Bilecki Law Group defends service members against charges of hazarding a vessel or aircraft under Article 110 of the UCMJ
What is Article 110 Of The UCMJ?
Hazarding of a vessel or aircraft under Article 110 of the UCMJ takes place when a service member places a vessel or aircraft in danger of loss or injury through willful or negligent acts and omissions.
It is important to note that actual damage need not occur to be charged under Article 110 of the UCMJ. Whereas actual damage is not required to be charged, Article 110 explicitly states that actual damage will be treated as conclusive evidence that the (vessel) (aircraft) was indeed hazarded.
On the surface, these charges may seem small if you consider that most military property incurs damage at some point in its life. However, when you examine the Article more closely and realize that guilt under Article 110 could come with the death penalty, you quickly understand that hazarding a vessel is no ordinary charge.
What’s the Difference Between Willful or Negligent Hazarding of a Vessel?
There are two paths that charges under Article 110 can take and it boils down to your intent. If you willfully hazarded a U.S. vessel, they can actually come after you with the death penalty. The United States Military does not take kindly to its own service members accomplishing what the enemy could only dream of. Meanwhile, the military is just as vigilant when it comes to negligent hazarding and while they can’t take your life, they’ll try to take everything else. So let’s run through the core definitions they will use when determining charges:
Hazard – This means to put a (vessel) (aircraft) in danger of loss or injury. Actual damage to or loss of the (vessel) (aircraft), though not required, is conclusive evidence that the (vessel) (aircraft) was hazarded but not of the fact of culpability on the part of any particular person.
Vessel – includes every description of watercraft or other artificial contrivance used, capable of being used, as a means of transportation on water.
Aircraft – means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in air. (“Aircraft” also includes remotely piloted aircraft and unmanned aerial vehicles.)
Willfully – means intentionally or on purpose.
Wrongfully -means contrary to law, regulation, lawful order, or custom.
Negligence -means the failure to exercise the care, prudence, or attention to duties, which the interests of the government require a prudent and reasonable person to exercise under the circumstances. This negligence may consist of omission to do something the prudent or reasonable person would have done, or the doing of something which such a person would not have done under the circumstances.
Suffered -means allowed or permitted. (A suffering through neglect implies an omission to take such measures as were appropriate under the circumstances to prevent a foreseeable danger.) (A ship or aircraft is willfully suffered to be hazarded by one who, although not in direct control of the ship or aircraft, knows a danger to be imminent but takes no steps to prevent it.)
An inexperienced lawyer who fails to challenge the government’s proof of willful and wrongful hazarding can expose you to consequences far beyond a negligence charge. The government bears the burden of proving the charged mental state. On the books, it could cost you your life. The USS Bonhomme Richard prosecution shows how much can be at stake when the Navy loses a ship. That case ended in an acquittal; it is not a pending test of whether the Navy will pursue the death penalty.
The USS Bonhomme Richard Prosecution and Acquittal
At approximately 8:50 a.m. on July 12, 2020, witnesses reported an explosion about the USS Bonhomme Richard while the ship was undergoing maintenance in San Diego. Because the ship was in maintenance, on-board fire-suppression systems had been disabled. What started off as a small fire continued to burn for the next 5 days. A total of 40 Sailors and 23 civilians would be injured while fighting the blaze and 11 of 14 decks sustained water and fire damage. Portions of the flight deck, as well as other decks, were warped and bulging. Meanwhile, the island was nearly gutted by the fire.
The damage was so severe that it was estimated to take between 5 to 7 years to repair at a cost of $2.5 to $3.2 billion. Rather than incur the cost, the Navy decided that the best course was to decommission the ship and sell it for scrap. By any definition, it was clear that the USS Bonhomme Richard had been hazarded. Whether by willful acts or negligence, a ship was lost in its entirety, and someone was going to pay a heavy price.
On July 29th, 2021, the Navy charged Seaman Apprentice Ryan Sawyer Mays with aggravated arson under Article 126 as well as hazarding of a vessel under Article 110. Mays faced a military justice system that wanted accountability for the total loss of a billion dollar vessel. Mays originally joined the Navy to become a SEAL, but after he washed out after just 5 days of training, he was assigned to the USS Bonhomme Richard. On 30 September 2022, a military judge found Mays not guilty of both charges. The ship was lost. The government still had to prove that this sailor committed the charged offenses, and it did not obtain a conviction.
