction ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n data), did (at/on board-location) (subject-matter ju- board-location) (subject-matter jurisdiction data, if r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r r e q u i r e d ) , o n o r a b o u t 2 0 , ( t a k e i n d e - about 20 , [(engage in sexual contact, to cent liberties) (engage in indecent conduct) in the wit: with ) (cause to engage in physical presence of , a (female) (male) under sexual contact, to wit: , with ) (cause 16 years of age, by (communicating the words: to sexual contact with or by , to wit: )] by w i t : ) ( e x p o s i n g o n e ’ s p r i v a t e p a r t s , t o [(threatening) (placing (him)(her)( ) in fear of)] wit: ) ( ), with the intent to [(arouse) (ap- [ ( p h y s i c a l i n j u r y t o ) ( i n j u r y t o ’ s peal to) (gratify) the (sexual desire) of the p r o p e r t y ) ( a c c u s a t i o n o f c r i m e ) ( e x p o s i t i o n o f (or )] [(abuse)(humiliate)(degrade) ]. secret)(abuse of military position)( )]. (11) Indecent act. In that (personal juris- (b) Abusive sexual contact by causing bodily d i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t - harm. In that (personal jurisdiction data), did m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r (at/on board-location) (subject-matter jurisdiction da- a b o u t 2 0 , w r o n g f u l l y c o m m i t i n d e c e n t t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 , conduct, to wit . [(engage in sexual contact, to wit: with ) (12) Forcible pandering. In that (personal ( c a u s e t o e n g a g e i n s e x u a l c o n t a c t , t o jurisdiction data), did (at/on board-location), (sub- wit: , with ) (cause sexual contact with or j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r by , to wit: )] by causing bodily harm about 20 , compel to engage in upon (him)(her)( ), to wit: ( ). [ ( a s e x u a l a c t ) ( s e x u a l c o n t a c t ) ( l e w d a c t ) , t o (c) Abusive sexual contact by engaging in a wit: ] for the purpose of receiving money or sexual act with a person substantially incapacitated other compensation with (a) person(s) to be or substantially incapable of appraising the act, de- directed to (him)(her) by the said . clining participation, or substantially incapable of ( 1 3 ) W r o n g f u l s e x u a l c o n t a c t . I n t h a t ( p - c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( - ersonal jurisdiction data), did (at/on board-location), personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or (subject-matter jurisdiction data, if required), on or a b o u t 2 0 , e n g a g e i n s e x u a l c o n t a c t about 20 , [(engage in sexual contact, to with , to wit: , and such sexual contact wit: with ) (cause to engage in was without legal justification or lawful authoriza- sexual contact, to wit: , with ) (cause tion and without the permission of . sexual contact with or by , to wit: )] ( 1 4 ) I n d e c e n t e x p o s u r e . I n t h a t ( p e r s o n a l while (he)(she)( ) was [substantially incapaci- jurisdiction data), did (at/on board-location), (sub- tated] [substantially incapable of (appraising the na- j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r ture of the sexual contact) (declining participation in a b o u t 2 0 , i n t e n t i o n a l l y ( e x p o s e i n a n IV-83

2011 NCIS Mini-Manual, Page 137 ¶45.g.(14) indecent manner (his) (her) ( ) ( ) while (2) That the accused had knowledge, or should ( a t t h e b a r r a c k s w i n d o w ) ( i n a p u b l i c p l a c e ) have had knowledge, that the specific person would ( ).” be placed in reasonable fear of death or bodily harm to himself or herself or a member of his or her 45a. Article 120a—Stalking immediate family; and a. Text of statute. (3) That the accused’s acts induced reasonable (a) Any person subject to this section: fear in the specific person of death or bodily harm to himself or herself or to a member of his or her (1) who wrongfully engages in a course of immediate family. conduct directed at a specific person that would cause a reasonable person to fear death or bodily c. Explanation. See Paragraph 54.c(1)(a) for an ex- harm, including sexual assault, to himself or her- planation of “bodily harm”. self or a member of his or her immediate family; d. Lesser included offenses. Article 80 — attempts. ( 2 ) w h o h a s k n o w l e d g e , o r s h o u l d h a v e e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , knowledge, that the specific person will be placed forfeiture of all pay and allowances, and confine- in reasonable fear of death or bodily harm, in- ment for 3 years. cluding sexual assault, to himself or herself or a f. Sample Specification. member of his or her immediate family; and In that (personal jurisdiction data), who (3) whose acts induce reasonable fear in the ( k n e w ) ( s h o u l d h a v e k n o w n ) t h a t w o u l d b e specific person of death or bodily harm, including placed in reasonable fear of (death)(bodily harm) to sexual assault, to himself or herself or to a mem- (himself) (herself) ( , a member of his or her ber of his or her immediate family; is guilty of i m m e d i a t e f a m i l y ) d i d ( a t / o n b o a r d - - l o c a t i o n ) , stalking and shall be punished as a court-martial (subject-matter jurisdiction data, if required), (on or may direct. a b o u t 2 0 ) ( f r o m a b o u t t o (b) In this section: a b o u t 2 0 ) , w r o n g f u l l y e n g a g e i n a c o u r s e o f c o n d u c t d i r e c t e d a t , t o (1) The term “course of conduct” means: wit: thereby inducing in , a (A) a repeated maintenance of visual or r e a s o n a b l e f e a r o f ( d e a t h ) ( b o d i l y h a r m ) t o ( h i m - physical proximity to a specific person; or self)(herself) ( , a member of his or her imme- ( B ) a r e p e a t e d c o n v e y a n c e o f v e r b a l diate family).” threat, written threats, or threats implied by con- duct, or a combination of such threats, directed 46. Article 121—Larceny and wrongful at or towards a specific person. appropriation (2) The term “repeated,” with respect to a. Text of statute. conduct, means two or more occasions of such ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o conduct. wrongfully takes, obtains, or withholds, by any (3) The term “immediate family,” in the means, from the possession of the owner or of case of a specific person, means a spouse, parent, any other person any money, personal property, child, or sibling of the person, or any other fam- or article of value of any kind— ily member, relative, or intimate partner of the (1) with intent permanently to deprive or person who regularly resides in the household of defraud another person of the use and benefit of the person or who within the six months preced- property or to appropriate it to his own use or ing the commencement of the course of conduct the use of any person other than the owner, steals regularly resided in the household of the person. that property and is guilty of larceny; or b. Elements. (2) with intent temporarily to deprive or ( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y e n g a g e d i n a defraud another person of the use and benefit of course of conduct directed at a specific person that property or to appropriate it to his own use or would cause a reasonable person to fear death or the use of any person other than the owner, is bodily harm to himself or herself or a member of his guilty of wrongful appropriation. or her immediate family; ( b ) A n y p e r s o n f o u n d g u i l t y o f l a r c e n y o r IV-84

2011 NCIS Mini-Manual, Page 138 ¶46.c.(1)(c)(i)

wrongful appropriation shall be punished as a ( b ) T a k i n g , o b t a i n i n g , o r w i t h h o l d i n g . T h e r e court-martial may direct. must be a taking, obtaining, or withholding of the b. Elements. property by the thief. For instance, there is no taking (1) Larceny. if the property is connected to a building by a chain and the property has not been disconnected from the (a) That the accused wrongfully took, obtained, building; property is not “obtained” by merely ac- or withheld certain property from the possession of quiring title thereto without exercising some posses- the owner or of any other person; sory control over it. As a general rule, however, any ( b ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n movement of the property or any exercise of domin- person; ion over it is sufficient if accompanied by the requi- (c) That the property was of a certain value, or site intent. Thus, if an accused enticed another’s of some value; and horse into the accused’s stable without touching the (d) That the taking, obtaining, or withholding animal, or procured a railroad company to deliver by the accused was with the intent permanently to another’s trunk by changing the check on it, or ob- deprive or defraud another person of the use and tained the delivery of another’s goods to a person or benefit of the property or permanently to appropriate place designated by the accused, or had the funds of the property for the use of the accused or for any another transferred to the accused’s bank account, person other than the owner. the accused is guilty of larceny if the other elements  [Note: If the property is alleged to be military prop- of the offense have been proved. A person may erty, as defined in paragraph 32c(1), add the follow- “obtain” the property of another by acquiring pos- ing element] session without title, and one who already has pos- (e) That the property was military property. session of the property of another may “obtain” it by (2) Wrongful appropriation. later acquiring title to it. A “withholding” may arise as a result of a failure to return, account for, or (a) That the accused wrongfully took, obtained, deliver property to its owner when a return, account- or withheld certain property from the possession of ing, or delivery is due, even if the owner has made the owner or of any other person; no demand for the property, or it may arise as a ( b ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n result of devoting property to a use not authorized person; by its owner. Generally, this is so whether the per- (c) That the property was of a certain value, or son withholding the property acquired it lawfully or of some value; and unlawfully. See subparagraph c(1)(f) below. Howev- (d) That the taking, obtaining, or withholding er, acts which constitute the offense of unlawfully by the accused was with the intent temporarily to receiving, buying, or concealing stolen property or deprive or defraud another person of the use and of being an accessory after the fact are not included benefit of the property or temporarily to appropriate within the meaning of “withholds.” Therefore, nei- the property for the use of the accused or for any ther a receiver of stolen property nor an accessory person other than the owner. after the fact can be convicted of larceny on that c. Explanation. basis alone. The taking, obtaining, or withholding (1) Larceny. must be of specific property. A debtor does not withhold specific property from the possession of a (a) In general. A wrongful taking with intent creditor by failing or refusing to pay a debt, for the permanently to deprive includes the common law relationship of debtor and creditor does not give the offense of larceny; a wrongful obtaining with intent creditor a possessory right in any specific money or p e r m a n e n t l y t o d e f r a u d i n c l u d e s t h e o f f e n s e other property of the debtor. formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to (c) Ownership of the property. appropriate includes the offense formerly known as (i) In general. Article 121 requires that the embezzlement. Any of the various types of larceny taking, obtaining, or withholding be from the posses- under Article 121 may be charged and proved under sion of the owner or of any other person. Care, a specification alleging that the accused “did steal” custody, management, and control are among the the property in question. definitions of possession. IV-85

2011 NCIS Mini-Manual, Page 139 3DJH,9

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 F 3DUDJUDSK/DUFHQ\DQGZURQJIXODSSURSULDWLRQWKH1RWHIROORZLQJSDUDJUDSKE  G LVDPHQGHGWRUHDGDVIROORZV

1RWH,IWKHSURSHUW\LVDOOHJHGWREHPLOLWDU\SURSHUW\DVGHILQHGLQSDUDJUDSKF  K DGGWKHIROORZLQJHOHPHQW  Executive Order: 2010 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 140 ¶46.c.(1)(c)(ii)

( i i ) O w n e r . “ O w n e r ” r e f e r s t o t h e p e r s o n or intent of the principal which that person does not who, at the time of the taking, obtaining, or with- share. holding, had the superior right to possession of the (e) False pretense. With respect to obtaining p r o p e r t y i n t h e l i g h t o f a l l c o n f l i c t i n g i n t e r e s t s property by false pretense, the false pretense may be therein which may be involved in the particular case. made by means of any act, word, symbol, or token. For instance, an organization is the true owner of its The pretense must be in fact false when made and funds as against the custodian of the funds charged when the property is obtained, and it must be know- with the larceny thereof. ingly false in the sense that it is made without a (iii) Any other person. “Any other person” belief in its truth. A false pretense is a false repre- means any person—even a person who has stolen sentation of past or existing fact. In addition to other the property—who has possession or a greater right kinds of facts, the fact falsely represented by a per- to possession than the accused. In pleading a viola- son may be that person’s or another’s power, author- tion of this article, the ownership of the property ity, or intention. Thus, a false representation by a may be alleged to have been in any person, other person that person presently intends to perform a than the accused, who at the time of the theft was a certain act in the future is a false representation of general owner or a special owner thereof. A general an existing fact—the intention—and thus a false pre- owner of property is a person who has title to it, tense. Although the pretense need not be the sole whether or not that person has possession of it; a cause inducing the owner to part with the property, special owner, such as a borrower or hirer, is one it must be an effective and intentional cause of the who does not have title but who does have posses- o b t a i n i n g . A f a l s e r e p r e s e n t a t i o n m a d e a f t e r t h e sion, or the right of possession, of the property. property was obtained will not result in a violation (iv) Person. “Person,” as used in referring to of Article 121. A larceny is committed when a per- one from whose possession property has been taken, son obtains the property of another by false pretense obtained, or withheld, and to any owner of property, and with intent to steal, even though the owner nei- includes (in addition to a natural person) a govern- ther intended nor was requested to part with title to ment, a corporation, an association, an organization, t h e p r o p e r t y . T h u s , a p e r s o n w h o g e t s a n o t h e r ’ s and an estate. Such a person need not be a legal watch by pretending that it will be borrowed briefly entity. and then returned, but who really intends to sell it, is guilty of larceny. (d) Wrongfulness of the taking, obtaining, or withholding. The taking, obtaining, or withholding (f) Intent. of the property must be wrongful. As a general rule, ( i ) I n g e n e r a l . T h e o f f e n s e o f l a r c e n y r e - a taking or withholding of property from the posses- quires that the taking, obtaining, or withholding by sion of another is wrongful if done without the con- the thief be accompanied by an intent permanently sent of the other, and an obtaining of property from to deprive or defraud another of the use and benefit the possession of another is wrongful if the obtain- of property or permanently to appropriate the prop- ing is by false pretense. However, such an act is not erty to the thief’s own use or the use of any person wrongful if it is authorized by law or apparently other than the owner. These intents are collectively lawful superior orders, or, generally, if done by a called an intent to steal. Although a person gets person who has a right to the possession of the property by a taking or obtaining which was not property either equal to or greater than the right of wrongful or which was without a concurrent intent one from whose possession the property is taken, to steal, a larceny is nevertheless committed if an obtained, or withheld. An owner of property who intent to steal is formed after the taking or obtaining takes or withholds it from the possession of another, and the property is wrongfully withheld with that without the consent of the other, or who obtains it intent. For example, if a person rents another’s vehi- therefrom by false pretense, does so wrongfully if cle, later decides to keep it permanently, and then the other has a superior right—such as a lien—to either fails to return it at the appointed time or uses possession of the property. A person who takes, ob- it for a purpose not authorized by the terms of the tains, or withholds property as the agent of another rental, larceny has been committed, even though at has the same rights and liabilities as does the princi- the time the vehicle was rented, the person intended pal, but may not be charged with a guilty knowledge to return it after using it according to the agreement. IV-86

2011 NCIS Mini-Manual, Page 141 ¶46.c.(1)(h)(i)

( i i ) I n f e r e n c e o f i n t e n t . A n i n t e n t t o s t e a l tion for that property at the time of the theft is may be proved by circumstantial evidence. Thus, if admissible as evidence of its value. See Mil. R. a person secretly takes property, hides it, and denies Evid. 803(17). However, the stolen item must be knowing anything about it, an intent to steal may be shown to have been, at the time of the theft, in the inferred; if the property was taken openly and re- condition upon which the value indicated in the offi- turned, this would tend to negate such an intent. cial price list is based. The price listed in the official Proof of sale of the property may show an intent to publication is not conclusive as to the value of the steal, and therefore, evidence of such a sale may be item, and other evidence may be admitted on the introduced to support a charge of larceny. An intent question of its condition and value. to steal may be inferred from a wrongful and inten- (iii) Other property. As a general rule, the tional dealing with the property of another in a man- v a l u e o f o t h e r s t o l e n p r o p e r t y i s i t s l e g i t i m a t e ner likely to cause that person to suffer a permanent market value at the time and place of the theft. If loss thereof. this property, because of its character or the place (iii) Special situations. where it was stolen, had no legitimate market value (A) Motive does not negate intent. The ac- at the time and place of the theft or if that value cused’s purpose in taking an item ordinarily is irrel- cannot readily be ascertained, its value may be de- evant to the accused’s guilt as long as the accused termined by its legitimate market value in the United had the intent required under subparagraph c(1)(f)(i) States at the time of the theft, or by its replacement above. For example, if the accused wrongfully took cost at that time, whichever is less. Market value property as a “joke” or “to teach the owner a lesson” may be established by proof of the recent purchase this would not be a defense, although if the accused price paid for the article in the legitimate market intended to return the property, the accused would involved or by testimony or other admissible evi- b e g u i l t y o f w r o n g f u l a p p r o p r i a t i o n , n o t l a r c e n y . d e n c e f r o m a n y p e r s o n w h o i s f a m i l i a r t h r o u g h When a person takes property intending only to re- training or experience with the market value in ques- turn it to its lawful owner, as when stolen property tion. The owner of the property may testify as to its is taken from a thief in order to return it to its market value if familiar with its quality and condi- o w n e r , l a r c e n y o r w r o n g f u l a p p r o p r i a t i o n i s n o t tion. The fact that the owner is not an expert of the committed. market value of the property goes only to the weight to be given that testimony, and not to its admissibili- (B) Intent to pay for or replace property ty. See Mil. R. Evid. 701. When the character of the not a defense. An intent to pay for or replace the property clearly appears in evidence—for instance, stolen property is not a defense, even if that intent when it is exhibited to the court-martial—the court- existed at the time of the theft. If, however, the martial, from its own experience, may infer that it accused takes money or a negotiable instrument hav- has some value. If as a matter of common knowl- ing no special value above its face value, with the edge the property is obviously of a value substan- intent to return an equivalent amount of money, the tially in excess of $500.00, the court-martial may offense of larceny is not committed although wrong- f i n d a v a l u e o f m o r e t h a n $ 5 0 0 . 0 0 . W r i t i n g s ful appropriation may be. representing value may be considered to have the ( C ) R e t u r n o f p r o p e r t y n o t a d e f e n s e . value—even though contingent—which they repre- Once a larceny is committed, a return of the prop- sented at the time of the theft. e r t y o r p a y m e n t f o r i t i s n o d e f e n s e . S e e s u b - (iv) Limited interest in property. If an owner paragraph c(2) below when the taking, obtaining, or of property or someone acting in the owner’s behalf withholding is with the intent to return. steals it from a person who has a superior, but limit- (g) Value. ed, interest in the property, such as a lien, the value (i) In general. Value is a question of fact to for punishment purposes shall be that of the limited be determined on the basis of all of the evidence interest. admitted. (h) Miscellaneous considerations.  (ii) Government property. When the stolen (i) Lost property. A taking or withholding of property is an item issued or procured from Govern- lost property by the finder is larceny if accompanied ment sources, the price listed in an official publica- by an intent to steal and if a clue to the identity of IV-87

2011 NCIS Mini-Manual, Page 142 3DJH,9

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

Executive Order: 2010 Amendments to the Manual for Courts-Martial, United States  

2011 NCIS Mini-Manual, Page 143 ¶46.c.(1)(h)(i) the general or special owner, or through which such taking another’s automobile without permission or identity may be traced, is furnished by the character, lawful authority with intent to drive it a short dis- location, or marketing of the property, or by other tance and then return it or cause it to be returned to circumstances. the owner; obtaining a service weapon by falsely (ii) Multiple article larceny. When a larceny pretending to be about to go on guard duty with of several articles is committed at substantially the intent to use it on a hunting trip and later return it; same time and place, it is a single larceny even and while driving a government vehicle on a mis- though the articles belong to different persons. Thus, s i o n t o d e l i v e r s u p p l i e s , w i t h h o l d i n g t h e v e h i c l e if a thief steals a suitcase containing the property of from government service by deviating from the as- several persons or goes into a room and takes prop- signed route without authority, to visit a friend in a erty belonging to various persons, there is but one nearby town and later restore the vehicle to its law- l a r c e n y , w h i c h s h o u l d b e a l l e g e d i n b u t o n e ful use. An inadvertent exercise of control over the specification. property of another will not result in wrongful ap- propriation. For example, a person who fails to re- ( i i i ) S p e c i a l k i n d s o f p r o p e r t y w h i c h m a y t u r n a b o r r o w e d b o a t a t t h e t i m e a g r e e d u p o n also be the subject of larceny. Included in property because the boat inadvertently went aground is not which may be the subject of larceny is property guilty of this offense. which is taken, obtained, or withheld by severing it from real estate and writings which represent value d. Lesser included offenses. such as commercial paper. (1) Larceny. (iv) Services. Theft of services may not be (a) Article 121—wrongful appropriation charged under this paragraph, but see paragraph 78. (b) Article 80—attempts (vi) Credit, Debit, and Electronic Transac- (2) Larceny of military property. t i o n s . W r o n g f u l l y e n g a g i n g i n a c r e d i t , d e b i t , o r (a) Article 121—wrongful appropriation electronic transaction to obtain goods or money is an (b) Article 121—larceny of property other than obtaining-type larceny by false pretense. Such use to military property obtain goods is usually a larceny of those goods (c) Article 80—attempts from the merchant offering them. Such use to obtain money or a negotiable instrument (e.g., withdrawing (3) Wrongful appropriation. Article 80—attempts cash from an automated teller or a cash advance e. Maximum punishment. from a bank) is usually a larceny of money from the (1) Larceny. entity presenting the money or a negotiable instru- (a) Military property of a value of $500 or less. m e n t . F o r t h e p u r p o s e o f t h i s s e c t i o n , t h e t e r m Bad-conduct discharge, forfeiture of all pay and al- æcredit, debit, or electronic transactionÆ includes lowances, and confinement for 1 year. the use of an instrument or device, whether known (b) Property other than military property of a as a credit card, debit card, automated teller machine value of $500 or less. Bad-conduct discharge, forfei- (ATM) card or by any other name, including access ture of all pay and allowances, and confinement for devices such as code, account number, electronic 6 months. serial number or personal identification number, is- (c) Military property of a value of more than sued for the use in obtaining money, goods, or any- $500 or of any military motor vehicle, aircraft, ves- thing else of value. sel, firearm, or explosive. Dishonorable discharge, (2) Wrongful appropriation. forfeiture of all pay and allowances, and confine- (a) In general. Wrongful appropriation requires ment for 10 years. a n i n t e n t t o t e m p o r a r i l y — a s o p p o s e d t o p e r - (d) Property other than military property of a manently—deprive the owner of the use and benefit value of more than $500 or any motor vehicle, air- of, or appropriate to the use of another, the property craft, vessel, firearm, or explosive not included in wrongfully taken, withheld, or obtained. In all other subparagraph e(1)(c). Dishonorable discharge, for- r e s p e c t s w r o n g f u l a p p r o p r i a t i o n a n d l a r c e n y a r e feiture of all pay and allowances, and confinement identical. for five years. (b) Examples. Wrongful appropriation includes: (2) Wrongful appropriation. IV-88

2011 NCIS Mini-Manual, Page 144 ¶47.c.(2)

(a) Of a value of $500.00 or less. Confinement accompanying the person at the time of the robbery, for 3 months, and forfeiture of two-thirds pay per the person’s property, or the property of a relative, month for 3 months. family member, or anyone accompanying the person (b) Of a value of more than $500.00. Bad-con- at the time of the robbery; duct discharge, forfeiture of all pay and allowances, (4) That the property belonged to a person named and confinement for 6 months. or described; (c) Of any motor vehicle, aircraft, vessel, fire- (5) That the property was of a certain or of some arm, or explosive. Dishonorable discharge, forfeiture value; and of all pay and allowances, and confinement for 2 (6) That the taking of the property by the accused years. was with the intent permanently to deprive the per- f. Sample specifications. son robbed of the use and benefit of the property. (1) Larceny. [Note: If the robbery was committed with a firearm, In that (personal jurisdiction data), add the following element] did, (at/on board—location) (subject-matter jurisdic- (7) That the means of force or violence or of t i o n d a t a , i f r e q u i r e d ) , o n o r putting the person in fear was a firearm. a b o u t 2 0 , s t e a l , c. Explanation. ( m i l i t a r y p r o p e r t y ) , o f a v a l u e o f ( a b o u t ) (1) Taking in the presence of the victim. It is not $ , the property of . necessary that the property taken be located within (2) Wrongful appropriation. any certain distance of the victim. If persons enter a In that (personal jurisdiction data), house and force the owner by threats to disclose the did, (at/on board—location) (subject matter jurisdic- hiding place of valuables in an adjoining room, and, t i o n d a t a , i f r e q u i r e d ) , o n o r leaving the owner tied, go into that room and steal a b o u t 2 0 , w r o n g f u l l y a p p r o p r i - the valuables, they have committed robbery. a t e , o f a v a l u e o f ( a b o u t ) (2) Force or violence. For a robbery to be com- $ , the property of . mitted by force or violence, there must be actual force or violence to the person, preceding or accom- 47. Article 122—Robbery panying the taking against the person’s will, and it is a. Text of statute. immaterial that there is no fear engendered in the Any person subject to this chapter who with victim. Any amount of force is enough to constitute intent to steal takes anything of value from the robbery if the force overcomes the actual resistance person or in the presence of another, against his of the person robbed, puts the person in such a will, by means of force or violence or fear of position that no resistance is made, or suffices to immediate or future injury to his person or prop- overcome the resistance offered by a chain or other erty or to the person or property of a relative or fastening by which the article is attached to the member of his family or of anyone in his com- person. The offense is not robbery if an article is pany at the time of the robbery, is guilty of rob- merely snatched from the hand of another or a po- bery and shall be punished as a court-martial cket is picked by stealth, no other force is used, and may direct. the owner is not put in fear. But if resistance is overcome in snatching the article, there is sufficient b. Elements. violence, as when an earring is torn from a person’s ( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y t o o k c e r t a i n ear. There is sufficient violence when a person’s property from the person or from the possession and attention is diverted by being jostled by a confeder- in the presence of a person named or described; ate of a pickpocket, who is thus enabled to steal the (2) That the taking was against the will of that p e r s o n ’ s w a t c h , e v e n t h o u g h t h e p e r s o n h a d n o person; knowledge of the act; or when a person is knocked (3) That the taking was by means of force, vio- insensible and that person’s pockets rifled; or when lence, or force and violence, or putting the person in a guard steals property from the person of a prisoner fear of immediate or future injury to that person, a in the guard’s charge after handcuffing the prisoner relative, a member of the person’s family, anyone on the pretext of preventing escape. IV-89

2011 NCIS Mini-Manual, Page 145 ¶47.c.(3)

(3) Fear. For a robbery to be committed by put- In that (personal jurisdiction data), ting the victim in fear, there need be no actual force did, (at/on board—location) (subject-matter jurisdic- or violence, but there must be a demonstration of t i o n d a t a , i f r e q u i r e d ) , o n o r force or menace by which the victim is placed in a b o u t 2 0 , b y m e a n s o f ( f o r c e ) such fear that the victim is warranted in making no (violence) (force and violence) (and) (putting him/ resistance. The fear must be a reasonable apprehen- her in fear) (with a firearm) steal from the (person) sion of present or future injury, and the taking must (presence) of , against his/her will, occur while the apprehension exists. The injury ap- ( a w a t c h ) ( ) o f v a l u e o f ( a b o u t ) prehended may be death or bodily injury to the per- $ , the property of . son or to a relative or family member, or to anyone in the person’s company at the time, or it may be 48. Article 123—Forgery the destruction of the person’s habitation or other a. Text of statute. property or that of a relative or family member or Any person subject to this chapter who, with anyone in the person’s company at the time of suffi- intent to defraud— c i e n t g r a v i t y t o w a r r a n t g i v i n g u p t h e p r o p e r t y (1) falsely makes or alters any signature to, or demanded by the assailant. any part of, any writing which would, if genuine, (4) Larceny by taking. Robbery includes “taking apparently impose a legal liability on another or with intent to steal”; hence, a larceny by taking is an change his legal right or liability to his prejudice; integral part of a charge of robbery and must be or proved at the trial. See paragraph 46c(1). (2) utters, offers, issues, or transfers such a (5) Multiple-victim robberies. Robberies of differ- writing, known by him to be so made or altered; ent persons at the same time and place are separate is guilty of forgery and shall be punished as a offenses and each such robbery should be alleged in court-martial may direct. a separate specification. b. Elements. d. Lesser included offenses. (1) Forgery—making or altering. (1) Article 121—larceny (a) That the accused falsely made or altered a (2) Article 121—wrongful appropriation certain signature or writing; (3) Article 128—assault; assault consummated by (b) That the signature or writing was of a na- a battery ture which would, if genuine, apparently impose a ( 4 ) A r t i c l e 1 2 8 — a s s a u l t w i t h a d a n g e r o u s legal liability on another or change another’s legal weapon rights or liabilities to that person’s prejudice; and ( 5 ) A r t i c l e 1 2 8 — a s s a u l t i n t e n t i o n a l l y i n f l i c t i n g (c) That the false making or altering was with grievous bodily harm the intent to defraud. (6) Article 134—assault with intent to rob (2) Forgery—uttering. (7) Article 80—attempts ( a ) T h a t a c e r t a i n s i g n a t u r e o r w r i t i n g w a s [Note: More than one lesser included offense may falsely made or altered; be found in an appropriate case because robbery is a (b) That the signature or writing was of a na- compound offense. For example, a person may be ture which would, if genuine, apparently impose a found not guilty of robbery but guilty of wrongful legal liability on another or change another’s legal appropriation and assault.] rights or liabilities to that person’s prejudice; e. Maximum punishment. (c) That the accused uttered, offered, issued, or (1) When committed with a firearm. Dishonorable transferred the signature or writing; discharge, forfeiture of all pay and allowances, and (d) That at such time the accused knew that the confinement for 15 years. signature or writing had been falsely made or al- (2) Other cases. Dishonorable discharge, forfei- tered; and ture of all pay and allowances, and confinement for (e) That the uttering, offering, issuing or trans- 10 years. ferring was with the intent to defraud. f. Sample specifications. c. Explanation. IV-90

2011 NCIS Mini-Manual, Page 146 ¶48.f.

(1) In general. Forgery may be committed either that person’s prejudice, as a receipt. Some other by falsely making a writing or by knowingly utter- instruments which may be the subject of forgery are ing a falsely made writing. There are three elements orders for the delivery of money or goods, railroad common to both aspects of forgery: a writing falsely tickets, and military orders directing travel. A writ- made or altered; and apparent capability of the writ- ing falsely “made” includes an instrument that may ing as falsely made or altered to impose a legal be partially or entirely printed, engraved, written l i a b i l i t y o n a n o t h e r o r t o c h a n g e a n o t h e r ’ s l e g a l with a pencil, or made by photography or other rights or liabilities to that person’s prejudice; and an device. A writing may be falsely “made” by materi- intent to defraud. ally altering an existing writing, by filling in a paper (2) False. “False” refers not to the contents of the signed in blank, or by signing an instrument already writing or to the facts stated therein but to the mak- written. With respect to the apparent legal efficacy ing or altering of it. Hence, forgery is not committed of the writing falsely made or altered, the writing by the genuine making of a false instrument even must appear either on its face or from extrinsic facts when made with intent to defraud. A person who, to impose a legal liability on another, or to change a with intent to defraud, signs that person’s own sig- legal right or liability the prejudice of another. If nature as the maker of a check drawn on a bank in under all the circumstances the instrument has nei- which that person does not have money or credit ther real nor apparent legal efficacy, there is no does not commit forgery. Although the check falsely forgery. Thus, the false making with intent to de- represents the existence of the account, it is what it fraud of an instrument affirmatively invalid on its purports to be, a check drawn by the actual maker, face is not forgery nor is the false making or alter- and therefore it is not falsely made. See, however, ing, with intent to defraud, of a writing which could paragraph 49. Likewise, if a person makes a false not impose a legal liability, as a mere letter of intro- signature of another to an instrument, but adds the duction. However, the false making of another’s sig- word “by” with that person’s own signature thus nature on an instrument with intent to defraud is indicating authority to sign, the offense is not for- forgery, even if there is no resemblance to the genu- gery even if no such authority exists. False recitals ine signature and the name is misspelled. of fact in a genuine document, as an aircraft flight (5) Intent to defraud. See paragraph 49c(14). The report which is “padded” by the one preparing it, do intent to defraud need not be directed toward anyone not make the writing a forgery. But see paragraph 31 in particular nor be for the advantage of the of- concerning false official statements. fender. If is immaterial that nobody was actually (3) Signatures. Signing the name of another to an defrauded, or that no further step was made toward instrument having apparent legal efficacy without carrying out the intent to defraud other than the false authority and with intent to defraud is forgery as the making or altering of a writing. signature is falsely made. The distinction is that in (6) Alteration. The alteration must effect a mate- this case the falsely made signature purports to be rial change in the legal tenor of the writing. Thus, an the act of one other than the actual signer. Likewise, alteration which apparently increases, diminishes, or a forgery may be committed by a person signing that discharges any obligation is material. Examples of person’s own name to an instrument. For example, material alterations in the case of a promissory note when a check payable to the order of a certain per- are changing the date, amount, or place of payment. son comes into the hands of another of the same If a genuine writing has been delivered to the ac- name, forgery is committed if, knowing the check to cused and while in the accused’s possession is later be another’s, that person indorses it with that per- found to be altered, it may be inferred that the writ- son’s own name intending to defraud. Forgery may ing was altered by the accused. also be committed by signing a fictitious name, as (7) Uttering. See paragraph 49c(4). when Roe makes a check payable to Roe and signs it with a fictitious name—Doe—as drawer. d. Lesser included offense. Article 80—attempts (4) Nature of writing. The writing must be one e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , which would, if genuine, apparently impose a legal forfeiture of all pay and allowances, and confine- liability on another, as a check or promissory note, ment for 5 years. or change that person’s legal rights or liabilities to f. Sample specifications. IV-91

