UCMJ Article 99 – Misbehavior Before the Enemy

UCMJ Article 99 criminalizes acts of cowardice, misbehavior, or misconduct committed in the presence of the enemy. It is one of the most severe offenses in military law because it deals directly with conduct in combat situations where unit cohesion, courage, and discipline are most critical. Misbehavior before the enemy can take many forms, including running away, abandoning one’s post, surrendering improperly, or endangering the safety of the unit through neglect or disobedience.

The article reflects the absolute necessity for reliability under combat conditions. Any failure of courage or discipline in the presence of the enemy can put entire units at risk, compromise missions, and cause loss of life. Because of its seriousness, Article 99 is one of the few UCMJ provisions that authorizes the death penalty.

Key Elements

The prosecution must prove that the accused:

  1. Was a member of the armed forces serving in the presence of the enemy.
  2. Committed one or more of the following acts:
    • Ran away or shamefully abandoned post.
    • Abandoned or surrendered command, unit, guard, post, or place of duty without proper authority.
    • Threw down arms or ammunition to avoid combat.
    • Willfully failed to engage the enemy.
    • Cast away arms or otherwise misbehaved in front of the enemy.
    • Caused false alarms, surrendered improperly, or failed to support fellow service members.
  3. Acted in a manner that endangered the mission, the unit, or the security of the armed forces.

The essential element is presence before the enemy. Conduct that might be minor elsewhere becomes gravely serious when it occurs in combat or in the face of hostile forces.

Scope and Application

Article 99 applies in any situation where U.S. forces are engaged with or directly exposed to enemy action. This can include open battlefields, defensive operations, or deployments where hostile contact is imminent.

The article is broad, covering acts of cowardice, neglect, or misconduct that undermine combat effectiveness. Courts interpret it strictly, given its potential to carry the harshest punishments, but commanders also rely on it as a deterrent to ensure courage under fire.

Punishment

Punishment under Article 99 is severe:

  • Maximum penalty: Death or other punishment as a court-martial may direct.
  • Alternative punishments: Life imprisonment, dishonorable discharge, total forfeiture of pay and allowances, and confinement for extended terms.

The harsh penalties emphasize the vital importance of maintaining courage and discipline in the face of the enemy.

Defenses

Possible defenses include:

  • Not in presence of the enemy: The offense requires that the accused was in combat or under direct threat of hostile forces.
  • Lack of intent: Some acts, such as throwing down arms, must be shown to be deliberate.
  • Impossibility: Circumstances such as overwhelming force or inability to resist may mitigate liability.
  • Duress or compulsion: If the accused acted under immediate threat of death or serious injury, courts may consider it as a defense, though very narrowly.

Examples

If a soldier drops their weapon and flees while under fire, Article 99 applies. If a commander surrenders their unit to the enemy without exhausting all lawful means of defense, they may be guilty. If a service member sets off a false alarm that causes panic during battle, that also qualifies. Conversely, retreating under lawful orders or repositioning tactically is not misbehavior before the enemy.

Conclusion

Article 99 embodies the military’s strictest standards for combat conduct. It punishes cowardice, neglect, and disobedience that directly endanger missions and fellow service members in the face of hostile forces. By holding service members accountable for their actions in combat, the article ensures that courage, loyalty, and discipline are preserved even under the most extreme conditions.

Frequently Asked Questions

1. What does “before the enemy” mean under Article 99?
It means being in a situation where the enemy is present or hostile contact is imminent. Actual combat is not always required, but the unit must be in a position of direct exposure to enemy action.

2. Can Article 99 apply in peacetime?
No, it applies only in the presence of the enemy. Peacetime misconduct is charged under other UCMJ articles.

3. What is the maximum punishment for Article 99 violations?
The death penalty is authorized, although life imprisonment is more commonly imposed in modern practice. The possibility of death underscores the seriousness of the offense.

4. Does Article 99 cover surrender?
Yes, if surrender occurs without proper authority or before exhausting all means of resistance. Lawful surrender when ordered or required is not a violation.

5. Can panic or fear be a defense?
Fear alone is not a defense. Military law demands courage under fire. However, if the accused acted under overwhelming circumstances beyond control, courts may consider mitigation.

6. What if weapons are abandoned during combat?
Throwing down arms to avoid combat is specifically listed under Article 99 as misbehavior before the enemy. Such actions can endanger the entire unit.

7. Is giving false alarms included?
Yes, causing unnecessary panic or confusion by setting off false alarms in the presence of the enemy is punishable under Article 99.

8. How is Article 99 different from desertion?
Desertion requires intent to permanently abandon service, while Article 99 punishes cowardice or misbehavior in combat, even if the accused does not intend permanent abandonment.

9. Has Article 99 been used in history?
Yes, it has been applied in wartime cases such as World War II and Korea. Its harshest penalties are rare today but the article remains a key deterrent.

10. Why is Article 99 considered one of the gravest UCMJ offenses?
Because it addresses misconduct in the face of the enemy, where discipline and courage are most critical. Failure in these moments can jeopardize entire units and missions.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 899, Article 99
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0126
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Payne, 40 C.M.R. 516 (1969)
  • 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 99 or any other UCMJ provision, you should consult a qualified military attorney.

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