How To Fight and Win Against Article 110 UCMJ Charges
More than most, we are going to hold on to the notion that service members are innocent until proven guilty. Mays was acquitted. We use this case because it illustrates the cold hard truth about Article 110 charges: the loss of a ship does not by itself prove who committed a crime. And you don’t have to sink a ship to find yourself facing significant jail time or consequences for hazarding a vessel.
If someone willfully and wrongfully starts a fire that puts a vessel in danger, the government does not have to wait for the ship to burn before bringing a hazarding charge. It would not matter if another Seaman immediately put out the fire. But proving that a vessel was endangered is different from proving who was responsible and whether that person acted willfully or negligently. The government has to make that connection; it cannot substitute the size of the loss for proof of the charge.
As it stands for the average service member whose willful or negligent acts did not sink a vessel of the US Navy, there is greater hope for you to avoid the worst consequences or to become the scapegoat for a negligent command structure. Here at Bilecki, we put together an aggressive defense that gives the prosecution no easy wins and we’ll make them fight to prove themselves every step of the way.
We’ll examine if the prosecution can draw a straight line between your actions and the hazarding, or if they are making assumptions for expediency. We’ll examine what your assigned duties were at the time and what other service members may have contributed to the hazarding. We do our own investigation into the facts as we have learned never to fully trust what comes out of NCIS, regardless of what the TV show makes you think about them.
Sentencing Guidelines
The confinement ranges below are sentencing parameters, not the maximum punishment for every offense in the category. They apply in noncapital general and special courts-martial when all offenses of conviction were committed on or after 28 December 2023. The lawful maximum for the particular offense and the limits of the court-martial still control. A military judge may depart from a parameter when specific facts justify doing so, and the record must contain a written statement explaining the factual basis. Negligent hazarding has a two-year maximum, so Category 2 does not permit three years for that offense. Willful and wrongful hazarding is a criteria offense with a different maximum; a death sentence requires a capital prosecution and satisfaction of the separate capital sentencing requirements. It is not an automatic consequence of the charge.
| Offense | Maximum confinement | Category or criteria | Confinement range in months |
|---|---|---|---|
| Willful and wrongful hazarding of a vessel or aircraft | Death or another lawful punishment | Criteria | No fixed category range |
| Negligent hazarding of a vessel or aircraft | 2 years | Category 2 | 1–24 |
Reduction to E-1 applies to enlisted personnel. Dismissal, rather than a dishonorable or bad-conduct discharge, is the authorized punitive separation for commissioned officers, including commissioned warrant officers, and cadets and midshipmen. The authorized punishment also depends on the offense date and court-martial forum.
Facing an Allegation?
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What’s At Stake If I’m Found Guilty Of Hazarding Under Article 110 UCMJ
As mentioned before, the maximum punishment for willful hazarding of a vessel is death. The Bonhomme Richard prosecution ended in an acquittal. It cannot tell you what punishment would have been imposed after a conviction.
Meanwhile, negligently hazarding a vessel or aircraft can
carry a max punishment of a reduction E-1, forfeiture of pay and allowances,
confinement for 2 years and a dishonorable discharge.
To sum it up, you stand to lose everything if you don’t fight the charges levied against you under Article 110. The US Navy is not going to lose another ship to hazarding and if they need to throw the book at you to make an example out of you, they will gladly do so rather than risk the total loss of another vessel. The loss of the Bonhomme Richard shows the pressure for accountability after a major casualty. Mays’s acquittal shows why that pressure still has to be met with a defense that forces the government to prove its case.
Even if you are under investigation for hazarding under Article 110, now is the time to reach out to an experienced military defense attorney. Don’t wait until they have spent the past year seeking to prove your guilt to get your defense together. If they are planning on charging you with hazarding, they are coming to destroy you. You cannot coexist with a military justice system that is out to destroy you. Reach out to us now and get us into the fight. We’ll make sure that you present yourself a hard target so that they move on to the next guy to make an example out of. This is your life and your career. Take the fight back to the military justice system and you can win.