UCMJ Article 108a: Captured or Abandoned Property

Property seized from an enemy or left behind on the field of operations does not become a souvenir, a windfall, or a private commodity. It belongs to the United States and must be secured, accounted for, and turned over to proper authority. Article 108a of the Uniform Code of Military Justice, codified at 10 U.S.C. 908a, enforces that duty. It punishes the member who fails to safeguard and report captured or abandoned property, who deals in such property for personal gain, or who engages in looting or pillaging. The article protects military discipline, preserves the integrity of operations, and supports compliance with the law of armed conflict.

The offense recognizes that the chaos of operations creates both temptation and opportunity. By imposing clear duties and clear prohibitions, Article 108a removes any ambiguity about how captured and abandoned property is to be handled.

What Article 108a prohibits

The statute first imposes affirmative duties and then defines the punishable failures and acts. A person who takes or comes into possession of captured or abandoned property must secure public property taken from the enemy for the service of the United States, and must give notice and turn over to proper authority, without delay, all captured or abandoned property in the person’s possession, custody, or control. The article then punishes a person who, without proper authority:

  1. Fails to carry out those duties to secure, give notice of, and turn over captured or abandoned property.
  2. Buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, and by doing so receives or expects any profit, benefit, or advantage to himself or to another directly or indirectly connected with himself.
  3. Engages in looting or pillaging.

What the government must prove

For the failure-to-secure offense, the prosecution must establish that certain property was captured or abandoned; that the property was in the accused’s possession, custody, or control; that the accused failed to secure, give notice of, or turn over the property to proper authority; and that the failure was without proper authority.

For the wrongful dealing offense, the prosecution must establish that certain property was captured or abandoned; that the accused bought, sold, traded, dealt in, or disposed of the property; that the accused did so to receive or in expectation of a profit, benefit, or advantage; and that the act was without proper authority.

For looting or pillaging, the prosecution must establish that the accused engaged in looting or pillaging, meaning the unlawful seizure or appropriation of public or private property in the operational area.

Maximum punishment

The statute provides that a violator shall be punished as a court-martial may direct and does not fix a numerical ceiling. The Manual for Courts-Martial sets graduated maximums for the failure-to-secure and wrongful-dealing offenses according to the value and nature of the property. Where the value is $1,000 or less, the maximum is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months. Where the value is more than $1,000 or the property is a firearm or explosive, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years.

Looting and pillaging are treated more severely. The Manual authorizes any punishment a court-martial may direct other than death for that conduct. Sentencing for offenses committed on or after 27 December 2023 is conducted under the current military justice sentencing framework. The applicable edition of the Manual should be consulted for the precise authorized maximum in any specific matter.

Possible defenses

Several defenses arise under Article 108a. Lawful authority is a complete answer where the accused acted under orders, for example to dispose of, destroy, or use property as directed by command. Mistake of fact may apply where the accused reasonably and honestly believed the property was lawfully available or was not captured or abandoned property within the article. Military necessity can justify destruction or use of property where operational conditions reasonably required it. For the wrongful-dealing offense, the absence of any profit, benefit, or advantage negates an essential element. The defense available in a given case depends on which form of the offense is charged.

Distinctions from related articles

Article 108a is confined to property that is captured from the enemy or abandoned in the operational area. Wrongful conduct toward military property of the United States that is not captured or abandoned, such as government equipment that is lost, damaged, destroyed, or wrongfully disposed of, is addressed by Article 108. Damage to property other than military property is governed by Article 109. Outright theft of personal or government property is larceny under Article 121. The defining feature of Article 108a is the special status of captured and abandoned property and the duty to secure and account for it, which is why the same field misconduct can fall under different articles depending on the property involved.

Frequently asked questions

Can a service member keep a battlefield souvenir? No, not without proper authority. Captured or abandoned property must be secured and turned over to proper authority, and personal appropriation is prohibited.

What is the maximum punishment for looting or pillaging? The Manual authorizes any punishment a court-martial may direct other than death for looting or pillaging.

How does the value of the property affect punishment? For failing to secure or report, or for wrongful dealing, property valued at $1,000 or less carries a maximum of a bad-conduct discharge and six months of confinement, while property over $1,000 or a firearm or explosive carries a maximum of a dishonorable discharge and five years.

Does Article 108a apply only to enemy property? No. It applies to both captured property taken from the enemy and abandoned property found in the operational area.

Is destruction for military necessity a violation? Lawful destruction directed by command or required by operational conditions to deny use to the enemy is not a violation, and military necessity may serve as a defense.

Does Article 108a apply to officers and enlisted members alike? Yes. The article applies to any person subject to the Code, regardless of rank.

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.

Sources

10 U.S.C. 908a, Article 108a (Captured or abandoned property): https://www.law.cornell.edu/uscode/text/10/908a
Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/
House Office of the Law Revision Counsel, 10 U.S.C. 908a: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section908a&num=0&edition=prelim
Military Attorney Joseph L. Jordan, Articles of the UCMJ

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