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UCMJ Article 96: Releasing Prisoner Without Authorization, Allowing Escape, and Drinking With Prisoner

At Bilecki Law Group, we defend service members against charges under Article 96 of the UCMJ for improper behavior towards a prisoner. 

What is Article 96 Of The UCMJ?

Article 96 of the UCMJ governs a service member’s conduct and behavior towards prisoners. Charges under Article 96 include releasing a prisoner without authority, allowing a prisoner to escape through design or neglect, and drinking liquor with a prisoner.

Now, we know there are some service members out there who will read that latter charge and get excited about the idea of drinking beer or wine with their buddy prisoner. Unfortunately for you, the UCMJ later clarifies that “unlawfully drank” means that the accused drank alcohol of any sort with the prisoner.

The reality is that the military is a smaller community than most imagine on any given base or ship and it is not unreasonable to find oneself held in custody by one of your buddies. It doesn’t happen all the time because, let’s be honest, MPs don’t exactly make the most friends on base, but it does happen. These are serious charges and all but the drinking charge can bring an abrupt and tragic end to your military career.

What Specific Charges Can Be Brought Against Me Under Article 96?

Article 96 of the UCMJ carries within it four specific charges, each with their own elements that the prosecution will have to prove in order to find you guilty. Remember, it is very common that these charges accompany other charges. So, beating even one of those charges could mean the difference between a life ruined and a career saved. With that much on the line, we’ll list each charge exactly as it is written in the UCMJ and show you the corresponding max punishment.

Releasing Prisoners Without Authority 

For a service member to be found guilty, the prosecution must satisfy the following two elements:

(1) That (state the name of the prisoner alleged to have been released) was a prisoner

(2) That (state the time and place alleged), the accused released (state the name of the prisoner alleged to have been released) without authority.

Note that the UCMJ defines “release” as referring to the removal of restraint by the custodian, rather than by the prisoner, under circumstances which demonstrate to the prisoner that (he) (she) is no longer in legal (confinement) (custody).

Maximum Punishment: Dishonorable discharge, total forfeiture of all pay and allowances, 2 years confinement and reduction in rank to E-1.

Allowing A Prisoner To Escape Through Neglect

For a service member to be found guilty, the prosecution must satisfy the following four elements:

(1) That (state the name of the prisoner alleged to have escaped) was a prisoner;

(2) That (state the name of the prisoner alleged) escaped;

(3) That (state the time and place alleged), the accused allowed (state the name of the prisoner alleged to have escaped) to escape by not taking such care to prevent the escape as a reasonably careful person, acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; and

(4) That the escape was the proximate result of the accused’s neglect.

Note that the UCMJ defines “proximate result” as a direct result of the accused’s neglect, and not the result of an unforeseeable cause not involving the accused.

Maximum Punishment: Bad conduct discharge, total forfeiture of all pay and allowances, 2 years confinement and reduction in rank to E-1.

Allowing A Prisoner To Escape Through Design 

For a service member to be found guilty, the prosecution must satisfy the following four elements:

(1) That (state the name of the prisoner alleged to have escaped) was a prisoner;

(2) That the design of the accused was to allow the escape of (state the name of the prisoner alleged); and

(3) That (state the time and place alleged), (state the name of the prisoner alleged) escaped as a result of the carrying out of the design of the accused.

Note that the UCMJ defines “through design” as meaning that the accused intended for the prisoner to escape. Such intent may be inferred from conduct so wantonly devoid of care that the only reasonable inference which may be drawn is that the escape was contemplated as a probable result.

Maximum Punishment: Dishonorable discharge, total forfeiture of all pay and allowances, 5 years confinement and reduction in rank to E-1.

Drinking Liquor With Prisoner

For a service member to be found guilty, the prosecution must satisfy the following two elements:

(1) That (state the name of the prisoner) was a prisoner; and

(2) That (state the time and place alleged) the accused unlawfully drank (an) alcoholic beverage(s) with (state the name of the prisoner).

Maximum Punishment: 2/3 forfeiture of pay for 1 year, 1 year confinement, and reduction in rank to E-1.

View More U.C.M.J Articles

It is a common theme you will hear from us in that if you are facing charges under the UCMJ, then you must get ready for a fight. If you don’t fight back, the military justice system will make an example out of you, just for the purpose of scaring others into compliance. You can never be certain that you will avoid the maximum punishment for that reason. When clients call us for a free consultation, we’ll tell them exactly what they are facing and shoot them straight. Here’s a little bit of that straight talk now.

If you are a terminal Lance Corporal who just wanted to get hammered with your boy in custody one last time, you may not care about the punishment. If that means they found you and your buddy spooning the next morning with a couple of empty bottles of Jack Daniels around you, then maybe they got you. To you, that was totally worth it and it didn’t even bother you that your buddy insisted on being the big spoon.

If that’s you, then maybe you take your punishment and exit the military with an epic story. If that is what you are facing, then we’ll tell you that up front. We exist for the singular purpose of making sure the military justice system doesn’t screw over good men and women. So, if you were not drinking with the prisoner and the boot LT just mistook your Kool-Aid for one of those fruity drinks he likes to down at the O-Club, then you are going to have to fight for your career.

How To Fight Back Against Article 96 Charges?

The answer is right there in the question. Namely, you fight and you fight like hell. The prosecution wants to act like you intentionally snuck Sean Connery out of Alcatraz when in reality, the escapee was just a badass. They are going to paint your entire military career as leading up to this one treasonous moment, but we will not let them. This is true if you are completely innocent and it’s true if you fell asleep and let the guy get away. Either way, you are going to have to fight to preserve your career.

We’ll conduct our own investigation and if the prosecution wants to put a four star General on the stands to testify that he smelled alcohol, we’ll tear his testimony to shreds. We put together a defense so aggressive, it’s almost a sin not to call it an offense. We are relentless at trial and prosecutors know from day one that they have a fight on their hands. That’s the key to victory because they never actually want a fight.

If you are facing charges under Article 96, give us a call and we’ll give you a free consultation. Hell, even if you were the Marine caught spooning with his buddy in custody, give us a call anyway because we want to hear the story. This is your career and this is your life so you need to hire an expert attorney who will give the prosecution the fight of their life. Please don’t assume you will get off easy as the military justice system has to make an example out of someone. If you seem like an easy target they will make that example out of you. Reach and get us into the fight and we’ll let them make that example out of the next guy.

Facing an Allegation?
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Timothy James Bilecki

Military law attorney

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