UCMJ Article 112: Drunk On Duty

Bilecki Law Group defends service members from charges of Drunk On Duty under Article 112 of the UCMJ.

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How To Fight and Beat Charges Under Article 112 For Drunk on Duty

The prosecution may try to make it sound like the case is a done deal and you are as good as guilty. That’s why we meet the prosecution with a fight at every turn of the case. We’ll put their star witness’s story to the test and take their forensic evidence apart.

Here are a few questions we are going to make them answer. When specifically were you found drunk and were you actually on duty? If you never undertook or entered upon the duty, that can defeat a drunk-on-duty charge under Article 112(a). But missing duty is not a free pass: Article 112(b) separately covers being unable to perform duty because of prior alcohol or drug use. Those are the rules for offenses committed on or after 1 January 2019; earlier conduct requires review of the law in effect at the time. Was there a simple miscommunication between you and the command that caused you to believe you were not on duty? Lack of knowledge of the assigned duties is an affirmative defense to incapacitation for duty. Did the intoxication result from an accidental overdose administered for medicinal purposes? Did your superiors know you were drunk when they assigned the duty and allow you to assume it anyway? The Manual recognizes those last two circumstances as defenses to drunk on duty. Taking medicine for a legitimate purpose, by itself, does not establish that defense.

It may be that the command just assumed you were drunk, when in reality, you act a little strange on a daily basis because that’s just who you are? We are going to give them zero assumptions or easy wins. If they want to state it in court then we are going to make them prove it as fact.

Look, it might even be that in the finest military tradition you did indeed show up with whiskey on your breath and you made a bad call. It still should not end your career or strip you of your rightfully earned retirement. Article 112 charges can destroy your career in a manner disproportionate to the actual crime.

What Is Article 112 Of The UCMJ?

Drunk on duty under Article 112 of the UCMJ occurs when a service member is on any form of military duty and is in a state of intoxication by alcohol that is sufficient to impair the rational and full exercise of mental or physical faculties, or the state of meeting or exceeding a blood alcohol content limit with respect to alcohol concentration in a person’s blood of 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person’s breath of 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis.

Now, we fully understand that the above explanation was lengthy and detailed. But the question is not simply whether alcohol touched your lips. You may know a Marine who can show up for PT after a hard night of drinking, complete a 3-mile run, and still finish under 20 minutes after a mid-run puke. That does not settle whether the Marine was legally drunk. The government can prove impairment or the specified alcohol concentration; it does not have to prove both.

If your command has looked the other way when other Marines showed up to PT drunk, we understand why you would question its decision to drop the UCMJ hammer on you. That is a reason to look harder at why you were singled out. It is not a reason to plead guilty. Don’t get us wrong, there are times where one’s intoxication is a complete threat to the mission. Then, there are other times where it’s all part and parcel of military culture. So, let’s break down what it takes to convict you of drunk on duty under Article 112.

What Must The Government Prove?

For the government to convict you of drunk on duty under Article 112, it must prove two basic elements beyond a reasonable doubt. First, that you were on a certain duty. Military duty includes duties an officer or enlisted member may legally be required by superior authority to perform, whether in garrison, at a station, or in the field. It does not include ordinary off-duty or liberty time when no duty is required by orders or regulations. Guard, watch and standby duties can count. If you are in a region of active hostilities, the circumstances may be such that all members of a command are considered continuously on duty.

The second element they need to prove is that the accused was drunk while on this duty. The prosecution may try to present it as a slam dunk case that is futile to contest. That’s not true and it is possible to beat these charges, even if you acknowledge to yourself that alcohol did touch your lips at some point prior to duty. The question is whether they can prove you were drunk while on the duty alleged.

What’s The Worst That Can Happen If Convicted Of Drunk On Duty?

If the command wants to make an example out of you, you cannot trust that it will take it easy on you just because you admit guilt and beg for mercy. A conviction can put your career and retirement at risk. The maximum punishment depends on the offense:

Reduction to E-1 may also be adjudged for an enlisted member. Commissioned officers, including commissioned warrant officers, and cadets and midshipmen may receive a dismissal at a general court-martial. An uncommissioned warrant officer may receive a dishonorable discharge there. Those officer rules apply even when the individual offense does not authorize an enlisted punitive discharge. The offense date, court-martial forum, other convictions and any plea agreement can affect the available punishment. These are maximums, not predictions of your sentence.

Sentencing Guidelines

For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. A departure cannot exceed the lawful maximum punishment. Court-martial and plea-agreement limits may further restrict the sentence. Cases involving earlier offenses follow different sentencing rules.

Category 1 ordinarily extends to 12 months, but these offenses have lower maximums. The ranges shown reflect those lower limits; they are not automatic sentences.

Variations of Drunk on Duty Under Article 112

Article 112 covers three offenses: drunk on duty, incapacitation for duty from drunkenness or drug use, and drunk prisoner. Which offense the government charges matters because the elements and maximum punishments are different.

Incapacitation For Duty From Drunkenness Or Drug Use

This occurs when the accused had certain duties to perform, was unfit or unable to perform them properly, and that incapacity resulted from prior alcohol consumption or drug use. A hangover that makes a service member unable to perform assigned duties can qualify. The government must prove that you were unfit or unable to perform those duties properly because of the prior alcohol or drug use.

Drunk Prisoner

This occurs when the accused was a prisoner and was drunk while in that status. For this offense, “prisoner” means a person in confinement or custody under the applicable military rules or a court-martial sentence who has not been released by an authorized person. Pretrial restriction alone does not make someone a prisoner for this offense.

Wrongful use, possession, distribution and other covered controlled-substance offenses fall under Article 112a and warrant a page to explain them in their own right. Article 112 separately covers incapacitation for duty from prior alcohol or drug use. The two articles should not be confused.

The Marriage Of Alcohol And Military Culture Drives The Charges

The cold hard truth is that alcohol is as ubiquitous to military culture as water is to the Navy or the sky is to the Air Force. There is no scenario where you can completely divorce alcohol from the military. But if your command decides you are going to be the example, you need someone who will fight for you. The military culture surrounding alcohol does not tell the whole story of your case.

We’re not recommending you get drunk on duty, but it’s not the unpardonable sin that the military justice system likes to present. On 7 December 1941, pilots George Welch and Ken Taylor took to the skies to fight the Japanese over Pearl Harbor after a night of dancing and poker. That is a remarkable story. It is not proof that either pilot was drunk.

You shouldn’t pay the price because your command decided that you were going to be the guy to make an example out of. Now, if you got drunk in Iraq, got naked and wagged your genitalia at your Company Commander, there is more to defend than an allegation that you had alcohol on your breath. Even then, you have a case to defend. These are charges you can fight.

If you are facing these charges, you need to fight back. Reach out to us for a free consultation and we’ll tell you exactly what you are facing. Drunk on Duty does not have to be the end of your career. Stand up and fight.