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 115 - Malingering, Self-Inflicted Injury

Under the Article 115 of the UCMJ, an service member who feigns illness, injury, a head ache, a sore back, mental derangement or mental lapse, or intentionally injures himself or herself for avoiding his or her duties as an aircraft mechanic, a duty officer for the day, or an enlisted personnel during a specified active duty period or at a time of war, shall be punished as deemed fit by the military court.

The following elements of the crime must all be proven beyond a reasonable doubt under this punitive article:

  1. The accused individual was completely aware of the future or present assignment to, or the availability for performing the task, duty or service.
  2. At the alleged time and place, the accused had
  • Feigned physical disability, illness, mental derangement or mental lapse or
  • Inflicted injury upon oneself intentionally, in the said manner and
  1. The accused performed the above mentioned acts with the sole intent of avoiding the alleged work, service or duty
  2. In the event that the accused has committed the crime during a time of war, in a hostile fire zone, the below mentioned element shall also be covered under this punitive article
  • The accused committed the offense in a hostile fire pay zone, at a time of war.

Explanation of the elements of crime

It is an offense when an individual attempts to avoid performing all of his or her duty, work or service or a particular job only, which he or she may, under normal circumstances, perform as expected in the military, by intentionally inflicting injury upon self or by feigning an illness. Here, "feign" means to pretend, to misrepresent or to make false statements and "intentional" means to do something deliberately, willfully, or on purpose.

The term "inflict" means to cause, impose or allow. Self-inflicted injury means causing injury to oneself in a violent or a non-violent fashion, which can be achieved through committing an act or by omission which results in producing, aggravating or prolonging a disability or illness. For example, deliberate starvation that leads to weakness, and therefore disability to do the job, is self-inflicted injury. Similarly, an injury that is inflicted by another person, at the behest of the accused, is also self-inflicted.

Conditions under which the accused can be found guilty

To rule that the accused is guilty, the court must find evidence proving beyond reasonable doubt that the accused had actually taken steps to inflict injury or a disability upon his or her self to shirk duty, work or service.

In general, all soldiers are aware of their routine military duties. However, in case of special assignments or prospective duties, like deployment to war zones/hostile areas during an emergency, the prosecution must prove that the accused had actual knowledge of such tasks. It must be noted here, that circumstantial evidence may be ordinarily used to establish intent or purpose.

Maximum punishment granted under Article 115

Persons who are found guilty of malingering, self-inflicted injury after the punishable offense has been committed shall be subject to maximum punishment as directed by a court martial. In any case, death penalty will not be awarded in such a trial, and the accused shall be given no more than 10 years of confinement as maximum punishment.

With and Without Intent to Avoid Duty

Here are two examples where the accused persons inflicted injuries upon themselves, 1) with intent to avoid duty or service 2) without intent to avoid duty.

In United States v. Belton, the accused, upon being posted to Vietnam, refused intake of food for a specific period of time, which resulted in weakness, which was self-inflicted solely for the purpose of avoiding duty (orders to Vietnam). In Belton, the accused had intended to avoid duty, work, or service.

In United States v. Taylor, the accused had apparently slashed his wrists, in the presence of two other soldiers, to outdo what another inmate had earlier done. The intentional, self-inflicted injury was not with the purpose to avoid service, but for other reasons. The court validly found the accused not guilty of self-inflicted injury for purposes in Article 115, but guilty of being disorderly to discipline and good order, a lesser included offense. For more information on this article, please refer to the Manual for Courts Martial.

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