Tag: Military Law Q&A

To secure a conviction under Article 96 for the offense of releasing a prisoner without proper authority, the prosecution must prove two specific legal elements beyond a reasonable doubt. First, the government must establish that a specific prisoner was formally “committed to the accused’s charge.” This means the accused service member must have had a clear, official duty to maintain custody or control over that prisoner. This element is typically met by showing the accused was a confinement guard, a prisoner escort, or a member of a unit tasked with detainee operations who was responsible for the prisoner in question. It is a jurisdictional element that limits the article’s application to those with a specific custodial duty.

Second, the prosecution must prove that the accused, without having the proper authority to do so, released the prisoner from custody. “Release” implies a deliberate act of freeing the prisoner, such as unlocking their cell or formally discharging them from the facility. “Without proper authority” means the act was in violation of a lawful order, a regulation, or an established procedure governing the release of prisoners. The prosecution would need to introduce the specific post regulations or orders that the accused violated by their action, proving they lacked the legal authority for the release.

A military defense attorney will focus their defense on these two elements. They might argue that the prisoner was never formally committed to their client’s charge, or that their client was not the one with the ultimate custodial responsibility. More commonly, they would raise a “mistake of fact” defense, arguing that their client honestly and reasonably believed they did have the proper authority to release the prisoner, perhaps due to a forged document or a deceptive but seemingly lawful order. A failure by the prosecution to prove either element beyond a reasonable doubt must result in an acquittal.…

Military law, for the purposes of enforcing Article 96, defines a “prisoner” very broadly. The term is not limited to an individual who has been convicted of a crime and is serving a formal sentence. According to the Manual for Courts-Martial, a prisoner is any person who is held in custody in accordance with the law or military regulations. This expansive definition covers a wide range of individuals under military control, ensuring that the duty to maintain custody is applied comprehensively to protect both security and the integrity of the legal process.

This definition includes several categories of individuals. It covers service members who are in pretrial confinement while awaiting a court-martial, as well as those who have been sentenced to confinement post-trial. It also applies to individuals being held as a result of non-judicial punishment, such as a soldier ordered into correctional custody. Importantly, the definition is not limited to U.S. service members. It can also include enemy prisoners of war (EPWs) or civilian detainees who are lawfully held by military forces during contingency operations or in a theater of war.

A military attorney analyzing an Article 96 charge will first verify the status of the individual who was released. They must have been in a formal, lawful custody status. If the person was merely being temporarily detained for questioning but had not been formally committed to a confinement status, an attorney could argue they did not meet the legal definition of a “prisoner.” However, the broad definition means that almost anyone who is officially under military guard or in a confinement facility will qualify, making this a difficult element to challenge in most cases.…

In the context of Article 96, “proper authority” refers to the legitimate, lawful power to order the release of a prisoner, which is strictly controlled by military law and regulations. This authority is not arbitrary and does not rest with every leader. It is formally vested in specific individuals or offices who are designated as having the power to make release decisions. The primary source of this authority is the commander who has the authority to convene courts-martial or the commander of the confinement facility, often acting on a formal judicial or administrative order.

Proper authority is almost always communicated through formal, written documentation. This could be a court order from a military judge releasing a member from pretrial confinement, official separation or retirement orders that terminate a sentence, or a formal clemency action from a convening authority. It could also be the official release paperwork generated by a confinement facility at the conclusion of a sentence. A verbal order to release a prisoner is highly irregular and would be viewed with extreme skepticism unless it was an emergency situation and was immediately followed by written confirmation.

A military defense attorney will challenge an Article 96 charge by scrutinizing the source of the alleged authority. The defense would be that the service member acted upon what they reasonably believed to be “proper authority.” They would present the document or describe the order they received and argue that a reasonable guard in their position would have believed it to be a valid release order. The prosecution, in turn, would have to prove that the order was not from a proper authority and that the accused should have known it.…

To secure a conviction for unlawful detention under Article 97 of the UCMJ, the government must prove two core elements beyond a reasonable doubt. First, the prosecution must establish that the accused service member physically committed an act of detention against another person. The UCMJ defines detention broadly to include three types of acts: “apprehension,” which is the act of taking a person into custody; “arrest,” which is a form of moral restraint where a person’s liberty is restricted by an order; and “confinement,” which involves the physical restraint of a person in a room, cell, or facility. The government must prove the accused performed one of these specific acts.