2011 NCIS Mini-Manual, Page 147 ¶48.f.(1)

(1) Forgery—making or altering. (1) for the procurement of any article or thing In that (personal jurisdiction data), of value, with intent to defraud; or did, (at/on board—location) (subject-matter jurisdic- (2) for the payment of any past due obligation, t i o n d a t a , i f r e q u i r e d ) , o n o r or for any other purpose, with intent to deceive; about 20 , with intent to defraud, m a k e s , d r a w s , u t t e r s , o r d e l i v e r s a n y c h e c k , f a l s e l y [ m a k e ( i n i t s e n t i r e t y ) ( t h e s i g n a t u r e draft, or order for the payment of money upon of as an indorsement to) (the signature any bank or other depository, knowing at the of to) time that the maker or drawer has not or will not ( ) a c e r t a i n ( c h e c k ) ( w r i t i n g ) have sufficient funds in, or credit with, the bank ( ) in the following words and figures, to or other depository for the payment of that che- wit: ] [alter a certain (check) (writing) ck, draft, or order in full upon its presentment, ( ) in the following words and figures, to shall be punished as a court-martial may direct. w i t : , b y ( a d d i n g t h e r e t o ) The making, drawing, uttering, or delivering by a ( ) ] , w h i c h s a i d ( c h e c k ) ( w r i t i n g ) maker or drawer of a check, draft, or order, ( ) w o u l d , i f g e n u i n e , a p p a r e n t l y payment of which is refused by the drawee be- operate to the legal harm of another[*and which- c a u s e o f i n s u f f i c i e n t f u n d s o f t h e m a k e r o r (could be) (was) used to the legal harm drawer in the drawee’s possession or control, is of , in that ]. prima facie evidence of his intent to defraud or [*Note: This allegation should be used when the deceive and of his knowledge of insufficient funds document specified is not one which by its nature in, or credit with, that bank or other depository, w o u l d c l e a r l y o p e r a t e t o t h e l e g a l p r e j u d i c e o f unless the maker or drawer pays the holder the another—for example, an insurance application. The amount due within five days after receiving no- manner in which the document could be or was used tice, orally or in writing, that the check, draft, or to prejudice the legal rights of another should be order was not paid on presentment. In this sec- alleged in the last blank.] tion, the word “credit” means an arrangement or understanding, express or implied, with the bank (2) Forgery—uttering. or other depository for the payment of that che- In that (personal jurisdiction data), ck, draft, or order. did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r b. Elements. about 20 , with intent to defraud, (1) For the procurement of any article or thing of ( u t t e r ) ( o f f e r ) ( i s s u e ) ( t r a n s f e r ) a c e r t a i n ( c h e c k ) value, with intent to defraud. (writing) ( ) in the following words and (a) That the accused made, drew, uttered, or figures, to wit: , a writing which would, delivered a check, draft, or order for the payment of if genuine, apparently operate to the legal harm of money payable to a named person or organization; a n o t h e r , ( w h i c h s a i d ( c h e c k ) ( w r i t i n g ) (b) That the accused did so for the purpose of ( ) ) ( t h e s i g n a t u r e t o w h i c h s a i d procuring an article or thing of value; (check) (writing) ( )) (c) That the act was committed with intent to ( ) was, as he/she, the said , defraud; and t h e n w e l l k n e w , f a l s e l y ( m a d e ) ( a l t e r e d ) ( * a n d (d) That at the time of making, drawing, utter- w h i c h ( c o u l d b e ) ( w a s ) u s e d t o t h e ing, or delivery of the instrument the accused knew l e g a l h a r m o f , i n that the accused or the maker or drawer had not or that ). [*Note: See the note following would not have sufficient funds in, or credit with, (1), above] the bank or other depository for the payment thereof upon presentment. 49. Article 123a—Making, drawing, or (2) For the payment of any past due obligation, uttering check, draft, or order without or for any other purpose, with intent to deceive. sufficient funds (a) That the accused made, drew, uttered, or a. Text of statute. delivered a check, draft, or order for the payment of Any person subject to this chapter who— money payable to a named person or organization; IV-92

2011 NCIS Mini-Manual, Page 148 ¶49.c.(12)

(b) That the accused did so for the purpose or whole or in part any past due obligation. Payment purported purpose of effecting the payment of a past need not be legally effected. due obligation or for some other purpose; (7) For any other purpose. “For any other pur- (c) That the act was committed with intent to pose” includes all purposes other than the payment deceive; and of a past due obligation or the procurement of any (d) That at the time of making, drawing, utter- article or thing of value. For example, it includes ing, or delivering of the instrument, the accused paying or purporting to pay an obligation which is knew that the accused or the maker or drawer had not yet past due. The check, draft, or order, whether not or would not have sufficient funds in, or credit made or negotiated for the procurement of an article with, the bank or other depository for the payment or thing of value or for the payment of a past due thereof upon presentment. obligation or for some other purpose, need not be c. Explanation. intended or represented as payable immediately. For example, the making of a postdated check, delivered (1) Written instruments. The written instruments at the time of entering into an installment purchase covered by this article include any check, draft (in- contract and intended as payment for a future install- cluding share drafts), or order for the payment of ment, would, if made with the requisite intent and money drawn upon any bank or other depository, knowledge, be a violation of this article. whether or not the drawer bank or depository is actually in existence. It may be inferred that every (8) Article or thing of value. “Article or thing of check, draft, or order carries with it a representation value” extends to every kind of right or interest in that the instrument will be paid in full by the bank property, or derived from contract, including inter- or other depository upon presentment by a holder ests and rights which are intangible or contingent or when due. which mature in the future. (2) Bank or other depository. “Bank or other de- (9) Past due obligation. A “past due obligation” pository” includes any business regularly but not is an obligation to pay money, which obligation has necessarily exclusively engaged in public banking legally matured before making, drawing, uttering, or activities. delivering the instrument. (3) Making or drawing. “Making” and “drawing” (10) Knowledge. The accused must have knowl- are synonymous and refer to the act of writing and edge, at the time the accused makes, draws, utters, signing the instrument. or delivers the instrument, that the maker or drawer, ( 4 ) U t t e r i n g o r d e l i v e r i n g . “ U t t e r i n g ” a n d whether the accused or another, has not or will not “ d e l i v e r i n g ” h a v e s i m i l a r m e a n i n g s . B o t h m e a n have sufficient funds in, or credit with, the bank or transferring the instrument to another, but “uttering” other depository for the payment of the instrument has the additional meaning of offering to transfer. A in full upon its presentment. Such knowledge may person need not personally be the maker or drawer be proved by circumstantial evidence. of an instrument in order to violate this article if that (11) Sufficient funds. “Sufficient funds” refers to person utters or delivers it. For example, if a person a condition in which the account balance of the holds a check which that person knows is worthless, maker or drawer in the bank or other depository at and utters or delivers the check to another, that per- the time of the presentment of the instrument for son may be guilty of an offense under this article payment is not less than the face amount of the despite the fact that the person did not personally instrument and has not been rendered unavailable for draw the check. payment by garnishment, attachment, or other legal (5) For the procurement. “For the procurement” procedures. means for the purpose of obtaining any article or (12) Credit. “Credit” means an arrangement or thing of value. It is not necessary that an article or understanding, express or implied, with the bank or thing of value actually be obtained, and the purpose other depository for the payment of the check, draft, of the obtaining may be for the accused’s own use or order. An absence of credit includes those situa- or benefit or for the use or benefit of another. tions in which an accused writes a check on a non- (6) For the payment. “For the payment” means existent bank or on a bank in which the accused has for the purpose or purported purpose of satisfying in no account. IV-93

2011 NCIS Mini-Manual, Page 149 ¶49.c.(13)

( 1 3 ) U p o n i t s p r e s e n t m e n t . “ U p o n i t s p r e s e n t - check, draft, or order upon its presentment for pay- ment” refers to the time the demand for payment is ment. Prima facie evidence is that evidence from made upon presentation of the instrument to the which the accused’s intent to defraud or deceive and bank or other depository on which it was drawn. the accused’s knowledge of insufficient funds in or (14) Intent to defraud. “Intent to defraud” means credit with the bank or other depository may be an intent to obtain, through a misrepresentation, an inferred, depending on all the circumstances. The article or thing of value and to apply it to one’s own failure to give notice referred to in the article, or use and benefit or to the use and benefit of another, payment by the accused, maker, or drawer to the either permanently or temporarily. holder of the amount due within 5 days after such (15) Intent to deceive. “Intent to deceive” means n o t i c e h a s b e e n g i v e n , p r e c l u d e s t h e p r o s e c u t i o n a n i n t e n t t o m i s l e a d , c h e a t , o r t r i c k a n o t h e r b y from using the statutory rule of evidence but does means of a misrepresentation made for the purpose not preclude conviction of this offense if all the of gaining an advantage for oneself or for a third elements are otherwise proved. person, or of bringing about a disadvantage to the (18) Affirmative defense. Honest mistake is an af- interests of the person to whom the representation firmative defense to offenses under this article. See was made or to interests represented by that person. R.C.M. 916(j). (16) The relationship of time and intent. Under d. Lesser included offenses. this article, two times are involved: (a) when the ( 1 ) A r t i c l e 1 3 4 — m a k i n g , d r a w i n g , u t t e r i n g o r accused makes, draws, utters, or delivers the instru- delivering a check, draft, or order, and thereafter ment; and (b) when the instrument is presented to wrongfully and dishonorably failing to maintain suf- t h e b a n k o r o t h e r d e p o s i t o r y f o r p a y m e n t . W i t h ficient funds respect to (a), the accused must possess the requisite (2) Article 80—attempts intent and must know that the maker or drawer does e. Maximum punishment. not have or will not have sufficient funds in, or (1) For the procurement of any article or thing of credit with, the bank or the depository for payment value, with intent to defraud, in the face amount of: of the instrument in full upon its presentment when d u e . W i t h r e s p e c t t o ( b ) , i f i t c a n o t h e r w i s e b e ( a ) $ 5 0 0 . 0 0 o r l e s s . B a d - c o n d u c t d i s c h a r g e , shown that the accused possessed the requisite intent forfeiture of all pay and allowances, and confine- and knowledge at the time the accused made, drew, ment for 6 months. uttered, or delivered the instrument, neither proof of ( b ) M o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s - presentment nor refusal of payment is necessary, as charge, forfeiture of all pay and allowances, and when the instrument is one drawn on a nonexistent confinement for 5 years. bank. (2) For the payment of any past due obligation, (17) Statutory rule of evidence. The provision of or for any other purpose, with intent to deceive. this article with respect to establishing prima facie Bad-conduct discharge, forfeiture of all pay and al- evidence of knowledge and intent by proof of notice lowances, and confinement for 6 months. and nonpayment within 5 days is a statutory rule of f. Sample specifications. evidence. The failure of an accused who is a maker (1) For the procurement of any article or thing of or drawer to pay the holder the amount due within 5 value, with intent to defraud. d a y s a f t e r r e c e i v i n g e i t h e r o r a l o r w r i t t e n n o t i c e I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , from the holder of a check, draft, or order, or from did, (at/on board—location) (subject-matter jurisdic- any other person having knowledge that such check, t i o n d a t a , i f r e q u i r e d ) , o n o r draft, or order was returned unpaid because of insuf- about 20 , with intent to defraud ficient funds, is prima facie evidence (a) that the and for the procurement of (lawful currency) (and) accused had the intent to defraud or deceive as al- ( (an article) (a thing) of value), wrong- leged; and (b) that the accused knew at the time the fully and unlawfully ((make (draw)) (utter) (deliver) accused made, drew, uttered, or delivered the check, to ,) a certain (check) (draft) (money or- draft, or order that the accused did not have or der) upon the ( Bank) ( de- would not have sufficient funds in, or credit with, p o s i t o r y ) i n w o r d s a n d f i g u r e s a s f o l l o w s , t o the bank or other depository for the payment of such w i t : , t h e n k n o w i n g t h a t ( h e / s h e ) IV-94

2011 NCIS Mini-Manual, Page 150 ¶50.f.

( ) , t h e ( m a k e r ) ( d r a w e r ) t h e r e o f , person’s eye, to cut off a hand, foot, or finger, or to did not or would not have sufficient funds in or knock out a tooth, as these injuries destroy or disa- credit with such (bank) (depository) for the payment ble those members or organs. It is also maiming to of the said (check) (draft) (order) in full upon its injure an internal organ so as to seriously diminish presentment. the physical vigor of a person. Likewise, it is maim- (2) For the payment of any past due obligation, ing to cut off an ear or to scar a face with acid, as or for any other purpose, with intent to deceive. these injuries seriously disfigure a person. A disfig- I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , urement need not mutilate any entire member to did, (at/on board—location) (subject-matter jurisdic- come within the article, or be of any particular type, t i o n d a t a , i f r e q u i r e d ) , o n o r but must be such as to impair perceptibly and mate- about 20 , with intent to deceive rially the victim’s comeliness. The disfigurement, and for the payment of a past due obligation, to wit: diminishment of vigor, or destruction or disablement ( f o r t h e p u r p o s e o f ) of any member or organ must be a serious injury of wrongfully and unlawfully ((make) (draw)) (utter) a substantially permanent nature. However, the of- ( d e l i v e r ) t o , a c e r t a i n ( c h e c k ) ( d r a f t ) fense is complete if such an injury is inflicted even (money order) for the payment of money upon though there is a possibility that the victim may ( B a n k ) ( d e p o s i t o r y ) , eventually recover the use of the member or organ, in words and figures as follows, to wit: , or that the disfigurement may be cured by surgery. t h e n k n o w i n g t h a t ( h e / s h e ) ( ) , t h e (2) Means of inflicting injury. To prove the of- (maker) (drawer) thereof, did not or would not have fense it is not necessary to prove the specific means sufficient funds in or credit with such (bank) (depos- by which the injury was inflicted. However, such itory) for the payment of the said (check) (draft) e v i d e n c e m a y b e c o n s i d e r e d o n t h e q u e s t i o n o f (order) in full upon its presentment. intent. (3) Intent. Maiming requires a specific intent to 50. Article 124—Maiming injure generally but not a specific intent to maim. a. Text of statute. Thus, one commits the offense who intends only a Any person subject to this chapter who, with in- slight injury, if in fact there is infliction of an injury of the type specified in this article. Infliction of the tent to injure, disfigure, or disable, inflicts upon type of injuries specified in this article upon the the person of another an injury which— person of another may support an inference of the (1) seriously disfigures his person by any muti- intent to injure, disfigure, or disable. lation thereof; (4) Defenses. If the injury is done under circum- (2) destroys or disables any member or organ stances which would justify or excuse homicide, the of his body; or offense of maiming is not committed. See R.C.M. (3) seriously diminishes his physical vigor by 916. the injury of any member or organ; is guilty of d. Lesser included offenses. maiming and shall be punished as a court-martial (1) Article 128—assault; assault consummated by may direct. a battery b. Elements. ( 2 ) A r t i c l e 1 2 8 — a s s a u l t w i t h a d a n g e r o u s ( 1 ) T h a t t h e a c c u s e d i n f l i c t e d a c e r t a i n i n j u r y weapon upon a certain person; ( 3 ) A r t i c l e 1 2 8 — a s s a u l t i n t e n t i o n a l l y i n f l i c t i n g (2) That this injury seriously disfigured the per- grievous bodily harm son’s body, destroyed or disabled an organ or mem- (4) Article 80—attempts ber, or seriously diminished the person’s physical e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , vigor by the injury to an organ or member; and forfeiture of all pay and allowances, and confine- (3) That the accused inflicted this injury with an ment for 20 years. intent to cause some injury to a person. f. Sample specification. c. Explanation. In that (personal jurisdiction data), did, (1) Nature of offense. It is maiming to put out a (at/on board—location) (subject-matter jurisdiction IV-95

2011 NCIS Mini-Manual, Page 151 ¶50.f. data, if required) on or about 20 , e. Maximum punishment. maim by (crushing his/her foot with a (1) By force and without consent. Dishonorable sledge hammer) ( ). discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. 51. Article 125—Sodomy (2) With a child who, at the time of the offense, a. Text of statute. has attained the age of 12 but is under the age of 16 (a) Any person subject to this chapter who en- years. Dishonorable discharge, forfeiture of all pay g a g e s i n u n n a t u r a l c a r n a l c o p u l a t i o n w i t h a n - and allowances, and confinement for 20 years. other person of the same or opposite sex or with (3) With a child under the age of 12 years at the an animal is guilty of sodomy. Penetration, how- time of the offense. Dishonorable discharge, forfei- ever slight, is sufficient to complete the offense. ture of all pay and allowances, and confinement for (b) Any person found guilty of sodomy shall by life without eligibility for parole. punished as a court-martial may direct. (4) Other cases. Dishonorable discharge, forfei- b. Elements. ture of all pay and allowances, and confinement for (1) That the accused engaged in unnatural carnal 5 years. copulation with a certain other person or with an f. Sample specification. animal. In that (personal jurisdiction data), did, (Note: Add any of the following as applicable) (at/on board—location) (subject-matter jurisdiction (2) That the act was done with a child under the data, if required), on or about 20 , age of 12. commit sodomy with , (a child under (3) That the act was done with a child who had the age of 12) (a child who had attained the age of attained the age of 12 but was under the age of 16. 12 but was under the age of 16) (by force and (4) That the act was done by force and without without the consent of the said ). the consent of the other person. 52. Article 126—Arson c. Explanation. It is unnatural carnal copulation for a person to take into that person’s mouth or anus the a. Text of statute. sexual organ of another person or of an animal; or to ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o place that person’s sexual organ in the mouth or willfully and maliciously burns or sets on fire an anus of another person or of an animal; or to have inhabited dwelling, or any other structure, mova- carnal copulation in any opening of the body, except ble or immovable, wherein to the knowledge of the sexual parts, with another person; or to have the offender there is at the time a human being, carnal copulation with an animal. is guilty of aggravated arson and shall be pun- d. Lesser included offenses. ished as a court-martial may direct. (1) With a child under the age of 16. ( b ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o (a) Article 125—forcible sodomy (and offenses willfully and maliciously burns or sets fire to the included therein; see subparagraph (2) below) property of another, except as provided in sub- section (a), is guilty of simple arson and shall be (b) Article 80—attempts punished as a court-martial may direct. (2) Forcible sodomy. b. Elements. ( a ) A r t i c l e 1 2 5 — s o d o m y ( a n d o f f e n s e s i n - (1) Aggravated arson. cluded therein; see subparagraph (3) below) (a) Inhabited dwelling. (b) Article 134—assault with intent to commit sodomy (i) That the accused burned or set on fire an inhabited dwelling; (c) Article 80—attempts. (3) Sodomy. Article 80—attempts (ii) That this dwelling belonged to a certain ( N o t e : C o n s i d e r l e s s e r i n c l u d e d o f f e n s e s u n d e r person and was of a certain value; and Art. 120, depending on the factual circumstances in (iii) That the act was willful and malicious. each case.) (b) Structure.

IV-96

2011 NCIS Mini-Manual, Page 152 ¶52.f.(1)(b)

(i) That the accused burned or set on fire a is sufficient, but a mere scorching or discoloration certain structure; by heat is not. (ii) That the act was willful and malicious; (d) Value and ownership of property. For the (iii) That there was a human being in the offense of aggravated arson, the value and owner- structure at the time; ship of the dwelling or other structure are immateri- (iv) That the accused knew that there was a al, but should ordinarily be alleged and proved to human being in the structure at the time; and permit the finding in an appropriate case of the in- cluded offense of simple arson. (v) That this structure belonged to a certain person and was of a certain value. (3) Simple arson. “Simple arson” is the willful and malicious burning or setting fire to the property (2) Simple arson. of another under circumstances not amounting to (a) That the accused burned or set fire to cer- aggravated arson. The offense includes burning or tain property of another; setting fire to real or personal property of someone (b) That the property was of a certain value; o t h e r t h a n t h e o f f e n d e r . S e e a l s o p a r a g r a p h 6 7 and (Burning with intent to defraud). (c) That the act was willful and malicious. d. Lesser included offenses. c. Explanation. (1) Aggravated arson. (1) In general. In aggravated arson, danger to hu- (a) Article 126—simple arson man life is the essential element; in simple arson, it (b) Article 80—attempts is injury to the property of another. In either case, it (2) Simple arson. Article 80—attempts is immaterial that no one is, in fact, injured. It must e. Maximum punishment. be shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or ( 1 ) A g g r a v a t e d a r s o n . D i s h o n o r a b l e d i s c h a r g e , accident. forfeiture of all pay and allowances, and confine- ment for 20 years. (2) Aggravated arson. (2) Simple arson, where the property is— (a) Inhabited dwelling. An inhabited dwelling includes the outbuildings that form part of the clus- (a) Of a value of $500.00 or less. Dishonorable ter of buildings used as a residence. A shop or store discharge, forfeiture of all pay and allowances, and is not an inhabited dwelling unless occupied as such, confinement for 1 year. n o r i s a h o u s e t h a t h a s n e v e r b e e n o c c u p i e d o r (b) Of a value of more than $500.00. Dishonor- which has been temporarily abandoned. A person able discharge, forfeiture of all pay and allowances, may be guilty of aggravated arson of the person’s and confinement for 5 years. dwelling, whether as owner or tenant. f. Sample specifications. (b) Structure. Aggravated arson may also be (1) Aggravated arson. committed by burning or setting on fire any other (a) Inhabited dwelling. structure, movable or immovable, such as a theater, In that (personal jurisdiction data), did, church, boat, trailer, tent, auditorium, or any other (at/on board—location) (subject-matter jurisdiction sort of shelter or edifice, whether public or private, data, if required), on or about 20 , when the offender knows that there is a human be- willfully and maliciously (burn) (set on fire) an in- ing inside at the time. It may be that the offender h a b i t e d d w e l l i n g , t o w i t : ( t h e r e s i d e n c e had this knowledge when the nature of the struc- o f ) ( ) , ( t h e p r o p e r t y ture—as a department store or theater during hours o f ) o f a v a l u e o f ( a b o u t ) of business, or other circumstances—are shown to $ . have been such that a reasonable person would have (b) Structure. known that a human being was inside at the time. In that (personal jurisdiction data), did, (c) Damage to property. It is not necessary that (at/on board—location) (subject-matter jurisdiction the dwelling or structure be consumed or materially data, if required), on or 20 , will- injured; it is enough if fire is actually communicated fully and maliciously (burn) (set on fire), knowing to any part thereof. Any actual burning or charring that a human being was therein at the time, (the Post IV-97

2011 NCIS Mini-Manual, Page 153 ¶52.f.(1)(b)

T h e a t e r ) ( , t h e p r o p e r t y ( 4 ) A d v a n t a g e o r i m m u n i t y . U n l e s s i t i s c l e a r o f ) , o f a v a l u e o f ( a b o u t ) from the circumstances, the advantage or immunity $ . sought should be described in the specification. An (2) Simple arson. intent to make a person do an act against that per- In that (personal jurisdiction data), did, son’s will is not, by itself, sufficient to constitute (at/on board— location) (subject-matter jurisdiction extortion. data, if required), on or about 20 , d. Lesser included offenses. willfully and maliciously (burn) (set fire to) (an au- (1) Article 134—communicating a threat t o m o b i l e ) ( ) , t h e p r o p e r t y (2) Article 80—attempts of , of a value of (about) $ . e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- 53. Article 127—Extortion ment for 3 years. a. Text of statute. f. Sample specification. Any person subject to this chapter who communi- In that (personal jurisdiction data), did, cates threats to another person with the intention (at/on board—location) (subject-matter jurisdiction thereby to obtain anything of value or any ac- data, if required), on or about 20 , quittance, advantage, or immunity is guilty of ex- with intent unlawfully to obtain (something of value) tortion and shall be punished as a court-martial (an acquittance) (an advantage, to wit ) may direct. (an immunity, to wit ), communi- b. Elements. c a t e t o a t h r e a t t o ( h e r e d e s c r i b e t h e ( 1 ) T h a t t h e a c c u s e d c o m m u n i c a t e d a c e r t a i n threat). threat to another; and (2) That the accused intended to unlawfully ob- 54. Article 128—Assault tain something of value, or any acquittance, advan- a. Text of statute. tage, or immunity. (a) Any person subject to this chapter who at- c. Explanation. tempts or offers with unlawful force or violence (1) In general. Extortion is complete upon com- to do bodily harm to another person, whether or munication of the threat with the requisite intent. not the attempt or offer is consummated, is guilty The actual or probable success of the extortion need of assault and shall be punished as a court-mar- not be proved. tial may direct. (2) Threat. A threat may be communicated by (b) Any person subject to this chapter who— any means but must be received by the intended ( 1 ) c o m m i t s a n a s s a u l t w i t h a d a n g e r o u s victim. The threat may be: a threat to do any unlaw- weapon or other means or force likely to produce ful injury to the person or property of the person death or grievous bodily harm; or threatened or to any member of that person’s family (2) commits an assault and intentionally in- or any other person held dear to that person; a threat f l i c t s g r i e v o u s b o d i l y h a r m w i t h o r w i t h o u t a to accuse the person threatened, or any member of weapon; is guilty of aggravated assault and shall that persons’s family or any other person held dear be punished as a court-martial may direct. to that person, of any crime; a threat to expose or b. Elements. i m p u t e a n y d e f o r m i t y o r d i s g r a c e t o t h e p e r s o n (1) Simple assault. threatened or to any member of that person’s family or any other person held dear to that person; a threat (a) That the accused attempted or offered to do to expose any secret affecting the person threatened bodily harm to a certain person; and or any member of that person’s family or any other (b) That the attempt or offer was done with person held dear to that person; or a threat to do any unlawful force or violence. other harm. (2) Assault consummated by a battery. (3) Acquittance. An “acquittance” is a release or (a) That the accused did bodily harm to a cer- discharge from an obligation. tain person; and

IV-98

2011 NCIS Mini-Manual, Page 154 ¶54.c.(1)(b)(ii)

(b) That the bodily harm was done with unlaw- (ii) That the accused did so with a certain ful force or violence. weapon, means, or force; ( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t (iii) That the attempt, offer, or bodily harm based on status of victim. was done with unlawful force or violence; and ( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t , (iv) That the weapon, means, or force was noncommissioned, or petty officer. used in a manner likely to produce death or grievous (i) That the accused attempted to do, offered bodily harm. to do, or did bodily harm to a certain person; (Note: Add any of the following as applicable) (ii) That the attempt, offer, or bodily harm (v) That the weapon was a loaded firearm. was done with unlawful force or violence; (vi) That the person was a child under the (iii) That the person was a commissioned, age of 16 years. warrant, noncommissioned, or petty officer; and (b) Assault in which grievous bodily harm is (iv) That the accused then knew that the per- intentionally inflicted. s o n w a s a c o m m i s s i o n e d , w a r r a n t , n o n c o m m i s - ( i ) T h a t t h e a c c u s e d a s s a u l t e d a c e r t a i n sioned, or petty officer. person; (b) Assault upon a sentinel or lookout in the (ii) That grievous bodily harm was thereby execution of duty, or upon a person in the execution inflicted upon such person; of law enforcement duties. (iii) That the grievous bodily harm was done (i) That the accused attempted to do, offered with unlawful force or violence; and to do, or did bodily harm to a certain person; (iv) That the accused, at the time, had the (ii) That the attempt, offer, or bodily harm specific intent to inflict grievous bodily harm. was done with unlawful force or violence; (Note: Add any of the following as applicable) (iii) That the person was a sentinel or look- (v) That the injury was inflicted with a loaded out in the execution of duty or was a person who firearm. then had and was in the execution of security police, (vi) That the person was a child under the age military police, shore patrol, master at arms, or other of 16 years. military or civilian law enforcement duties; and c. Explanation. (iv) That the accused then knew that the per- (1) Simple assault. son was a sentinel or lookout in the execution of (a) Definition of assault. An “assault” is an at- duty or was a person who then had and was in the tempt or offer with unlawful force or violence to do execution of security police, military police, shore bodily harm to another, whether or not the attempt patrol, master at arms, or other military or civilian or offer is consummated. It must be done without law enforcement duties. legal justification or excuse and without the lawful (c) Assault consummated by a battery upon a consent of the person affected. “Bodily harm” means child under 16 years. any offensive touching of another, however slight. (i) That the accused did bodily harm to a (b) Difference between “attempt” and “offer” certain person; type assaults. (ii) That the bodily harm was done with un- (i) Attempt type assault. An “attempt” type lawful force or violence; and assault requires a specific intent to inflict bodily (iii) That the person was then a child under harm, and an overt act—that is, an act that amounts the age of 16 years. to more than mere preparation and apparently tends (4) Aggravated assault. to effect the intended bodily harm. An attempt type assault may be committed even though the victim (a) Assault with a dangerous weapon or other had no knowledge of the incident at the time. means of force likely to produce death or grievous bodily harm. (ii) Offer type assault. An “offer” type as- sault is an unlawful demonstration of violence, ei- (i) That the accused attempted to do, offered ther by an intentional or by a culpably negligent act to do, or did bodily harm to a certain person; or omission, which creates in the mind of another a IV-99

