UCMJ ARTICLE 118 - MURDER

Article 118 of the UCMJ relates to murder. It applies when any person subject to the UCMJ unlawfully kills a human being, without excuse or justification, if:

1. The design to kill was premeditated.
2. He intended to kill the person or to inflict great bodily harm upon him.
3. He was involved in a dangerous act that evinces a wanton disregard for life.
4. He kills a human being during the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Such a person subject to the UCMJ will suffer the punishments handed to them by a court-martial, unless he is held guilty under clauses 1 or 4, in which case he shall be sentenced to death or life imprisonment. The maximum punishment for committing premeditated murder under the UCMJ is death, and the minimum punishment is life imprisonment. Eligibility for parole is not prescribed in Article 118 but depends on correctional regulations.

Murder and Manslaughter under the UCMJ

The circumstances of the unlawful killing determines whether it is a murder or another offense like manslaughter. The victim may die elsewhere, but the murder is deemed to have happened at the location where the act or omission was committed. Whether the individual dies when the act was committed or later, it should result from the injury the individual received.

A murder is premeditated only when an accused consciously conceives the thought that he wants to take the other person's life and so acts on it. This means that the accused had a specific intent to kill the other person.

When the accused had formed an intent to kill, it is not important to show how soon he put it into action. The circumstance of the murder can be used to infer premeditation.

Interestingly, if the accused intended to kill a certain person, but inadvertently or mistakenly kills another person, the accused will still be charged with premeditated murder, because the intent to kill transfers to the final victim.

Voluntary intoxication, when it does not amount to legal insanity, may result in a reduction of the charge from premeditated murder to unpremeditated murder. Manslaughter is a lesser included offense of both premeditated and unpremeditated murder, and members must be instructed on it when the evidence warrants.

INTENT TO KILL

In cases of an unlawful killing, even if the accused did not premeditate the act but had an intent to kill, or inflict grievous bodily harm on the victim, such an act is also murder. The inference is that the accused knew the probable and natural consequence of the act, but still went ahead with it.

Great or grievous body harm does not include small injuries like a bloody nose or a black eye, but dislocated or fractured bones, seriously damaged internal organ and deep cuts are included.

INHERENTLY DANGEROUS ACTS

If the accused engages in a dangerous act and a person ends up dead, it can be charged as a murder even if he did not intend to kill the other person. It shows a wanton disregard for human life. For example, a soldier throws a live grenade to another person or flies a plane low over a person. The accused should be aware that the act is dangerous and death or grievous bodily injury can result.

DEATH AS A RESULT OF CERTAIN OTHER OFFENSES

If an individual is unlawfully killed during the perpetration or attempted perpetration of any of the offenses under clause 4, he will be charged with murder. The accused cannot defend himself by saying that the killing was accidental or unintended. The accused can also be charged separately for the offenses under clause 4.

Manslaughter, which is covered under Article 119, is a lesser included offense under Article 118. This means that even if the court find the defendant not guilty of murder, it may still hold him guilty of manslaughter and for this, the government does not have to amend the charges framed.

MAXIMUM PUNISHMENT FOR COMMITTING MURDER

1. Article 118 (1) and (4) - The maximum punishment that can be imposed on a service member who commits murder, in violation of section 1 and 4 of the Article 118 can be punished with death. The mandatory minimum sentence in this case is life imprisonment.

1. Article 118 (2) or (3) - Any punishment other than death, as directed by a court martial.

SOME CASES THAT INVOLVED MURDER AND THE DEFENSES AND ARGUMENTS USED THEREIN

In US Vs Riley (CAAF 2003), the accused had refused to assist a women to deliver and care for her child. He was convicted for unpremeditated murder. The AFCCA later overturned the ruling and convicted him for involuntarily manslaughter. The CAAF remanded the case back to the AFCCA, who affirmed the conviction, but for involuntary manslaughter caused by culpable negligence. The CAAF again remanded the decision and then accused was finally found guilty of negligent homicide.

Voluntary manslaughter is one of the lesser included offenses under murder. In US Vs Wells, it was held that a military judge must inform Members of the Court of lesser included offenses, even if the defense has objections, if the judge finds that the evidence has raised the issue.

