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

Pun. Art. 92 APPENDIX 23
e. Maximum punishment. The maximum punishment for willful
dereliction of duty was increased from 3 months to 6 months
confinement and to include a bad-conduct discharge because such
offenses involve a flaunting of authority and are more closely
analogous to disobedience offenses.
February 1986 Amendment: The rule was revised to add constructive
knowledge as an alternative to the actual knowledge
requirement in paragraph (b)(3)( b) and the related explanation in
subparagraph c(3)(b). In reviewing these provisions, it was concluded
that the reliance of the drafters of the 1984 revision on the
Curtin case was misplaced because the portion of that case dealt
with failure to obey under Article 92(2), not dereliction under
Article 92(3). As revised, the elements and the explanation add an
objective standard appropriate for military personnel.
17. Article 93— Cruelty and maltreatment
c. Explanation. This paragraph is based on paragraph 172 of
MCM, 1969 (Rev.); United States v. Dickey, 20 C.M.R. 486
(A.B.R. 1956). The phrase “subject to the Code or not” was
added to reflect the fact that the victim could be someone other
than a member of the military. The example of sexual harassment
was added because some forms of such conduct are nonphysical
maltreatment.
18. Article 94— Mutiny and sedition
c. Explanation. This paragraph is taken from paragraph 173 of
MCM, 1969 (Rev.). Subparagraph (1) is also based on United
States v. Woolbright, 12 U.S.C.M.A. 450, 31 C.M.R. 36 (1961);
United States v. Duggan , 4 U.S.C.M.A. 396, 15 C.M.R. 396
(1954). The reference in paragraph 173 of MCM, 1969 (Rev.) to
charging failure to report an impending mutiny or sedition under
Article 134 has been deleted in subparagraph (4). This is because
such an offense was not listed in the Table of Maximum Punishments
or elsewhere under Article 134 in that Manual. Article of
War 67 included this offense, but Article 94 excludes it. The
drafters of paragraph 173 of MCM, 1951 noted the change. To
fill the gap they referred to Article 134. Instead, they should have
referred to Article 92(3) because dereliction is the gravamen of
the offense.
19. Article 95—Resistance, breach of arrest, and
escape
b. Elements. The elements listed for breaking arrest and escape
from custody or confinement have been modified. Paragraph 174
b, c, and d of MCM, 1969 (Rev.) provided that the accused by
“duly” placed in arrest, custody, or confinement. “Duly” was
deleted from the elements of these offenses. Instead, the elements
specify that the restraint be imposed by one with authority to
impose it. This was done to clarify the meaning of the word
“duly” and the burden of going forward on the issues of authority
to order restraint and the legal basis for the decision to order
restraint.
“Duly” means “in due or proper form or manner, according to
legal requirements.” Black’s Law Dictionary 450 (5th ed. 1979).
See also United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R.
379 (1965). Thus the term includes a requirement that restraint be
imposed by one with authority to do so, and a requirement that
such authority be exercised lawfully. Until 1969, the Manual also
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provided that arrest, confinement, or custody which is “officially
imposed is presumed to be legal.” Paragraph 174 of MCM, 1951.
See also paragraph 157 of MCM, (Army), 1949, MCM (AF),
1949; paragraph 139 of MCM, 1928. In practical effect, therefore,
the prosecution had only to present some evidence of the authority
of the official imposing restraint to meet its burden of proof,
unless the presumption of legality was rebutted by some evidence.
See United States v. Delagado, 12 C.M.R. 651 (C.G.B.R.
1 9 5 3 ) . C f . U n i t e d S t a t e s v . C l a n s e y , 7 U . S . C . M . A . 2 3 0 , 2 2
C.M.R. 20 (1956); United States v. Gray, 6 U.S.C.M.A. 615, 20
C.M.R. 331 (1956).
The drafters of MCM, 1969 (Rev.), deleted the presumption of
legality. In their view the holding in United States v. Carson,
supra, that this is a question of law to be decided by the military
judge made such a presumption meaningless. Analysis of Contents,
Manual for Courts-Martial, United States, 1969 (Revised
edition), DA PAM 27–2, at 28–8. The drafters considered deleting
“duly” as an element but did not because the prosecution
must show that restraint was “duly” imposed. Id. The result left
the implication that the prosecution must produce evidence of
both the authority of the person imposing or ordering restraint,
and the legality of that official’s decision in every case, whether
or not the latter is contested. Given the dual meaning of the word
“duly” and the reason for deleting the presumption of legality, it
is unclear whether the drafters intended this result. Cf. United
States v. Stinson, 43 C.M.R. 595 (A.C.M.R. 1970).
“Duly” is replaced with the requirement that the person ordering
restraint be proved to have authority to do so. This clarifies
that proof of arrest, custody, or confinement ordered by a person
with authority to do so is sufficient without proof of the underlying
basis for the restraint (e.g., probable cause, legally sufficient
nonjudicial punishment, risk of flight), unless the latter is put in
issue by the defense. This is consistent with Article 95 which on
its face does not require the restraint to be lawful (compare
Article 95 with Articles 90–92 which prohibit violations of “lawful
orders”—which orders are presumed lawful in the absence of
evidence to the contrary. United States v. Smith, 21 U.S.C.M.A.
231, 45 C.M.R. 5 (1972)). This construction is also supported by
j u d i c i a l d e c i s i o n s . S e e U n i t e d S t a t e s v . W i l s o n , 6 M . J . 2 1 4
(C.M.A. 1979); United States v. Clansey, supra; United States v.
Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952); United States v.
Delgado, supra. Cf. United States v. Mackie, 16 U.S.C.M.A. 14,
36 C.M.R. 170 (1966); United States v. Gray, supra. But see
United States v. Rozier, 1 M.J. 469 (C.M.A. 1976). This construction
also avoids unnecessary litigation of a collateral issue and
eliminates the necessity for the introduction of uncharged misconduct,
except when the door is opened by the defense. Cf. United
States v. Yerger, supra; United States v. Mackie, supra.
1991 Amendment: Subparagraph b(4) was amended by adding
an aggravating element of post-trial confinement to invoke increased
punishment for escapes from post-trial confinement.
c. Explanation.
(1) Resisting apprehension.
(a) Apprehension. This subparagraph is taken from Article 7.
(b) Authority to apprehend. See Analysis, R.C.M. 302(b).
The last two sentences are based on paragraph 57 a of MCM,
1969 (Rev.); United States v. Carson, supra.