UCMJ ARTICLE 83: MALINGERING
At Bilecki Law Group, we defend service members from charges of malingering under Article 83 of the UCMJ. We understand that every service member is more than the sum of the charges against them and we fight for your career, benefits, and freedom.
What is Article 83 of the UCMJ?
Malingering under Article 83 of the UCMJ takes place when a service member knew of an assignment or prospective assignment for the performance of work and that the accused feigned illness, physical disablement, mental lapse, mental derangement, or intentionally inflicted injury upon themselves to avoid that work or duty. There exists an aggravating factor if the duty was to be completed in a time of war or hostile fire zone.
The UCMJ goes on to define “feign” as misrepresenting by a false appearance or statement, to pretend, to simulate, or to falsify. It then defines “inflict” as to cause, allow, or impose. The self-inflicted injury could be through violent or nonviolent means as well any act of omission that produces, prolongs, or aggravates any sickness or disability.
To sum it up, if you pull a Ferris Bueller in the military and fake sick to avoid duty, you could be charged with malingering under Article 83 of the UCMJ. If you were to starve yourself and that results in a debility, they will consider that a self-inflicted injury and charge you. If you ask someone else to harm you so that you can avoid duty, they can and will charge you with malingering.
Can They Charge Me With Malingering If I’m Really Sick?
Article 83 is a damning article for many service members because the military culture is such that it frowns upon and doubts illness from the start. That doubt is exacerbated by the legitimate “sickbay commandos” who do indeed seek to find any way to avoid duty and if they have to fake illness to earn a trip to sickbay, they’ll gladly do so. In fact, it wouldn’t be a stretch to say that nearly every unit of a Company level size or larger likely has at least one sickbay commando in the ranks.
That is an important fact to consider because Article 83 is rarely enforced with any level of consistency from unit to unit. That’s a problem, because for the military justice system to work, they need service members to prosecute just to set an example for everyone else. This means that they are on the prowl for their example and though you may have very well been ill, if they see an opportunity to make an example out of you, they will do so. The genuine sickbay commando walks away free and you are charged because your command felt like it. It’s wrong and it is not justice.
A Military Culture That Doubts and Frowns Upon Illness
Perhaps one of the more famous incidents of a command doubting an illness would be the General George Patton slap heard around the world. What most people don’t realize is that it was two slaps that caught the world’s attention. In August of 1943, General Patton was visiting the 15th evacuation hospital when he came across a soldier sitting on a supply box. He asked the Private what was wrong and the Private replied, “I guess I just can’t take it.” That’s when Patton cursed the soldier and slapped him with his gloves. It turns out, the soldier had malaria and dysentery.
Then, just a week later, at the 93rd Evacuation Hospital, he came across another Private. This time, the Private was lying on a bed and after Patton asked what was wrong with him, he replied “it’s my nerves.” That’s when Patton lost it. He screamed and cursed at the soldier calling him a coward and proceeded to slap the soldier. Patton even reached for his pistol and was still yelling at the soldier suffering from battle fatigue as he was leaving the tent.
Word of the slapping had made its way to Eisenhower who then ordered Patton to apologize publicly. Patton obliged, but the public opinion among the troops and military circles largely supported Patton. As far as Eisenhower was concerned, the issue was over. However, an American columnist broke the story and accused the Army of a cover up. That’s when Patton was ordered back to England and sidelined until after D-Day.
Now, if you were to survey modern service members and ask them if they thought a coward should be slapped in a time of war, they likely wouldn’t have a great deal of empathy for the coward. That’s because military culture doesn’t offer a great deal of easy sympathy for those who won’t fight. However, the more we know about PTSD, we can quickly see through what was formerly known as battle fatigue. We have much more medical information at our disposal today, but the culture that dismisses injury and illness still persists today.
How To Fight And Defeat Charges Under Article 83
If you are facing charges under Article 83, there are likely a couple of scenarios at play. The first is that you were indeed ill, you didn’t harm yourself, and your command is trying to make an example out of you to scare others into submission. The second is that perhaps you did indeed make an error in judgement and now you are fighting for your career so that one mistake doesn’t end it all. In either case, your only option is to fight. If you don’t fight, the military justice system will view you as an easy target and they will roll over you to get their easy example.
There are several strategies we can employ to fight these charges and it starts with making no concessions to the prosecution. Article 83 has very specific elements that must be satisfied to find you guilty and we are going to meet them there with a fight every single time. Next, we’re going to thoroughly examine the medical facts at hand. Was your command trying to pull a Patton by diagnosing PTSD as cowardice? Is some Grunt officer trying to play Doctor when you have good medical documentation to back you up?
If you buddy wanted to play the Blue Falcon and rat you out because they were in trouble themselves, we’ll call them out. If we need to get your command on the stand and shred them to pieces, we’ll do that as well. The attorneys at Bilecki don’t have to worry about their own military career and so we don’t mind upsetting the brass in the process. That’s probably not something that your free military JAG attorney can say. This is your career. This is your life. You need someone who is going to fight for you till the bitter end.
What’s The Worst That Can Happen To Me Under Article 83 of the UCMJ?
Why should you fight? Well, it’s because the military justice system will show you no mercy because they need their example. There is a good chance you’ll face max punishment if you don’t put up some sort of fight. The max punishment for feigning an illness is a dishonorable discharge, total forfeiture of all pay and allowances, one year confinement and a reduction in rank to E-1. If they convict you of that in a hostile fire pay zone or in time of war, you’ll get all the above punishments plus a total of 3 years of confinement.
If you are convicted of intentional self-inflicted injury, the max punishment is a dishonorable discharge, total forfeiture of all pay and allowances, three years of confinement and reduction in rank to E-1. If that takes place in a hostile fire pay zone or time of war, you’ll get all the above plus ten years of confinement. Please don’t assume you won’t get the max punishment. Remember, the military justice system exists to scare others into compliance, and they routinely use max punishments to induce that fear.
If you are under investigation or facing charges of malingering, you need to get ready to fight. You can reach out to us for a free case evaluation, and we’ll always shoot you straight on what you are facing. As long as you are willing to fight, you will present yourself as a harder target than the next guy. Let them make that example out of someone else. This is your career. Your life. Reach out to us and we’ll take the fight right to the heart of the military justice system and when we fight, we fight to win.