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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 98 Noncompliance with Procedural Rules

This article of the UCMJ covers incidents where procedural rules have not been complied with. When unnecessary delays are noted in the handling of a case pertaining to offenses under this chapter, the person responsible can be charged with violation of this article. Two situations are covered under Article 98 as follows: unnecessary, unjustifiable delay in disposing a trial and failure to enforce code or failure to comply with the code.

a) Unnecessary delays while disposing of a trial

Elements:

  • That the accused was in charge of carrying out a specific duty in connection with a case involving a person who stands accused under the UCMJ.
  • That the accused was fully aware that he had been charged with this duty.
  • That there was delay in the disposition of this case.
  • That the delay was a result of the accused individual's action or lack of action.
  • That considering the prevailing circumstances, there is no justification for the delay.

Note: Circumstantial evidence may be allowed during trial to establish that the accused had knowledge of his assigned duty.

Maximum Punishment: Persons charged with violation of this article face maximum punishment comprising bad conduct discharge, forfeiture of all allowances and pay as well as six months confinement.

b) Failure to enforce the code or failure to comply with the code

Elements:

  • That the accused did not comply with the specific article of the UCMJ regulating a process that was carried pre- trial, post- trial or during the trial of a person.
  • That the accused was assigned the duty of enforcing the code or complying with the code.
  • That the accused was fully aware that he had been assigned this duty.
  • That the accused deliberately and intentionally failed to comply with or enforce the code.

Note: The word 'intentionally' means that the accused did not fail to comply with the code or fail to enforce by accident or negligence or by misunderstanding the law in good faith. He did so on purpose with clear understanding of his failure and its impact.

Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all pay and allowances and five years confinement as maximum punishment for violating this article.

To learn more about this punitive article refer to the Manual for Courts Martial.

Points to Note about Article 98

  • Circumstantial evidence to prove intent and knowledge is generally admissible in these trials.
  • A person can be accused of violating this article only when his duties include some action that is relevant to the disposition of the case in question.
  • The use of unlawful command influence (Article 37) may be dealt with under this article

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