2011 NCIS Mini-Manual, Page 155 ¶54.c.(1)(b)(ii) r e a s o n a b l e a p p r e h e n s i o n o f r e c e i v i n g i m m e d i a t e will shoot you,” Doe has committed an assault upon bodily harm. Specific intent to inflict bodily harm is Roe. See also paragraph 47 (robbery) of this part. not required. (d) Situations not constituting defenses to as- (iii) Examples. sault. (A) If Doe swings a fist at Roe’s head intend- (i) Assault attempt fails. It is not a defense to ing to hit Roe but misses, Doe has committed an a charge of assault that for some reason unknown to attempt type assault, whether or not Roe is aware of the assailant, an assault attempt was bound to fail. the attempt. Thus, if a person loads a rifle with what is believed (B) If Doe swings a fist in the direct of Roe’s to be a good cartridge and, pointing it at another, head either intentionally or as a result of culpable pulls the trigger, that person may be guilty of assault negligence, and Roe sees the blow coming and is although the cartridge was defective and did not fire. thereby put in apprehension of being struck, Doe has Likewise, if a person in a house shoots through the committed an offer type assault whether or not Doe roof at a place where a policeman is believed to be, intended to hit Roe. that person may be guilty of assault even though the policeman is at another place on the roof. (C) If Doe swings at Roe’s head, intending to (ii) Retreating victim. An assault is complete hit it, and Roe sees the blow coming and is thereby if there is a demonstration of violence and an appar- put in apprehension of being struck, Doe has com- ent ability to inflict bodily injury causing the person mitted both on offer and an attempt type assault. at whom it was directed to reasonably apprehend (D) If Doe swings at Roe’s head simply to that unless the person retreats bodily harm will be frighten Roe, not intending to hit Roe, and Roe does inflicted. This is true even though the victim re- not see the blow and is not placed in fear, then no treated and was never within actual striking distance assault of any type has been committed. of the assailant. There must, however, be an appar- (c) Situations not amounting to assault. ent present ability to inflict the injury. Thus, to aim ( i ) M e r e p r e p a r a t i o n . P r e p a r a t i o n n o t a pistol at a person at such a distance that it clearly amounting to an overt act, such as picking up a could not injure would not be an assault. stone without any attempt or offer to throw it, does (2) Battery. not constitute an assault. ( a ) I n g e n e r a l . A “ b a t t e r y ” i s a n a s s a u l t i n (ii) Threatening words. The use of threaten- which the attempt or offer to do bodily harm is ing words alone does not constitute an assault. How- consummated by the infliction of that harm. ever, if the threatening words are accompanied by a (b) Application of force. The force applied in a menacing act or gesture, there may be an assault, battery may have been directly or indirectly applied. since the combination constitutes a demonstration of Thus, a battery can be committed by inflicting bod- violence. ily injury on a person through striking the horse on (iii) Circumstances negating intent to harm. which the person is mounted causing the horse to If the circumstances known to the person menaced throw the person, as well as by striking the person clearly negate an intent to do bodily harm there is directly. no assault. Thus, if a person accompanies an appar- (c) Examples of battery. It may be a battery to ent attempt to strike another by an unequivocal an- spit on another, push a third person against another, nouncement in some form of an intention not to set a dog at another which bites the person, cut strike, there is no assault. For example, if Doe raises another’s clothes while the person is wearing them a stick and shakes it at Roe within striking distance though without touching or intending to touch the saying, “If you weren’t an old man, I would knock p e r s o n , s h o o t a p e r s o n , c a u s e a p e r s o n t o t a k e you down,” Doe has committed no assault. Howev- poison, or drive an automobile into a person. A er, an offer to inflict bodily injury upon another person who, although excused in using force, uses i n s t a n t l y i f t h a t p e r s o n d o e s n o t c o m p l y w i t h a m o r e f o r c e t h a n i s r e q u i r e d , c o m m i t s a b a t t e r y . demand which the assailant has no lawful right to Throwing an object into a crowd may be a battery make is an assault. Thus, if Doe points a pistol at on anyone whom the object hits. Roe and says, “If you don’t hand over your watch, I (d) Situations not constituting battery. If bodily IV-100

2011 NCIS Mini-Manual, Page 156 ¶54.c.(4)(b)(ii) harm is inflicted unintentionally and without culpa- use of any means or force would be death or griev- ble negligence, there is no battery. It is also not a ous bodily harm, it may be inferred that the means battery to touch another to attract the other’s atten- or force is “likely” to produce that result. The use to tion or to prevent injury. which a certain kind of instrument is ordinarily put ( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t is irrelevant to the question of its method of employ- based on status of victims. ment in a particular case. Thus, a bottle, beer glass, ( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t , a rock, a bunk adaptor, a piece of pipe, a piece of noncommissioned, or petty officer. The maximum wood, boiling water, drugs, or a rifle butt may be punishment is increased when assault is committed used in a manner likely to inflict death or grievous upon a commissioned officer of the armed forces of bodily harm. On the other hand, an unloaded pistol, the United States, or of a friendly foreign power, or when presented as a firearm and not as a bludgeon, upon a warrant, noncommissioned, or petty officer is not a dangerous weapon or a means of force of the armed forces of the United States. Knowledge likely to produce grievous bodily harm, whether or of the status of the victim is an essential element of not the assailant knew it was unloaded. the offense and may be proved by circumstantial (iii) Grievous bodily harm. “Grievous bodily evidence. It is not necessary that the victim be supe- harm” means serious bodily injury. It does not in- rior in rank or command to the accused, that the clude minor injuries, such as a black eye or a bloody victim be in the same armed force, or that the victim nose, but does include fractured or dislocated bones, be in the execution of office at the time of the deep cuts, torn members of the body, serious dam- assault. a g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y injuries. (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution (iv) Death or injury not required. It is not of law enforcement duties. The maximum punish- necessary that death or grievous bodily harm be ac- ment is increased when assault is committed upon a tually inflicted to prove assault with a dangerous sentinel or lookout in the execution of duty or upon weapon or means likely to produce grievous bodily a person who was then performing security police, harm. military police, shore patrol, master at arms, or other (v) When committed upon a child under 16 military or civilian law enforcement duties. Knowl- years of age. The maximum punishment is increased edge of the status of the victim is an essential ele- when aggravated assault with a dangerous weapon m e n t o f t h i s o f f e n s e a n d m a y b e p r o v e d b y or means likely to produce death or grievous bodily circumstantial evidence. See paragraph 38c(4) for harm is inflicted upon a child under 16 years of age. the definition of “sentinel or lookout.” Knowledge that the person assaulted was under the (c) Assault consummated by a battery upon a age of 16 years is not an element of the offense. child under 16 years of age. The maximum punish- (b) Assault in which grievous bodily harm is ment is increased when assault consummated by a intentionally inflicted. battery is committed upon a child under 16 years of (i) In general. It must be proved that the age. Knowledge that the person assaulted was under accused specifically intended to and did inflict griev- 16 years of age is not an element of this offense. o u s b o d i l y h a r m . C u l p a b l e n e g l i g e n c e w i l l n o t (4) Aggravated assault. suffice. (a) Assault with a dangerous weapon or other (ii) Proving intent. Specific intent may be means or force likely to produce death or grievous proved by circumstantial evidence. When grievous bodily harm. bodily harm has been inflicted by means of inten- ( i ) D a n g e r o u s w e a p o n . A w e a p o n i s d a n - tionally using force in a manner likely to achieve gerous when used in a manner likely to produce that result, it may be inferred that grievous bodily death or grievous bodily harm. harm was intended. On the other hand, that infer- ence might not be drawn if a person struck another (ii) Other means or force. The phrase “other with a fist in a sidewalk fight even if the victim fell means or force” may include any means or instru- so that the victim’s head hit the curbstone and a mentality not normally considered a weapon. When skull fracture resulted. It is possible, however, to the natural and probable consequence of a particular commit this kind of aggravated assault with the fists, IV-101

2011 NCIS Mini-Manual, Page 157 ¶54.c.(4)(b)(ii) as when the victim is held by one of several assail- duct discharge, forfeiture of all pay and allowances, ants while the others beat the victim with their fists and confinement for 6 months. and break a nose, jaw, or rib. (3) Assault upon a commissioned officer of the (iii) Grievous bodily harm. See subparagraph armed forces of the United States or of a friendly (4)(a)(iii). foreign power, not in the execution of office. Dis- (iv) When committed on a child under 16 honorable discharge, forfeiture of all pay and allow- years of age. The maximum punishment is increased ances, and confinement for 3 years. when aggravated assault with intentional infliction (4) Assault upon a warrant officer, not in the of grievous bodily harm is inflicted upon a child execution of office. Dishonorable discharge, forfei- under 16 years of age. Knowledge that the person ture of all pay and allowances, and confinement for assaulted was under the age of 16 years is not an 18 months. element of the offense. (5) Assault upon a noncommissioned or petty offi- d. Lesser included offenses. cer, not in the execution of office. Bad-conduct dis- charge, forfeiture of all pay and allowances, and (1) Simple assault. None confinement for 6 months. ( 2 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y . A r t i c l e (6) Assault upon a sentinel or lookout in the exe- 128—simple assault cution of duty, or upon any person who, in the (3) Assault upon a commissioned, warrant, non- execution of office, is performing security police, commissioned, or petty officer. Article 128—simple military police, shore patrol, master at arms, or assault; assault consummated by a battery other military or civilian law enforcement duties. (4) Assault upon a sentinel or lookout in the exe- Dishonorable discharge, forfeiture of all pay and al- cution of duty, or upon a person in the execution of lowances, and confinement for 3 years. police duties. Article 128—simple assault; assault ( 7 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a consummated by a battery child under 16 years. Dishonorable discharge, forfei- ( 5 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a ture of all pay and allowances, and confinement for child under 16 years. Article 128—simple assault; 2 years. assault consummated by a battery (8) Aggravated assault with a dangerous weapon (6) Assault with a dangerous weapon or other or other means of force likely to produce death or means or force likely to produce death or grievous grievous bodily harm. b o d i l y h a r m . A r t i c l e 1 2 8 — s i m p l e a s s a u l t ; a s s a u l t ( a ) W h e n c o m m i t t e d w i t h a l o a d e d f i r e a r m . consummated by a battery; (when committed upon a Dishonorable discharge, forfeiture of all pay and al- child under the age of 16 years; assault consum- lowances, and confinement for 8 years. mated by a battery upon a child under the age of 16 ( b ) A g g r a v a t e d a s s a u l t w i t h a d a n g e r o u s years). weapon or other means of force likely to produce (7) Assault in which grievous bodily harm is in- death or grievous bodily harm when committed upon tentionally inflicted. Article 128—simple assault; as- a child under the age of 16 years. Dishonorable s a u l t c o n s u m m a t e d b y a b a t t e r y ; a s s a u l t w i t h a discharge, total forfeitures, and confinement for 5 dangerous weapon; (when committed upon a child years. under the age of 16 years -- assault consummated by (c) Other cases. Dishonorable discharge, forfei- a battery upon a child under the age of 16 years). ture of all pay and allowances, and confinement for e. Maximum punishment. 3 years. (1) Simple assault. (9) Aggravated assault in which grievous bodily (A) Generally. Confinement for 3 months and harm is intentionally inflicted. forfeiture of two-thirds pay per month for 3 months. (a) When the injury is inflicted with a loaded firearm. Dishonorable discharge, forfeiture of all pay (B) When committed with an unloaded firearm. and allowances, and confinement for 10 years. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 3 years. (b) Aggravated assault in which grievous bod- ily harm is intentionally inflicted when committed (2) Assault consummated by a battery. Bad con- upon a child under the age of 16 years. Dishonora- IV-102

2011 NCIS Mini-Manual, Page 158 ¶55.b. ble discharge, total forfeitures, and confinement for data, if required), on or about 20 , 8 years. a s s a u l t , w h o t h e n w a s a n d w a s (c) Other cases. Dishonorable discharge, forfei- then known by the accused to be a person then ture of all pay and allowances, and confinement for having and in the execution of (Air Force security 5 years. p o l i c e ) ( m i l i t a r y p o l i c e ) ( s h o r e p a t r o l ) ( m a s t e r a t f. Sample specifications. arms) ((military) (civilian) law enforcement)) duties, by . (1) Simple assault. In that (personal jurisdiction data), did, ( 7 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a (at/on board—location), (subject-matter jurisdiction child under 16 years. data, if required), on or about 20 , In that (personal jurisdiction data), did, a s s a u l t b y ( s t r i k i n g a t h i m / h e r w i t h (at/on board—location) (subject-matter jurisdiction a ) ( ). data, if required), on or about 20 , unlawfully (strike) ( ) a child (2) Assault consummated by a battery. u n d e r t h e a g e o f 1 6 y e a r s , ( i n ) ( o n ) In that (personal jurisdiction data), did, the with . (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , (8) Assault, aggravated—with a dangerous weap- u n l a w f u l l y ( s t r i k e ) ( ) ( o n ) on, means or force. (in) the with . In that (personal jurisdiction data), did, (at/on board-location)(subject matter jurisdiction da- (3) Assault upon a commissioned officer. ta, if required), on or about 20 , In that (personal jurisdiction data), did, commit an assault upon (a child under (at/on board—location) (subject-matter jurisdiction the age of 16 years) by (shooting)(pointing)(strikin- data, if required), on or about 20 , g ) ( c u t t i n g ) ( ) ( a t h i m / h e r ) ( h i m / h e r ) ( i n - assault , who then was and was then ) ( o n ) ( t h e ) w i t h ( a d a n g e r o u s w e a p o n ) ( a known by the accused to be a commissioned officer (means)(force) likely to produce death or grievous o f ( , a f r i e n d l y f o r e i g n p o w e r ) ( t h e b o d i l y h a r m ) , t o w i t : a ( l o a d e d U n i t e d S t a t e s ( A r m y ) ( N a v y ) ( M a r i n e C o r p s ) ( A i r firearm)(pickax)(bayonet)(club)( ). Force) (Coast Guard)) by . (9) Assault, aggravated—inflicting grievous bod- (4) Assault upon a warrant, noncommissioned, or ily harm. petty officer. In that (personal jurisdiction data), did, In that (personal jurisdiction data), did, (at/on board-location)(subject matter jurisdiction da- (at/on board—location) (subject-matter jurisdiction ta, if required), on or about 20 , data, if required), on or about 20 , commit an assault upon (a child under the age assault , who then was and was then of 16 years) by (shooting)(striking)(cutting)( ) known by the accused to be a (warrant) (noncom- ( h i m / h e r ) ( o n ) t h e w i t h a ( l o a d e d missioned) (petty) officer of the United States (Ar- f i r e a r m ) ( c l u b ) ( r o c k ) ( b r i c k ) ( ) a n d d i d t h e r e b y m y ) ( N a v y ) ( M a r i n e C o r p s ) ( A i r F o r c e ) ( C o a s t intentionally inflict grievous bodily harm upon him/ Guard), by . h e r , t o w i t : a ( b r o k e n l e g ) ( d e e p c u t ) ( f r a c t u r e d (5) Assault upon a sentinel or lookout. skull)( ). In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction 55. Article 129—Burglary data, if required), on or about 20 , a s s a u l t , w h o t h e n w a s a n d w a s a. Text of statute. then known by the accused to be a (sentinel) (look- Any person subject to this chapter who, with in- o u t ) i n t h e e x e c u t i o n o f h i s / h e r d u t y , ( ( i n ) ( o n ) tent to commit an offense punishable under sec- the ) by . t i o n s 9 1 8 - 9 2 8 o f t h i s t i t l e ( a r t i c l e s 1 1 8 - 1 2 8 ) , (6) Assault upon a person in the execution of law breaks and enters, in the nighttime, the dwelling enforcement duties. house of another, is guilty of burglary and shall In that (personal jurisdiction data), did, be punished as a court-martial may direct. (at/on board—location) (subject-matter jurisdiction b. Elements. IV-103

2011 NCIS Mini-Manual, Page 159 ¶55.b.(1)

( 1 ) T h a t t h e a c c u s e d u n l a w f u l l y b r o k e a n d cient entry, unless the insertion is solely to facilitate entered the dwelling house of another; the breaking or entry. ( 2 ) T h a t b o t h t h e b r e a k i n g a n d e n t e r i n g w e r e (4) Nighttime. Both the breaking and entry must done in the nighttime; and be in the nighttime. “Nighttime” is the period be- ( 3 ) T h a t t h e b r e a k i n g a n d e n t e r i n g w e r e d o n e tween sunset and sunrise when there is not sufficient w i t h t h e i n t e n t t o c o m m i t a n o f f e n s e p u n i s h a b l e daylight to discern a person’s face. under Article 118 through 128, except Article 123a. (5) Dwelling house of another. To constitute bur- c. Explanation. glary the house must be the dwelling house of an- (1) In general. “Burglary” is the breaking and o t h e r . “ D w e l l i n g h o u s e ” i n c l u d e s o u t b u i l d i n g s entering in the nighttime of the dwelling house of within the common inclosure, farmyard, or cluster of another, with intent to commit an offense punishable buildings used as a residence. Such an area is the under Articles 118 through 128, except 123a. In “curtilage.” A store is not a dwelling house unless addition, an intent to commit an offense which, al- part of, or also used as, a dwelling house, as when though not covered by Article 118 through 128, nec- the occupant uses another part of the same building e s s a r i l y i n c l u d e s a n o f f e n s e w i t h i n o n e o f t h e s e as a dwelling, or when the store in habitually slept articles, satisfies the intent element of this article. i n b y f a m i l y m e m b e r s o r e m p l o y e e s . T h e h o u s e T h i s i n c l u d e s , f o r e x a m p l e , a s s a u l t s p u n i s h a b l e must be used as a dwelling at the time of the break- under Article 134 which necessarily include simple ing and entering. It is not necessary that anyone assault under Article 128. actually be in it at the time of the breaking and (2) Breaking. There must be a breaking, actual or entering, but if the house has never been occupied at constructive. Merely to enter through a hole left in all or has been left without any intention of return- the wall or roof or through an open window or door ing, it is not a dwelling house. Separate dwellings will not constitute a breaking; but if a person moves within the same building, such as a barracks room, any obstruction to entry of the house without which apartment, or a room in a hotel, are subjects of movement the person could not have entered, the burglary by other residents or guests, and in general p e r s o n h a s c o m m i t t e d a “ b r e a k i n g . ” O p e n i n g a by the owner of the building. A tent is not a subject c l o s e d d o o r o r w i n d o w o r o t h e r s i m i l a r f i x t u r e , of burglary. opening wider a door or window already partly open (6) Intent to commit offense. Both the breaking but insufficient for the entry, or cutting out the glass and entry must be done with the intent to commit in of a window or the netting of a screen is a sufficient the house an offense punishable under Articles 118 breaking. The breaking of an inner door by one who through 128, except 123a. If, after the breaking and has entered the house without breaking, or by a entering, the accused commits one or more of these person lawfully within the house who has no author- offenses, it may be inferred that the accused in- ity to enter the particular room, is a sufficient break- tended to commit the offense or offenses at the time ing, but unless such a breaking is followed by an of the breaking and entering. If the evidence war- entry into the particular room with the requisite in- r a n t s , t h e i n t e n d e d o f f e n s e m a y b e s e p a r a t e l y tent, burglary is not committed. There is a construc- charged. It is immaterial whether the offense in- tive breaking when the entry is gained by a trick, tended is committed or even attempted. If the of- such as concealing oneself in a box; under false f e n s e i s i n t e n d e d , i t i s n o d e f e n s e t h a t i t s pretense, such as impersonating a gas or telephone commission was impossible. inspector; by intimidating the occupants through vio- (7) Separate offense. If the evidence warrants, the lence or threats into opening the door; through collu- intended offense in the burglary specification may sion with a confederate, an occupant of the house; or be separately charged. by descending a chimney, even if only a partial d. Lesser included offenses. descent is made and no room is entered. (1) Article 130—housebreaking (3) Entry. An entry must be effected before the offense is complete, but the entry of any part of the (2) Article 134—unlawful entry body, even a finger, is sufficient. Insertion into the (3) Article 80—attempts house of a tool or other instrument is also a suffi- e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , IV-104

2011 NCIS Mini-Manual, Page 160 ¶57.b.(1)(b) forfeiture of all pay and allowances, and confine- these structures are a stateroom, hold, or other com- ment for 10 years. partment of a vessel, an inhabitable trailer, an in- f. Sample specification. closed truck or freight car, a tent, and a houseboat. It In that (personal jurisdiction data), did, is not necessary that the building or structure be in at , (subject-matter jurisdiction data, if use at the time of the entry. required), on or about 20 , in the (5) Entry. See paragraph 55c(3). nighttime, unlawfully break and enter the (dwelling (6) Separate offense. If the evidence warrants, the h o u s e ) ( w i t h i n t h e c u r t i l a g e ) intended offense in the housebreaking specification of , with intent to commit (murder) (lar- may be separately charged. ceny) ( ) therein. d. Lesser included offenses. (1) Article 134—unlawful entry 56. Article 130—Housebreaking (2) Article 80—attempts a. Text of statute. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , Any person subject to this chapter who unlaw- forfeiture of all pay and allowances, and confine- fully enters the building or structure of another ment for 5 years. with intent to commit a criminal offense therein f. Sample specification. is guilty of housebreaking and shall be punished In that , (personal jurisdiction data), did, as a court-martial may direct. (at/on board—location) (subject-matter jurisdiction b. Elements. data, if required), on or about 20 , (1) That the accused unlawfully entered a certain unlawfully enter a (dwelling) (room) (bank) (store) building or structure of a certain other person; and (warehouse) (shop) (tent) (stateroom) ( ), (2) That the unlawful entry was made with the the property of , with intent to commit a intent to commit a criminal offense therein. criminal offense, to wit: , therein. c. Explanation. 57. Article 131—Perjury (1) Scope of offense. The offense of housebreak- ing is broader than burglary in that the place entered a. Text of statute. is not required to be a dwelling house; it is not Any person subject to this chapter who in a judi- necessary that the place be occupied; it is not essen- cial proceeding or in a course of justice willfully tial that there be a breaking; the entry may be either and corruptly— in the night or in the daytime; and the intent need (1) upon a lawful oath or in any form allowed not be to commit one of the offenses made punisha- by law to be substituted for an oath, gives any ble under Articles 118 through 128. false testimony material to the issue or matter of (2) Intent. The intent to commit some criminal inquiry; or offense is an essential element of housebreaking and (2) in any declaration, certificate, verification, must be alleged and proved to support a conviction or statement under penalty of perjury as permit- of this offense. If, after the entry the accused com- ted under section 1746 of title 28, United States m i t t e d a c r i m i n a l o f f e n s e i n s i d e t h e b u i l d i n g o r Code, subscribes any false statement material to structure, it may be inferred that the accused in- the issue or matter of inquiry; is guilty of perjury tended to commit that offense at the time of the and shall be punished as a court-martial may entry. direct. (3) Criminal offense. Any act or omission which b. Elements. is punishable by courts-martial, except an act or (1) Giving false testimony. omission constituting a purely military offense, is a (a) That the accused took an oath or affirma- “criminal offense.” tion in a certain judicial proceeding or course of ( 4 ) B u i l d i n g , s t r u c t u r e . “ B u i l d i n g ” i n c l u d e s a justice; room, shop, store, office, or apartment in a building. (b) That the oath or affirmation was adminis- “Structure” refers only to those structures which are tered to the accused in a matter in which an oath or in the nature of a building or dwelling. Examples of affirmation was required or authorized by law; IV-105

2011 NCIS Mini-Manual, Page 161 ¶57.b.(1)(c)

(c) That the oath or affirmation was adminis- respect to the credibility of a material witness or in tered by a person having authority to do so; an affidavit in support of a request for a continu- (d) That upon the oath or affirmation that ac- a n c e , a s w e l l a s b y g i v i n g f a l s e t e s t i m o n y w i t h cused willfully gave certain testimony; respect to a fact from which a legitimate inference (e) That the testimony was material; may be drawn as to the existence or nonexistence of a fact in issue. (f) That the testimony was false; and (c) Proof. The falsity of the allegedly perjured (g) That the accused did not then believe the statement cannot be proved by circumstantial evi- testimony to be true. dence alone, except with respect to matters which by (2) Subscribing false statement. their nature are not susceptible of direct proof. The (a) That the accused subscribed a certain state- falsity of the statement cannot be proved by the ment in a judicial proceeding or course of justice; testimony of a single witness unless that testimony (b) That in the declaration, certification, verifi- directly contradicts the statement and is corroborated cation, or statement under penalty of perjury, the by other evidence either direct or circumstantial, ten- accused declared, certified, verified, or stated the ding to prove the falsity of the statement. However, truth of that certain statement; documentary evidence directly disproving the truth (c) That the accused willfully subscribed the of the statement charged to have been perjured need statement; not be corroborated if: the document is an official (d) That the statement was material; record shown to have been well known to the ac- cused at the time the oath was taken; or the docu- (e) That the statement was false; and mentary evidence originated from the accused—or (f) That the accused did not then believe the had in any manner been recognized by the accused statement to be true. as containing the truth—before the allegedly per- c. Explanation. jured statement was made. (1) In general. “Judicial proceeding” includes a (d) Oath. The oath must be one recognized or t r i a l b y c o u r t - m a r t i a l a n d “ c o u r s e o f j u s t i c e ” i n - authorized by law and must be duly administered by cludes an investigation conducted under Article 32. one authorized to administer it. When a form of oath If the accused is charged with having committed has been prescribed, a literal following of that form perjury before a court-martial, it must be shown that is not essential; it is sufficient if the oath adminis- the court-martial was duly constituted. tered conforms in substance to the prescribed form. (2) Giving false testimony. “Oath” includes an affirmation when the latter is (a) Nature. The testimony must be false and authorized in lieu of an oath. must be willfully and corruptly given; that is, it must (e) Belief of accused. The fact that the accused be proved that the accused gave the false testimony did not believe the statement to be true may be willfully and did not believe it to be true. A witness proved by testimony of one witness without corrobo- may commit perjury by testifying to the truth of a ration or by circumstantial evidence. matter when in fact the witness knows nothing about ( 3 ) S u b s c r i b i n g f a l s e s t a t e m e n t . S e e s u b - it at all or is not sure about it, whether the thing is paragraphs (1) and (2), above, as applicable. Section true or false in fact. A witness may also commit 1746 of title 28, United States Code, provides for perjury in testifying falsely as to a belief, remem- subscribing to the truth of a document by signing it brance, or impression, or as to a judgment or opin- expressly subject to the penalty for perjury. The ion. It is no defense that the witness voluntarily signing must take place in a judicial proceeding or appeared, that the witness was incompetent as a wit- course of justice—for example, if a witness signs ness, or that the testimony was given in response to u n d e r p e n a l t y o f p e r j u r y s u m m a r i z e d t e s t i m o n y questions that the witness could have declined to given at an Article 32 investigation. It is not re- answer. quired that the document be sworn before a third (b) Material matter. The false testimony must party. Section 1746 does not change the requirement be with respect to a material matter, but that matter that a deposition be given under oath or alter the need not be the main issue in the case. Thus, perjury s i t u a t i o n w h e r e a n o a t h i s r e q u i r e d t o b e t a k e n may be committed by giving false testimony with before a specific person. IV-106

2011 NCIS Mini-Manual, Page 162 ¶58.b.(2)(c) d. Lesser included offense. Article 80—attempts. p r o v a l , a l l o w a n c e , o r p a y m e n t o f a n y c l a i m e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , against the United States or any officer thereof— forfeiture of all pay and allowances, and confine- (a) makes or uses any writing or other paper ment for 5 years. k n o w i n g i t t o c o n t a i n a n y f a l s e o r f r a u d u l e n t f. Sample specifications. statements; (1) Giving false testimony. (b) makes any oath to any fact or to any I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , writing or other paper knowing the oath to be having taken a lawful (oath) (affirmation) in a (trial false; or b y c o u r t - m a r t i a l o f ) (c) forges or counterfeits any signature upon ( t r i a l b y a c o u r t o f c o m p e t e n t j u r i s d i c t i o n , t o any writing or other paper, or uses any such w i t : o f ) ( d e p o s i t i o n s i g n a t u r e k n o w i n g i t t o b e f o r g e d o r f o r u s e i n a t r i a l counterfeited; b y o f ) ( ) (3) who, having charge, possession, custody, or that he/she would (testify) (depose) truly, did, (at/on control of any money, or other property of the board—location) (subject-matter jurisdiction data, if U n i t e d S t a t e s , f u r n i s h e d o r i n t e n d e d f o r t h e required), on or about 20 , will- armed forces thereof, knowingly delivers to any fully, corruptly, and contrary to such (oath) (affirma- person having authority to receive it, any amount t i o n ) , ( t e s t i f y ) ( d e p o s e ) f a l s e l y i n s u b s t a n c e thereof less than that for which he receives a t h a t , w h i c h ( t e s t i m o n y ) ( d e p o s i t i o n ) certificate or receipt; or was upon a material matter and which he/she did not (4) who, being authorized to make or deliver then believe to be true. any paper certifying the receipt of any property (2) Subscribing false statement. of the United States furnished or intended for the In that (personal jurisdiction data), did armed forces thereof, makes or delivers to any (at/on board—location) (subject-matter jurisdiction person such writing without having full knowl- data, if required), on or about 20 , edge of the truth of the statements therein con- in a (judicial proceeding) (course of justice), and in t a i n e d a n d w i t h i n t e n t t o d e f r a u d t h e U n i t e d a ( d e c l a r a t i o n ) ( c e r t i f i c a t i o n ) ( v e r i f i c a t i o n ) ( s t a t e - States; shall, upon conviction, be punished as a ment) under penalty of perjury pursuant to section court-martial may direct. 1746 of title 28, United States Code, willfully and b. Elements. corruptly subscribed a false statement material to the (1) Making a false or fraudulent claim. ( i s s u e ) ( m a t t e r o f i n q u i r y ) , t o w i t : , ( a ) T h a t t h e a c c u s e d m a d e a c e r t a i n c l a i m which statement was false in that , and against the United States or an officer thereof; which statement he/she did not then believe to be (b) That the claim was false or fraudulent in true. certain particulars; and (c) That the accused then knew that the claim 58. Article 132—Frauds against the United was false or fraudulent in these particulars. States (2) Presenting for approval or payment a false or a. Text of statute. fraudulent claim. Any person subject to this chapter— (a) That the accused presented for approval or (1) who, knowing it to be false or fraudulent— payment to a certain person in the civil or military ( a ) m a k e s a n y c l a i m a g a i n s t t h e U n i t e d service of the United States having authority to ap- States or any officer thereof; or prove or pay it a certain claim against the United (b) presents to any person in the civil or mil- States or an officer thereof; itary service thereof, for approval or payment, (b) That the claim was false or fraudulent in any claim against the United States or any officer certain particulars; and thereof; (c) That the accused then knew that the claim (2) who, for the purpose of obtaining the ap- was false or fraudulent in these particulars. IV-107

2011 NCIS Mini-Manual, Page 163 ¶58.b.(3)

( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r r e c e i p t f o r a c e r t a i n a m o u n t o r q u a n t i t y o f t h a t paper in connection with claims. money or property; (a) That the accused made or used a certain (c) That for the certificate or receipt the ac- writing or other paper; cused knowingly delivered to a certain person hav- (b) That certain material statements in the writ- ing authority to receive it an amount or quantity of ing or other paper were false or fraudulent; money or property less than the amount or quantity (c) That the accused then knew the statements thereof specified in the certificate or receipt; and were false or fraudulent; and ( d ) T h a t t h e u n d e l i v e r e d m o n e y o r p r o p e r t y (d) That the act of the accused was for the was of a certain value. p u r p o s e o f o b t a i n i n g t h e a p p r o v a l , a l l o w a n c e , o r (8) Making or delivering receipt without having payment of a certain claim or claims against the full knowledge that it is true. United States or an officer thereof. (a) That the accused was authorized to make or (4) False oath in connection with claims. deliver a paper certifying the receipt from a certain (a) That the accused made an oath to a certain person of certain property of the United States fur- fact or to a certain writing or other paper; nished or intended for the armed forces thereof; ( b ) T h a t t h e o a t h w a s f a l s e i n c e r t a i n (b) That the accused made or delivered to that particulars; person a certificate or receipt; (c) That the accused then knew it was false; (c) That the accused made or delivered the cer- and tificate without having full knowledge of the truth of a certain material statement or statements therein; (d) That the act was for the purpose of obtain- ing the approval, allowance, or payment of a certain (d) That the act was done with intent to de- claim or claims against the United States or an offi- fraud the United States; and cer thereof. ( e ) T h a t t h e p r o p e r t y c e r t i f i e d a s b e i n g r e - ( 5 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h ceived was of a certain value. claims. c. Explanation. (a) That the accused forged or counterfeited the (1) Making a false or fraudulent claim. signature of a certain person on a certain writing or (a) Claim. A “claim” is a demand for a transfer other paper; and of ownership of money or property and does not (b) That the act was for the purpose of obtain- include requisitions for the mere use of property. ing the approval, allowance, or payment of a certain This article applies only to claims against the United claim against the United States or an officer thereof. States or any officer thereof as such, and not to ( 6 ) U s i n g f o r g e d s i g n a t u r e i n c o n n e c t i o n w i t h claims against an officer of the United States in that claims. officer’s private capacity. (a) That the accused used the forged or coun- (b) Making a claim. Making a claim is a dis- terfeited signature of a certain person; tinct act from presenting it. A claim may be made in one place and presented in another. The mere writ- (b) That the accused then knew that the signa- ing of a paper in the form of a claim, without any ture was forged or counterfeited; and further act to cause the paper to become a demand (c) That the act was for the purpose of obtain- against the United States or an officer thereof, does ing the approval, allowance, or payment of a certain not constitute making a claim. However, any act claim against the United States or an officer thereof. p l a c i n g t h e c l a i m i n o f f i c i a l c h a n n e l s c o n s t i t u t e s (7) Delivering less than amount called for by re- making a claim, even if that act does not amount to ceipt. presenting a claim. It is not necessary that the claim (a) That the accused had charge, possession, be allowed or paid or that it be made by the person custody, or control of certain money or property of to be benefited by the allowance or payment. See t h e U n i t e d S t a t e s f u r n i s h e d o r i n t e n d e d f o r t h e also subparagraph (2), below. armed forces thereof; (c) Knowledge. The claim must be made with (b) That the accused obtained a certificate or knowledge of its fictitious or dishonest character. IV-108

