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

Pun. Art. 95 APPENDIX 23
forces may have a distinct and cognizable impact on military
discipline.
20. Article 96— Releasing prisoner without
proper authority
c. Explanation. This paragraph is based on paragraph 175 of
MCM, 1969 (Rev.); United States v. Johnpier, 12 U.S.C.M.A. 90,
30 C.M.R. 90 (1961). Subparagraphs (1)(c) and (d) have been
modified to conform to rules elsewhere in this Manual and restated
for clarity.
21. Article 97— Unlawful detention
c. Explanation. This paragraph is based on paragraph 176 of
M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . J o h n s o n , 3 M . J . 3 6 1
(C.M.A. 1977). The explanation of the scope of Article 97 is new
and results from Johnson and the legislative history of Article 97
cited therein. Id. at 363 n.6.
22. Article 98— Noncompliance with procedural
rules
c. Explanation. This paragraph is taken from paragraph 177 of
MCM, 1969 (Rev.).
e. Maximum punishment. The maximum punishment for intentional
failure to enforce or comply with provisions of the Code
has been increased from that specified in paragraph 127 c of
MCM, 1969 (Rev.) to more accurately reflect the seriousness of
this offense. See generally 18 U.S.C. § 1505, the second paragraph
of which prohibits acts analogous to those prohibited in
Article 98(2).
23. Article 99— Misbehavior before the enemy
c. Explanation. This paragraph is based on paragraphs 178 and
1 8 3 a o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . S p e r l a n d , 1
U.S.C.M.A. 661, 5 C.M.R. 89 (1952) (discussion of “before or in
t h e p r e s e n c e o f t h e e n e m y ” ) ; U n i t e d S t a t e s v . P a r k e r , 3
U.S.C.M.A. 541, 13 C.M.R. 97 (1953) (discussion of “running
away”); United States v. Monday, 36 C.M.R. 711 (A.B.R. 1966),
pet. denied, 16 U.S.C.M.A. 659, 37 C.M.R. 471 (1966) (discussion
of “the enemy”) (see also United States v. Anderson, 17
U.S.C.M.A. 588, 38 C.M.R. 386 (1968)); United States v. Yarborough,
1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952) (discussion of
“fear”); United States v. Presley, 18 U.S.C.M.A. 474, 40 C.M.R.
186 (1969); United States v. King, 5 U.S.C.M.A. 3, 17 C.M.R. 2
(1954) (discussion of illness as a defense to a charge of cowardice);
United States v. Terry, 36 C.M.R. 756 (N.B.R. 1965), aff’d
16 U.S.C.M.A. 192, 36 C.M.R. 348 (1966) (discussion of “false
alarm”); United States v. Payne, 40 C.M.R. 516 (A.B.R. 1969);
pet. denied, 18 U.S.C.M.R. 327 (1969) (discussion of failure to
do utmost).
24. Article 100— Subordinate compelling
surrender
c. Explanation. This paragraph is taken from paragraph 179 of
MCM, 1969 (Rev.).
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25. Article 101— Improper use of countersign
c. Explanation. This paragraph is based on paragraph 180 of
MCM, 1969 (Rev.).
26. Article 102— Forcing a safeguard
c. Explanation. This paragraph is taken from paragraph 181 of
MCM, 1969 (Rev.). Note that a “time of war” need not exist for
t h e c o m m i s s i o n o f t h i s o f f e n s e . S e e H e a r i n g s o n H . R . 2 4 9 8
Before a Subcomm. of the House Comm. on Armed Services, 81st
Cong., 1st Sess. 1229 (1949). See also United States v. Anderson,
17 U.S.C.M.A. 588, 38 C.M.R. 386 (1968) (concerning a state of
belligerency short of formal war).
27. Article 103— Captured or abandoned property
c. Explanation. This paragraph is taken from paragraph 182 of
MCM, 1969 (Rev.).
e. Maximum punishment. The maximum punishments based on
value have been revised. Instead of three levels ($50 or less, $50
to $100, and over $100), only two are used. This is simpler and
conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in
civilian jurisdictions.
2002 Amendment:The monetary amount affecting the maximum
punishments has been revised from $100 to $500 to account
for inflation. The last change was in 1969 raising the amount to
$100. The value has also been readjusted to realign it more
closely with the division between felony and misdemeanor penalties
in civilian jurisdictions. See generally American Law Institute,
Model Penal Code and Commentaries Sec. 223.1 (1980)
(suggesting $500 as the value). The amendment also adds the
phrase ’or any firearm or explosive’ as an additional criterion.
This is because, regardless of the intrinsic value of such items,
the threat to the community is substantial when such items are
wrongfully bought, sold, traded, dealt in or disposed.
28. Article 104— Aiding the enemy
c. Explanation. This paragraph is based on paragraph 183 of
M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . O l s o n , 7
U . S . C . M . A . 4 6 0 , 2 2 C . M . R . 2 5 0 ( 1 9 5 7 ) ; U n i t e d S t a t e s v .
Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United
States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154 (1955).
29. Article 105— Misconduct as a prisoner
c. Explanation. This paragraph is based on paragraph 184 of
M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B a t c h e l o r , 7
U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United States v. Dickenson,
7 U.S.C.M.A. 438, 20 C.M.R. 154 (1955).
30. Article 106— Spies
c. Explanation. This paragraph is taken from paragraph 185 of
MCM, 1969 (Rev.). See generally W. Winthrop, Military Law
and Precedents 766–771 (2d ed. 1920 reprint). Subparagraphs (4)
and (6)(b) are also based on Annex to Hague Convention No. IV,
Respecting the law and customs of war on land, Oct. 18, 1907,
Arts. XXIX and XXXI, 36 Stat. 2303, T.S. No. 539, at 33.
30a. Article 106a— Espionage
Article 106a was added to the UCMJ in the Department of