Article 105 Misconduct as a Prisoner
This article deals with misbehavior of enlisted members who are in the
hands of the enemy during wartime. This misconduct could be in the form
of behaving in an inappropriate manner as a prisoner or treating other
prisoners inappropriately while the accused is in the hands of the enemy himself.
One important point to note about this article is that the enlisted member
has violated it only if he has acted in a manner that goes against the
custom, law or regulation. The act must also result in his captors improving his conditions of captivity
and a clear detriment to other prisoners in some way (e.g.: reducing their
rations). However, escape is not deemed a violation under this article.
Escaping captivity is an act authorized by custom. So, escape attempts
or actual escape do not constitute violation of article 105 even if this
act has resulted in detriment to other prisoners.
The critical components of the two sections under this article are as follows:
a) Misconduct of the accused when he is a prisoner
- That at a specific time and place, the accused acted in a specific way
that is contrary to regulation, law or custom and that he lacked the authority
to act in this manner.
- That the accused acted in this manner when he was in the hands of the enemy
- That this act was committed with the objective of achieving favorable treatment
from the enemy captors.
- That, because of this act of the accused person, other prisoners held by
the enemy, civilian and military, suffered adverse consequences.
Note: a) It is not necessary to prove that other prisoners suffered physical
harm from the accused's actions. They may have suffered psychological
or other detriment.
- b) The accused's act must be related to, on behalf of or directed at
the enemy captors
- c) The number of prisoners who gained the enemy's favor owing to the
accused's act and the number of prisoners who suffered as a result
is irrelevant. Even if the smallest minority suffered detriment as a result
of the act of the accused, he has violated this article
- d) Circumstantial evidence to show the intent of the accused is typically
permitted during trial
b) Maltreating other prisoners during captivity by the enemy
- That, at a specific time and place, the accused mistreated a prisoner of
the enemy in a specific manner.
- That the accused committed this act while he himself was a prisoner in
the captivity of the enemy.
- That the accused was in a position of authority over the people or person
- That there was no justifiable cause for the maltreatment that the prisoner
was subjected to at the hands of the accused.
Note: a) 'Maltreatment' refers to infliction of mental or physical
or any other kind of abuse. For example, striking the person, assaulting
him, subjecting him to improper punishment, depriving his benefits may
all constitute maltreatment.
b) Using derogatory words to abuse a prisoner who holds an inferior position
to the accused is also maltreatment as it causes mental anguish
c) The term 'position of authority' does not refer only to the
military ranking of the accused in relation to other prisoners. The accused
has violated this article even if he has self elected himself to a position
of authority or the enemy captors have designated him as an authority
figure over other prisoners.
To learn more about this Article refer to the Manual for Courts Martial.
Maximum Punishment: For violating these sections of Article 105, the accused faces maximum
punishment of dishonorable discharge, forfeiture of all pay and allowances,
life sentence without parole eligibility. The punishment is decided through
a court martial process.