2011 NCIS Mini-Manual, Page 164 ¶58.f.(1)

T h i s a r t i c l e d o e s n o t p r o s c r i b e c l a i m s , h o w e v e r p a r a g r a p h 4 8 ( c ) a n d s u b p a r a g r a p h ( 1 ) a n d ( 2 ) , groundless they may be, that the maker believes to above. be valid, or claims that are merely made negligently (6) Delivering less than amount called for by re- or without ordinary prudence. c e i p t . I t i s i m m a t e r i a l b y w h a t m e a n s — w h e t h e r (2) Presenting for approval or payment a false or deceit, collusion, or otherwise—the accused effected fraudulent claim. the transaction, or what was the accused’s purpose. (a) False and fraudulent. False and fraudulent (7) Making or delivering receipt without having claims include not only those containing some mate- full knowledge that it is true. When an officer or rial false statement, but also claims which the claim- other person subject to military law is authorized to ant knows to have been paid or for some other make or deliver any paper certifying the receipt of reason the claimant knows the claimant is not au- any property of the United States furnished or in- t h o r i z e d t o p r e s e n t o r u p o n w h i c h t h e c l a i m a n t tended for the armed forces thereof, and a receipt or knows the claimant has no right to collect. other paper is presented for signature stating that a ( b ) P r e s e n t i n g a c l a i m . T h e c l a i m m u s t b e certain amount of supplies has been furnished by a presented, directly or indirectly, to some person hav- certain contractor, it is that person’s duty before ing authority to pay it. The person to whom the signing the paper to know that the full amount of claim is presented may be identified by position or supplies therein stated to have been furnished has in authority to approve the claim, and need not be fact been furnished, and that the statements con- identified by name in the specification. A false claim tained in the paper are true. If the person signs the may be tacitly presented, as when a person who paper with intent to defraud the United States and without that knowledge, that person is guilty of a knows that there is no entitlement to certain pay violation of this section of the article. If the person accepts it nevertheless without disclosing a disquali- signs the paper with knowledge that the full amount fication, even though the person may not have made was not received, it may be inferred that the person any representation of entitlement to the pay. For intended to defraud the United States. example, a person cashing a pay check which in- c l u d e s a n a m o u n t f o r a d e p e n d e n c y a l l o w a n c e , d. Lesser included offense. Article 80—attempts knowing at the time that the entitlement no longer e. Maximum punishment. exists because of a change in that dependency status, ( 1 ) A r t i c l e 1 3 2 ( 1 ) a n d ( 2 ) . D i s h o n o r a b l e d i s - has tacitly presented a false claim. See also sub- charge, forfeiture of all pay and allowances, and paragraph (1), above. confinement for 5 years. ( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r (2) Article 132(3) and (4). paper in connection with claims. The false or fraud- (a) When amount is $500.00 or less. Bad-con- ulent statement must be material, that is, it must duct discharge, forfeiture of all pay and allowances, have a tendency to mislead governmental officials in and confinement for 6 months. their consideration or investigation of the claim. The (b) When amount is over $500.00. Dishonora- offense of making a writing or other paper known to ble discharge, forfeiture of all pay and allowances, contain a false or fraudulent statement for the pur- and confinement for 5 years. pose of obtaining the approval, allowance, or pay- f. Sample specifications. ment of a claim is complete when the writing or (1) Making false claim. paper is made for that purpose, whether or not any In that (personal jurisdiction data), did, use of the paper has been attempted and whether or (at/on board—location) (subject-matter jurisdiction not the claim has been presented. See also the expla- data, if required), on or about 20 , nation in subparagraph (1) and (2), above. (by preparing (a voucher) ( ) for presenta- ( 4 ) F a l s e o a t h i n c o n n e c t i o n w i t h c l a i m s . S e e tion for approval or payment) ( ), make a subparagraphs (1) and (2), above. claim against the (United States) (finance officer ( 5 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h a t ) ( ) i n t h e a m o u n t o f claims. Any fraudulent making of the signature of $ for (private property alleged to have another is forging or counterfeiting, whether or not b e e n ( l o s t ) ( d e s t r o y e d ) i n t h e m i l i t a r y s e r v i c e ) an attempt is made to imitate the handwriting. See ( ), which claim was (false) (fraudulent) IV-109

2011 NCIS Mini-Manual, Page 165 ¶58.f.(1)

( f a l s e a n d f r a u d u l e n t ) i n t h e a m o u n t o f (5) Forging or counterfeiting signature. $ i n t h a t a n d In that (personal jurisdiction data), for w a s t h e n k n o w n b y t h e s a i d t o b e the purpose of obtaining the (approval) (allowance) (false) (fraudulent) (false and fraudulent). (payment) (approval, allowance, and payment) of a (2) Presenting false claim. claim against the United States, did (at/on board— In that (personal jurisdiction data), did, l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - (at/on board—location) (subject-matter jurisdiction quired), on or about 20 , (forge) data, if required), on or about 20 , ( c o u n t e r f e i t ) ( f o r g e a n d c o u n t e r f e i t ) t h e s i g n a t u r e b y p r e s e n t i n g ( a v o u c h e r ) ( ) o f u p o n a i n w o r d s to , an officer of the United States duly and figures as follows: . a u t h o r i z e d t o ( a p p r o v e ) ( p a y ) ( a p p r o v e a n d p a y ) (6) Using forged signature. such claim, present for (approval) (payment) (ap- In that , for the purpose of obtaining the proval and payment) a claim against the (United (approval) (allowance) (payment) (approval, allow- S t a t e s ) ( f i n a n c e o f f i c e r a t ) ance, and payment) of a claim against the United ( ) i n t h e a m o u n t o f $ f o r States, did, (at/on board—location) (subject-matter ( s e r v i c e s a l l e g e d t o h a v e b e e n r e n d e r e d t o t h e j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r U n i t e d S t a t e s b y d u - about 20 , use the sig- r i n g ) ( ) , w h i c h c l a i m w a s nature of on a certain (writing) (paper), ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d f r a u d u l e n t ) i n t h e to wit: , then knowing such signature to a m o u n t o f $ i n t h a t , b e ( f o r g e d ) ( c o u n t e r f e i t e d ) ( f o r g e d a n d and was then known by the said to be counterfeited). (false) (fraudulent) (false and fraudulent). (7) Paying amount less than called for by receipt. (3) Making or using false writing. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , In that (personal jurisdiction data), for having (charge) (possession) (custody) (control) of the purpose of obtaining the (approval) (allowance) (money) ( ) of the United States, (payment) (approval, allowance, and payment), of a (furnished) (intended) (furnished and intended) for claim against the United States in the amount of the armed forces thereof, did, (at/on board—loca- $ , did (at/on board— location) (subject- tion) (subject-matter jurisdiction data, if required), m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r o n o r a b o u t 2 0 , a b o u t 2 0 , ( m a k e ) k n o w i n g l y d e l i v e r t o , t h e s a i d - (use) (make and use) a certain (writing) (paper), to h a v i n g a u t h o r i t y t o r e c e i v e t h e wit: , which said (writing) (paper), as same, (an amount) ( ), which, as he/ he/she, the said , then knew, contained a s h e , , t h e n k n e w , w a s ( $ ) s t a t e m e n t t h a t , w h i c h s t a t e m e n t ( ) less than the (amount) ( ) w a s ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d f r a u d u l e n t ) i n for which he/she received a (certificate) (receipt) that , and was then known by the said from the said . t o b e ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d ( 8 ) M a k i n g r e c e i p t w i t h o u t k n o w l e d g e o f t h e fraudulent). facts. (4) Making false oath. In that (personal jurisdiction data), be- In that (personal jurisdiction data), for i n g a u t h o r i z e d t o ( m a k e ) ( d e l i v e r ) ( m a k e a n d the purpose of obtaining the (approval) (allowance) deliver) a paper certifying the receipt of property of (payment) (approval, allowance, and payment) of a the United States (furnished) (intended) (furnished claim against the United States, did, (at/on board— and intended) for the armed forces thereof, did, (at/ l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - on board—location) (subject-matter jurisdiction data, quired), on or about 20 , make an i f r e q u i r e d ) , o n o r o a t h ( t o t h e f a c t t h a t ) ( t o a c e r t a i n a b o u t 2 0 , w i t h o u t h a v i n g (writing) (paper), to wit: , to the effect full knowledge of the statement therein contained t h a t ) , w h i c h s a i d o a t h w a s f a l s e i n and with intent to defraud the United States, (make) that , and was then known by the said- (deliver) (make and deliver) to , such a to be false. w r i t i n g , i n w o r d s a n d f i g u r e s a s f o l - IV-110

2011 NCIS Mini-Manual, Page 166 ¶60.a. lows: , the property therein certified as of proof are the same as those set forth in the para- received being of a value of about $ . graph which treats that specific offense, with the additional requirement that the act or omission con- 59. Article 133—Conduct unbecoming an s t i t u t e s c o n d u c t u n b e c o m i n g a n o f f i c e r a n d officer and gentleman gentleman. a. Text of statute. (3) Examples of offenses. Instances of violation of Any commissioned officer, cadet, or midshipman this article include knowingly making a false official who is convicted of conduct unbecoming an offi- statement; dishonorable failure to pay a debt; cheat- cer and a gentleman shall be punished as a court- ing on an exam; opening and reading a letter of martial may direct. another without authority; using insulting or defama- b. Elements. t o r y l a n g u a g e t o a n o t h e r o f f i c e r i n t h a t o f f i c e r ’ s presence or about that officer to other military per- (1) That the accused did or omitted to do certain sons; being drunk and disorderly in a public place; acts; and public association with known prostitutes; commit- (2) That, under the circumstances, these acts or t i n g o r a t t e m p t i n g t o c o m m i t a c r i m e i n v o l v i n g omissions constituted conduct unbecoming an offi- moral turpitude; and failing without good cause to cer and gentleman. support the officer’s family. c. Explanation. d. Lesser included offense. Article 80—attempts ( 1 ) G e n t l e m a n . A s u s e d i n t h i s a r t i c l e , e. Maximum punishment. Dismissal, forfeiture of all “gentleman” includes both male and female commis- pay and allowances, and confinement for a period sioned officers, cadets, and midshipmen. not in excess of that authorized for the most analo- (2) Nature of offense. Conduct violative of this gous offense for which a punishment is prescribed in article is action or behavior in an official capacity this Manual, or, if none is prescribed, for 1 year. which, in dishonoring or disgracing the person as an f. Sample specifications. officer, seriously compromises the officer’s charac- (1) Copying or using examination paper. ter as a gentleman, or action or behavior in an unof- In that (personal jurisdiction data), did, ficial or private capacity which, in dishonoring or ( a t / o n b o a r d — l o c a t i o n ) , o n o r disgracing the officer personally, seriously compro- a b o u t 2 0 , w h i l e u n - mises the person’s standing as an officer. There are d e r g o i n g a w r i t t e n e x a m i n a t i o n o n t h e s u b j e c t certain moral attributes common to the ideal officer o f , w r o n g f u l l y a n d d i s h o n o r a b l y ( r e - and the perfect gentleman, a lack of which is indi- ceive) (request) unauthorized aid by ((using) (copy- cated by acts of dishonesty, unfair dealing, indecen- ing) the examination paper of )) cy, indecorum, lawlessness, injustice, or cruelty. Not ( ). everyone is or can be expected to meet unrealisti- cally high moral standards, but there is a limit of (2) Drunk or disorderly. tolerance based on customs of the service and mili- I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , tary necessity below which the personal standards of w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r an officer, cadet, or midshipman cannot fall without about 20 , in a public seriously compromising the person’s standing as an p l a c e , t o w i t : , ( d r u n k ) ( d i s o r d e r l y ) officer, cadet, or midshipman or the person’s charac- (drunk and disorderly) while in uniform, to the dis- ter as a gentleman. This article prohibits conduct by grace of the armed forces. a c o m m i s s i o n e d o f f i c e r , c a d e t , o r m i d s h i p m a n which, taking all the circumstances into considera- 60. Article 134—General article tion, is thus compromising. This article includes acts a. Text of statute. made punishable by any other article, provided these Though not specifically mentioned in this chap- acts amount to conduct unbecoming an officer and a ter, all disorders and neglects to the prejudice of gentleman. Thus, a commissioned officer who steals good order and discipline in the armed forces, all property violates both this article and Article 121. conduct of a nature to bring discredit upon the Whenever the offense charged is the same as a spe- armed forces, and crimes and offenses not capi- cific offense set forth in this Manual, the elements tal, of which persons subject to this chapter may IV-111

2011 NCIS Mini-Manual, Page 167 ¶60.a. be guilty, shall be taken cognizance of by a gener- cle does not include these distant effects. It is con- al, special, or summary court-martial, according fined to cases in which the prejudice is reasonably to the nature and degree of the offense, and shall direct and palpable. An act in violation of a local be punished at the discretion of that court. civil law or of a foreign law may be punished if it b. Elements. The proof required for conviction of an constitutes a disorder or neglect to the prejudice of offense under Article 134 depends upon the nature good order and discipline in the armed forces. How- of the misconduct charged. If the conduct is pun- e v e r , s e e R . C . M . 2 0 3 c o n c e r n i n g s u b j e c t - m a t t e r ished as a crime or offense not capital, the proof jurisdiction. must establish every element of the crime or offense (b) Breach of custom of the service. A breach as required by the applicable law. If the conduct is of a custom of the service may result in a violation punished as a disorder or neglect to the prejudice of of clause 1 of Article 134. In its legal sense, “cus- good order and discipline in the armed forces, or of tom” means more than a method of procedure or a a nature to bring discredit upon the armed forces, mode of conduct or behavior which is merely of then the following proof is required: frequent or usual occurrence. Custom arises out of (1) That the accused did or failed to do certain long established practices which by common usage acts; and have attained the force of law in the military or other community affected by them. No custom may (2) That, under the circumstances, the accused’s be contrary to existing law or regulation. A custom conduct was to the prejudice of good order and which has not been adopted by existing statute or discipline in the armed forces or was of a nature to regulation ceases to exist when its observance has bring discredit upon the armed forces. b e e n g e n e r a l l y a b a n d o n e d . M a n y c u s t o m s o f t h e c. Explanation. service are now set forth in regulations of the vari- (1) In general. Article 134 makes punishable acts o u s a r m e d f o r c e s . V i o l a t i o n s o f t h e s e c u s t o m s in three categories of offenses not specifically cov- should be charged under Article 92 as violations of ered in any other article of the code. These are the regulations in which they appear if the regulation referred to as “clauses 1, 2, and 3” of Article 134. is punitive. See paragraph 16c. Clause 1 offenses involve disorders and neglects to (3) Conduct of a nature to bring discredit upon the prejudice of good order and discipline in the the armed forces (clause 2). “Discredit” means to armed forces. Clause 2 offenses involve conduct of a injure the reputation of. This clause of Article 134 n a t u r e t o b r i n g d i s c r e d i t u p o n t h e a r m e d f o r c e s . makes punishable conduct which has a tendency to Clause 3 offenses involve noncapital crimes or of- bring the service into disrepute or which tends to fenses which violate Federal law including law made lower it in public esteem. Acts in violation of a local applicable through the Federal Assimilative Crimes civil law or a foreign law may be punished if they Act, see subsection (4) below. If any conduct of this are of a nature to bring discredit upon the armed nature is specifically made punishable by another forces. However, see R.C.M. 203 concerning sub- article of the code, it must be charged as a violation ject-matter jurisdiction. of that article. See subparagraph (5)(a) below. How- (4) Crimes and offenses not capital (clause 3). ever, see paragraph 59 c for offenses committed by (a) In general. State and foreign laws are not commissioned officers, cadets, and midshipmen. included within the crimes and offenses not capital (2) Disorders and neglects to the prejudice of referred to in this clause of Article 134 and viola- g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d f o r c e s tions thereof may not be prosecuted as such except (clause 1). when State law becomes Federal law of local appli- (a) To the prejudice of good order and disci- cation under section 13 of title 18 of the United pline. “To the prejudice of good order and disci- States Code (Federal Assimilative Crimes Act— see pline” refers only to acts directly prejudicial to good s u b p a r a g r a p h ( 4 ) ( c ) b e l o w ) . F o r t h e p u r p o s e o f order and discipline and not to acts which are preju- court-martial jurisdiction, the laws which may be dicial only in a remote or indirect sense. Almost any applied under clause 3 of Article 134 are divided irregular or improper act on the part of a member of into two groups: crimes and offenses of unlimited the military service could be regarded as prejudicial application (crimes which are punishable regardless in some indirect or remote sense; however, this arti- where they may be committed), and crimes and of- IV-112

2011 NCIS Mini-Manual, Page 168 ¶60.c.(6)(c) fenses of local application (crimes which are punish- though it were federal law. The text of the Act is as a b l e o n l y i f c o m m i t t e d i n a r e a s o f f e d e r a l follows: Whoever within or upon any of the places jurisdiction). now existing or hereafter reserved or acquired as (b) Crimes and offenses of unlimited applica- provided in section 7 of this title, is guilty of any act tion. Certain noncapital crimes and offenses prohib- or omission which, although not made punishable by ited by the United States Code are made applicable any enactment of Congress, would be punishable if under clause 3 of Article 134 to all persons subject committed or omitted within the jurisdiction of the to the code regardless where the wrongful act or S t a t e , T e r r i t o r y , P o s s e s s i o n , o r D i s t r i c t i n w h i c h omission occurred. Examples include: counterfeiting such place is situated, by the laws thereof in force at (18 U.S.C. § 471), and various frauds against the the time of such act or omission, shall be guilty of a Government not covered by Article 132. like offense and subject to a like punishment. (c) Crimes and offenses of local application. (5) Limitations on Article 134. (i) In general. A person subject to the code (a) Preemption doctrine. The preemption doc- may not be punished under clause 3 of Article 134 trine prohibits application of Article 134 to conduct for an offense that occurred in a place where the law covered by Articles 80 through 132. For example, in question did not apply. For example, a person larceny is covered in Article 121, and if an element may not be punished under clause 3 of Article 134 of that offense is lacking—for example, intent— when the act occurred in a foreign country merely there can be no larceny or larceny-type offense, ei- because that act would have been an offense under ther under Article 121 or, because of preemption, the United States Code had the act occurred in the under Article 134. Article 134 cannot be used to United States. Regardless where committed, such an create a new kind of larceny offense, one without act might be punishable under clauses 1 or 2 of the required intent, where Congress has already set Article 134. There are two types of congressional the minimum requirements for such an offense in enactments of local application: specific federal stat- Article 121. utes (defining particular crimes), and a general fed- (b) Capital offense. A capital offense may not eral statute, the Federal Assimilative Crimes Act be tried under Article 134. (which adopts certain state criminal laws). ( 6 ) D r a f t i n g s p e c i f i c a t i o n s f o r A r t i c l e 1 3 4 o f - ( i i ) F e d e r a l A s s i m i l a t i v e C r i m e s A c t ( 1 8 fenses. U.S.C. § 13). The Federal Assimilative Crimes Act (a) In general. A specification alleging a viola- is an adoption by Congress of state criminal laws for tion of Article 134 need not expressly allege that the areas of exclusive or concurrent federal jurisdiction, conduct was “a disorder or neglect,” that it was “of provided federal criminal law, including the UCMJ, a nature to bring discredit upon the armed forces,” has not defined an applicable offense for the mis- or that it constituted “a crime or offense not capital.” conduct committed. The Act applies to state laws The same conduct may constitute a disorder or neg- validly existing at the time of the offense without lect to the prejudice of good order and discipline in regard to when these laws were enacted, whether the armed forces and at the same time be of a nature b e f o r e o r a f t e r p a s s a g e o f t h e A c t , a n d w h e t h e r to bring discredit upon the armed forces. before or after the acquisition of the land where the offense was committed. For example, if a person (b) Specifications under clause 3. When alleg- committed an act on a military installation in the ing a clause 3 violation, each element of the federal United States at a certain location over which the or assimilated statute must be alleged expressly or United States had either exclusive or concurrent ju- by necessary implication. In addition, the federal or risdiction, and it was not an offense specifically de- assimilated statute should be identified. f i n e d b y f e d e r a l l a w ( i n c l u d i n g t h e U C M J ) , t h a t (c) Specifications for clause 1 or 2 offenses not person could be punished for that act by a court- listed. If conduct by an accused does not fall under martial if it was a violation of a noncapital offense any of the listed offenses for violations of Article under the law of the State where the military instal- 134 in this Manual (paragraphs 61 through 113 of lation was located. This is possible because the Act this Part) a specification not listed in this Manual adopts the criminal law of the state wherein the may be used to allege the offense. m i l i t a r y i n s t a l l a t i o n i s l o c a t e d a n d a p p l i e s i t a s IV-113

2011 NCIS Mini-Manual, Page 169 ¶61.

61. Article 134—(Abusing public animal) directly prejudicial to good order and discipline or a. Text of statute. See paragraph 60. s e r v i c e d i s c r e d i t i n g . A d u l t e r o u s c o n d u c t t h a t i s b. Elements. directly prejudicial includes conduct that has an ob- vious, and measurably divisive effect on unit or or- (1) That the accused wrongfully abused a certain g a n i z a t i o n d i s c i p l i n e , m o r a l e , o r c o h e s i o n , o r i s public animal; and clearly detrimental to the authority or stature of or (2) That, under the circumstances, the conduct of respect toward a servicemember. Adultery may also the accused was to the prejudice of good order and be service discrediting, even though the conduct is discipline in the armed forces or was of a nature to only indirectly or remotely prejudicial to good order bring discredit upon the armed forces. and discipline. Discredit means to injure the reputa- c . E x p l a n a t i o n . A p u b l i c a n i m a l i s a n y a n i m a l tion of the armed forces and includes adulterous owned or used by the United States; and animal conduct that has a tendency, because of its open or owned or used by a local or State government in the notorious nature, to bring the service into disrepute, United States, its territories or possessions; or any make it subject to public ridicule, or lower it in w i l d a n i m a l l o c a t e d o n a n y p u b l i c l a n d s i n t h e public esteem. While adulterous conduct that is pri- U n i t e d S t a t e s , i t s t e r r i t o r i e s o r p o s s e s s i o n s . T h i s vate and discreet in nature may not be service dis- would include, for example, drug detector dogs used crediting by this standard, under the circumstances, by the government. it may be determined to be conduct prejudicial to d. Lesser included offenses. Article 80—attempts good order and discipline. Commanders should con- sider all relevant circumstances, including but not e. Maximum punishment. Confinement for 3 months limited to the following factors, when determining and forfeiture of two-thirds pay per month for 3 whether adulterous acts are prejudicial to good order months. and discipline or are of a nature to bring discredit f. Sample specification. upon the armed forces: In that (personal jurisdiction data), did (a) The accused’s marital status, military rank, (at/on board—location) (subject-matter jurisdiction grade, or position; data, if required), on or about 20 , wrongfully (kick a public drug detector dog in the (b) The co-actor’s marital status, military rank, nose) ( ). grade, and position, or relationship to the armed forces; 62. Article 134—(Adultery) (c) The military status of the accused’s spouse or the spouse of co-actor, or their relationship to the a. Text of statute. See paragraph 60. armed forces; b. Elements. (d) The impact, if any, of the adulterous rela- (1) That the accused wrongfully had sexual inter- tionship on the ability of the accused, the co-actor, course with a certain person; or the spouse of either to perform their duties in (2) That, at the time, the accused or the other support of the armed forces; person was married to someone else; and (e) The misuse, if any, of government time and (3) That, under the circumstances, the conduct of r e s o u r c e s t o f a c i l i t a t e t h e c o m m i s s i o n o f t h e the accused was to the prejudice of good order and conduct; discipline in the armed forces or was of a nature to (f) Whether the conduct persisted despite coun- bring discredit upon the armed forces. seling or orders to desist; the flagrancy of the con- c. Explanation. duct, such as whether any notoriety ensued; and (1) Nature of offense. Adultery is clearly unac- w h e t h e r t h e a d u l t e r o u s a c t w a s a c c o m p a n i e d b y ceptable conduct, and it reflects adversely on the other violations of the UCMJ; service record of the military member. (g) The negative impact of the conduct on the (2) Conduct prejudicial to good order and disci- units or organizations of the accused, the co-actor or pline or of a nature to bring discredit upon the the spouse of either of them, such as a detrimental armed forces. To constitute an offense under the effect on unit or organization morale, teamwork, and U C M J , t h e a d u l t e r o u s c o n d u c t m u s t e i t h e r b e efficiency; IV-114

2011 NCIS Mini-Manual, Page 170 ¶64.c.(6)

(h) Whether the accused or co-actor was le- any of the offenses mentioned above is not necessar- gally separated; and ily the equivalent of an attempt to commit the in- (i) Whether the adulterous misconduct involves tended offense, for an assault can be committed with an ongoing or recent relationship or is remote in intent to commit an offense without achieving that time. proximity to consummation of an intended offense which is essential to an attempt. See paragraph 4. (3) Marriage. A marriage exists until it is dis- solved in accordance with the laws of a competent (2) Assault with intent to murder. Assault with state or foreign jurisdiction. intent to commit murder is assault with specific in- tent to kill. Actual infliction of injury is not neces- (4) Mistake of fact. A defense of mistake of fact sary. To constitute an assault with intent to murder exists if the accused had an honest and reasonable with a firearm, it is not necessary that the weapon be belief either that the accused and the co-actor were discharged. When the intent to kill exists, the fact both unmarried, or that they were lawfully married that for some unknown reason the actual consumma- to each other. If this defense is raised by the evi- tion of the murder by the means employed is impos- dence, then the burden of proof is upon the United sible is not a defense if the means are apparently States to establish that the accused’s belief was un- adapted to the end in view. The intent to kill need reasonable or not honest. not be directed against the person assaulted if the d. Lesser included offense. Article 80—attempts assault is committed with intent to kill some person. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , For example, if a person, intending to kill Jones, forfeiture of all pay and allowances, and confine- shoots Smith, mistaking Smith for Jones, that person ment for 1 year. is guilty of assaulting Smith with intent to murder. If f. Sample specification. a person fires into a group with intent to kill anyone In that (personal jurisdiction data), (a in the group, that person is guilty of and assault with married man/a married woman), did, (at/on board— intent to murder each member of the group. l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - (3) Assault with intent to commit voluntary man- quired), on or about 20 , wrongfully have slaughter. Assault with intent to commit voluntary sexual intercourse with , a (married) (woman/ manslaughter is an assault committed with a specific man) not (his wife) (her husband). intent to kill under such circumstances that, if death resulted therefrom, the offense of voluntary man- 63. Deleted – see Appendix 27. slaughter would have been committed. There can be no assault with intent to commit involuntary man- slaughter, for it is not a crime capable of being 64. Article 134—(Assault—with intent to intentionally committed. commit murder, voluntary manslaughter, (4) Assault with intent to commit rape. In assault rape, robbery, sodomy, arson, burglary, or with intent to commit rape, the accused must have housebreaking) intended to complete the offense. Any lesser intent a. Text of statute. See paragraph 60. will not suffice. No actual touching is necessary, but b. Elements. indecent advances and importunities, however ear- (1) That the accused assaulted a certain person; nest, not accompanied by such an intent, do not (2) That, at the time of the assault, the accused constitute this offense, nor do mere preparations to rape not amounting to an assault. Once an assault intended to kill (as required for murder or voluntary with intent to commit rape is made, it is no defense manslaughter) or intended to commit rape, robbery, that the accused voluntarily desisted. sodomy, arson, burglary, or housebreaking; and (5) Assault with intent to rob. For assault with (3) That, under the circumstances, the conduct of intent to rob, the fact that the accused intended to the accused was to the prejudice of good order and take money and that the person the accused intended discipline in the armed forces or was of a nature to to rob had none is not a defense. bring discredit upon the armed forces. (6) Assault with intent to commit sodomy. Assault c. Explanation. with intent to commit sodomy is an assault against a (1) In general. An assault with intent to commit human being and must be committed with a specific IV-115

2011 NCIS Mini-Manual, Page 171 ¶64.c.(6) intent to commit sodomy. Any lesser intent, or dif- r y ) ( h o u s e b r e a k i n g ) , c o m m i t a n a s s a u l t ferent intent, will not suffice. upon by . d. Lesser included offenses. (1) Assault with intent to murder. 65. Article 134—(Bigamy) a. Text of statute. See paragraph 60. (a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon; as- b. Elements. sault intentionally inflicting grievous bodily harm (1) That the accused had a living lawful spouse; (b) Article 134—assault with intent to commit (2) That while having such spouse the accused voluntary manslaughter; willful or careless discharge wrongfully married another person; and of a firearm (3) That, under the circumstances, the conduct of (2) Assault with intent to commit voluntary man- the accused was to the prejudice of good order and slaughter. discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon; as- c. Explanation. Bigamy is contracting another mar- sault intentionally inflicting grievous bodily harm riage by one who already has a living lawful spouse. If a prior marriage was void, it will have created no (b) Article 134—willful or careless discharge status of “lawful spouse.” However, if it was only of a firearm voidable and has not been voided by a competent (3) Assault with intent to commit rape or sodomy. court, this is no defense. A belief that a prior mar- Article 128—assault; assault consummated by a bat- riage has been terminated by divorce, death of the tery; assault with a dangerous weapon o t h e r s p o u s e , o r o t h e r w i s e , c o n s t i t u t e s a d e f e n s e (4) Assault with intent to commit burglary. o n l y i f t h e b e l i e f w a s r e a s o n a b l e . S e e R . C . M . (a) Article 128—assault; assault consummated 916(j)(1). by a battery; assault with a dangerous weapon d. Lesser included offense. Article 80—attempts (b) Article 134—assault with intent to commit e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , housebreaking forfeiture of all pay and allowances, and confine- ment for 2 years. (5) Assault with intent to commit robbery, arson, or housebreaking. Article 128—assault; assault con- f. Sample specification. In that (personal jurisdiction data), did, summated by a battery; assault with a dangerous at , (subject-matter jurisdiction data, if weapon required), on or about 20 , wrong- e. Maximum punishment. fully marry , having at the time of his/her (1) Assault with intent to commit murder or rape. said marriage to a lawful wife/husband Dishonorable discharge, forfeiture of all pay and al- then living, to wit: . lowances, and confinement for 20 years. (2) Assault with intent to commit voluntary man- 66. Article 134—(Bribery and graft) slaughter, robbery, sodomy, arson, or burglary. Dis- a. Text of statute. See paragraph 60. h o n o r a b l e d i s c h a r g e , f o r f e i t u r e o f a l l p a y a n d b. Elements. allowances, and confinement for 10 years. (1) Asking, accepting, or receiving. (3) Assault with intent to commit housebreaking. ( a ) T h a t t h e a c c u s e d w r o n g f u l l y a s k e d , a c - Dishonorable discharge, forfeiture of all pay and al- cepted, or received a thing of value from a certain lowances, and confinement for 5 years. person or organization; f. Sample specification. (b) That the accused then occupied a certain In that (personal jurisdiction data), did, official position or had certain official duties; (at/on board—location) (subject-matter jurisdiction (c) That the accused asked, accepted, or re- data, if required), on or about 20 , ceived this thing of value (with the intent to have w i t h i n t e n t t o c o m m i t ( m u r d e r ) ( v o l u n t a r y m a n - t h e a c c u s e d ’ s d e c i s i o n o r a c t i o n i n f l u e n c e d w i t h slaughter) (rape) (robbery) (sodomy) (arson) (burgla- respect to a certain matter)* (as compensation for or IV-116

