UCMJ ARTICLE 113: MISBEHAVIOR OF SENTINEL OR LOOKOUT
At Bilecki Law Group,We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
What Is Article 113 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. Two such elements—with a third added in a time of war—must be proven for a service member to be convicted under Article 113 of the list of articles in the U.C.M.J.
Drunken or reckless operation of a vehicle, aircraft, or vessel under Article 113 of the UCMJ occurs when a service member was operating or was in physical control of a vehicle, aircraft, or vessel and operated it in a reckless manner while drunk or impaired by controlled substances. Such action comes with more severe consequences when an injury to others is alleged to have occurred.
Now, the cold hard truth is that if you sit behind anything with a steering wheel, pilot’s stick, rudder control and you are in the least bit impaired, you need to be prepared for the military justice system to come after you with everything they have to charge you under Article 113 of the UCMJ. That is because they want to strike fear into the hearts of every other service member over doing so and to do that, they need to make an example out of someone. If you let, they will make that example of you and it will cost you everything.
The reality is that this is not the least bit fair or equitable as alcohol and military tradition go together like Jack and Coke. Sure, you can have one without the other, but the two are almost synonymous. That’s why the Sergeant Major at the Marine Corps Ball is going to regale young Marines with drunken sea stories from back in the day and then try to crucify a young Marine for following that example the very next week. Yet, if you put up a fight when charged under Article 113, you can win and you can save your career.
What Does It Take To Be Charged Under Article 113?
The duties of a sentinel or lookout are critical to the protection of military assets and personnel, which is why the UCMJ has designated a separate article—Article 113—to separate lookouts and sentinels from all other duties (who would otherwise be accused under Article 112, Drunk on Duty).
The job of a lookout or sentinel is paramount to the success of a mission, but many extenuating circumstances or mitigating factors may be at play which can exonerate a service member outright or reduce their charges significantly.
The truth is that no two incidents of drunken or reckless operation of a vehicle are alike and as such, each case must be treated with individual care. It may be that you got pulled over two blocks from the barracks after a night out where you were the only sensible Marine who didn’t get absolutely wasted. Meanwhile, the MPs that pulled you over treated you like you just drunkenly stole the Battalion Commander’s car, got his daughter wasted, and crashed into the PX. The specifics of your case matter and the prosecution must prove several essential elements to convict you. So, let’s talk about some key definitions as outlined by Article 113 of the UCMJ and as they will apply to your case.
“Operating” includes not only driving or guiding a (vehicle) (aircraft) (vessel) while in motion, either in person or through the agency of another, but also the setting of its motive power in action or the manipulation of its controls so as to cause the particular (vehicle) (aircraft) (vessel) to move.
(Thus, one may operate a (vehicle) (aircraft) (vessel) by pushing it, setting its motive power in action by starting the engine or otherwise, or releasing the parking brake of a vehicle on a hill so the vehicle rolls downhill.)
“Physically controlling” (“In actual physical control”) mean(s) that the accused had the present capability and power to dominate, direct, or regulate the (vehicle) (aircraft) (vessel), either in person or through the agency of another, regardless of whether such (vehicle) (aircraft) (vessel) was operated.
(For example, an intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition, but with the engine not turned on, could be deemed in actual physical control of that vehicle. (However, a person asleep in the backseat with the keys in his or her pocket would not be deemed in actual physical control.))
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“Reckless” means a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care; that is, (an act) (or failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the safety of others which a reasonably careful person would have used under the same or similar circumstances. “Recklessness,” on the other hand, is a negligent (act) (failure to act) combined with a culpable disregard for the foreseeable consequences to others.
“Reckless” means that the accused’s manner of operation or control of the (vehicle) (aircraft) (vessel) was, under all the circumstances, of such a heedless nature that made it actually or imminently dangerous to the occupant(s) or to the rights or safety of (others) (another). (Recklessness is not determined solely by reason of the happening of an injury, or the invasion of the rights of another, nor by proof alone of excessive speed or erratic operation, although all these factors may be relevant as bearing upon the question of recklessness.)
