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

to give it up to an enemy or to abandon it, or
who strikes the colors or flag to an enemy without
proper authority, shall be punished by death
or such other punishment as a court-martial may
direct.
b. Elements.
(1) Compelling surrender.
(a) That a certain person was in command of a
certain place, vessel, aircraft, or other military property
or of a body of members of the armed forces;
(b) That the accused did an overt act which
was intended to and did compel that commander to
give it up to the enemy or abandon it; and
(c) That the place, vessel, aircraft, or other military
property or body of members of the armed
f o r c e s w a s a c t u a l l y g i v e n u p t o t h e e n e m y o r
abandoned.
(2) Attempting to compel surrender.
(a) That a certain person was in command of a
certain place, vessel, aircraft, or other military property
or of a body of members of the armed forces;
(b) That the accused did a certain overt act;
(c) That the act was done with the intent to
compel that commander to give up to the enemy or
abandon the place, vessel, aircraft, or other military
property or body of members of the armed forces;
(d) That the act amounted to more than mere
preparation; and
( e ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g
about the compelling of surrender or abandonment.
(3) Striking the colors or flag.
(a) That there was an offer of surrender to an
enemy;
(b) That this offer was made by striking the
colors or flag to the enemy or in some other manner;
(c) That the accused made or was responsible
for the offer; and
(d) That the accused did not have proper authority
to make the offer.
c. Explanation.
(1) Compelling surrender.
(a) Nature of offense. The offenses under this
article are similar to mutiny or attempted mutiny
designed to bring about surrender or abandonment.
Unlike some cases of mutiny, however, concert of
action is not an essential element of the offenses
under this article. The offense is not complete until
24.f.(1)
the place, military property, or command is actually
abandoned or given up to the enemy.
(b) Surrender. “Surrender” and “to give it up
to an enemy” are synonymous.
(c) Acts required. The surrender or abandonment
must be compelled or attempted to be compelled
by acts rather than words.
(2) Attempting to compel surrender. The offense
of attempting to compel a surrender or abandonment
does not require actual abandonment or surrender,
but there must be some act done with this purpose in
view, even if it does not accomplish the purpose.
(3) Striking the colors or flag.
(a) In general. To “strike the colors or flag” is
to haul down the colors or flag in the face of the
enemy or to make any other offer of surrender. It is
traditional wording for an act of surrender.
(b) Nature of offense. The offense is committed
when one assumes the authority to surrender a military
force or position when not authorized to do so
either by competent authority or by the necessities
of battle. If continued battle has become fruitless
and it is impossible to communicate with higher
authority, those facts will constitute proper authority
to surrender. The offense may be committed whenever
there is sufficient contact with the enemy to
give the opportunity of making an offer of surrender
and it is not necessary that an engagement with the
enemy be in progress. It is unnecessary to prove that
the offer was received by the enemy or that it was
rejected or accepted. The sending of an emissary
charged with making the offer or surrender is an act
sufficient to prove the offer, even though the emissary
does not reach the enemy.
(4) Enemy. For a discussion of “enemy,” see paragraph
23c(1)(b).
d. Lesser included offense. Striking the colors or
flag. Article 80— attempts
e. Maximum punishment. All offenses under Article
100. Death or such other punishment as a courtmartial
may direct.
f. Sample specifications.
(1) Compelling surrender or attempting to compel
surrender.
In that (personal jurisdiction data),
d i d , ( a t / o n — b o a r d l o c a t i o n ) , o n o r
about 20 , (attempt to)
c o m p e l , t h e c o m m a n d e r
IV-37