2011 NCIS Mini-Manual, Page 172 ¶67.b.(2) in recognition of services rendered, to be rendered, ing at the time (a contracting officer for ) (the o r b o t h , b y t h e a c c u s e d i n r e l a t i o n t o a c e r t a i n p e r s o n n e l o f f i c e r o f ) ( ) , d i d , ( a t / o n matter)**; board—location) (subject-matter jurisdiction data, if (d) That this certain matter was an official mat- r e q u i r e d ) , o n o r a b o u t 2 0 , w r o n g f u l l y ter in which the United States was and is interested; (ask) (accept) (receive) from , (a contracting and c o m p a n y ) e n g a g e d i n ( ) , ( t h e s u m o f (e) That, under the circumstances, the conduct $ ) ( , o f a v a l u e o f ( a b o u t ) $ ) of the accused was to the prejudice of good order ( ), (with intent to have his/her (decision) (ac- and discipline in the armed forces or was of a nature tion) influenced with respect to*) ((as compensation to bring discredit upon the armed forces. for) (in recognition of)) service (rendered) (to be (*Note: This element is required for bribery.) rendered) (rendered and to be rendered) by him/her (**Note: This element is required for graft.) the said in relation to**) an official matter in which the United States was and is interested, to (2) Promising, offering, or giving. wit: (the purchasing of military supplies from ) (a) That the accused wrongfully promised, of- (the transfer of to duty with ( ) ( ). fered, or gave a thing of value to a certain person; (*Note: This language should be used to allege (b) That this person then occupied a certain bribery.) (**Note: This language should be used official position or had certain official duties; to allege graft.) (c) That this thing of value was promised, of- (2) Promising, offering, or giving. fered, or given (with the intent to influence the deci- In that (personal jurisdiction data), did sion or action of this person)* (as compensation for (at/on board—location) (subject-matter jurisdiction or in recognition of services rendered, to be ren- data, if required), on or about 20 , dered, or both, by this person in relation to a certain wrongfully (promise) (offer) (give) to , matter)**; ( h i s / h e r c o m m a n d i n g o f f i c e r ) ( t h e c l a i m s o f f i c e r (d) That this matter was an official matter in o f ) ( ) , ( t h e s u m o f which the United States was and is interested; and $ ) ( , o f a v a l u e o f ( a b o u t (e) That, under the circumstances, the conduct $ ) ( , (with intent to influence of the accused was to the prejudice of good order t h e ( d e c i s i o n ) ( a c t i o n ) o f t h e s a i d - and discipline in the armed forces or was of a nature w i t h r e s p e c t t o * ) ( ( a s to bring discredit upon the armed forces. compensation for) (in recognition of)) services (ren- (*Note: This element is required for bribery.) dered) (to be rendered) (rendered and to be ren- (**Note: This element is required for graft.) dered) by the said in relation to**) an official matter in which the United States was c. Explanation. Bribery requires an intent to influ- a n d i s i n t e r e s t e d , t o w i t : ( t h e g r a n t i n g o f l e a v e ence or be influenced in an official matter; graft t o ) ( t h e p r o c e s s i n g o f a does not. Graft involves compensation for services c l a i m a g a i n s t t h e U n i t e d S t a t e s i n f a v o r performed in an official matter when no compensa- of ) ( ). tion is due. (*Note: This language should be used to allege d. Lesser included offenses. bribery.) (**Note: This language should be used (1) Bribery. Article 134—graft to allege graft.) (2) Bribery and graft. Article 80—attempts e. Maximum punishment. 67. Article 134—(Burning with intent to (1) Bribery. Dishonorable discharge, forfeiture of defraud) all pay and allowances, and confinement for 5 years. a. Text of statute. See paragraph 60. (2) Graft. Dishonorable discharge, forfeiture of b. Elements. all pay and allowances, and confinement for 3 years. ( 1 ) T h a t t h e a c c u s e d w i l l f u l l y a n d m a l i c i o u s l y f. Sample specifications. burned or set fire to certain property owned by a (1) Asking, accepting, or receiving. certain person or organization; In that (personal jurisdiction data), be- (2) That such burning or setting on fire was with IV-117

2011 NCIS Mini-Manual, Page 173 ¶67.b.(2) the intent to defraud a certain person or organiza- a f t e r u t t e r i n g t h e i n s t r u m e n t . M e r e n e g l i g e n c e i n tion; and maintaining one’s bank balance is insufficient for (3) That, under the circumstances, the conduct of this offense, for the accused’s conduct must reflect the accused was to the prejudice of good order and bad faith or gross indifference in this regard. As in discipline in the armed forces or was of a nature to the offense of dishonorable failure to pay debts (see bring discredit upon the armed forces. paragraph 71), dishonorable conduct of the accused c. Explanation. See paragraph 49c(14) for a discus- is necessary, and the other principles discussed in sion of “intent to defraud.” paragraph 71 also apply here. d. Lesser included offense. Article 80—attempts d. Lesser included offenses. None. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- forfeiture of all pay and allowances, and confine- ment for 10 years. ment for 6 months. f. Sample specification. f. Sample specification. In that (personal jurisdiction data), did, In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , data, if required), on or about 20 , w i l l f u l l y a n d m a l i c i o u s l y ( b u r n ) ( s e t f i r e t o ) ( a make and utter to a certain check, in d w e l l i n g ) ( a b a r n ) ( a n a u t o m o b i l e ) , t h e p r o p e r t y words and figures as follows, to wit: , o f , w i t h i n t e n t t o d e f r a u d (for the purchase of ) (in payment ( t h e i n s u r e r t h e r e o f , t o w i t : ) of a debt) (for the purpose of ), and did ( ). thereafter dishonorably fail to (place) (maintain) suf- ficient funds in the Bank for payment 68. Article 134—(Check, worthless, making o f s u c h c h e c k i n f u l l u p o n i t s p r e s e n t m e n t f o r payment. and uttering—by dishonorably failing to maintain funds) 68a. Article 134—(Child endangerment) a. Text of statute. See paragraph 60. a. Text of statute. See paragraph 60. b. Elements. b. Elements. (1) That the accused made and uttered a certain (1) That the accused had a duty for the care of a check; certain child; (2) That the check was made and uttered for the purchase of a certain thing, in payment of a debt, or (2) That the child was under the age of 16 years; for a certain purpose; (3) That the accused endangered the child’s men- (3) That the accused subsequently failed to place tal or physical health, safety, or welfare through or maintain sufficient funds in or credit with the design or culpable negligence; and drawee bank for payment of the check in full upon (4) That, under the circumstances, the conduct of its presentment for payment; the accused was to the prejudice of good order and (4) That this failure was dishonorable; and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and c. Explanation. discipline in the armed forces or was of a nature to (1) In general. This offense is intended to pro- bring discredit upon the armed forces. hibit and therefore deter child endangerment through c. Explanation. This offense differs from an Article design or culpable negligence. 123a offense (paragraph 49) in that there need be no (2) Design. Design means on purpose, intention- intent to defraud or deceive at the time of making, ally, or according to plan and requires specific intent drawing, uttering, or delivery, and that the accused to endanger the child. need not know at that time that the accused did not (3) Culpable negligence. Culpable negligence is a or would not have sufficient funds for payment. The d e g r e e o f c a r e l e s s n e s s g r e a t e r t h a n s i m p l e n e g l i - gist of the offense lies in the conduct of the accused gence. It is a negligent act or omission accompanied IV-118

2011 NCIS Mini-Manual, Page 174 ¶68a.f.(2) by a culpable disregard for the foreseeable conse- (1) Child Endangerment by Design. Article 134- quences to others of that act or omission. In the Child endangerment by culpable negligence context of this offense, culpable negligence may in- (2) Article 80—Attempts clude acts that, when viewed in the light of human e. Maximum punishment. experience, might foreseeably result in harm to a (1) Endangerment by design resulting in grievous child, even though such harm would not necessarily bodily harm. Dishonorable discharge, forfeiture of be the natural and probable consequences of such all pay and allowances, and confinement for 8 years. acts. In this regard, the age and maturity of the child, the conditions surrounding the neglectful con- (2) Endangerment by design resulting in harm. duct, the proximity of assistance available, the na- Dishonorable discharge, forfeiture of all pay and al- ture of the environment in which the child may have lowances, and confinement for 5 years. been left, the provisions made for care of the child, ( 3 ) O t h e r c a s e s b y d e s i g n . D i s h o n o r a b l e d i s - and the location of the parent or adult responsible charge, forfeiture of all pay and allowances and con- for the child relative to the location of the child, finement for 4 years. among others, may be considered in determining (4) Endangerment by culpable negligence result- whether the conduct constituted culpable negligence. i n g i n g r i e v o u s b o d i l y h a r m . D i s h o n o r a b l e d i s - (4) Harm. Actual physical or mental harm to the charge, forfeiture of all pay and allowances, and child is not required. The offense requires that the confinement for 3 years. a c c u s e d ’ s a c t i o n s r e a s o n a b l y c o u l d h a v e c a u s e d (5) Endangerment by culpable negligence result- physical or mental harm or suffering. However, if ing in harm. Bad-conduct discharge, forfeiture of all the accused’s conduct does cause actual physical or pay and allowances, and confinement for 2 years. mental harm, the potential maximum punishment in- (6) Other cases by culpable negligence. Bad-con- creases. See Paragraph 54(c)(4)(a)(iii) for an expla- duct discharge, forfeiture of all pay and allowances, nation of “grievous bodily harm”. and confinement for 1 year. (5) Endanger. “Endanger” means to subject one f. Sample specification. to a reasonable probability of harm. ( 1 ) R e s u l t i n g i n g r i e v o u s b o d i l y h a r m . I n (6) Age of victim as a factor. While this offense that (personal jurisdiction data),(at/on board- may be committed against any child under 16, the l o c a t i o n ) ( s u b j e c t m a t t e r j u r i s d i c t i o n d a t a , i f r e - age of the victim is a factor in the culpable negli- quired) on or about , 20 , had a duty for gence determination. Leaving a teenager alone for the care of , a child under the age of 16 years an evening may not be culpable (or even simple) a n d d i d e n d a n g e r t h e ( m e n t a l h e a l t h ) ( p h y s i c a l negligence; leaving an infant or toddler for the same health)(safety)(welfare) of said , by (leaving the period might constitute culpable negligence. On the said unattended in his quarters for over other hand, leaving a teenager without supervision hours/days with no adult present in the home) (by for an extended period while the accused was on failing to obtain medical care for the said ’s temporary duty outside commuting distance might diabetic condition) ( ), and that such conduct constitute culpable negligence. ( w a s b y d e s i g n ) ( c o n s t i t u t e d c u l p a b l e n e g l i g e n - (7) Duty required. The duty of care is determined ce)(which resulted in grievous bodily harm, to wit:) by the totality of the circumstances and may be (broken leg)(deep cut)(fractured skull)( ). established by statute, regulation, legal parent-child (2) Resulting in harm. In that (personal r e l a t i o n s h i p , m u t u a l a g r e e m e n t , o r a s s u m p t i o n o f jurisdiction data),(at/on board-location) (subject mat- control or custody by affirmative act. When there is ter jurisdiction data, if required) on or about , no duty of care of a child, there is no offense under 20 , had a duty for the care of , a child this paragraph. Thus, there is no offense when a under the age of 16 years, and did endanger the stranger makes no effort to feed a starving child or (mental health) (physical health)(safety)(welfare) of an individual/neighbor not charged with the care of said , by (leaving the said unattended in a child does not prevent the child from running and his quarters for over hours/days with no adult playing in the street. present in the home) (by failing to obtain medical care for the said ’s diabetic condition) ( ), d. Lesser included offenses. and that such conduct (was by design)(constituted IV-119

2011 NCIS Mini-Manual, Page 175 ¶68a.f.(2) culpable negligence) (which resulted in (harm, to 70. Article 134—(Correctional custody— wit:) (a black eye)(bloody nose)(minor cut)( ). offenses against) (3) Other cases. In that (personal jurisdic- a. Text of statute. See paragraph 60. tion data),(at/on board-location) (subject matter ju- b. Elements. r i s d i c t i o n d a t a , i f r e q u i r e d ) o n o r a b o u t , (1) Escape from correctional custody. 20 , was responsible for the care of , a (a) That the accused was placed in correctional child under the age of 16 years, and did endanger custody by a person authorized to do so; the (mental health) (physical health)(safety)(welfare) of said , by (leaving the said unattended (b) That, while in such correctional custody, in his quarters for over hours/days with no the accused was under physical restraint; adult present in the home) (by failing to obtain med- (c) That the accused freed himself or herself i c a l c a r e f o r t h e s a i d ’ s d i a b e t i c c o n d i t i o n ) from the physical restraint of this correctional cus- ( ) , a n d t h a t s u c h c o n d u c t ( w a s b y tody before being released therefrom by proper au- design)(constituted culpable negligence). thority; and (d) That, under the circumstances, the conduct 69. Article 134—(Cohabitation, wrongful) of the accused was to the prejudice of good order a. Text of statute. See paragraph 60. and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. b. Elements. (2) Breach of correctional custody. (1) That, during a certain period of time, the ac- cused and another person openly and publicly lived (a) That the accused was placed in correctional custody by a person authorized to do so; together as husband and wife, holding themselves out as such; (b) That, while in correctional custody, a cer- tain restraint was imposed upon the accused; (2) That the other person was not the spouse of the accused; (c) That the accused went beyond the limits of the restraint imposed before having been released (3) That, under the circumstances, the conduct of from the correctional custody or relieved of the re- the accused was to the prejudice of good order and straint by proper authority; and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (d) That, under the circumstances, the conduct of the accused was to the prejudice of good order c. Explanation. This offense differs from adultery and discipline in the armed forces or was of a nature (see paragraph 62) in that it is not necessary to to bring discredit upon the armed forces. prove that one of the partners was married or that sexual intercourse took place. Public knowledge of c. Explanation. the wrongfulness of the relationship is not required, ( 1 ) E s c a p e f r o m c o r r e c t i o n a l c u s t o d y . E s c a p e but the partners must behave in a manner, as exhib- from correctional custody is the act of a person ited by conduct or language, that leads others to undergoing the punishment of correctional custody believe that a martial relationship exists. pursuant to Article 15, who, before being set at liberty by proper authority, casts off any physical d. Lesser included offense. Article 80—attempts restraint imposed by the custodian or by the place or e. Maximum punishment. Confinement for 4 months conditions of custody. and forfeiture of two-thirds pay per month for 4 (2) Breach of correctional custody. Breach of re- months. straint during correctional custody is the act of a f. Sample specification. person undergoing the punishment who, in the ab- In that (personal jurisdiction data), did, sence of physical restraint imposed by a custodian or (at/on board—location) (subject-matter jurisdiction by the place or conditions of custody, breaches any data, if required), from about 20 , form of restraint imposed during this period. t o a b o u t 2 0 , w r o n g f u l l y c o h a b i t (3) Authority to impose correctional custody. See with , (a woman not his wife) (a man P a r t V c o n c e r n i n g w h o m a y i m p o s e c o r r e c t i o n a l not her husband). custody. Whether the status of a person authorized that person to impose correctional custody is a ques- IV-120

2011 NCIS Mini-Manual, Page 176 ¶72.b.(5) tion of law to be decided by the military judge. ward one’s just obligations. For a debt to form the Whether the person who imposed correctional cus- basis of this offense, the accused must not have had tody had such a status is a question of fact to be a defense, or an equivalent offset or counterclaim, decided by the factfinder. either in fact or according to the accused’s belief, at d. Lesser included offense. Article 80—attempts the time alleged. The offense should not be charged e. Maximum punishment. if there was a genuine dispute between the parties as to the facts or law relating to the debt which would (1) Escape from correctional custody. Dishonora- affect the obligation of the accused to pay. The ble discharge, forfeiture of all pay and allowances, and confinement for 1 year. offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor (2) Breach of correctional custody. Bad-conduct with respect to payment. The length of the period of discharge, forfeiture of all pay and allowances, and nonpayment and any denial of indebtedness which confinement for 6 months. the accused may have made may tend to prove that f. Sample specifications. t h e a c c u s e d ’ s c o n d u c t w a s d i s h o n o r a b l e , b u t t h e (1) Escape from correctional custody. court-martial may convict only if it finds from all of I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , t h e e v i d e n c e t h a t t h e c o n d u c t w a s i n f a c t w h i l e u n d e r g o i n g t h e p u n i s h m e n t o f c o r r e c t i o n a l dishonorable. custody imposed by a person authorized to do so, d. Lesser included offenses. None. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , about 20 , escape from cor- rectional custody. forfeiture of all pay and allowances, and confine- ment for 6 months. (2) Breach of correctional custody. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , f. Sample specification. while duly undergoing the punishment of correc- In that (personal jurisdiction data), tional custody imposed by a person authorized to do b e i n g i n d e b t e d t o i n t h e s u m o f s o , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r $ f o r , w h i c h a m o u n t a b o u t 2 0 , b e c a m e d u e a n d p a y a b l e ( o n ) ( a b o u t ) ( o n o r b r e a c h t h e r e s t r a i n t i m p o s e d t h e r e u n d e r a b o u t ) 2 0 , d i d ( a t / o n b o a r d — by . l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e - q u i r e d ) , f r o m 2 0 , 71. Article 134—(Debt, dishonorably failing to 20 , dishonorably fail to pay said debt. to pay) a. Text of statute. See paragraph 60. 72. Article 134—(Disloyal statements) b. Elements. a. Text of statute. See paragraph 60. (1) That the accused was indebted to a certain person or entity in a certain sum; b. Elements. (2) That this debt became due and payable on or (1) That the accused made a certain statement; about a certain date; (2) That the statement was communicated to an- (3) That while the debt was still due and payable other person; the accused dishonorably failed to pay this debt; and (3) That the statement was disloyal to the United (4) That, under the circumstances, the conduct of States; the accused was to the prejudice of good order and (4) That the statement was made with the intent discipline in the armed forces or was of a nature to t o p r o m o t e d i s l o y a l t y o r d i s a f f e c t i o n t o w a r d t h e bring discredit upon the armed forces. United States by any member of the armed forces or c. Explanation. More than negligence in nonpay- to interfere with or impair the loyalty to the United ment is necessary. The failure to pay must be char- States or good order and discipline of any member acterized by deceit, evasion, false promises, or other of the armed forces; and distinctly culpable circumstances indicating a delib- (5) That, under the circumstances, the conduct of erate nonpayment or grossly indifferent attitude to- the accused was to the prejudice of good order and IV-121

2011 NCIS Mini-Manual, Page 177 ¶72.b.(5) discipline in the armed forces or was of a nature to such a nature as to affect the peace and quiet of bring discredit upon the armed forces. persons who may witness it and who may be dis- c. Explanation. Certain disloyal statements by mili- t u r b e d o r p r o v o k e d t o r e s e n t m e n t t h e r e b y . I t i n - tary personnel may not constitute an offense under c l u d e s c o n d u c t t h a t e n d a n g e r s p u b l i c m o r a l s o r 18 U.S.C. §§ 2385, 2387, and 2388, but may, under outrages public decency and any disturbance of a the circumstances, be punishable under this article. contentious or turbulent character. Examples include praising the enemy, attacking the ( 3 ) S e r v i c e d i s c r e d i t i n g . U n l i k e m o s t o f f e n s e s war aims of the United States, or denouncing our under Article 134, “conduct of a nature to bring form of government with the intent to promote dis- discredit upon the armed forces” must be included in loyalty or disaffection among members of the armed the specification and proved in order to authorized s e r v i c e s . A d e c l a r a t i o n o f p e r s o n a l b e l i e f c a n the higher maximum punishment when the offense is amount to a disloyal statement if it disavows alle- service discrediting. giance owed to the United States by the declarant. d. Lesser included offense. Article 80—attempts The disloyalty involved for this offense must be to the United States as a political entity and not merely e. Maximum punishment. to a department or other agency that is a part of its (1) Disorderly conduct. administration. (a) Under such circumstances as to bring dis- d. Lesser included offense. Article 80—attempts credit upon the military service. Confinement for 4 e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , months and forfeiture of two-thirds pay per month forfeiture of all pay and allowances, and confine- for 4 months. ment for 3 years. (b) Other cases. Confinement for 1 month and f. Sample specification. forfeiture of two-thirds pay per month for 1 month. In that (personal jurisdiction data), (2) Drunkenness. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r (a) Aboard ship or under such circumstances a b o u t 2 0 , w i t h i n t e n t as to bring discredit upon the military service. Con- t o ( p r o m o t e ( d i s l o y a l t y ) ( d i s a f f e c t i o n ) ( d i s l o y a l t y finement for 3 months and forfeiture of two-thirds and disaffection)) ((interfere with) (impair) the (loy- pay per month for 3 months. alty) (good order and discipline)) of any member of the armed forces of the United States communicate (b) Other cases. Confinement for 1 month and t o , t h e f o l l o w i n g s t a t e m e n t , t o w i t : forfeiture of two-thirds pay per month for 1 month. “ ,” or words to that effect, which (3) Drunk and disorderly. statement was disloyal to the United States. (a) Aboard ship. Bad-conduct discharge, forfei- ture of all pay and allowances, and confinement for 73. Article 134—(Disorderly conduct, 6 months. drunkenness) (b) Under such circumstances as to bring dis- a. Text of statute. See paragraph 60. credit upon the military service. Confinement for 6 b. Elements. months and forfeiture of two-thirds pay per month (1) That the accused was drunk, disorderly, or for 6 months. drunk and disorderly on board ship or in some other (c) Other cases. Confinement for 3 months and place; and forfeiture of two-thirds pay per month for 3 months. (2) That, under the circumstances, the conduct of f. Sample specification. the accused was to the prejudice of good order and In that (personal jurisdiction data), discipline in the armed forces or was of a nature to was, (at/on board—location) (subject-matter jurisdic- bring discredit upon the armed forces. t i o n d a t a , i f r e q u i r e d ) , o n o r c. Explanation. a b o u t 2 0 , ( d r u n k ) ( d i s o r d e r l y ) (1) Drunkenness. See paragraph 35c(6) for a dis- (drunk and disorderly) (which conduct was of a na- cussion of intoxication. ture to bring discredit upon the armed forces). (2) Disorderly. Disorderly conduct is conduct of IV-122

2011 NCIS Mini-Manual, Page 178 ¶76.f.

74. Article 134—(Drinking liquor with (2) Drunk. See paragraph 35c(6) for a discussion prisoner) of intoxication. a. Text of statute. See paragraph 60. d. Lesser included offenses. None. b. Elements. e. Maximum punishment. Confinement for 3 months (1) That the accused was a sentinel or in another and forfeiture of two-thirds pay per month for 3 assignment in charge of a prisoner; months. (2) That, while in such capacity, the accused un- f. Sample specification. lawfully drank intoxicating liquor with a prisoner; In that (personal jurisdiction data), a p r i s o n e r , w a s ( a t / o n b o a r d — l o c a t i o n ) , o n o r (3) That the prisoner was under the charge of the about 20 , found drunk. accused; (4) That the accused knew that the prisoner was a 76. Article 134—(Drunkenness— prisoner under the accused’s charge; and incapacitation for performance of duties (5) That, under the circumstances, the conduct of through prior wrongful indulgence in the accused was to the prejudice of good order and intoxicating liquor or any drug) discipline in the armed forces or was of a nature to bring discredit upon the armed forces. a. Text of statute. See paragraph 60. c. Explanation. b. Elements. (1) Prisoner. A “prisoner” is a person who is in ( 1 ) T h a t t h e a c c u s e d h a d c e r t a i n d u t i e s t o confinement or custody imposed under R.C.M. 302, perform; 304, or 305, or under sentence of a court-martial (2) That the accused was incapacitated for the who has not been set free by proper authority. proper performance of such duties; ( 2 ) L i q u o r . F o r t h e p u r p o s e s o f t h i s o f f e n s e , (3) That such incapacitation was the result of pre- “liquor” includes any alcoholic beverage. vious wrongful indulgence in intoxicating liquor or d. Lesser included offense. Article 80—attempts any drug; and e. Maximum punishment. Confinement for 3 months (4) That, under the circumstances, the conduct of and forfeiture of two-thirds pay per month for 3 the accused was to the prejudice of good order and months. discipline in the armed forces or was of a nature to bring discredit upon the armed forces. f. Sample specification. c. Explanation. In that (personal jurisdiction data), a (sentinel) ( ) in charge of prisoners, did, (1) Liquor. See paragraph 74c(2). (at/on board—location), on or about 20 , un- ( 2 ) I n c a p a c i t a t e d . I n c a p a c i t a t e d m e a n s u n f i t o r lawfully drink intoxicating liquor with , unable to perform properly. A person is “unfit” to a prisoner under his/her charge. perform duties if at the time the duties are to com- mence, the person is drunk, even though physically 75. Article 134—(Drunk prisoner) able to perform the duties. Illness resulting from a. Text of statute. See paragraph 60. p r e v i o u s o v e r i n d u l g e n c e i s a n e x a m p l e o f b e i n g “ u n a b l e ” t o p e r f o r m d u t i e s . F o r a d i s c u s s i o n o f b. Elements. “drunk” see paragraph 35c(6). (1) That the accused was a prisoner; ( 3 ) A f f i r m a t i v e d e f e n s e . T h e a c c u s e d ’ s l a c k o f (2) That while in such status the accused was knowledge of the duties assigned is an affirmative found drunk; and defense to this offense. (3) That, under the circumstances, the conduct of d. Lesser included offense. Article 80—attempts the accused was to the prejudice of good order and e. Maximum punishment. Confinement for 3 months discipline in the armed forces or was of a nature to and forfeiture of two-thirds pay per month for 3 bring discredit upon the armed forces. months. c. Explanation. f. Sample specification. (1) Prisoner. See paragraph 74c(1). In that (personal jurisdiction data), IV-123

2011 NCIS Mini-Manual, Page 179 ¶76.f. w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r permit, discharge certificate, or identification card about 20 , as a result was false or unauthorized; and of wrongful previous overindulgence in intoxicating (d) That, under the circumstances, the conduct liquor or drugs incapacitated for the proper perform- of the accused was to the prejudice of good order ance of his/her duties. and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 77. Article 134—(False or unauthorized pass [Note: When there is intent to defraud or deceive, offenses) add the following element after (c) above: That the a c c u s e d u s e d o r p o s s e s s e d t h e p a s s , p e r m i t , d i s - a. Text of statute. See paragraph 60. charge certificate, or identification card with an in- b. Elements. tent to defraud or deceive.] (1) Wrongful making, altering, counterfeiting, or c. Explanation. tampering with a military or official pass, permit, (1) In general. “Military or official pass, permit, discharge certificate, or identification card. discharge certificate, or identification card” includes, ( a ) T h a t t h e a c c u s e d w r o n g f u l l y a n d f a l s e l y as well as the more usual forms of these documents, made, altered, counterfeited, or tampered with a cer- all documents issued by any governmental agency tain military or official pass, permit, discharge certif- for the purpose of identification and copies thereof. icate, or identification card; and (2) Intent to defraud or deceive. See paragraph (b) That, under the circumstances, the conduct 49c(14) and (15). of the accused was to the prejudice of good order d. Lesser included offenses. and discipline in the armed forces or was of a nature (1) Wrongful use or possession of false or un- to bring discredit upon the armed forces. a u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s - (2) Wrongful sale, gift, loan, or disposition of a charge certificate, or identification card, with the military or official pass, permit, discharge certifi- intent to defraud or deceive. Article 134—same of- cate, or identification card. f e n s e s , e x c e p t w i t h o u t t h e i n t e n t t o d e f r a u d o r deceive. ( a ) T h a t t h e a c c u s e d w r o n g f u l l y s o l d , g a v e , loaned, or disposed of a certain military or official (2) All false or unauthorized pass offenses. Arti- pass, permit, discharge certificate, or identification cle 80—attempts card; e. Maximum punishment. (b) That the pass, permit, discharge certificate, (1) Possessing or using with intent to defraud or or identification card was false or unauthorized; deceive, or making, altering, counterfeiting, tamper- ing with, or selling. Dishonorable discharge, forfei- (c) That the accused then knew that the pass, ture of all pay and allowances, and confinement for permit, discharge certificate, or identification card 3 years. was false or unauthorized; and (2) All other cases. Bad-conduct discharge, for- (d) That, under the circumstances, the conduct feiture of all pay and allowances, and confinement of the accused was to the prejudice of good order for 6 months. and discipline in the armed forces or was of a nature f. Sample specifications. to bring discredit upon the armed forces. (1) Wrongful making, altering, counterfeiting, or (3) Wrongful use or possession of a false or un- tampering with military or official pass, permit, dis- a u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s - charge certificate, or identification card. In that- charge certificate, or identification card. (personal jurisdiction data), did, (at/on (a) That the accused wrongfully used or pos- board—location) (subject-matter jurisdiction data, if sessed a certain military or official pass, permit, required), on or about 20 , wrong- discharge certificate, or identification card; f u l l y a n d f a l s e l y ( m a k e ) ( f o r g e ) ( a l t e r (b) That the pass, permit, discharge certificate, b y ) ( c o u n t e r f e i t ) ( t a m p e r w i t h or identification card was false or unauthorized; by ) (a certain instrument purporting to be) (a) (an) (another’s) (naval) (military) (official) (c) That the accused then knew that the pass, (pass) (permit) (discharge certificate) (identification IV-124

