2008 edition - Fort Sam Houston - U.S. Army

23.b.(2)(c)
(c) That this act occurred while the accused
was before or in the presence of the enemy.
( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t ,
place, ship, or military property.
(a) That it was the duty of the accused to defend
a certain command, unit, place, ship, or certain
military property;
(b) That the accused committed certain disobedience,
neglect, or intentional misconduct;
(c) That the accused thereby endangered the
safety of the command, unit, place, ship, or military
property; and
(d) That this act occurred while the accused
was before or in the presence of the enemy.
(4) Casting away arms or ammunition.
(a) That the accused was before or in the presence
of the enemy; and
(b) That the accused cast away certain arms or
ammunition.
(5) Cowardly conduct.
( a ) T h a t t h e a c c u s e d c o m m i t t e d a n a c t o f
cowardice;
(b) That this conduct occurred while the accused
was before or in the presence of the enemy;
and
(c) That this conduct was the result of fear.
(6) Quitting place of duty to plunder or pillage.
(a) That the accused was before or in the presence
of the enemy;
(b) That the accused quit the accused’s place of
duty; and
(c) That the accused’s intention in quitting was
to plunder or pillage public or private property.
(7) Causing false alarms.
(a) That an alarm was caused in a certain command,
unit, or place under control of the armed
forces of the United States;
(b) That the accused caused the alarm;
(c) That the alarm was caused without any reasonable
or sufficient justification or excuse; and
(d) That this act occurred while the accused
was before or in the presence of the enemy.
(8) Willfully failing to do utmost to encounter enemy.
(a) That the accused was serving before or in
the presence of the enemy;
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(b) That the accused had a duty to encounter,
engage, capture, or destroy certain enemy troops,
combatants, vessels, aircraft, or a certain other thing;
and
(c) That the accused willfully failed to do the
utmost to perform that duty.
(9) Failing to afford relief and assistance.
(a) That certain troops, combatants, vessels, or
aircraft of the armed forces belonging to the United
States or an ally of the United States were engaged
in battle and required relief and assistance;
(b) That the accused was in a position and able
to render relief and assistance to these troops, combatants,
vessels, or aircraft, without jeopardy to the
accused’s mission;
(c) That the accused failed to afford all practicable
relief and assistance; and
(d) That, at the time, the accused was before or
in the presence of the enemy.
c. Explanation.
(1) Running away.
(a) Running away. “Running away” means an
unauthorized departure to avoid actual or impending
combat. It need not, however, be the result of fear,
and there is no requirement that the accused literally
run.
(b) Enemy. “Enemy” includes organized forces
of the enemy in time of war, any hostile body that
our forces may be opposing, such as a rebellious
mob or a band of renegades, and includes civilians
a s w e l l a s m e m b e r s o f m i l i t a r y o r g a n i z a t i o n s .
“Enemy” is not restricted to the enemy government
or its armed forces. All the citizens of one belligerent
are enemies of the government and all the citizens
of the other.
( c ) B e f o r e t h e e n e m y . W h e t h e r a p e r s o n i s
“before the enemy” is a question of tactical relation,
not distance. For example, a member of an antiaircraft
gun crew charged with opposing anticipated
attack from the air, or a member of a unit about to
move into combat may be before the enemy although
miles from the enemy lines. On the other
hand, an organization some distance from the front
or immediate area of combat which is not a part of a
tactical operation then going on or in immediate
prospect is not “before or in the presence of the
enemy” within the meaning of this article.