UCMJ Article 105 – Misconduct as a Prisoner

UCMJ Article 105 punishes service members who, while in the hands of the enemy as prisoners of war, engage in misconduct that harms the United States or provides aid to the enemy. Unlike ordinary prisoner discipline issues, this article targets serious acts of betrayal or disloyalty that occur during captivity. The law recognizes that being taken prisoner is not itself a crime, but misconduct while in captivity can endanger fellow prisoners, damage morale, or strengthen the enemy’s position.

The provision balances compassion for the hardships of captivity with the strict need to maintain loyalty and discipline. It acknowledges that prisoners may be under duress, but still requires that they avoid actions that actively harm U.S. forces.

Key Elements

The prosecution must prove:

  1. That the accused was a member of the armed forces and was captured and held by the enemy.
  2. That while in captivity, the accused committed misconduct.
  3. That the misconduct was intended to, or did in fact, harm the United States or aid the enemy.
  4. That the misconduct was willful, not solely the result of coercion.

Scope and Application

Article 105 applies to a range of misconduct by prisoners of war, including:

  • Fighting for or assisting the enemy.
  • Voluntarily giving intelligence, propaganda, or military information.
  • Harassing or abusing fellow prisoners.
  • Accepting special favors in exchange for cooperation.
  • Taking actions that undermine morale or resistance of fellow captives.

The article does not punish ordinary survival measures, such as complying with minimal orders under duress. Its focus is on voluntary acts of betrayal.

Punishment

The maximum punishment for misconduct as a prisoner is death or such other punishment as a court-martial may direct. Alternative penalties include life imprisonment, dishonorable discharge, forfeiture of all pay and allowances, and confinement for extended terms. The death penalty reflects the seriousness of aiding the enemy from within captivity.

Defenses

Possible defenses include:

  • Duress or coercion: If the accused acted under immediate threat of death or serious harm.
  • No intent to aid the enemy: If actions were taken only to survive, not to provide actual benefit to hostile forces.
  • Lack of voluntariness: If conduct was compelled or manipulated without the accused’s free will.
  • Mistake of fact: If the accused did not realize the consequences of their actions.

Examples

If a captured service member willingly provides the enemy with details about troop positions, Article 105 applies. If a prisoner volunteers to broadcast propaganda for the enemy, that is misconduct. If one prisoner abuses others to gain favor with captors, it may be prosecuted. By contrast, complying with orders to march, eat, or perform labor under duress is not misconduct under this article.

Conclusion

Article 105 enforces the principle that captivity does not excuse betrayal. While the hardships of imprisonment are recognized, deliberate misconduct that harms U.S. interests or aids the enemy is treated as one of the gravest offenses. The article protects both the integrity of the armed forces and the morale of prisoners of war by holding accountable those who collaborate voluntarily with the enemy.

Frequently Asked Questions

1. Is being captured by the enemy itself a crime?
No, capture is not misconduct. Article 105 punishes only wrongful actions committed while in captivity, not the mere fact of being a prisoner of war.

2. What kinds of acts qualify as misconduct?
Voluntarily giving information, assisting the enemy, harassing fellow prisoners, or broadcasting propaganda. Ordinary compliance for survival is not punished.

3. Can duress be a defense?
Yes, if the accused acted under immediate threat of death or serious harm. Courts carefully evaluate whether the accused had any real choice.

4. Why is the maximum punishment death?
Because aiding the enemy from inside captivity is considered an extreme betrayal that endangers fellow service members and missions.

5. Does Article 105 apply only in declared wars?
No, it applies in any armed conflict where U.S. service members may be captured and held by hostile forces.

6. What if a prisoner accepts better food or treatment from the enemy?
If such favors are accepted in exchange for cooperation or betrayal, it can qualify as misconduct. Simple acceptance without betrayal usually does not.

7. Are forced confessions covered?
If a confession is coerced under torture, duress may be a defense. Voluntary statements that harm the U.S., however, can be punished.

8. How does Article 105 differ from treason?
Treason is a civilian offense under U.S. law. Article 105 specifically applies to service members who commit misconduct while held as prisoners of war.

9. Can abuse of fellow prisoners be charged?
Yes, mistreating or oppressing other U.S. prisoners to gain favor with the enemy qualifies as misconduct under Article 105.

10. Why is Article 105 important?
Because loyalty and discipline must endure even under the hardship of captivity. The article deters voluntary collaboration and reassures service members that betrayal in captivity will be punished.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 905, Article 105
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0132
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Olson, 74 M.J. 132 (2015)
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 105 or any other UCMJ provision, you should consult a qualified military attorney.

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