2011 NCIS Mini-Manual, Page 180 ¶79.c.(1) c a r d ) ( ) i n w o r d s a n d f i g u r e s a s c. Explanation. This offense is similar to the of- follows: . f e n s e s o f l a r c e n y a n d w r o n g f u l a p p r o p r i a t i o n b y (2) Wrongful sale, gift, loan, or disposition of a false pretenses, except that the object of the obtain- military or official pass, permit, discharge certifi- i n g i s s e r v i c e s ( f o r e x a m p l e , t e l e p h o n e s e r v i c e ) cate, or identification card. rather than money, personal property, or articles of In that (personal jurisdiction data), value of any kind as under Article 121. See para- did, (at/on board—location) (subject-matter jurisdic- graph 46c. See paragraph 49c(14) for a definition of t i o n d a t a , i f r e q u i r e d ) , o n o r “intent to defraud.” a b o u t 2 0 , w r o n g f u l l y ( s e l l d. Lesser included offense. Article 80—attempts t o ) ( g i v e t o ) ( l o a n e. Maximum punishment. Obtaining services under to ) (dispose of by ) (a cer- false pretenses. tain instrument purporting to be) (a) (an) (another’s) (1) Of a value of $500.00 or less. Bad-conduct (naval) (military) (official) (pass) (permit)(discharge discharge, forfeiture of all pay and allowances, and c e r t i f i c a t e ) ( i d e n t i f i c a t i o n c a r d ) ( ) i n confinement for 6 months. words and figures as follows: , he/ (2) Of a value of more than $500.00. Dishonora- s h e , t h e s a i d , t h e n w e l l k n o w i n g t h e ble discharge, forfeiture of all pay and allowances, same to be (false) (unauthorized). and confinement for 5 years. (3) Wrongful use or possession of a false or un- f. Sample specification. a u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s - In that (personal jurisdiction data), charge certificate, or identification card. did, (at/on board—location) (subject-matter jurisdic- In that (personal jurisdiction data), t i o n d a t a , i f r e q u i r e d ) , o n o r did (at/on board—location) (subject-matter jurisdic- about 20 , with intent to defraud, t i o n d a t a , i f r e q u i r e d ) , o n o r f a l s e l y p r e t e n d a b o u t 2 0 , to that , then knowing wrongfully (use) (possess) (with intent to (defraud) that the pretenses were false, and by means thereof (deceive)) (a certain instrument purporting to be) (a) did wrongfully obtain from services, of (an) (another’s) (naval) (military) (official) (pass) a value of (about) $ , to wit: . (permit) (discharge certificate) (identification card) ( ) , h e / s h e , t h e 79. Article 134—(False swearing) said , then well knowing the same to be a. Text of statute. See paragraph 60. (false) (unauthorized). b. Elements. 78. Article 134—(False pretenses, obtaining (1) That the accused took an oath or equivalent; services under) (2) That the oath or equivalent was administered a. Text of statute. See paragraph 60. to the accused in a matter in which such oath or equivalent was required or authorized by law; b. Elements. (3) That the oath or equivalent was administered (1) That the accused wrongfully obtained certain by a person having authority to do so; services; (4) That upon this oath or equivalent the accused (2) That the obtaining was done by using false made or subscribed a certain statement; pretenses; (5) That the statement was false; (3) That the accused then knew of the falsity of ( 6 ) T h a t t h e a c c u s e d d i d n o t t h e n b e l i e v e t h e the pretenses; statement to be true; and (4) That the obtaining was with intent to defraud; (7) That, under the circumstances, the conduct of (5) That the services were of a certain value; and the accused was to the prejudice of good order and (6) That, under the circumstances, the conduct of discipline in the armed forces or was of a nature to the accused was to the prejudice of good order and bring discredit upon the armed forces. discipline in the armed forces or was of a nature to c. Explanation. bring discredit upon the armed forces. (1) Nature of offense. False swearing is the mak- IV-125

2011 NCIS Mini-Manual, Page 181 ¶79.c.(1) ing under a lawful oath or equivalent of any false and forfeiture of two-thirds pay per month for 3 statement, oral or written, not believing the state- months. ment to be true. It does not include such statements f. Sample specification. made in a judicial proceeding or course of justice, as In that (personal jurisdiction data), these are under Article 131, perjury (see paragraph did, (at/on board—location) (subject-matter jurisdic- 57). Unlike a false official statement under Article t i o n d a t a , i f r e q u i r e d ) , o n o r 107 ( see paragraph 31) there is no requirement that a b o u t 2 0 , t h r o u g h n e g l i g e n c e , the statement be made with an intent to deceive or d i s c h a r g e a ( s e r v i c e r i f l e ) ( ) i n t h e that the statement be official. See paragraphs 57c(1), ( s q u a d r o n ) ( t e n t ) ( b a r r a c k s ) ( ) c(2)(c) and c(2) ( e) concerning “judicial proceeding of . or course of justice,” proof of the falsity, and the belief of the accused, respectively. 81. Article 134—(Firearm, discharging— (2) Oath. See Article 136 and R.C.M. 807 as to willfully, under such circumstances as to the authority to administer oaths, and see Section IX endanger human life) of Part III (Military Rules of Evidence) concerning a. Text of statute. See paragraph 60. proof of the signatures of persons authorized to ad- b. Elements. m i n i s t e r o a t h s . A n o a t h i n c l u d e s a n a f f i r m a t i o n when authorized in lieu of an oath. (1) That the accused discharged a firearm; d. Lesser included offense. Article 80—attempts (2) That the discharge was willful and wrongful; e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , (3) That the discharge was under circumstances forfeiture of all pay and allowances, and confine- such as to endanger human life; and ment for 3 years. (4) That, under the circumstances, the conduct of f. Sample specification. the accused was to the prejudice of good order and In that (personal jurisdiction data), discipline in the armed forces or was of a nature to did, (at/on board—location) (subject-matter jurisdic- bring discredit upon the armed forces. t i o n d a t a , i f r e q u i r e d ) , o n o r c. Explanation. “Under circumstances such as to en- a b o u t 2 0 , ( i n a n a f f i d a v i t ) danger human life” refers to a reasonable potential- (in ), wrongfully and unlawfully (make) ity for harm to human beings in general. The test is (subscribe) under lawful (oath) (affirmation) a false not whether the life was in fact endangered but s t a t e m e n t i n s u b s t a n c e a s f o l l o w s : , whether, considering the circumstances surrounding which statement he/she did not then believe to be the wrongful discharge of the weapon, the act was true. unsafe to human life in general. d. Lesser included offenses. 80. Article 134—(Firearm, discharging— ( 1 ) A r t i c l e 1 3 4 — f i r e a r m , d i s c h a r g i n g — t h r o u g h through negligence) negligence a. Text of statute. See paragraph 60. (2) Article 80—attempts b. Elements. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , (1) That the accused discharged a firearm; forfeiture of all pay and allowances, and confine- ment for 1 year. (2) That such discharge was caused by the negli- gence of the accused; and f. Sample specification. In that (personal jurisdiction data), (3) That, under the circumstances, the conduct of did, (at/on board—location) (subject-matter jurisdic- the accused was to the prejudice of good order and t i o n d a t a , i f r e q u i r e d ) , o n o r discipline in the armed forces or was of a nature to a b o u t 2 0 , w r o n g f u l l y a n d w i l l - bring discredit upon the armed forces. f u l l y d i s c h a r g e a f i r e a r m , t o c. Explanation. For a discussion of negligence,see w i t : , ( i n t h e m e s s h a l l paragraph 85c(2). o f ) ( ) , u n d e r c i r c u m s t a n c e s d. Lesser included offenses. None such as to endanger human life. e. Maximum punishment. Confinement for 3 months IV-126

2011 NCIS Mini-Manual, Page 182 ¶83.c.(1)

82. Article 134—(Fleeing scene of accident) offense. Actual knowledge may be proved by cir- a. Text of statute. See paragraph 60. cumstantial evidence. b. Elements. (3) Passenger. A passenger other than a senior passenger may also be liable under this paragraph. (1) Driver. See paragraph 1 of this Part. ( a ) T h a t t h e a c c u s e d w a s t h e d r i v e r o f a d. Lesser included offense. Article 80—attempts vehicle; e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , (b) That while the accused was driving the ve- forfeiture of all pay and allowances, and confine- hicle was involved in an accident; ment for 6 months. (c) That the accused knew that the vehicle had f. Sample specification. been in an accident; In that (personal jurisdiction data), (d) That the accused left the scene of the acci- (the driver of) (a passenger in*) (the senior dent without (providing assistance to the victim who o f f i c e r / n o n c o m m i s s i o n e d o f f i c e r i n ) had been struck (and injured) by the said vehicle) or ( in) a vehicle at the time of an accident (providing identification); i n w h i c h s a i d v e h i c l e w a s i n v o l v e d , a n d h a v i n g (e) That such leaving was wrongful; and knowledge of said accident, did, at (- (f) That, under the circumstances, the conduct subject-matter jurisdiction data, if required), on or a b o u t 2 0 ( w r o n g f u l l y l e a v e ) of the accused was to the prejudice of good order (by , assist the driver of the said vehicle and discipline in the armed forces or was of a nature in wrongfully leaving*) (wrongfully order, cause, or to bring discredit upon the armed forces. permit the driver to leave) the scene of the accident (2) Senior passenger. without (providing assistance to , (a) That the accused was a passenger in a vehi- who had been struck (and injured) by the said vehi- cle which was involved in an accident; cle) (making his/her (the driver’s) identity known). (b) That the accused knew that said vehicle had [Note: This language should be used when the ac- been in an accident; cused was a passenger and is charged as a principal. (c) That the accused was the superior commis- See paragraph 1 of this part.] sioned or noncommissioned officer of the driver, or commander of the vehicle, and wrongfully and un- 83. Article 134—(Fraternization) lawfully ordered, caused, or permitted the driver to a. Text of statute. See paragraph 60. leave the scene of the accident without (providing b. Elements. assistance to the victim who had been struck (and (1) That the accused was a commissioned or war- injured) by the said vehicle) (or) (providing identifi- rant officer; cation); and (2) That the accused fraternized on terms of mili- (d) That, under the circumstances, the conduct tary equality with one or more certain enlisted mem- of the accused was to the prejudice of good order ber(s) in a certain manner; and discipline in the armed forces or was of a nature (3) That the accused then knew the person(s) to to bring discredit upon the armed forces. be (an) enlisted member(s); c. Explanation. (4) That such fraternization violated the custom (1) Nature of offense. This offense covers “hit of the accused’s service that officers shall not frater- and run” situations where there is damage to prop- nize with enlisted members on terms of military e r t y o t h e r t h a n t h e d r i v e r ’ s v e h i c l e o r i n j u r y t o equality; and someone other than the driver or a passenger in the (5) That, under the circumstances, the conduct of driver’s vehicle. It also covers accidents caused by the accused was to the prejudice of good order and the accused, even if the accused’s vehicle does not discipline in the armed forces or was of a nature to contact other people, vehicles, or property. bring discredit upon the armed forces. (2) Knowledge. Actual knowledge that an acci- c. Explanation. dent has occurred is an essential element of this (1) In general. The gist of this offense is a viola- IV-127

2011 NCIS Mini-Manual, Page 183 ¶83.c.(1) tion of the custom of the armed forces against frater- commissioned or petty officer and was subordinate n i z a t i o n . N o t a l l c o n t a c t o r a s s o c i a t i o n b e t w e e n to the accused; officers and enlisted persons is an offense. Whether (4) That the accused knew that the servicemem- the contact or association in question is an offense ber was not then a noncommissioned or petty officer depends on the surrounding circumstances. Factors and was subordinate to the accused; and to be considered include whether the conduct has (5) That, under the circumstances, the conduct of compromised the chain of command, resulted in the the accused was to the prejudice of good order and appearance of partiality, or otherwise undermined discipline in the armed forces or was of a nature to good order, discipline, authority, or morale. The acts bring discredit upon the armed forces. and circumstances must be such as to lead a reason- c. Explanation. This offense can only be committed able person experienced in the problems of military by a noncommissioned or petty officer gambling leadership to conclude that the good order and disci- with an enlisted person of less than noncommis- pline of the armed forces has been prejudiced by sioned or petty officer rank. Gambling by an officer their tendency to compromise the respect of enlisted with an enlisted person may be a violation of Article persons for the professionalism, integrity, and obli- 133. See also paragraph 83. gations of an officer. d. Lesser included offense. Article 80—attempts (2) Regulations. Regulations, directives, and or- e. Maximum punishment. Confinement for 3 months ders may also govern conduct between officer and and forfeiture of two-thirds pay per month for 3 enlisted personnel on both a service-wide and a local months. basis. Relationships between enlisted persons of dif- f. Sample specification. ferent ranks, or between officers of different ranks I n t h a t ( p e r s o n a l j u - may be similarly covered. Violations of such regula- risdiction data), did (at/on board—location) (subject- tions, directives, or orders may be punishable under m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r Article 92. See paragraph 16. a b o u t 2 0 , g a m b l e d. Lesser included offense. Article 80—attempts w i t h , t h e n k n o w i n g t h a t t h e s a i d - w a s n o t a n o n c o m m i s s i o n e d o r e. Maximum punishment. Dismissal, forfeiture of all p e t t y o f f i c e r a n d w a s s u b o r d i n a t e t o t h e pay and allowances, and confinement for 2 years. said . f. Sample specification. In that (personal jurisdiction data), 85. Article 134—(Homicide, negligent) d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a. Text of statute. See paragraph 60. a b o u t , 2 0 , k n o w i n g l y f r a t e r n i z e with , an enlisted person, on terms of b. Elements. military equality, to wit: , in viola- (1) That a certain person is dead; tion of the custom of (the Naval Service of the (2) That this death resulted from the act or failure United States) (the United States Army) (the United to act of the accused; States Air Force) (the United States Coast Guard) (3) That the killing by the accused was unlawful; that officers shall not fraternize with enlisted persons (4) That the act or failure to act of the accused on terms of military equality. which caused the death amounted to simple negli- gence; and 84. Article 134—(Gambling with subordinate) (5) That, under the circumstances, the conduct of a. Text of statute. See paragraph 60. the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to b. Elements. bring discredit upon the armed forces. ( 1 ) T h a t t h e a c c u s e d g a m b l e d w i t h a c e r t a i n c. Explanation. servicemember; (1) Nature of offense. Negligent homicide is any ( 2 ) T h a t t h e a c c u s e d w a s t h e n a n o n c o m m i s - unlawful homicide which is the result of simple neg- sioned or petty officer; ligence. An intent to kill or injure is not required. (3) That the servicemember was not then a non- (2) Simple negligence. Simple negligence is the IV-128

2011 NCIS Mini-Manual, Page 184 ¶89.b.(3) absence of due care, that is, an act or omission of a depend upon the accused deriving a benefit from the person who is under a duty to use due care which deception or upon some third party being misled, exhibits a lack of that degree of care of the safety of although this is an aggravating factor. others which a reasonably careful person would have (2) Willfulness. “Willful” means with the knowl- exercised under the same or similar circumstances. edge that one is falsely holding one’s self out as Simple negligence is a lesser degree of carelessness such. than culpable negligence. See paragraph 44c(2)(a). (3) Intent to defraud. See paragraph 49c(14). d. Lesser included offenses. None d. Lesser included offense. Article 80—attempts e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- e. Maximum punishment. Impersonating a commis- ment for 3 years. sioned, warrant, noncommissioned, or petty officer, or an agent or official. f. Sample specification. In that (personal jurisdiction data), did, ( 1 ) W i t h i n t e n t t o d e f r a u d . D i s h o n o r a b l e d i s - (at/on board—location) (subject-matter jurisdiction charge, forfeiture of all pay and allowances, and data, if required), on or about 20 , un- confinement for 3 years. l a w f u l l y k i l l , ( b y n e g l i g e n t l y t h e (2) All other cases. Bad-conduct discharge, for- said (in) (on) the with a ) (by driv- feiture of all pay and allowances, and confinement ing a (motor vehicle) ( ) against the said for 6 months. in a negligent manner) ( ). f. Sample specification. In that (personal jurisdiction data), did, 86. Article 134—(Impersonating a (at/on board—location) (subject-matter jurisdiction commissioned, warrant, noncommissioned, data, if required), on or about 20 , wrong- or petty officer, or an agent or official) fully and willfully impersonate (a (commissioned of- a. Text of statute. See paragraph 60. ficer) (warrant officer) (noncommissioned officer) b. Elements. (petty officer) (agent of superior authority) of the ( 1 ) T h a t t h e a c c u s e d i m p e r s o n a t e d a c o m m i s - (Army) (Navy) (Marine Corps) (Air Force) (Coast sioned, warrant, noncommissioned, or petty officer, Guard)) (an official of the Government of ) by or an agent of superior authority of one of the armed (publicly wearing the uniform and insignia of rank forces of the United States, or an official of a certain of a (lieutenant of the ) ( )) (showing the government, in a certain manner; c r e d e n t i a l s o f ) ( ) ( w i t h i n t e n t t o d e - ( 2 ) T h a t t h e i m p e r s o n a t i o n w a s w r o n g f u l a n d fraud by *) (and (exercised) (asserted) willful; and the authority of by **). (*See subsection b note 1.) (3) That, under the circumstances, the conduct of (**See subsection b note 2.) the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 87. Deleted – see Appendix 27. [Note 1: If intent to defraud is in issue, add the following additional element after (2), above: That 88. Deleted – see Appendix 27. the accused did so with the intent to defraud a cer- tain person or organization in a certain manner;]. 89. Article 134—(Indecent language) [Note 2: If the accused is charged with impersonat- a. Text of statute. See paragraph 60. ing an official of a certain government without an intent to defraud, use the following additional ele- b. Elements. ment after (2) above: That the accused committed (1) That the accused orally or in writing commu- one or more acts which exercised or asserted the nicated to another person certain language; authority of the office the accused claimed to have;]. (2) That such language was indecent; and c. Explanation. (3) That, under the circumstances, the conduct of ( 1 ) N a t u r e o f o f f e n s e . I m p e r s o n a t i o n d o e s n o t the accused was to the prejudice of good order and IV-129

2011 NCIS Mini-Manual, Page 185 ¶89.b.(3) discipline in the armed forces or was of a nature to discipline in the armed forces or was of a nature to bring discredit upon the armed forces. bring discredit upon the armed forces. [Note: In appropriate cases add the following ele- c. Explanation. “In use by” means any vessel oper- ment after element (1): That the person to whom the ated by or under the control of the armed forces. language was communicated was a child under the This offense may be committed at sea, at anchor, or age of 16.] in port. c. Explanation. “Indecent” language is that which is d. Lesser included offense. Article 80—attempts grossly offensive to modesty, decency, or propriety, e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , or shocks the moral sense, because of its vulgar, forfeiture of all pay and allowances, and confine- filthy, or disgusting nature, or its tendency to incite ment for 6 months. lustful thought. Language is indecent if it tends rea- f. Sample specification. s o n a b l y t o c o r r u p t m o r a l s o r i n c i t e l i b i d i n o u s In that (personal jurisdiction data), t h o u g h t s . T h e l a n g u a g e m u s t v i o l a t e c o m m u n i t y d i d , o n b o a r d , a t ( l o c a t i o n ) , o n o r standards. See paragraph 45 if the communication about 20 , wrongfully and in- was made in the physical presence of a child. tentionally jump from , a vessel in use d. Lesser included offenses. by the armed forces, into the (sea) (lake) (river). (1) Article 117—provoking speeches (2) Article 80—attempts 92. Article 134—(Kidnapping) e . M a x i m u m p u n i s h m e n t . I n d e c e n t o r i n s u l t i n g a. Text of statute. See paragraph 60. language. b. Elements. (1) Communicated to any child under the age of (1) That the accused seized, confined, inveigled, 16 years. Dishonorable discharge, forfeiture of all decoyed, or carried away a certain person; pay and allowances, and confinement for 2 years. ( 2 ) T h a t t h e a c c u s e d t h e n h e l d s u c h p e r s o n (2) Other cases. Bad-conduct discharge; forfei- against that person’s will; ture of all pay and allowances, and confinement for (3) That the accused did so willfully and wrong- 6 months. fully; and f. Sample specification. (4) That, under the circumstances, the conduct of In that (personal jurisdiction data), the accused was to the prejudice of good order and did (at/on board—location) (subject-matter jurisdic- discipline in the armed forces or was of a nature to t i o n d a t a , i f r e q u i r e d ) , o n o r bring discredit upon the armed forces. a b o u t 2 0 , ( o r a l l y ) ( i n w r i t i n g ) c. Explanation. communicate to , (a child under the age (1) Inveigle, decoy. “Inveigle” means to lure, lead o f 1 6 y e a r s ) , c e r t a i n i n d e c e n t l a n g u a g e , t o astray, or entice by false representations or other wit: . deceitful means. For example, a person who entices another to ride in a car with a false promise to take 90. Deleted – see Appendix 27. the person to a certain destination has inveigled the passenger into the car. “Decoy” means to entice or 91. Article 134—(Jumping from vessel into lure by means of some fraud, trick, or temptation. the water) For example, one who lures a child into a trap with a. Text of statute. See paragraph 60. candy has decoyed the child. b. Elements. ( 2 ) H e l d . “ H e l d ” m e a n s d e t a i n e d . T h e h o l d i n g must be more than a momentary or incidental deten- (1) That the accused jumped from a vessel in use tion. For example, a robber who holds the victim at by the armed forces into the water; gunpoint while the victim hands over a wallet, or a (2) That such act by the accused was wrongful rapist who throws his victim to the ground, does not, and intentional; and by such acts, commit kidnapping. On the other hand, (3) That, under the circumstances, the conduct of if, before or after such robbery or rape, the victim is the accused was to the prejudice of good order and involuntarily transported some substantial distance, IV-130

2011 NCIS Mini-Manual, Page 186 ¶93.f. as from a housing area to a remote area of the base or legal guardian the accused was not) (a person not or post, this may be kidnapping, in addition to rob- a minor) against his/her will. bery or rape. (3) Against the will. “Against that person’s will” 93. Article 134—(Mail: taking, opening, means that the victim was held involuntarily. The secreting, destroying, or stealing) involuntary nature of the detention may result from a. Text of statute. See paragraph 60. force, mental or physical coercion, or from other b. Elements. means, including false representations. If the victim (1) Taking. is incapable of having a recognizable will, as in the (a) That the accused took certain mail matter; case of a very young child or a mentally incompe- (b) That such taking was wrongful; tent person, the holding must be against the will of the victim’s parents or legal guardian. Evidence of (c) That the mail matter was taken by the ac- the availability or nonavailability to the victim of cused before it was delivered to or received by the means of exit or escape is relevant to the voluntari- addressee; ness of the detention, as is evidence of threats or (d) That such taking was with the intent to force, or lack thereof, by the accused to detain the obstruct the correspondence or pry into the business victim. or secrets of any person or organization; and (4) Willfully. The accused must have specifically (e) That, under the circumstances, the conduct intended to hold the victim against the victim’s will of the accused was to the prejudice of good order to be guilty of kidnapping. An accidental detention and discipline in the armed forces or was of a nature will not suffice. The holding need not have been for to bring discredit upon the armed forces. financial or personal gain or for any other particular (2) Opening, secreting, destroying, or stealing. purpose. It may be an aggravating circumstance that ( a ) T h a t t h e a c c u s e d o p e n e d , s e c r e t e d , t h e k i d n a p p i n g w a s f o r r a n s o m , h o w e v e r . S e e destroyed, or stole certain mail matter; R.C.M. 1001(b)(4). (b) That such opening, secreting, destroying, or (5) Wrongfully. “Wrongfully” means without jus- stealing was wrongful; tification or excuse. For example, a law enforcement (c) That the mail matter was opened, secreted, official may justifiably apprehend and detain, by destroyed, or stolen by the accused before it was force if necessary ( see R.C.M. 302(d)(3)), a person delivered to or received by the addressee; and reasonably believed to have committed an offense. (d) That, under the circumstances, the conduct An official who unlawfully uses the official’s au- of the accused was to the prejudice of good order thority to apprehend someone is not guilty of kid- and discipline in the armed forces or was of a nature napping, but may be guilty of unlawful detention. to bring discredit upon the armed forces. See paragraph 21. It is not wrongful under this para- c. Explanation. These offenses are intended to pro- graph and therefore not kidnapping for a parent or tect the mail and mail system. “Mail matter” means legal guardian to seize and hold that parent’s or any matter deposited in a postal system of any gov- legal guardian’s minor child. ernment or any authorized depository thereof or in d. Lesser included offense. Article 80—attempts official mail channels of the United States or an a g e n c y t h e r e o f i n c l u d i n g t h e a r m e d f o r c e s . T h e e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , value of the mail matter is not an element. See forfeiture of all pay and allowances, and confine- paragraph 46c(1) concerning “steal.” ment for life without eligibility for parole. d. Lesser included offenses. f. Sample specification. (1) Article 121—larceny; wrongful appropriation In that , (personal jurisdiction da- ta), did, (at/on board—location) (subject-matter ju- (2) Article 80—attempts r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , a b o u t 2 0 , w i l l f u l l y a n d w r o n g - forfeiture of all pay and allowances, and confine- f u l l y ( s e i z e ) ( c o n f i n e ) ( i n v e i g l e ) ( d e c o y ) ( c a r r y ment for 5 years. away) and hold (a minor whose parent f. Sample specifications. IV-131

2011 NCIS Mini-Manual, Page 187 ¶93.f.(1)

(1) Taking. discipline in the armed forces or was of a nature to In that (personal jurisdiction data), bring discredit upon the armed forces. did, (at/on board—location) (subject-matter jurisdic- c. Explanation. Whether something is obscene is a t i o n d a t a , i f r e q u i r e d ) , o n o r question of fact. “Obscene” is synonymous with “in- a b o u t 2 0 , decent” as the latter is defined in paragraph 89c. The wrongfully take certain mail matter, to wit: (a) (let- matter must violate community standards of decency t e r ( s ) ) ( p o s t a l c a r d ( s ) ) ( p a c k a g e ( s ) ) , a d d r e s s e d or obscenity and must go beyond customary limits to , (out of the ( Post of expression. “Knowingly” means the accused de- O f f i c e ) ( o r d e r l y r o o m posited the material with knowledge of its nature. o f ) ( u n i t m a i l b o x o f d. Lesser included offense. Article 80—attempts ) ( ) ) e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , ( f r o m ) b e f o r e ( i t ) ( t h e y ) forfeiture of all pay and allowances, and confine- (was) (were) (delivered) (actually received) (to) (by) ment for 5 years. the (addressee) with intent to (obstruct the corre- f. Sample specification. s p o n d e n c e ) ( p r y i n t o t h e ( b u s i n e s s ) ( s e c r e t s ) ) In that (personal jurisdiction data), of . did, (at/on board—location) (subject-matter jurisdic- (2) Opening, secreting, destroying, or stealing. t i o n d a t a , i f r e q u i r e d ) , o n o r In that (personal jurisdiction data), about 20 , wrongfully and know- did, (at/on board—location) (subject-matter jurisdic- ingly (deposit) (cause to be deposited) in the (United t i o n d a t a , i f r e q u i r e d ) , o n o r States) ( ) mails, for mailing and delivery about 20 , (wrongfully (open) (se- a ( l e t t e r ) ( p i c t u r e ) ( ) ( c o n t a i n i n g ) cret) (destroy)) (steal) certain mail matter, to wit: (a) (portraying) (suggesting) ( ) certain ob- ( l e t t e r ( s ) ) ( p o s t a l c a r d ( s ) ) ( p a c k a g e ( s ) ) a d d r e s s e d scene matters, to wit: . t o , w h i c h s a i d ( l e t t e r ( s ) ) ( ) ( w a s ) ( w e r e ) t h e n ( i n 95. Article 134—(Misprision of serious t h e offense) f i c e ) ( o r d e r l y r o o m a. Text of statute. See paragraph 60. o f ) ( u n i t m a i l b o x b. Elements. o f ) ( c u s t o d y o f ) (1) That a certain serious offense was committed ( ) ) ( h a d p r e v i o u s l y b e e n c o m m i t t e d by a certain person; t o , ( a r e p r e s e n t a t i v e o f , ) (an official agency for the transmission of communi- (2) That the accused knew that the said person cations)) before said (letter(s)) ( ) (was) had committed the serious offense; (were) (delivered) (actually received) (to) (by) the (3) That, thereafter, the accused concealed the se- (addressee). rious offense and failed to make it known to civilian or military authorities as soon as possible; 94. Article 134—(Mails: depositing or (4) That the concealing was wrongful; and causing to be deposited obscene matters in) (5) That, under the circumstances, the conduct of a. Text of statute. See paragraph 60. the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to b. Elements. bring discredit upon the armed forces. (1) That the accused deposited or caused to be c. Explanation. deposited in the mails certain matter for mailing and (1) In general. Misprision of a serious offense is delivery; the offense of concealing a serious offense commit- ( 2 ) T h a t t h e a c t w a s d o n e w r o n g f u l l y a n d ted by another but without such previous concert knowingly; with or subsequent assistance to the principal as (3) That the matter was obscene; and would make the accused an accessory. See para- (4) That, under the circumstances, the conduct of graph 3. An intent to benefit the principal is not the accused was to the prejudice of good order and necessary to this offense. IV-132

2011 NCIS Mini-Manual, Page 188 ¶96a.b.(2)

(2) Serious offense. For purposes of this para- of obstruction of justice include wrongfully influenc- graph, a “serious offense” is any offense punishable ing, intimidating, impeding, or injuring a witness, a under the authority of the code by death or by con- person acting on charges under this chapter, an in- finement for a term exceeding 1 year. vestigating officer under R.C.M. 406, or a party; and (3) Positive act of concealment. A mere failure or by means of bribery, intimidation, misrepresentation, refusal to disclose the serious offense without some or force or threat of force delaying or preventing p o s i t i v e a c t o f c o n c e a l m e n t d o e s n o t m a k e o n e communication of information relating to a violation guilty of this offense. Making a false entry in an of any criminal statute of the United States to a account book for the purpose of concealing a theft person authorized by a department, agency, or armed committed by another is an example of a positive act force of the United States to conduct or engage in of concealment. investigations or prosecutions of such offenses; or endeavoring to do so. See also paragraph 22 and d. Lesser included offense. Article 80—attempts Article 37. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , d. Lesser included offenses. None. forfeiture of all pay and allowances, and confine- ment for 3 years. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- f. Sample specification. ment for 5 years. In that (personal jurisdiction data), h a v i n g k n o w l e d g e t h a t h a d a c t u a l l y f. Sample specification. c o m m i t t e d a s e r i o u s o f f e n s e t o w i t : ( t h e m u r d e r In that (personal jurisdiction data), o f ) ( ) , d i d , ( a t / o n did, (at/on board—location) (subject-matter jurisdic- board—location) (subject-matter jurisdiction data, if t i o n d a t a , i f r e q u i r e d ) , o n o r r e q u i r e d f r o m a b o u t 2 0 , t o a b o u t 2 0 , w r o n g f u l l y ( e n d e a v o r a b o u t 2 0 , w r o n g f u l l y c o n c e a l to) (impede (a trial by court-martial) (an investiga- s u c h s e r i o u s o f f e n s e b y a n d f a i l t o t i o n ) ( ) ) [ i n f l u e n c e t h e a c t i o n s make the same known to the civil or military author- of , (a trial counsel of the court- ities as soon as possible. martial) (a defense counsel of the court-martial) (an o f f i c e r r e s p o n s i b l e f o r m a k i n g a r e c o m m e n d a t i o n c o n c e r n i n g d i s p o s i t i o n o f c h a r g e s ) ( ) ] 96. Article 134—(Obstructing justice) [(influence) (alter) the testimony of as a. Text of statute. See paragraph 60. a witness before a (court-martial) (an investigating b. Elements. o f f i c e r ) ( ) ] i n t h e c a s e (1) That the accused wrongfully did a certain act; of by [(promising) (offering) (giving) (2) That the accused did so in the case of a cer- to the said , (the sum of $ ) tain person against whom the accused had reason to ( , o f a v a l u e o f a b o u t $ ) ] believe there were or would be criminal proceedings [ c o m m u n i c a t i n g t o t h e s a i d a t h r e a t pending; to ] [ ], (if) (unless) he/ she, the said , would [recommend dis- (3) That the act was done with the intent to influ- m i s s a l o f t h e c h a r g e s a g a i n s t s a i d ] ence, impede, or otherwise obstruct the due adminis- [(wrongfully refuse to testify) (testify falsely con- tration of justice; and c e r n i n g ) ( ) ] [ ( a t s u c h (4) That, under the circumstances, the conduct of t r i a l ) ( b e f o r e s u c h i n v e s t i g a t i n g o f f i c e r ) ] the accused was to the prejudice of good order and [ ]. discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 96a. Art 134 (Wrongful interference with an c. Explanation. This offense may be based on con- adverse administrative proceeding) duct that occurred before preferral of charges. Ac- a. Text of statute. See paragraph 60. tual obstruction of justice is not an element of this offense. For purposes of this paragraph “criminal b. Elements. p r o c e e d i n g s ” i n c l u d e s n o n j u d i c i a l p u n i s h m e n t (1) That the accused wrongfully did a certain act; proceedings under Part V of this Manual. Examples (2) That the accused did so in the case of a cer- IV-133

