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- False Swearing

Paragraph 79 of the Manual for Court Martial concerns the offense of false swearing. It is one of many offenses under Article 134, which is a general article. The text of Article 134 says that all neglects and disorders which are adverse to the discipline and good order of the armed forces and all conducts which bring discredit to the armed forces, will be punished by a court martial.

The elements of this offense

  • The defendant has taken an oath or its equivalent.
  • The oath or its equivalent was given to the defendant in relation to a matter where such an oath or its equivalent is authorized or required by law.
  • The oath or its equivalent was administered to the defendant by an individual who had the authority to do so.
  • The defendant took the oath or its equivalent and later subscribed or made a given statement.
  • The statement made by the defendant was false.
  • The accused did not believe that the oath he was making was true.
  • Under the circumstances, the defendant's conduct was against the discipline and good order expected from armed forces personnel or the nature of the act brought discredit to the armed forces.

Explanation for elements

'False swearing' can be defined as the act of subscribing, under an oath or its equivalent, to any false statement, written or oral, while not believing that the statement is true.

Statements made during a judicial proceeding or a course of justice are covered under Article 131-perjury and are not included under this offense, though they have the same nature. But if the accused swears falsely before a court martial, he can be held guilty of perjury.

It is also not necessary that the statement should be official or that it should be made with an intention to deceive, for instance Article 107.

An oath is 'a declaration as per law, made before a competent officer or tribunal or it is an act of a person, who when required to tell the truth according to law, attests God as his witness, to the truth of his statement.

An oath also includes an affirmation. The Manual for Court Martial says that an affirmation is not different from an oath, except that in an affirmation the words, 'so help you god' are omitted. So, the use of the term 'equivalent'.

The maximum punishment that can be given for this offense

If a service member is held guilty of false swearing, he can be punished with a dishonorable discharge, forfeit of allowances and pay and 3 years of confinement.

An instance where the provision of false swearing was applied

A soldier can be charged with false swearing either as a standalone offense or as part of multiple offenses. Here is an example. In 2005, a company commander at Fort Knox was convicted of false swearing.

Recruits from Echo company were attending Fort Knox for basic training. It was found that the recruits were being physically abused by four drill instructors. One of the recruits was seized by his neck and thrown to the ground as he stepped off the bus at Fort Knox. Others were grabbed, poked or cursed at.

The recruits were taken to the barracks. There, one of them was hit in the chest and kicked. Another recruit was slapped and one more was thrown against a wall locker. The commanding officer and the drill instructors were brought on trial for the abuses. According to army regulations, recruits should be disciplined without touching them. Verbal and physical hazing is also prohibited, as is using sexually explicit or vulgar language.

The commanding officer was convicted of false swearing along with dereliction of duty because he did not prevent the abuse. He was given six months of confinement.

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