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 99 Misbehavior before the Enemy

Article 99 covers incidents where an enlisted officer is charged with misbehavior before the enemy. Abandonment of the post and surrendering arms are not the only misbehaviors dealt with under this article. Any person who has caused false alarm, participated in plundering or pillaging can also be charged under Article 99.

In context of this article, 'before' means that the person or his unit is engaged in warfare with the opposing forces or is about to engage in warfare. It is not necessary to prove that the enemy was right in front of or within sight of the accused. 'Enemy' refers to both civilian and military opposition forces.

There are several situations covered under this article as follows:

a) Misbehavior before enemy- Running away

Elements:

  • That the accused faced the enemy at a specific time and place.
  • That the accused ran away and misbehaved when facing the enemy.
  • That the objective of running away was to avoid confronting the enemy in combat.

Note: 'Running away' refers to any unauthorized movement away from the person's place of duty.

b) Misbehavior before enemy- Abandoning, delivering up or surrendering command

Elements:

  • That the accused was responsible for defending a specific unit, ship, command, place or military property.
  • That the accused abandoned, delivered up or surrendered the same without any justification.
  • That the accused did this when facing the enemy.

Note: This article is directed at persons who are responsible for defending a military unit/ command/ ship or other military property. In effect, this offense is applicable to commanders only.

c) Misbehavior before enemy- Putting the safety of the command in danger

  • That the accused was responsible for defending a specific unit, ship, command, place or military property.
  • That accused committed a specific act or failed to carry out a specific act.
  • That this act or failure to act constituted negligent behavior or demonstrated disobedience or deliberate misconduct.
  • That by carrying out this act or failing to carry out this act, the accused compromised the safety of the unit, ship, command, place or military property.
  • That the act of the accused or his failure to act took place when he was facing the enemy.

d) Misbehavior before enemy- throwing down arms/ ammunition

Elements:

  • That the accused was before the enemy.
  • That when facing the enemy he cast away or threw down his ammunition and/ or arms.

e) Misbehavior before enemy: conduct that is cowardly

Elements:

  • That the accused committed a specific act.
  • That this act was cowardly.
  • That the accused committed this act when he was before the enemy.
  • That the accused did so out of fear.

Note: An act done out of apprehension may not be the same as cowardly conduct. Conduct is deemed cowardly if the accused misbehaved and this misbehavior was motivated by fear. The accused should have failed to carry out a duty of his because of fear when facing the enemy to be found guilty under this section.

f) Misbehavior before enemy: Leaving place of duty to pillage or plunder

Elements:

  • That the accused was before the enemy.
  • That he quit his place of duty at this time.
  • That this was done with the intent of unlawfully plundering and/ or pillaging private or public property.

Note: Plunder or pillage means to seize public or private property unlawfully.

g) Misbehavior before enemy: false alarm

Elements:

  • That the accused caused an alarm in his command/ unit/ ship/ area of responsibility.
  • That this alarm was caused in a specific manner.
  • That the accused did not have sufficient excuse or reasonable justification for causing alarm.
  • That the accused caused alarm without reason or justification when he was before the enemy.

h) Misbehavior before enemy: Failing to do utmost

Elements:

  • That at the specific time and place the accused was serving before the enemy.
  • That the accused was responsible for engaging, encountering, capturing or destroying enemy troops/ vessels/ combatants/vessels/ or other enemy property.
  • That the accused deliberately failed to do his utmost to fulfill this duty by acting in a specific manner.

i) Misbehavior before enemy: failing to afford relief

Elements:

  • That specific U.S. Army or (U.S. ally) combatants, ships, aircraft, troops required assistance and relief when engaged in warfare.
  • That the accused could have rendered the necessary assistance/ relief to them without jeopardizing his own mission.
  • That the accused did not do so.
  • That the accused was before the enemy when he failed to give relief/ assistance in this manner.

Maximum Punishment for Article 99 Violation

The accused under Article 99 faces maximum punishment of death or other lawful punishment if the charges are proven. To learn more about this punitive article refer to the Manual for Courts Martial.

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