UCMJ Article 105: Misconduct of a Prisoner

Article 105 governs the elements required for conviction and sentencing of service members who have conducted themselves inappropriately as prisoners of war. Service members that use their military authority to abuse other prisoners, or any service member that harms his or her fellow prisoners in an attempt to secure favorable treatment from the enemy, is subject to Article 105 of the UCMJ.

Like many wartime crimes, a conviction under article 105 could be disastrous to the accused service member:

  • You may have avoided imprisonment at the hands of the enemy only to be handcuffed and led away the moment you enter the United States.
  • All benefits, allowances, and pay will be taken from you. Your family will receive nothing. Worse, you could be heavily fined and thrown into debt.
  • Your service will become a liability rather than an asset in any future job interviews. No one can know about your dishonorable discharge and appalling conduct as a POW.

Your liberties have been taken from you once already. Would you dare risk them again? Fight back TODAY against these baseless charges with the help of Bilecki & Tipon.

What Is Article 105 of the UCMJ?

Every article of the UCMJ requires prosecutors to prove beyond a reasonable doubt a handful of critical assumptions—known as elements—to convict you of a crime. Article 105 contains two separate criminal offenses related to the misconduct of a prisoner, each with its own set of elements:

(1) Acting without authority to the detriment of another for the purpose of securing favorable treatment.

(a) That without proper authority the accused acted in a manner contrary to law, custom, or regulation;

(b) That the act was committed while the accused was in the hands of the enemy in time of war;

(c) That the act was done for the purpose of securing favorable treatment of the accused by the captors; and

(d) That other prisoners held by the enemy, either military or civilian, suffered some detriment because of the accused’s act

(2) Maltreating prisoners while in a position of authority

(a) That the accused maltreated a prisoner held by the enemy;

(b) That the act occurred while the accused was in the hands of the enemy in a time of war;

(c) That the accused held a position of authority over the person maltreated; and

(d) That the act was without justifiable cause

Summary of the Elements of Article 105: There are two offenses under article 105. Both require that a service member be held prisoner by the enemy in a time of war. The first governs any act by a service member to secure favorable treatment with enemy guards by abusing his or her fellow prisoners. The second concerns the abuse and maltreatment of fellow prisoners by another service member in a position of authority.

Court Martial Lawyer for Article 105 of the UCMJ: Strategies and Tactics

Prisoners of war must deal with enemy abuse, terrible living conditions and limited food and water. The situation could not be more stressful. Yet the prosecution will attempt to prove that your actions were acts of malice and hatred and that you took advantage of others to advance your situation. We will not allow them to spin the narrative in this way.

The first step to creating a strong court-martial strategy for Article 105 is to ask a few critical questions:

  • What was your state of mind at the time of the alleged abuses? Did you perform your actions out of fear for your life? Did the stress of being a prisoner of war cause you to lash out in a way that you regret? If this was a single instance of abuse caused by the stress of your situation, we may be able to acquit you or at the very least dramatically mitigate your sentencing.
  • Who saw the alleged abuses to other prisoners? Was this an individual service member? A civilian prisoner? An enemy combatant? How many witnesses has the government secured against you? If the number of witnesses is limited, we can aggressively cross exam their testimony and show inconsistencies to the court. Furthermore, we may be able to find defense witnesses that recall a different version of events.
  • How extensive were the abuses, and what caused them to occur? If you were in a position of authority, were your attempts to maintain order rebuked? We’ll gather additional evidence which may prove that you were in the right and acted in accordance with your authority and station.

You’ve suffered as a prisoner of war and now the government seeks to put you behind bars a second time. If you cherish the freedom you’ve regained, then fight for it by hiring the military defense attorneys at Bilecki & Tipon.

Experienced Military Defense Lawyers for Article 105 Charges

The court martial defense attorneys at Bilecki & Tipon have successfully defended service members from abusive wartime charges. Do not set foot into your trial with an inexperienced attorney. Doing so could cost you your hard-fought liberties a second time.

Bilecki & Tipon will help you fight back against charges under Article 105: Misconduct as a prisoner

Frequently Asked Questions About Article 105

What Is the Maximum Possible Punishment for Article 105: Misconduct of a Prisoner?

Government prosecutors have incredible leeway under Article 105 for recommending maximum punishment. According to the Manual for Court Martial, any punishment other than death is admissible for service members found guilty of abuse to fellow prisoners in wartime.

Are There Lesser Included Offenses Related to Article 105?

Yes. Article 105 includes these Lesser Included Offenses:

  • Article 80: attempts

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