Second, and most critically, the prosecution must prove that this act of detention was performed “without proper authority.” This is the cornerstone of the offense. A service member must have a legitimate legal basis to deprive another person of their freedom. This authority is not inherent and must be derived from a specific source, such as the accused’s status as a military law enforcement officer, a direct and lawful order from a competent commander, or the existence of probable cause to believe that the person being detained has committed a serious offense for which apprehension is necessary.

A military defense attorney will focus their defense on attacking one of these two elements. They may argue that their client’s actions did not legally constitute “detention,” but were instead a non-binding request or a form of legitimate corrective action. More commonly, the attorney will argue that their client did, in fact, have proper authority, or at least had an honest and reasonable belief that they possessed the authority to act. If the prosecution fails to prove either the act of detention or the lack of proper authority, the charge must fail.…

The UCMJ, through the Manual for Courts-Martial, defines “detention” in the context of Article 97 by breaking it down into three distinct but related forms of restraint: apprehension, arrest, and confinement. This provides a comprehensive definition that covers a wide spectrum of actions that deprive a person of their liberty. “Apprehension” is the military equivalent of a civilian arrest; it is the physical act of taking a person into custody. This is typically performed by military law enforcement but can be done by any service member under specific circumstances, such as to quell a riot or stop a serious crime in progress.

“Arrest” under the UCMJ is a unique form of moral restraint, not physical. It is an order, usually from a commander, directing a person to remain within specified limits, such as their barracks room or the confines of the military installation. The person is not physically locked up, but their liberty is restrained by the legal force of the order, and a violation of that order is a separate offense. “Confinement” is the most severe form of detention; it is the physical restraint of a person, typically by locking them in a room, a jail cell, or a confinement facility.

A military attorney will carefully analyze the facts of a case to determine which, if any, of these forms of detention occurred. This is critical because the government must prove that the accused’s specific act met one of these legal definitions. For example, an NCO telling a subordinate to “stay in the office” might not rise to the level of a formal arrest or confinement. The broad, three-part definition ensures that any significant, unauthorized restraint on a person’s freedom can be prosecuted under Article 97.…

To secure a conviction under the grave offense of Article 99, Misbehavior Before the Enemy, the prosecution must prove two universal elements beyond a reasonable doubt, followed by the specific elements of the particular misbehavior alleged. The first universal element is establishing the jurisdictional fact that the service member, at the time of the offense, was “before the enemy.” This is a legal term of art, meaning they were in close proximity to hostile forces where they were subject to or about to be subject to hostile fire or action. This element places the alleged misconduct squarely in a combat context.

Second, the government must prove the service member committed one of the specific, enumerated acts of misbehavior listed in the statute. Article 99 contains nine different clauses defining various forms of misconduct, such as running away, cowardly conduct, shamefully abandoning a command, casting away arms, or willfully failing to do one’s utmost to engage the enemy. The prosecution must select a specific clause from the statute and then prove all the unique elements of that particular offense. For example, for “cowardly conduct,” they must prove the member failed to perform a duty and that this failure was a result of fear.

A military defense attorney’s strategy involves attacking each of these elements. They will first challenge the government’s proof that their client was truly “before the enemy,” potentially arguing the unit was not in imminent danger. They will then meticulously deconstruct the specific misbehavior alleged, arguing that their client’s actions were a reasonable tactical decision, not cowardice, or that the government has failed to prove the required state of mind, such as the specific intent to abandon a post. The high stakes of an Article 99 charge demand that the prosecution meet its burden of proof on every single element.…

Article 99 does not provide a single definition of “misbehavior” but instead lists nine specific clauses that define different categories of punishable conduct when committed “before the enemy.” This list is comprehensive, covering a wide range of failures in a combat environment, from acts of cowardice to dereliction of duty. The overarching theme is that any action or inaction that jeopardizes the mission or the safety of the unit due to the member’s fault can be considered misbehavior. The conduct must fall into one of these enumerated categories to be prosecuted under this article.

The qualifying forms of conduct are severe. They include acts like (1) running away from the place of duty; (2) shamefully abandoning, surrendering, or delivering up a command, unit, or place; (3) endangering the safety of the command through disobedience, neglect, or intentional misconduct; (4) casting away arms or ammunition; (5) cowardly conduct in the face of the enemy; (6) quitting one’s post to plunder or pillage; (7) causing a false alarm; (8) willfully failing to do one’s utmost to engage or defeat the enemy; and (9) preventing the relief of a besieged place.