2011 NCIS Mini-Manual, Page 189 ¶96a.b.(2) tain person against whom the accused had reason to of , by ](promising) (offering) (giving) believe there was or would be an adverse adminis- to the said , (the sum of $ ) trative proceeding pending; ( , o f a v a l u e o f a b o u t $ ) ] (3) That the act was done with the intent to influ- [ c o m m u n i c a t i n g t o t h e s a i d a t h r e a t ence, impede, or obstruct the conduct of such ad- t o ] [ ] , ( i f ) ( u n l e s s ) t h e ministrative proceeding, or otherwise obstruct the said , would [recommend dismissal due administration of justice; of the action against said ] [(wrongfully r e f u s e t o t e s t i f y ) ( t e s t i f y f a l s e l y c o n c e r n - (4) That under the circumstances, the conduct of ing ) ( )] [(at such adminis- the accused was to the prejudice of good order and t r a t i v e p r o c e e d i n g ) ( b e f o r e s u c h i n v e s t i g a t i n g discipline in the armed forces or was of a nature to o f f i c e r ) ( b e f o r e s u c h a d m i n i s t r a t i v e b o a r d ) ] bring discredit upon the armed forces. [ ]. c. Explanation. For purposes of this paragraph “ad- verse administrative proceeding” includes any ad- 97. Article 134—(Pandering and prostitution) ministrative proceeding or action, initiated against a a. Text of statute. See paragraph 60. servicemember, that could lead to discharge, loss of special or incentive pay, administrative reduction in b. Elements. grade, loss of a security clearance, bar to reenlist- (1) Prostitution. ment, or reclassification. Examples of wrongful in- ( a ) T h a t t h e a c c u s e d h a d s e x u a l i n t e r c o u r s e t e r f e r e n c e i n c l u d e w r o n g f u l l y i n f l u e n c i n g , with another person not the accused’s spouse; intimidating, impeding, or injuring a witness, an in- (b) That the accused did so for the purpose of vestigator, or other person acting on an adverse ad- receiving money or other compensation; m i n i s t r a t i v e a c t i o n ; b y m e a n s o f b r i b e r y , (c) That this act was wrongful; and intimidation, misrepresentation, or force or threat of (d) That, under the circumstances, the conduct force delaying or preventing communication of in- of the accused was to the prejudice of good order formation relating to such administrative proceeding; and discipline in the armed forces or was of a nature and, the wrongful destruction or concealment of in- to bring discredit upon the armed forces. f o r m a t i o n r e l e v a n t t o s u c h a d v e r s e a d m i n i s t r a t i v e proceeding. (2) Patronizing a prostitute. d. Lesser included offenses. None. ( a ) T h a t t h e a c c u s e d h a d s e x u a l i n t e r c o u r s e with another person not the accused’s spouse; e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- (b) That the accused compelled, induced, en- ment for 5 years. ticed, or procured such person to engage in an act of sexual intercourse in exchange for money or other f. Sample specification. compensation; and In that (personal jurisdiction data), (c) That this act was wrongful; and did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , (d) That, under the circumstances, the conduct (wrongfully endeavor to) [impede (an adverse ad- of the accused was to the prejudice of good order m i n i s t r a t i v e p r o c e e d i n g ) ( a n i n v e s t i g a t i o n ) and discipline in the armed forces or was of a nature ( )] [influence the actions of , to bring discredit upon the armed forces. (an officer responsible for making a recommenda- (3) Pandering by inducing, enticing, or procuring tion concerning the adverse administrative action)(an act of prostitution. individual responsible for making a decision con- (a) That the accused induced, enticed, or pro- cerning an adverse administrative proceeding) (an cured a certain person to engage in an act of sexual individual responsible for processing an adverse ad- intercourse for hire and reward with a person to be m i n i s t r a t i v e p r o c e e d i n g ) ( ) ] directed to said person by the accused; [ ( i n f l u e n c e ) ( a l t e r ) t h e t e s t i m o n y o f a (b) That this inducing, enticing, or procuring witness before (a board established to consider an was wrongful; administrative proceeding or elimination) (an inves- (c) That, under the circumstances, the conduct t i g a t i n g o f f i c e r ) ( ) ] i n t h e c a s e of the accused was to the prejudice of good order IV-134

2011 NCIS Mini-Manual, Page 190 ¶97a.c.(2) and discipline in the armed forces or was of a nature (3) Inducing, enticing, or procuring act of pros- to bring discredit upon the armed forces. titution. (4) Pandering by arranging or receiving consid- In that (personal jurisdiction data), eration for arranging for sexual intercourse or sod- did (at/on board-location) (subject-matter jurisdiction omy. d a t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 , w r o n g f u l l y ( i n d u c e ) ( e n t i c e ) ( p r o c u r e ) t o e n - (a) That the accused arranged for, or received gage in (an act)(acts) of (sexual intercourse for hire valuable consideration for arranging for, a certain and reward) with persons to be directed to him/her person to engage in sexual intercourse or sodomy by the said . with another person; (4) Arranging, or receiving consideration for ar- (b) That the arranging (and receipt of consider- ranging for sexual intercourse or sodomy. ation) was wrongful; and In that (personal jurisdiction data), (c) That, under the circumstances, the conduct did, (at/on board-location) (subject-matter jurisdic- of the accused was to the prejudice of good order tion data, if required), on or about 20 , and discipline in the armed forces or was of a nature wrongfully (arrange for) (receive valuable considera- to bring discredit upon the armed forces. t i o n , t o w i t : o n a c c o u n t o f a r r a n g i n g f o r - ) t o e n g a g e i n ( a n a c t ) ( a c t s ) o f ( s e x u a l c. Explanation. Prostitution may be committed by intercourse) (sodomy) with . males or females. Sodomy for money or compensa- tion is not included in subparagraph b(1). Sodomy 97a. Article 134—(Parole, Violation of) may be charged under paragraph 51. Evidence that sodomy was for money or compensation may be a a. Text of statute. See paragraph 60. matter in aggravation. See R.C.M. 1001(b)(4). b. Elements. d. Lesser included offense. Article 80—attempts (1) That the accused was a prisoner as the result o f a c o u r t - m a r t i a l c o n v i c t i o n o r o t h e r c r i m i n a l e. Maximum punishment. proceeding; (1) Prostitution and patronizing a prostitute. Dis- (2) That the accused was on parole; honorable discharge, forfeiture of all pay and allow- (3) That there were certain conditions of parole ances, and confinement for 1 year. that the parolee was bound to obey; (2) Pandering. Dishonorable discharge, forfeiture (4) That the accused violated the conditions of of all pay and allowances, and confinement for 5 parole by doing an act or failing to do an act; and years. (5) That, under the circumstances, the conduct of f. Sample specifications. the accused was to the prejudice of good order and (1) Prostitution. discipline in the armed forces or was of a nature to In that (personal jurisdiction data), bring discredit upon the armed forces did, (at/on board-location) (subject-matter jurisdic- c. Explanation. tion data, if required), on or about 20 , (1) “Prisoner” refers only to those in confinement wrongfully engage in (an act) (acts) of sexual inter- resulting from conviction at a court-martial or other course with , a person not his/her criminal proceeding. s p o u s e , f o r t h e p u r p o s e o f r e c e i v i n g ( m o n e y ) (2) ’Parole’ is defined as “word of honor.” A ( ). prisoner on parole, or parolee, has agreed to adhere (2) Patronizing a prostitute. to a parole plan and conditions of parole. A “parole In that (personal jurisdiction data), plan” is a written or oral agreement made by the did, (at/on board location) (subject-matter jurisdic- prisoner prior to parole to do or refrain from doing tion data, if required), on or about 20 , certain acts or activities. A parole plan may include w r o n g f u l l y ( c o m p e l ) ( i n d u c e ) ( e n t i c e ) ( p r o - a r e s i d e n c e r e q u i r e m e n t s t a t i n g w h e r e a n d w i t h cure) , a person not his/her spouse, to engage whom a parolee will live, and a requirement that the in (an act) (acts) of sexual intercourse with the ac- prisoner have an offer of guaranteed employment. cused in exchange for (money) ( ). “Conditions of parole” include the parole plan and other reasonable and appropriate conditions of pa- IV-135

2011 NCIS Mini-Manual, Page 191 ¶97a.c.(2) role, such as paying restitution, beginning or contin- In that (personal jurisdiction data), uing treatment for alcohol or drug abuse, or paying a did, (at/on board—location) (subject-matter jurisdic- fine ordered executed as part of the prisoner’s court- t i o n d a t a , i f r e q u i r e d ) , o n o r m a r t i a l s e n t e n c e . I n r e t u r n f o r g i v i n g h i s o r h e r a b o u t 2 0 , “word of honor” to abide by a parole plan and con- procure to commit perjury by inducing ditions of parole, the prisoner is granted parole. h i m / h e r , t h e s a i d , t o t a k e a l a w f u l d. Lesser included offense. Article 80—attempts ( o a t h ) ( a f f i r m a t i o n ) i n a ( t r i a l b y c o u r t - m a r t i a l of ) (trial by a court of com- e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , p e t e n t j u r i s d i c t i o n , t o confinement for 6 months, and forfeiture of two- w i t : o f ) thirds pay per month for 6 months. ( d e p o s i t i o n f o r u s e i n a t r i a l f. Sample specifications. b y o f ) I n t h a t ( p e r s o n a l j u r i s d i c t i o n ( ) t h a t h e / s h e , t h e data), a prisoner on parole, did, (at/on board—loca- s a i d , w o u l d ( t e s t i f y ) ( d e p o s e ) tion), on or about 20 , ( ) t r u l y , a n d t o ( t e s t i f y ) ( d e p o s e ) v i o l a t e t h e c o n d i t i o n s o f h i s / h e r p a r o l e ( ) willfully, corruptly, and contrary to by . s u c h ( o a t h ) ( a f f i r m a t i o n ) i n s u b s t a n c e that , which (testimony) (deposi- 98. Article 134—(Perjury: subornation of) tion) ( ) was upon a material matter and a. Text of statute. See paragraph 60. which the accused and the said did not b. Elements. then believe to be true. (1) That the accused induced and procured a cer- tain person to take an oath or its equivalent and to 99. Article 134—(Public record: altering, falsely testify, depose, or state upon such oath or its concealing, removing, mutilating, equivalent concerning a certain matter; obliterating, or destroying) (2) That the oath or its equivalent was adminis- a. Text of statute. See paragraph 60. tered to said person in a matter in which an oath or b. Elements. its equivalent was required or authorized by law; (1) That the accused altered, concealed, removed, (3) That the oath or its equivalent was adminis- mutilated, obliterated, destroyed, or took with the tered by a person having authority to do so; intent to alter, conceal, remove, mutilate, obliterate, (4) That upon the oath or its equivalent said per- or destroy, a certain public record; son willfully made or subscribed a certain statement; (2) That the act of the accused was willful and (5) That the statement was material; unlawful; and (6) That the statement was false; (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and (7) That the accused and the said person did not discipline in the armed forces or was of a nature to then believe that the statement was true; and bring discredit upon the armed forces. (8) That, under the circumstances, the conduct of c . E x p l a n a t i o n . “ P u b l i c r e c o r d s ” i n c l u d e r e c o r d s , the accused was to the prejudice of good order and r e p o r t s , s t a t e m e n t s , o r d a t a c o m p i l a t i o n s , i n a n y discipline in the armed forces or was of a nature to form, of public offices or agencies, setting forth the bring discredit upon the armed forces. activities of the office or agency, or matters ob- c . E x p l a n a t i o n . S e e p a r a g r a p h 5 7 c f o r a p p l i c a b l e served pursuant to duty imposed by law as to which principles. “Induce and procure” means to influence, matters there was a duty to report. “Public records” persuade, or cause. includes classified matters. d. Lesser included offense. Article 80—attempts d. Lesser included offense. Article 80—attempts e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- forfeiture of all pay and allowances, and confine- ment for 5 years. ment for 3 years. f. Sample specification. f. Sample specification. IV-136

2011 NCIS Mini-Manual, Page 192 ¶100a.e.

In that (personal jurisdiction data), (2) That the conduct was wrongful and reckless did, (at/on board—location) (subject-matter jurisdic- or wanton; t i o n d a t a , i f r e q u i r e d ) , o n o r (3) That the conduct was likely to produce death a b o u t 2 0 , w i l l f u l l y a n d u n l a w - or grievous bodily harm to another person; and fully ((alter) (conceal) (remove) (mutilate) (obliter- (4) That, under the circumstances, the conduct of ate) (destroy)) (take with intent to (alter)(conceal) the accused was to the prejudice of good order and (remove) (mutilate) (obliterate) (destroy)) a public discipline in the armed forces or was of a nature to record, to wit: . bring discredit upon the armed forces. c. Explanation. 100. Article 134—(Quarantine: medical, (1) In general. This offense is intended to pro- breaking) hibit and therefore deter reckless or wanton conduct a. Text of statute. See paragraph 60. that wrongfully creates a substantial risk of death or b. Elements. grievous bodily harm to others. (1) That a certain person ordered the accused into (2) Wrongfulness. Conduct is wrongful when it is medical quarantine; without legal justification or excuse. (2) That the person was authorized to order the (3) Recklessness. “Reckless” conduct is conduct accused into medical quarantine; that exhibits a culpable disregard of foreseeable con- (3) That the accused knew of this medical quar- sequences to others from the act or omission in- antine and the limits thereof; volved. The accused need not intentionally cause a resulting harm or know that his conduct is substan- (4) That the accused went beyond the limits of tially certain to cause that result. The ultimate ques- the medical quarantine before being released there- t i o n i s w h e t h e r , u n d e r a l l t h e c i r c u m s t a n c e s , t h e from by proper authority; and accused’s conduct was of that heedless nature that (5) That, under the circumstances, the conduct of made it actually or imminently dangerous to the the accused was to the prejudice of good order and rights or safety of others. discipline in the armed forces or was of a nature to ( 4 ) W a n t o n n e s s . “ W a n t o n ” i n c l u d e s “ R e c k l e s s ” bring discredit upon the armed forces. but may connote willfulness, or a disregard of prob- c. Explanation. None. able consequences, and thus describe a more aggra- d. Lesser included offenses. vated offense. (1) Article 134—breaking restriction (5) Likely to produce. When the natural or proba- (2) Article 80—attempts b l e c o n s e q u e n c e o f p a r t i c u l a r c o n d u c t w o u l d b e death or grievous bodily harm, it may be inferred e. Maximum punishment. Confinement for 6 months that the conduct is “likely” to produce that result. and forfeiture of two-thirds pay per month for 6 See paragraph 54c(4)(a)(ii). months. ( 6 ) G r i e v o u s b o d i l y h a r m . “ G r i e v o u s b o d i l y f. Sample specification. harm” means serious bodily injury. It does not in- In that (personal jurisdiction data) clude minor injuries, such as a black eye or a bloody having been placed in medical quarantine by a per- nose, but does include fractured or dislocated bones, son authorized to order the accused into medical deep cuts, torn members of the body, serious dam- q u a r a n t i n e , d i d , ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - a g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r injuries. about 20 , break said medi- (7) Death or injury not required. It is not neces- cal quarantine. sary that death or grievous bodily harm be actually inflicted to prove reckless endangerment. 100a. Article 134—(Reckless endangerment) d. Lesser included offenses. None. a. Text of statute. See paragraph 60. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , b. Elements. forfeiture of all pay and allowances, and confine- (1) That the accused did engage in conduct; ment for 1 year.

IV-137

2011 NCIS Mini-Manual, Page 193 ¶100a.f. f. Sample specification. location), on or about 20 , break In that (personal jurisdiction data), said restriction. did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r 103. Article 134—(Seizure: destruction, about 20 , wrongfully and (reck- removal, or disposal of property to prevent) lessly) (wantonly) engage in conduct, to wit: (de- a. Text of statute. See paragraph 60. scribe conduct), conduct likely to cause death or b. Elements. grievous bodily harm to . (1) That one or more persons authorized to make searches and seizures were seizing, about to seize, or 101. Article 134—(Requesting commission endeavoring to seize certain property; of an offense) (2) That the accused destroyed, removed, or oth- Paragraph 101 was deleted pursuant to Executive erwise disposed of that property with intent to pre- Order 12708. vent the seizure thereof; (3) That the accused then knew that person(s) au- 102. Article 134—(Restriction, breaking) thorized to make searches were seizing, about to a. Text of statute. See paragraph 60. seize, or endeavoring to seize the property; and b. Elements. (4) That, under the circumstances, the conduct of (1) That a certain person ordered the accused to the accused was to the prejudice of good order and be restricted to certain limits; discipline in the armed forces or was of a nature to (2) That said person was authorized to order said bring discredit upon the armed forces. restriction; c. Explanation. See Mil. R. Evid. 316(e) concerning (3) That the accused knew of the restriction and military personnel who may make seizures. It is not the limits thereof; a defense that a search or seizure was technically (4) That the accused went beyond the limits of defective. the restriction before being released therefrom by d. Lesser included offense. Article 80—attempts proper authority; and e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , (5) That, under the circumstances, the conduct of forfeiture of all pay and allowances, and confine- the accused was to the prejudice of good order and ment for 1 year. discipline in the armed forces or was of a nature to f. Sample specification. bring discredit upon the armed forces. I n t h a t ( p e r s o n a l j u - c. Explanation. Restriction is the moral restraint of a risdiction data), did, (at/on board—location) (subject person imposed by an order directing a person to m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r remain within certain specified limits. “Restriction” about 20 , with intent to prevent includes restriction under R.C.M. 304(a) (2), restric- i t s s e i z u r e , ( d e s t r o y ) ( r e m o v e ) ( d i s p o s e tion resulting from imposition of either nonjudicial o f ) , p r o p e r t y w h i c h , a s - punishment (see Part V) or the sentence of a court- then knew, (a) person(s) authorized to martial (see R.C.M. 1003( b) (6)), and administrative make searches and seizures were (seizing) (about to restriction in the interest of training, operations, se- seize) (endeavoring to seize). curity, or safety. d. Lesser included offenses. Article 80—attempts 103a. Article 134—(Self-injury without intent to avoid service) e. Maximum punishment. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 a. Text of statute. See paragraph 60. month. b. Elements. f. Sample specification. (1) That the accused intentionally inflicted injury In that (personal jurisdiction data), upon himself or herself; having been restricted to the limits of , (2) That, under the circumstances, the conduct of by a person authorized to do so, did, (at/on board— the accused was to the prejudice of good order and IV-138

2011 NCIS Mini-Manual, Page 194 ¶104.c.(2)(a) discipline in the armed forces or was of a nature to b y ( n a t u r e a n d c i r c u m s t a n c e s o f bring discredit upon the armed forces. injury). [Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following 104. Article 134—(Sentinel or lookout: element] offenses against or by) (3) That the offense was committed (in time of a. Text of statute. See paragraph 60. war) (in a hostile fire pay zone). b. Elements. c. Explanation. (1) Disrespect to a sentinel or lookout. (1) Nature of offense. This offense differs from ( a ) T h a t a c e r t a i n p e r s o n w a s a s e n t i n e l o r malingering (see paragraph 40) in that for this of- lookout; fense, the accused need not have harbored a design (b) That the accused knew that said person was to avoid performance of any work, duty, or service a sentinel or lookout; which may properly or normally be expected of one (c) That the accused used certain disrespectful in the military service. This offense is characterized l a n g u a g e o r b e h a v e d i n a c e r t a i n d i s r e s p e c t f u l by intentional self-injury under such circumstances manner; as prejudice good order and discipline or discredit ( d ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s the armed forces. It is not required that the accused wrongful; be unable to perform duties, or that the accused ( e ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s d i - actually be absent from his or her place of duty as a rected toward and within the sight or hearing of the result of the injury. For example, the accused may sentinel or lookout; inflict the injury while on leave or pass. The circum- (f) That said person was at the time in the stances and extent of injury, however, are relevant to execution of duties as a sentinel or lookout; and a determination that the accused’s conduct was prej- udicial to good order and discipline, or service-dis- (g) That, under the circumstances, the conduct of the accused was to the prejudice of good order crediting. and discipline in the armed forces or was of a nature (2) How injury inflicted. The injury may be in- to bring discredit upon the armed forces. flicted by nonviolent as well as by violent means (2) Loitering or wrongfully sitting on post by a and may be accomplished by any act or omission sentinel or lookout. that produces, prolongs, or aggravates a sickness or (a) That the accused was posted as a sentinel disability. Thus, voluntary starvation that results in a or lookout; debility is a self-inflicted injury. Similarly, the in- jury may be inflicted by another at the accused’s (b) That while so posted, the accused loitered request. or wrongfully sat down on post; and (c) That, under the circumstances, the conduct d. Lesser included offense. Article 80—attempts of the accused was to the prejudice of good order e. Maximum punishment. and discipline in the armed forces or was of a nature (1) Intentional self-inflicted injury. Dishonorable to bring discredit upon the armed forces. discharge, forfeiture of all pay and allowances, and [Note: If the offense was committed in time of war confinement for 2 years. o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y (2) Intentional self-inflicted injury in time of war under 37 U.S.C. § 310, add the following element o r i n a h o s t i l e f i r e p a y z o n e . D i s h o n o r a b l e d i s - after element (a): That the accused was so posted (in charge, forfeiture of all pay and allowances, and time of war) (while receiving special pay under 37 confinement for 5 years. U.S.C. § 310).] f. Sample specification. c. Explanation. In that (personal jurisdiction data), (1) Disrespect. For a discussion of “disrespect, did, (at/on board—location) (in a hostile fire pay ”see paragraph 13c(3). zone) on or about 20 , (a time of (2) Loitering or wrongfully sitting on post. w a r , ) i n t e n t i o n a l l y i n j u r e h i m s e l f / h e r s e l f (a) In general. The discussion set forth in para- IV-139

2011 NCIS Mini-Manual, Page 195 ¶104.c.(2)(a) graph 38c applies to loitering or sitting down while 105. Article 134—(Soliciting another to posted as a sentinel or lookout as well. commit an offense) (b) Loiter. “Loiter” means to stand around, to a. Text of statute. See paragraph 60. move about slowly, to linger, or to lag behind when b. Elements. that conduct is in violation of known instructions or (1) That the accused solicited or advised a certain accompanied by a failure to give complete attention person or persons to commit a certain offense under to duty. the code other than one of the four offenses named d. Lesser included offenses. in Article 82; (1) Disrespect to a sentinel or lookout. Article (2) That the accused did so with the intent that 80—attempts the offense actually be committed; and (2) Loitering or wrongfully sitting on post by a (3) That, under the circumstances, the conduct of sentinel or lookout. Article 80—attempts the accused was to the prejudice of good order and discipline in the armed forces or was a nature to e. Maximum punishment. bring discredit upon the armed forces. (1) Disrespect to a sentinel or lookout. Confine- c. Explanation. See paragraph 6c. If the offense so- ment for 3 months and forfeiture of two-thirds pay licited was actually committed, see also paragraph 1. per month for 3 months. d. Lesser included offenses. Article 80 —attempts. (2) Loitering or wrongfully sitting on post by a e. Maximum punishment. Any person subject to the sentinel or lookout. code who is found guilty of soliciting or advising (a) In time of war or while receiving special another person to commit an offense which, if com- pay under 37 U.S.C. § 310. Dishonorable discharge, mitted by one subject to the code, would be punisha- forfeiture of all pay and allowances, and confine- ble under the code, shall be subject to the maximum ment for 2 years. punishment authorized for the offense solicited or (b) Other cases. Bad-conduct discharge, forfei- advised, except that in no case shall the death pen- ture of all pay and allowances, and confinement for alty be imposed nor shall the period of confinement 6 months. in any case, including offenses for which life im- prisonment may be adjudged, exceed 5 years. How- f. Sample specifications. ever, any person subject to the code who is found (1) Disrespect to a sentinel or lookout. guilty of soliciting or advising another person to In that (personal jurisdiction data), commit the offense of espionage (Article 106a) shall d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r be subject to any punishment, other than death, that a b o u t 2 0 , t h e n k n o w i n g t h a t - a court-martial may direct. was a sentinel or lookout, (wrongfully f. Sample specification. u s e t h e f o l l o w i n g d i s r e s p e c t f u l l a n g u a g e In that (personal jurisdiction data), “ , ” o r w o r d s t o t h a t e f f e c t , did, (at/on board—location) (subject-matter jurisdic- to ) (wrongfully behave in a disre- t i o n d a t a , i f r e q u i r e d ) , o n o r s p e c t f u l m a n n e r t o w a r d , a b o u t 2 0 , w r o n g f u l l y ( s o l i c i t ) by ) a (sentinel) (lookout) in the execu- (advise) (to disobey a general regula- tion of his/her duty. t i o n , t o w i t : ) ( t o (2) Loitering or wrongfully sitting down on post s t e a l , o f a v a l u e o f ( a b o u t ) by a sentinel or lookout. $ , t h e p r o p e r t y I n t h a t ( p e r s o n a l j u - o f ) ( t o ) , risdiction data), while posted as a (sentinel) (look- by . out), did, (at/on board—location) (while receiving special pay under 37 U.S.C. § 310) on or about 106. Article 134—(Stolen property: 2 0 , ( a t i m e o f w a r ) ( l o i t e r ) knowingly receiving, buying, concealing) (wrongfully sit down) on his/her post. a. Text of statute. See paragraph 60. b. Elements.

IV-140

2011 NCIS Mini-Manual, Page 196 ¶108.c.

(1) That the accused wrongfully received, bought, b. Elements. or concealed certain property of some value; (1) That the accused, while accompanying the ac- (2) That the property belonged to another person; cuse’s organization on a march, maneuvers, or simi- (3) That the property had been stolen; lar exercise, straggled; (4) That the accused then knew that the property (2) That the straggling was wrongful; and had been stolen; and (3) That, under the circumstances, the conduct of (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to discipline in the armed forces or was of a nature to bring discredit upon the armed forces. bring discredit upon the armed forces. c. Explanation. “Straggle” means to wander away, c. Explanation. to stray, to become separated from, or to lag or (1) In general. The actual thief is not criminally linger behind. liable for receiving the property stolen; however a d. Lesser included offense. Article 80—attempts principal to the larceny (see paragraph 1), when not e. Maximum punishment. Confinement for 3 months the actual thief, may be found guilty of knowingly and forfeiture of two-thirds pay per month for 3 receiving the stolen property but may not be found months. guilty of both the larceny and receiving the property. f. Sample specification. (2) Knowledge. Actual knowledge that the prop- I n t h a t ( p e r s o n a l j u - e r t y w a s s t o l e n i s r e q u i r e d . K n o w l e d g e m a y b e r i s d i c t i o n d a t a ) , d i d , a t , o n o r proved by circumstantial evidence. a b o u t 2 0 , w h i l e a c c o m p a - ( 3 ) W r o n g f u l n e s s . R e c e i v i n g s t o l e n p r o p e r t y i s nying his/her organization on (a march) (maneuvers) wrongful if it is without justification or excuse. For ( ), wrongfully straggle. example, it would not be wrongful for a person to receive stolen property for the purpose of returning 108. Article 134—(Testify: wrongful refusal) it to its rightful owner, or for a law enforcement a. Text of statute. See paragraph 60. officer to seize it as evidence. b. Elements. d. Lesser included offense. Article 80—attempts (1) That the accused was in the presence of a e . M a x i m u m p u n i s h m e n t . S t o l e n p r o p e r t y , k n o w - court-martial, board of officer(s), military commis- ingly receiving, buying, or concealing. sion, court of inquiry, an officer conducting an in- (1) Of a value of $500.00 or less. Bad-conduct vestigation under Article 32, or an officer taking a discharge, forfeiture of all pay and allowances, and deposition, of or for the United States, at which a confinement for 6 months. certain person was presiding; (2) Of a value of more than $500.00. Dishonora- (2) That the said person presiding directed the ble discharge, forfeiture of all pay and allowances, accused to qualify as a witness or, having so quali- and confinement for 3 years. fied, to answer a certain question; f. Sample specification. (3) That the accused refused to qualify as a wit- In that (personal jurisdiction data), ness or answer said question; did, (at/on board—location) (subject-matter jurisdic- (4) That the refusal was wrongful; and t i o n d a t a , i f r e q u i r e d ) , o n o r (5) That, under the circumstances, the conduct of a b o u t 2 0 , w r o n g f u l l y ( r e c e i v e ) the accused was to the prejudice of good order and (buy) (conceal) , of a value of (about) discipline in the armed forces or was of a nature to $ , t h e p r o p e r t y o f , w h i c h bring discredit upon the armed forces. property, as he/she, the said , then knew, c. Explanation. To “qualify as a witness” means that had been stolen. t h e w i t n e s s d e c l a r e s t h a t t h e w i t n e s s w i l l t e s t i f y truthfully. See R.C.M. 807; Mil. R. Evid. 603. A 107. Article 134—(Straggling) good faith but legally mistaken belief in the right to a. Text of statute. See paragraph 60. r e m a i n s i l e n t d o e s n o t c o n s t i t u t e a d e f e n s e t o a IV-141

2011 NCIS Mini-Manual, Page 197 ¶108.c. charge of wrongful to testify. See also Mil. R. Evid. made by means of an explosive; weapon of mass 301 and Section V. destruction; biological or chemical agent, substance, d. Lesser included offenses. None. or weapon; or hazardous material, to unlawfully kill, e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , injure, or intimidate a person or to unlawfully dam- forfeiture of all pay and allowances, and confine- age or destroy certain property; ment for 5 years. (c) That the information communicated or con- f. Sample specification. veyed by the accused was false and that the accused In that (personal jurisdiction data), then knew it to be false; being in the presence of (a) (an) ((general) (special) (d) That the communication of the information (summary) court-martial) (board of officer(s)) (mili- by the accused was malicious; and tary commission) (court of inquiry) (officer conduct- (e) That, under the circumstances, the conduct ing an investigation under Article 32, Uniform Code of the accused was to the prejudice of good order o f M i l i t a r y J u s t i c e ) ( o f f i c e r t a k i n g a d e p o s i t i o n ) and discipline in the armed forces or was of a nature ( ) (of) (for) the United States, of which- to bring discredit upon the armed forces. w a s ( m i l i t a r y j u d g e ) ( p r e s i d e n t ) , c. Explanation. ( ), (and having been directed by the said- (1) Threat. A “threat” means an expressed pres- to qualify as a witness) (and having ent determination or intent to kill, injure, or intimi- qualified as a witness and having been directed by d a t e a p e r s o n o r t o d a m a g e o r d e s t r o y c e r t a i n the said to answer the following ques- property presently or in the future. Proof that the t i o n ( s ) p u t t o h i m / h e r a s a w i t n e s s , accused actually intended to kill, injure, intimidate, “ ” ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , damage, or destroy is not required. on or about 20 , wrongfully ( 2 ) E x p l o s i v e . “ E x p l o s i v e ” m e a n s g u n p o w d e r , r e f u s e ( t o q u a l i f y a s a w i t n e s s ) ( t o a n s w e r s a i d powders used for blasting, all forms of high explo- question(s)). sives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating 109. Article 134—(Threat or hoax designed a g e n t s , s m o k e l e s s p o w d e r s , a n y e x p l o s i v e b o m b , or intended to cause panic or public fear) grenade, missile, or similar device, and any incendi- a. Text of statute. See paragraph 60. ary bomb or grenade, fire bomb, or similar device, b. Elements. and any other explosive compound, mixture, or simi- (1) Threat. lar material. ( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d c e r t a i n (3) Weapon of mass destruction. A weapon of language; mass destruction means any device, explosive or ( b ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d otherwise, that is intended, or has the capability, to amounted to a threat; cause death or serious bodily injury to a significant number of people through the release, dissemination, (c) That the harm threatened was to be done by or impact of: toxic or poisonous chemicals, or their means of an explosive; weapon of mass destruction; p r e c u r s o r s ; a d i s e a s e o r g a n i s m ; o r r a d i a t i o n o r biological or chemical agent, substance, or weapon; radioactivity. or hazardous material; (4) Biological agent. The term “biological agent” (d) That the communication was wrongful; and m e a n s a n y m i c r o - o r g a n i s m ( i n c l u d i n g b a c t e r i a , (e) That, under the circumstances, the conduct viruses, fungi, rickettsiac, or protozoa), pathogen, or of the accused was to the prejudice of good order infectious substance, and any naturally occurring, and discipline in the armed forces or was of a nature b i o e n g i n e e r e d , o r s y n t h e s i z e d c o m p o n e n t o f a n y to bring discredit upon the armed forces. such micro-organism, pathogen, or infectious sub- (2) Hoax. stance, whatever its origin or method of production, ( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d o r c o n - that is capable of causing— veyed certain information; (a) death, disease, or other biological malfunc- (b) That the information communicated or con- tion in a human, an animal, a plant, or another living veyed concerned an attempt being made or to be organism; IV-142

