EI INCUMBIT PROBATION QUI DICIT. 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.

Article 113 – Misbehavior of Sentinel or Lookout

Misbehavior by a sentinel or guard, such as sleeping or being drunk or missing from the place of duty is charged under this article. Punishment for such situations occurring during wartime is different from that for peace time incidents and both are covered here.

The elements to be proven under this article are as follows:

  • That the accused was assigned to a specific post as a lookout or sentinel.
  • That at a specific time and place he a) was drunk or sleeping while on duty at this post b) had left his post without being regularly relieved by another.
  • If the accused was receiving special pay under the 37 USC- section 310, this fact has to be established by the prosecution.

Maximum Punishment for Article 113 Violation

If the accused has violated this article in wartime, he faces death or other lawful punishment as determined by a court martial as maximum punishment. If he receives special pay as per 37 USC- section 310, his maximum punishment is 10 years confinement, dishonorable discharge, forfeiture of all allowances and pay. In every other circumstance, the accused faces maximum punishment of forfeiture of all allowances and pay, dishonorable discharge, and one year confinement. For more information on this article, please refer to the Manual for Courts Martial.

Explanation of Article 113

Under article 113, the enlisted member is deemed to be drunk when he is intoxicated to such an extent that he in incapable of rational thought or of using his mental and physical faculties correctly. The accused is deemed to be sleeping at his post if the prosecution can prove that he was in a state of unconsciousness where his mental/ physical faculties could not be exercised fully.

The sentinel/ lookout is not automatically deemed to have left his post if he is missing from the vicinity of his assigned post. In his defense he can show that he was close enough to his designated limits to carry out his duty as sentinel or lookout. The post includes all the surrounding areas that are included in the performance of the sentinel/ lookout duty and is not limited by any imaginary line.

Example of Article 113 Violation

In United States v. Smith, 40 C.M.R. 316 (C.M.A. 1969) the accused who was charged with dereliction of duty was found to have violated Article 113. Evidence showed that the accused had not just failed to walk by his post, as believed initially. He had actually left his post before he had been relieved by another sentinel/ look out. The accused was found sleeping in a building that was away from his assigned post.

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