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 134 - Drunkenness - Incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug

Drunkenness is not mentioned in the general article 134, but follows in one of the subsequent paragraphs. According to the text of Article 134, any neglect or disorder which is against the discipline and good order of the armed forces, or any conduct which can bring discredit to the armed forces, is punishable by a court martial.

If a service member is found incapable of performing official duties as a result of wrongfully indulging in intoxicating liquor or any other drug, he will be charged with the offense given in paragraph 76, listed under Article 134 of the Manual for Court Martial.

In layman terms, you could say the service member was too 'hung over' from drinking alcohol or taking drugs and was not in a state to report for duty.

Elements of the offense under paragraph 76

  • The accused was entrusted with certain duties.
  • The accused was not capable of performing the given duties.
  • The reason he could not perform the duties was because he was incapacitated from wrongfully indulging in intoxicating liquor or any other drug.
  • Under these circumstances, the accused's conduct was against the discipline and good order expected of a service member or the nature of the act was such that it brought discredit to the armed forces.

Explanation for certain elements

'Liquor' can be defined as an alcoholic beverage. 'Incapacitated' means being unable or 'unfit' to perform. A person can be said to be 'unfit' to undertake a duty if at the moment the duties were to commence, the person was drunk, even if he was physically capable of performing the duty. An example of being 'unable' to perform a duty is illness due to previously overindulging in alcohol or drugs.

'Drunk' can be defined as any intoxication sufficient to impair the full and rational exercise of physical or mental faculties. To be 'drunk' means to be intoxicated by alcohol.

Affirmative defense: If the accused was not aware of his duties and is found incapacitated at this time, he can use his lack of awareness as an affirmative defense. An affirmative defense is a new set of facts or a fact that can defeat a claim, even when the claim is supported by true facts.

This offense of drunkenness is different from the offense listed under article 112- drunk on duty. In article 112, the accused is already performing a duty and he is found drunk during the course of performing this duty.

The maximum punishment for this offense

A service member who is found guilty of this offense can be punished with confinement for three months, or forfeiture of 2/3 rd of his pay, every month for three months. If the accused is found drunk while on duty, the punishment is much higher. He can be handed a bad conduct discharge, forfeiture of allowances and pay and 9 months of confinement.

An instance where this provision can be used

A service member is supposed to appear at a drill call on a certain morning. He fails to appear and when the company commander visits the defendant's quarters, he is found in bed. The room has a strong odor of alcohol. There are empty beer cans on the floor and a couple of whiskey bottles in the dust bin. The company commander attempts to wake the accused up. As the accused turns away, a strong smell of alcohol from the accused's face hits the company commander. The officer concludes that the accused is too hung over from drinking and is not fit for duty that day. He is later charged with the offense under paragraph 76.

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