2011 NCIS Mini-Manual, Page 198 ¶110.f.

( b ) d e t e r i o r a t i o n o f f o o d , w a t e r , e q u i p m e n t , (convey) certain information concerning an attempt supplies, or materials of any kind; or being made or to be made to unlawfully [(kill) (in- (c) deleterious alteration of the environment. j u r e ) ( i n t i m i d a t e ) ] [ ( d a m a g e ) ( 5 ) C h e m i c a l a g e n t , s u b s t a n c e , o r w e a p o n . A (destroy) ] by means of a(n) [explosive; chemical agent, substance, or weapon refers to a weapon of mass destruction; biological agent, sub- toxic chemical and its precursors or a munition or stance, or weapon; chemical agent, substance, or device, specifically designed to cause death or other w e a p o n ; a n d / o r ( a ) h a z a r d o u s m a t e r i a l ( s ) ] , t o harm through toxic properties of those chemicals wit: , which information was false and that would be released as a result of the employment which the accused then knew to be false. of such munition or device, and any equipment spe- cifically designed for use directly in connection with 110. Article 134—(Threat, communicating) the employment of such munitions or devices. a. Text of statute. See paragraph 60. (6) Hazardous material. A substance or material b. Elements. (including explosive, radioactive material, etiologic (1) That the accused communicated certain lan- a g e n t , f l a m m a b l e o r c o m b u s t i b l e l i q u i d o r s o l i d , guage expressing a present determination or intent to poison, oxidizing or corrosive material, and com- wrongfully injure the person, property, or reputation pressed gas, or mixture thereof) or a group or class of another person, presently or in the future; of material designated as hazardous by the Secretary of Transportation. (2) That the communication was made known to (7) Malicious. A communication is “malicious” if that person or to a third person; t h e a c c u s e d b e l i e v e d t h a t t h e i n f o r m a t i o n w o u l d (3) That the communication was wrongful; and probably interfere with the peaceful use of the build- (4) That, under the circumstances, the conduct of ing, vehicle, aircraft, or other property concerned, or the accused was to the prejudice of good order and would cause fear or concern to one or more persons. discipline in the armed forces or was of a nature to d. Lesser included offenses. bring discredit upon the armed forces. (1) Threat. c. Explanation. To establish the threat it is not nec- (a) Article 134—communicating a threat essary that the accused actually intended to do the (b) Article 80—attempts i n j u r y t h r e a t e n e d . H o w e v e r , a d e c l a r a t i o n m a d e under circumstances which reveal it to be in jest or (c) Article 128—assault for an innocent or legitimate purpose, or which con- (2) Hoax. Article 80—attempts tradict the expressed intent to commit the act, does e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , not constitute this offense. Nor is the offense com- forfeitures of all pay and allowances, and confine- mitted by the mere statement of intent to commit an ment for 10 years. unlawful act not involving injury to another. See f. Sample specifications. also paragraph 109 concerning bomb threat. (1) Threat. d. Lesser included offenses. In that (personal jurisdiction da- (1) Article 117—provoking speeches or gestures t a ) d i d , ( a t / o n b o a r d - - l o c a t i o n ) o n o r a b o u t (2) Article 80—attempts 2 0 , w r o n g f u l l y c o m m u n i c a t e c e r t a i n i n f o r m a t i o n , t o w i t : , w h i c h l a n g u a g e e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , constituted a threat to harm a person or property by forfeiture of all pay and allowances, and confine- means of a(n) [explosive; weapon of mass destruc- ment for 3 years. tion; biological agent, substance, or weapon; chemi- f. Sample specification. c a l a g e n t , s u b s t a n c e , o r w e a p o n ; a n d / o r ( a ) In that (personal juris- hazardous material(s)]. diction data), did, (at/on board—location) (subject- (2) Hoax. m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r In that (personal jurisdiction da- a b o u t 2 0 , w r o n g f u l l y c o m m u n i - t a ) d i d , ( a t / o n b o a r d - - l o c a t i o n ) , o n o r a b o u t c a t e t o a t h r e a t ( i n - 2 0 , m a l i c i o u s l y ( c o m m u n i c a t e ) j u r e b y ) IV-143

2011 NCIS Mini-Manual, Page 199 ¶110.f.

( a c c u s e o f h a v i n g c o m m i t t e d t h e o f - ( 1 ) T h a t t h e a c c u s e d c a r r i e d a c e r t a i n w e a p o n fense of ) ( ). concealed on or about the accused’s person; (2) That the carrying was unlawful; 111. Article 134—(Unlawful entry) (3) That the weapon was a dangerous weapon; a. Text of statute. See paragraph 60. and b. Elements. (4) That, under the circumstances, the conduct of (1) That the accused entered the real property of the accused was to the prejudice of good order and a n o t h e r o r c e r t a i n p e r s o n a l p r o p e r t y o f a n o t h e r discipline in the armed forces or was of a nature to which amounts to a structure usually used for habi- bring discredit upon the armed forces. tation or storage; c. Explanation. (2) That such entry was unlawful; and (1) Concealed weapon. A weapon is concealed (3) That, under the circumstances, the conduct of when it is carried by a person and intentionally cov- the accused was to the prejudice of good order and ered or kept from sight. discipline in the armed forces or was of a nature to (2) Dangerous weapon. For purposes of this para- bring discredit upon the armed forces. graph, a weapon is dangerous if it was specifically c. Explanation. See paragraph 55 for a discussion of designed for the purpose of doing grievous bodily “entry.” An entry is “unlawful” if made without the harm, or it was used or intended to be used by the consent of any person authorized to consent to entry accused to do grievous bodily harm. or without other lawful authority. No specific intent ( 3 ) O n o r a b o u t . “ O n o r a b o u t ” m e a n s t h e or breaking is required for this offense. See para- weapon was carried on the accused’s person or was graph 56 for a discussion of housebreaking. The within the immediate reach of the accused. property protected against unlawful entry includes d. Lesser included offense. Article 80—attempts real property and the sort of personal property which e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , amounts to a structure usually used for habitation or forfeiture of all pay and allowances, and confine- storage. It would usually not include an aircraft, ment for 1 year. automobile, tracked vehicle, or a person’s locker, even though used for storage purposes. However, f. Sample specification. depending on the circumstances, an intrusion into In that (personal jurisdiction data), such property may be prejudicial to good order and did, (at/on board—location) (subject-matter jurisdic- discipline. t i o n d a t a , i f r e q u i r e d ) , o n o r d. Lesser included offense. Article 80—attempts about 20 , unlawfully carry on or about his/her person a concealed weapon, to wit: e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , a . forfeiture of all pay and allowances, and confine- ment for 6 months. 113. Article 134—(Wearing unauthorized f. Sample specification. insignia, decoration, badge, ribbon, device, In that (personal jurisdiction data), or lapel button) did, (at/on board—location) (subject-matter jurisdic- t i o n d a t a , i f r e q u i r e d ) , o n o r a. Text of statute. See paragraph 60. a b o u t 2 0 , u n l a w f u l l y e n t e r t h e b. Elements. (dwelling house) (garage) (warehouse) (tent) (vege- (1) That the accused wore a certain insignia, dec- t a b l e g a r d e n ) ( o r c h a r d ) ( s t a t e r o o m ) ( ) oration, badge, ribbon, device, or lapel button upon of . the accused’s uniform or civilian clothing; (2) That the accused was not authorized to wear 112. Article 134—(Weapon: concealed, the item; carrying) (3) That the wearing was wrongful; and a. Text of statute. See paragraph 60. (4) That, under the circumstances, the conduct of b. Elements. the accused was to the prejudice of good order and IV-144

2011 NCIS Mini-Manual, Page 200 ¶113.f. discipline in the armed forces or was of a nature to In that (personal jurisdiction data), bring discredit upon the armed forces. d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r c. Explanation. None. a b o u t 2 0 , w r o n g f u l l y d. Lesser included offense. Article 80—attempts and without authority wear upon his/her (uniform) (civilian clothing) (the insignia or grade of a (master e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , sergeant of ) (chief gunner’s mate forfeiture of all pay and allowances, and confine- of )) (Combat Infantryman Badge) (the ment for 6 months. Distinguished Service Cross) (the ribbon represent- f. Sample specification. ing the Silver Star) (the lapel button representing the Legion of Merit) ( ).

IV-145

2011 NCIS Mini-Manual, Page 201 APPENDIX 4 Charge Sheet (DD FORM 458)

A4-1

2011 NCIS Mini-Manual, Page 202 APPENDIX 4

A4-2

2011 NCIS Mini-Manual, Page 203 APPENDIX 12 MAXIMUM PUNISHMENT CHART

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures 77 Principals (see Part IV, Para. 1 and pertinent offenses) 78 Accessory after the fact (see Part IV, Para. 3.e.) 79 Lesser included offenses (see Part IV, Para. 2 and pertinent offenses) 80 Attempts (see Part IV, Para. 4.e.) 81 Conspiracy (see Part IV, Para. 5.e.) 82 Solicitation If solicited offense committed, or attempted, see Part IV, Para. 6.e. If solicited offense not committed: Solicitation to desert1 ...... DD, BCD 3 yrs.1 Total Solicitation to mutiny1 ...... DD, BCD 10 yrs.1 Total Solicitation to commit act of misbehavior before enemy1 ...... DD, BCD 10 yrs.1 Total Solicitation to commit act of sedition 1 ...... DD, BCD 10 yrs.1 Total 83 Fraudulent enlistment, appointment ...... DD, BCD 2 yrs. Total Fraudulent separation ...... DD, BCD 5 yrs. Total 84 Effecting unlawful enlistment, appointment, separation ...... DD, BCD 5 yrs. Total 85 Desertion In time of war ...... Death, DD, BCD Life4 Total Intent to avoid hazardous duty, shirk important service 1 ...... DD, BCD 5 yrs.1 Total Other cases Terminated by apprehension ...... DD, BCD 3 yrs.1 Total Otherwise terminated ...... DD, BCD 2 yrs.1 Total 86 Absence without leave, etc. Failure to go, going from place of duty ...... None 1 mo. 2/3 1 mo. Absence from unit, organization, etc. Not more than 3 days ...... None 1 mo. 2/3 1 mo. More than 3, not more than 30 days ...... None 6 mos. 2/3 6 mos. More than 30 days ...... DD, BCD 1 yr. Total More than 30 days and terminated by apprehension ...... DD, BCD 1 yr., 6 mos. Total Absence from guard or watch ...... None 3 mos. 2/3 3 mos. Absence from guard or watch with intent to abandon ...... BCD 6 mos. Total Absence with intent to avoid maneuvers, field exercises ...... BCD 6 mos. Total 87 Missing movement Through design ...... DD, BCD 2 yrs. Total Through neglect ...... BCD 1 yr. Total 88 Contempt toward officials ...... Dismissal 1 yr. Total 89 Disrespect toward superior commissioned officer ...... BCD 1 yr. Total 90 Assaulting, willfully disobeying superior commissioned officer In time of war ...... Death, DD, BCD Life4 Total Striking, drawing or lifting up any weapon or offering any violence DD, BCD 10 yrs.1 Total toward superior commissioned officer execution of duty1 ...... Willfully disobeying lawful order of superior commissioned officer1 DD, BCD 5 yrs.1 Total 91 Insubordinate conduct toward warrant, noncommissioned, petty officer Striking or assaulting: Warrant officer ...... DD, BCD 5 yrs. Total Superior noncommissioned officer ...... DD, BCD 3 yrs. Total Other noncommissioned or petty officer ...... DD, BCD l yr. Total Willfully disobeying: Warrant officer ...... DD, BCD 2 yrs. Total Noncommissioned or petty officer ...... BCD l yr. Total Contempt, disrespect toward: Warrant Officer ...... BCD 9 mos. Total Superior noncommissioned or petty officer ...... BCD 6 mos. Total Other noncommissioned or petty officer ...... None 3 mos. 2/3 3 mos.

A12-1

2011 NCIS Mini-Manual, Page 204 App. 12, Art. 92

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures 92 Failure to obey order, regulation Violation, failure to obey general order or regulation 2 ...... DD, BCD 2 yrs. Total Violation, failure to obey other order 2 ...... BCD 6 mos. Total Dereliction in performance of duties Through neglect, culpable inefficiency ...... None 3 mos. 2/3 3 mos. Willful ...... BCD 6 mos. Total 93 Cruelty, maltreatment of subordinates ...... DD, BCD 1 yr. Total 94 Mutiny & sedition ...... Death, DD, BCD Life4 Total 95 Resisting apprehension, flight, breach of arrest, escape Resisting apprehension ...... BCD 1 yr. Total Flight from apprehension ...... BCD 1 yr. Total Breaking arrest ...... BCD 6 mos. Total Escape from custody, pretrial confinement, or confinement on bread and water or diminished rations ...... DD, BCD 1 yr. Total Escape from post-trial confinement ...... DD, BCD 5 yrs. Total 96 Releasing prisoner without proper authority ...... DD, BCD 2 yrs. Total Suffering prisoner to escape through neglect ...... BCD 1 yr. Total Suffering prisoner to escape through design ...... DD, BCD 2 yrs. Total 97 Unlawful detention ...... DD, BCD 3 yrs. Total 98 Noncompliance with procedural rules, etc. Unnecessary delay in disposition of case ...... BCD 6 mos. Total Knowingly, intentionally failing to comply, enforce code ...... DD, BCD 5 yrs. Total 99 Misbehavior before enemy ...... Death, DD, BCD Life4 Total 100 Subordinate compelling surrender ...... Death, DD, BCD Life4 Total 101 Improper use of countersign ...... Death, DD, BCD Life4 Total 102 Forcing safeguard ...... Death, DD, BCD Life4 Total 103 Captured, abandoned property; failure to secure, etc. Of value of $500.00 or less ...... BCD 6 mos. Total Of value of more than $500.00 ...... DD, BCD 5 yrs. Total Any firearm or explosive ...... DD, BCD 5 yrs. Total Looting, pillaging ...... DD, BCD Life4 Total 104 Aiding the enemy ...... Death, DD, BCD Life4 Total 105 Misconduct as prisoner ...... DD, BCD Life4 Total 106 Spying ...... Mandatory Death, Not Total DD, BCD applicable 106a Espionage Cases listed in Art. 106a(a)(l)(A)–(D) ...... Death, DD, BCD Life4 Total Other cases ...... DD, BCD Life4 Total 107 False official statements ...... DD, BCD 5 yrs. Total 108 Military property; loss, damage, destruction, disposition Selling, otherwise disposing Of value of $500.00 or less ...... BCD 1 yr. Total Of value of more than $500.00 ...... DD, BCD 10 yrs. Total Any firearm, explosive or incendiary device DD, BCD 10 yrs. Total Damaging, destroying, losing or suffering to be lost, damaged, destroyed, sold, or wrongfully disposed: Through neglect, of a value of: $500.00 or less ...... None 6 mos. 2/3 6 mos. More than $500.00 ...... BCD 1 yr. Total Willfully, of a value of $500.00 or less ...... BCD 1 yr. Total More than $500.00 ...... DD, BCD 10 yrs. Total Any firearm, explosive, or incendiary device DD, BCD 10 yrs. Total

A12-2

2011 NCIS Mini-Manual, Page 205 App. 12, Art. 119a

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures 109 Property other than military property of U.S.: loss, damage, destruction, disposition: Wasting, spoiling, destroying, or damaging property of a value of: $500.00 or less ...... BCD 1 yr. Total More than $500.00 ...... DD, BCD 5 yrs. Total 110 Hazarding a vessel Willfully and wrongfully ...... Death, DD, BCD Life4 Total Negligently ...... DD, BCD 2 yrs. Total 111 Drunken driving Resulting in personal injury ...... DD, BCD 1 yr., 6 mos. Total Other cases ...... BCD 6 mos. Total 112 Drunk on duty ...... BCD 9 mos. Total 112a Wrongful use, possession, etc. of controlled substances 3 Wrongful use, possession, manufacture, or introduction of: Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances ...... DD, BCD 5 yrs. Total Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances ...... DD, BCD 2 yrs. Total Wrongful distribution of, or, with intent to distribute, wrongful possession, manufacture, introduction, or wrongful importation of or exportation of: Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances ...... DD, BCD 15 yrs. Total Phenobarbital and Schedule IV and V controlled substances . . . . DD, BCD 10 yrs. Total 113 Misbehavior of sentinel or lookout In time of war ...... Death, DD, BCD Life4 Total In other time: While receiving special pay under 37 U.S.C. 310 ...... DD, BCD 10 yrs. Total Other places ...... DD, BCD 1 yr. Total 114 Dueling ...... DD, BCD 1 yr. Total 115 Malingering Feigning illness, etc. In time of war, or while receiving special pay under 37 U.S.C. 310 DD, BCD 3 yrs. Total Other ...... DD, BCD 1 yr. Total Intentional self-inflicted injury In time of war, or while receiving special pay under 37 U.S.C. 310 DD, BCD 10 yrs. Total Other ...... DD, BCD 5 yrs. Total 116 Riot ...... DD, BCD 10 yrs. Total Breach of peace ...... None 6 mos. 2/3 6 mos. 117 Provoking speech, gestures ...... None 6 mos. 2/3 6 mos. 118 Murder Article 118(1) or (4) ...... Death, mandatory minimum life with parole, DD, BCD Life4 Total Article 118(2) or (3) ...... DD, BCD Life4 Total  119 Manslaughter Voluntary ...... DD, BCD 15 yrs. Total Involuntary ...... DD, BCD 10 yrs. Total 119a Death or injury to an Unborn Child (see Part IV, Para. 44a.(a)(1))

A12-3

2011 NCIS Mini-Manual, Page 206 3DJH$

1XPEHU $XWKRUEGODQGUXP 6XEMHFW6WLFN\1RWH 'DWH$0 $SSHQGL[WKH0D[LPXP3XQLVKPHQW&KDUWLVDPHQGHGDVIROORZV

D ,QWKHLWHPUHODWLQJWR$UWLFOHE\LQVHUWLQJDIWHUWKHPD[LPXPSXQLVKPHQWIRULQYROXQWDU\PDQVODXJKWHU

³9ROXQWDU\PDQVODXJKWHURIDFKLOGXQGHUWKHDJHRI\HDUV''%&'\UV7RWDO´  ³,QYROXQWDU\PDQVODXJKWHURIDFKLOGXQGHUWKHDJHRI\HDUV''%&'\UV7RWDO´  Executive Order 13468: 2008 Amendments to the Manual for Courts-Martial, United States

2011 NCIS Mini-Manual, Page 207 App. 12, Art. 119a

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures Injuring or killing an unborn child ...... Such punishment, other than death, as a court-martial may direct, but such pun- ishment shall be consistent with the punishment had the bodily injury or death occurred to the unborn child’s mother. Attempting to kill an unborn child ...... Such punishment, other than death, as a court-martial may direct, but such pun- ishment shall be consistent with the punishment had the attempt been made to kill the unborn child’s mother. Intentional killing of an unborn child ...... Such punishment, other than death, as a court-martial may direct, but such pun- ishment shall be consistent with the punishment had the death occurred to the unborn child’s mother. 120 Rape and Rape of a Child ...... Death, DD, BCD Life Total Aggravated Sexual Assault ...... DD, BCD 30 yrs Total Aggravated Sexual Assault of a Child ...... DD, BCD 20 yrs Total Aggravated Sexual Abuse of a Child ...... DD, BCD 20 yrs Total Aggravated Sexual Contact ...... DD, BCD 20 yrs Total Aggravated Sexual Contact with a Child ...... DD, BCD 20 yrs Total Abusive Sexual Contact with a Child ...... DD, BCD 15 yrs Total Indecent Liberty with a Child ...... DD, BCD 15 yrs Total Abusive Sexual Contact ...... DD, BCD 7 yrs Total Indecent Act ...... DD, BCD 5 yrs Total Forcible Pandering ...... DD, BCD 5 yrs Total Wrongful Sexual Contact ...... DD, BCD 1 yr Total Indecent Exposure ...... DD, BCD 1 yr Total 120a Stalking ...... DD, BCD 3 yrs Total 121 Larceny Of military property of a value of $500.00 or less ...... BCD 1 yr. Total Of property other than military property of a value of $500.00 or less BCD 6 mos. Total Of military property of a value of more than $500.00 or of any military motor vehicle, aircraft, vessel, firearm, or explosive ...... DD, BCD 10 yrs. Total Of property other than military property of a value of more than $500.00 or any motor vehicle, aircraft, vessel, firearm, or explosive DD, BCD 5 yrs. Total Wrongful appropriation Of value of $500.00 or less ...... None 3 mos. 2/3 3 mos. Of value of more than $500.00 ...... BCD 6 mos. Total Of any motor vehicle, aircraft, vessel, firearm, or explosive ...... DD, BCD 2 yrs. Total 122 Robbery Committed with a firearm ...... DD, BCD 15 yrs. Total Other cases ...... DD, BCD 10 yrs. Total 123 Forgery ...... DD, BCD 5 yrs. Total

A12-4

2011 NCIS Mini-Manual, Page 208 App. 12, Art. 134

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures 123a Checks, etc., insufficient funds, intent to deceive To procure anything of value of: $500.00 or less ...... BCD 6 mos. Total More than $500.00 ...... DD, BCD 5 yrs. Total For payment of past due obligation, and other cases ...... BCD 6 mos. Total 124 Maiming ...... DD, BCD 20 yrs Total 125 Sodomy By force and without consent ...... DD, BCD Life4 Total With child under age of 16 years and at least 12 ...... DD, BCD 20 yrs. Total With child under the age of 12 ...... DD, BCD Life4 Total Other cases ...... DD, BCD 5 yrs. Total 126 Arson Aggravated ...... DD, BCD 20 yrs. Total Other cases, where property value is: $500.00 or less ...... DD, BCD 1 yr. Total More than $500.00 ...... DD, BCD 5 yrs. Total 127 Extortion ...... DD, BCD 3 yrs. Total 128 Assaults Simple Assault: Generally ...... None 3 mos. 2/3 3 mos. With an unloaded firearm ...... DD, BCD 3 yrs. Total Assault consummated by battery ...... BCD 6 mos. Total Assault upon commissioned officer of U.S. or friendly power not in execution of office ...... DD, BCD 3 yrs. Total Assault upon warrant officer, not in execution of office ...... DD, BCD 1 yr., 6 mos. Total Assault upon noncommissioned or petty officer not in execution of office ...... BCD 6 mos. Total Assault upon, in execution of office, person serving as sentinel, lookout, security policeman, military policeman, shore patrol, master at arms, or civil law enforcement ...... DD, BCD 3 yrs. Total Assault consummated by battery upon child under age of l6 years . DD, BCD 2 yrs. Total Assault with dangerous weapon or means likely to produce grievous bodily harm or death: Committed with loaded firearm ...... DD, BCD 8 yrs. Total Other cases ...... DD, BCD 3 yrs. Total Assault in which grievous bodily harm is intentionally inflicted: With a loaded firearm ...... DD, BCD 10 yrs. Total Other cases ...... DD, BCD 5 yrs. Total Aggravated assault with a dangerous weapon or other means of force to produce death or grievous bodily harm when committed upon a child under the age of 16 years ...... DD, BCD 5 yrs Total Aggravated assault in which grievous bodily harm is intentionally inflicted when committed upon a child under the age of 16 years . . DD, BCD 8 yrs Total 129 Burglary ...... DD, BCD 10 yrs. Total 130 Housebreaking ...... DD, BCD 5 yrs. Total 131 Perjury ...... DD, BCD 5 yrs. Total 132 Frauds against the United States Offenses under article 132(1) or (2) ...... DD, BCD 5 yrs. Total Offenses under article 132(3) or (4) $500.00 or less ...... BCD 6 mos. Total More than $500.00 ...... DD, BCD 5 yrs. Total 133 Conduct unbecoming officer (see Part IV, para. 59e) ...... Dismissal l yr. or as Total prescribed 134 Abusing public animal ...... None 3 mos. 2/3 3 mos. Adultery ...... DD, BCD 1 yr. Total Assault With intent to commit murder or rape ...... DD, BCD 20 yrs. Total

A12-5

2011 NCIS Mini-Manual, Page 209 App. 12, Art. 134

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures With intent to commit voluntary manslaughter, robbery, sodomy, arson, or burglary ...... DD, BCD 10 yrs. Total With intent to commit housebreaking ...... DD, BCD 5 yrs. Total Bigamy ...... DD, BCD 2 yrs. Total Bribery ...... DD, BCD 5 yrs. Total Graft ...... DD, BCD 3 yrs. Total Burning with intent to defraud ...... DD, BCD 10 yrs. Total Check, worthless, making and uttering—by dishonorably failing to maintain funds ...... BCD 6 mos. Total Child Endangerment: Endangerment by design resulting in grievous bodily harm ...... DD, BCD 8 yrs Total Endangerment by design resulting in harm ...... DD, BCD 5 yrs Total Other cases by design ...... DD, BCD 4 yrs Total Endangerment by culpable negligence resulting in grievous bodily harm ...... DD, BCD 3 yrs Total Endangerment by culpable negligence resulting in harm ...... BCD 2 yrs Total Other cases by culpable negligence ...... BCD 1 yr Total Cohabitation, wrongful ...... None 4 mos. 2/3 4 mos. Correctional custody, escape from ...... DD, BCD 1 yr. Total Correctional custody, breach of ...... BCD 6 mos. Total Debt, dishonorably failing to pay ...... BCD 6 mos. Total Disloyal statements ...... DD, BCD 3 yrs. Total Disorderly conduct Under such circumstances as to bring discredit ...... None 4 mos. 2/3 4 mos. Other cases ...... None 1 mo. 2/3 1 mo. Drunkenness Aboard ship or under such circumstances as to bring discredit . . . . . None 3 mos. 2/3 3 mos. Other cases ...... None 1 mo. 2/3 1 mo. Drunk and disorderly Aboard ship ...... BCD 6 mos. Total Under such circumstances as to bring discredit ...... None 6 mos. 2/3 6 mos. Other cases ...... None 3 mos. 2/3 3 mos. Drinking liquor with prisoner ...... None 3 mos. 2/3 3 mos. Drunk prisoner ...... None 3 mos. 2/3 3 mos. Drunkenness—incapacitating oneself for performance of duties through prior indulgence in intoxicating liquor or drugs ...... None 3 mos. 2/3 3 mos. Endangerment, reckless ...... BCD 1 yr. Total False or unauthorized pass offenses Possessing or using with intent to defraud or deceive, or making, altering, counterfeiting, tampering with, or selling ...... DD, BCD 3 yrs. Total All other cases ...... BCD 6 mos. Total False pretenses, obtaining services under Of a value of $500.00 or less ...... BCD 6 mos. Total Of a value of more than $500.00 ...... DD, BCD 5 yrs. Total False swearing ...... DD, BCD 3 yrs. Total Firearm, discharging—through negligence ...... None 3 mos. 2/3 3 mos. Firearm, discharging—willfully, under such circumstances as to endanger human life ...... DD, BCD 1 yr. Total Fleeing scene of accident ...... BCD 6 mos. Total Fraternization ...... Dismissal 2 yrs. Total Gambling with subordinates ...... None 3 mos. 2/3 3 mos. Homicide, negligent ...... DD, BCD 3 yrs. Total Impersonation With intent to defraud ...... DD, BCD 3 yrs. Total All other cases ...... BCD 6 mos. Total Indecent language Communicated to child under 16 yrs ...... DD, BCD 2 yrs. Total Other cases ...... BCD 6 mos. Total Jumping from vessel into the water ...... BCD 6 mos. Total Kidnapping ...... DD, BCD Life4 Total Mail, taking, opening, secreting, destroying, or stealing ...... DD, BCD 5 yrs. Total

A12-6

2011 NCIS Mini-Manual, Page 210 App. 12, Art. 134

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments. Article Offense Discharge Confinement Forfeitures Mails, depositing or causing to be deposited obscene matters in . . . . . DD, BCD 5 yrs. Total Misprision of serious offense ...... DD, BCD 3 yrs. Total Obstructing justice ...... DD, BCD 5 yrs. Total Wrongful interference with an adverse administrative proceeding . . DD, BCD 5 yrs. Total Pandering ...... DD, BCD 5 yrs. Total Prostitution and patronizing a prostitute ...... DD, BCD 1 yr. Total Parole, violation of ...... BCD 6 mos. 2/3 6 mos. Perjury, subornation of ...... DD, BCD 5 yrs. Total Public record, altering, concealing, removing, mutilating, obliterating, DD, BCD 3 yrs. Total or destroying ...... Quarantine, breaking ...... None 6 mos. 2/3 6 mos. Reckless endangerment ...... BCD 1 yr. Total Restriction, breaking ...... None 1 mo. 2/3 1 mo. Seizure, destruction, removal, or disposal of property to prevent . . . . . DD, BCD 1 yr. Total Self-injury without intent to avoid service In time of war, or in a hostile fire pay zone ...... DD 5 yrs. Total Other ...... DD 2 yrs. Total Sentinel, lookout Disrespect to ...... None 3 mos. 2/3 3 mos. Loitering or wrongfully sitting on post by In time of war or while receiving special pay ...... DD, BCD 2 yrs. Total Other cases ...... BCD 6 mos. Total Soliciting another to commit an offense (see Part IV, para. 105e) 134 Of a value of $500.00 or less ...... BCD 6 mos. Total Of a value of more than $500.00 ...... DD, BCD 3 yrs. Total Straggling ...... None 3 mos. 2/3 3 mos. Testify, wrongfully refusing to ...... DD, BCD 5 yrs. Total Threat, bomb, or hoax ...... DD, BCD 5 yrs. Total Threat, communicating ...... DD, BCD 3 yrs. Total Unlawful entry ...... BCD 6 mos. Total Weapon, concealed, carrying ...... BCD 1 yr. Total Wearing unauthorized insignia, decoration, badge, ribbon, device, or la- BCD 6 mos. Total pel button ......

Notes: 1. Suspended in time of war. 2. See paragraph 16e(1) & (2) Note, Part IV 3. When any offense under paragraph 37, Part IV, is committed: while the accused is on duty as a sentinel or lookout; on board a vessel or air- craft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces; while receiving special pay under 37 U.S.C. sec. 310; in time of war; or in a confinement facility used by or under the control of the armed forces, the maximum period of confinement authorized for such offense shall be increased by 5 years. 4. With or without eligibility for parole.

A12-7

2011 NCIS Mini-Manual, Page 211