Each of these clauses describes a specific type of failure that directly undermines a unit’s ability to fight and win. For example, “cowardly conduct” is defined as a failure to perform a known duty that is a result of the service member’s own fear. “Casting away arms” is the act of a soldier discarding their weapon or ammunition in a way that renders them unable to fight. A military attorney must carefully analyze the specific facts of their client’s case to see if their actions actually meet the strict legal definition of one of these nine specific forms of misbehavior.…

The distinction between “cowardly conduct” under Article 99 and a legitimate “tactical withdrawal” is a critical, fact-based determination that hinges on the motivation and reasonableness of the action. “Cowardly conduct” is a personal failure. It is defined as a service member’s failure to perform their duty or to take a required action as a direct result of their own personal fear. The focus is on the individual’s subjective state of mind (fear) leading to an objective failure of duty. It is a shameful act of self-preservation at the expense of the mission and fellow soldiers.

A “tactical withdrawal,” on the other hand, is a professional military maneuver. It is a planned or reactive movement of a unit away from the enemy, conducted not out of fear, but for a sound tactical reason. This could be an order from a higher headquarters to break contact, a decision by a local leader to reposition their forces to a more defensible location, or a prudent withdrawal in the face of an overwhelmingly superior enemy force to preserve the unit so it can fight another day. The motivation is tactical advantage and force preservation, not personal fear.

A military attorney defending a soldier accused of cowardly conduct would present evidence to show that their client’s actions were a reasonable tactical decision under the circumstances. They might call a military tactics expert as a witness to testify that, given the volume of enemy fire and the tactical situation, a withdrawal was the correct and prudent course of action. The prosecution, conversely, would try to prove the action was not a coordinated unit maneuver but an individual soldier’s panicked flight driven by fear, thus meeting the definition of cowardly conduct.…

Yes, a service member can still be charged under Article 96 even if they believed they had the authority to release the prisoner. However, their mistaken belief can form the basis of a powerful affirmative defense known as “mistake of fact.” The offense of releasing a prisoner without proper authority is a general intent crime. The government does not have to prove that the accused knew they lacked authority, only that they did, in fact, lack it. The burden then shifts to the defense to prove their mistake was both honest and reasonable.

To succeed with this defense, a military attorney must present evidence to the court-martial panel that meets a two-pronged test. First, the mistake must have been “honest,” meaning the service member genuinely, in their own mind, believed the release was authorized. Second, the mistake must have been “reasonable.” This is an objective test: would a reasonably prudent person of the same rank and experience, in the same situation, have made the same mistake? A belief based on flimsy evidence would not be considered reasonable.

For example, if a guard receives a professionally forged release document that appears completely authentic, their mistake in acting on it would likely be deemed reasonable. However, if they release a prisoner based on a verbal order from a person they do not know and whose authority they do not verify, their mistake would likely be considered unreasonable and negligent. If the panel finds the mistake was both honest and reasonable, they must find the service member not guilty.…

Yes, Article 96 applies with full force to the release of a detainee who is in pretrial confinement pending an investigation, even if they have not yet been formally charged with an offense. The legal definition of a “prisoner” under the UCMJ is broad and includes any person who is being held in custody in accordance with law or regulation. A service member who has been ordered into pretrial confinement by their commander is in a lawful custody status, and is therefore considered a “prisoner” for the purposes of this article.

The purpose of Article 96 is to ensure the integrity of the entire military justice system, which includes the pretrial phase. Releasing a detainee without proper authority before an investigation is complete could allow a potentially guilty person to escape, intimidate witnesses, or destroy evidence. Therefore, the duty of a confinement guard to maintain custody over a pretrial detainee is just as serious as their duty to guard a post-trial inmate serving a sentence.

The authority to release a pretrial detainee is strictly controlled and typically rests with a military magistrate or a military judge, who are the only ones who can legally order a person released from pretrial confinement once it has been imposed. A military defense attorney defending a guard charged with this offense would not be able to argue that the detainee was not a “prisoner.” The defense would have to focus on other elements, such as whether the guard acted with proper authority or made a reasonable mistake of fact.…