In US Vs Dobson (CAAF 2006), the court said that the charge of unpremeditated murder did not need a fixed intention to kill a person, after the accused considered a specific act. So a person can be convicted of committing unpremeditated murder, even if he had no intention of killing the victim before he carried out the specific act. It is enough if the act was intentional and could have caused death or at least great bodily harm.

In US Vs Schap (CAAF 1998), the court said that a killer cannot induce the provocation that would have aroused sufficient fear or rage, so that the charge of murder is reduced to involuntarily manslaughter. If there was a reasonable time between the provocation and the victim's death, that would have cooled down a reasonable person, then the accused has committed the offense of murder.

In US Vs Valdez (CAAF 1994), the accused and the accused's family had denied their eight year old daughter medical attention, and combined it with physical abuse, and a specific intent to cause bodily harm. The court ruled that it amounted to unpremeditated murder.

In US Varraso (CMA 1985), the accused had helped the victim commit suicide by tying the noose around the victim's head and tying her hands behind her back. The victim was rendered helpless and could not save herself, when she jumped. The motive was unclear, still the court ruled that the evidence was sufficient to convict the accused for unpremeditated murder. The court said that intention to kill was inferred from the consequences of the act.

In Us Vs Thomas (NMCCA 1995), the accused's accomplice had testified that the accused had taken part in the murder. The accomplice's testimony was deemed sufficient to convict the accused for committing premeditated murder.

In US Vs Teeter (CMA 1983), the court ruled that premeditation may be inferred from the circumstances of an attack, and also held that felony murder can be multiplicious with premeditated murder.

In US Vs Tarver (ACMR 1989), the accused was suffering from a mental illness. It was not a complete defense, but the ACMR ruled that the military judge had done a mistake by not instructing that the presence of the disease could negate the intent element present in unpremeditated murder.

FAQ for Article 118 – Murder under the UCMJ

1. What are the elements of a murder charge under Article 118, UCMJ?
The elements vary depending on the theory of liability, but they follow a structured legal formula. They require proof that a named person is deceased, that the death resulted from the accused’s act or omission, that the killing was unlawful, and that specific intent or circumstances such as premeditation, intent to kill, an inherently dangerous act, or commission of certain felonies were present. This framework ensures that the government must prove each element beyond a reasonable doubt before a conviction is possible.

2. What defenses are available under Rule for Courts-Martial (R.C.M.) 916 in an Article 118 case?
R.C.M. 916 provides the recognized defenses that may excuse or justify an otherwise unlawful killing. These can include self-defense, defense of another, accident, duress, or lack of mental responsibility, among others. The applicability of each defense depends entirely on the facts of the case and must be assessed in light of the available evidence and expert testimony.

3. How do military courts distinguish between premeditated and unpremeditated murder?
Premeditated murder requires proof that the accused consciously formed the design to kill before acting, even if only for a brief moment. Unpremeditated murder, by contrast, involves an intent to kill or inflict great bodily harm without prior reflection. The distinction is significant because premeditated murder carries a mandatory life sentence with parole eligibility, while unpremeditated murder allows for broader sentencing discretion.

4. What role do forensic experts and psychological evaluations play in defending a murder charge under the UCMJ?
Forensic psychiatrists and psychologists may provide insight into the accused’s state of mind at the time of the alleged offense. Evaluations can explore a history of trauma, post-traumatic stress disorder, head injuries, mental health conditions, or physiological states such as sleep deprivation and substance use. This type of expert analysis does not excuse criminal conduct but may help the court understand issues related to intent, capacity, or mitigation.

5. What practical steps should defense counsel consider in an Article 118 case?
Defense counsel will typically review the preservation of physical evidence, as forensic findings often provide more reliable indicators than witness recollections. They may examine whether investigators properly documented the crime scene and whether all relevant materials were preserved for independent testing. Careful comparison of forensic data against testimonial evidence can be crucial in evaluating the credibility of allegations.

If you or a loved one is facing an Article 118 murder charge or another UCMJ violation, it is important to have experienced legal counsel who understands the stakes. Contact Joseph L. Jordan, Attorney at Law, to discuss your situation and learn more about how he may assist in protecting your rights and your future.