“Wanton” includes reckless, but in describing the operation or physical control of a (vehicle) (vessel) (aircraft), wanton may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.
“Drunk” (and) “Impaired” means any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties. (“Drunk” relates to intoxication by alcohol.) (“Impaired” relates to intoxication by a controlled substance.)
Now, the definitions listed above are important because quite often, the prosecution takes for granted that we will concede what they believe to be an obvious satisfaction of that definition. Not with Bilecki. We put together a defense so aggressive that we’ll have them questioning whether they even know the definition of a vehicle or an aircraft. That’s because to win, that is to beat the military justice system on their turf, you must concede nothing and take from them everything.
Protecting Good Service Members From Command Abuse
We’ve been in the game long enough protecting good service members from command abuse to know that men and women of every rank, every single rank officer and enlisted, can find themselves behind the wheel of a vehicle, aircraft, or vessel in a state of intoxication. There is no rank too low or brass too shiny that will stop that from taking place in the United States Military. What does happen is that prosecution and consequences are handed out with little consistency or fairness from command to command.
This is why you must fight. Remember, they need to make their example out of someone and if they are not going to make that example out of the Battalion Commander when he is caught drunk behind the wheel, they are going to double down on you to get public execution of a military career. If you make yourself a harder target than the next guy, they will move on. If you lay down and ask for mercy, the military justice system will roll over you like a Tsunami without so much as acknowledging what you did in the streets of Fallujah or the recent evacuation of Afghanistan.
When every deployment comes to an end, there are countless men and women who process the complex trauma they experienced with alcohol. That’s not a good thing, just a cold hard reality. That some command would take everything from a Marine who held the line at Hamid Karzai Airport in Kabul when he was two blocks from the barracks after a few beers is unconscionable. Yet, nearly every return scene from every deployment during the GWOT wars has such examples.
How To Fight And Win Against Article 113 Charges?
The answer is right there in the question. Namely, you fight. You fight them for every definition. You fight the sobriety test. You fight the competency of those administering the test and you fight to make damn sure the military justice system knows who you are and that you are more than the charges levied against you.
Look, if you did indeed get drunk with the Battalion Commander’s college age daughter, steal his car, and then crash into the PX, some stuff is going to happen to you. Your best bet there might be for you to get her pregnant and then maybe the good Colonel calls you son when it’s all over. Yet, the reality is that most charges under Article 113 are not that clear cut.
It’s the young Lance Corporal trying to fit into the liquor infused culture of the Corps who was two blocks from the barracks. It’s the salty First Sergeant who drinks away the stupidity of his Lance Corporals each night and then goes out for some cigarettes. It’s the Battalion Commander himself processing the losses of his Marines on the last deployment and was heading home to his wife after time at the O-club.
Don’t Let The Military Justice System Make You The Example
Friends, it is every single rank and every single service branch. It’s only a matter of time before some Space Force Guardian takes off drunk in the moon shuttle because he thought he had a chance with that hot alien chick, and we’ll take his case too. You must stand up and fight these charges or they will make an example out of you and end your career. It doesn’t matter how long you have served, the maximum punishment is brutal.
Maximum punishment for Article 113 with no injury is a Bad Conduct Discharge, forfeiture of all pay and allowances, 6 months confinement and reduction to E-1. If there is an injury involved, that’s a Dishonorable Discharge, forfeiture of all pay and allowances, 18 months confinement and a reduction to E-1. You have too much to lose and all you have to do to save your career and life is to stand up and fight one more time. If you are facing charges under Article 113, give us a call, and you can tell us about that hot alien chick yourself. Either way, we’ll be ready to fight on your behalf.
Frequently Asked Questions About Article 113: Misbehavior of Sentinel or Lookout
The grave offense of misbehaving while on duty as a sentinel or lookout is one of the few charges under the punitive articles of the UCMJ that allows the service member to be sentenced to death in a time of war.
If, however, the government does not consider the offense a wartime charge, these factors will play a role in your maximum punishment: While receiving special pay under 37 U.S.C 310:
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 10 years
- Dishonorable discharge
In all other places:
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 1 year