UCMJ ARTICLE 99: MISBEHAVIOR BEFORE THE ENEMY

Bilecki Law Group defends service members from charges of Misbehavior Before the Enemy under Article 99 of the UCMJ

What Is Article 99 Of The UCMJ?

Misbehavior before the enemy under Article 99 of the UCMJ occurs when a service member who is in the presence of the enemy conducts a range of shameful acts ranging from running away to failing to provide relief and assistance to those engaged in combat with the enemy.

To be specific, Article 99 covers 9 specific offenses that can be charged under misbehavior before the enemy and exists to maintain military order and discipline in the face of combat. For those who have heard the snap and crack of a bullet fly overhead in your direction, you need not be told that the pucker factor is a high 10 in those moments.

Self-preservation would lead you to run in the opposite direction, but your call and oath requires you to advance in the direction of enemy fire and close with and destroy the enemy. To do anything else is to violate the sacred tradition that when the bullets start flying, you fight for the Marine to your left or right, and little else.
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How Serious Are Charges Under Article 99?

Charges and convictions under Article 99 of the UCMJ don’t come along very often, but they do happen. As a result, it might be more accurate to say that the Bilecki Law Group defends service members against misapplication of Article 99. Just because the military justice system has charged you with it, doesn’t mean that Article 99 misbehavior before the enemy charges were warranted.

When most service members think about misbehavior before the enemy, they envision a scene from Hollywood’s Saving Private Ryan. The young admin clerk, PFC Oppum is ascending a stairwell while his buddy is engaged in a knife fight with a German soldier. Oppum knows the struggle is taking place and instead of rendering aid and assistance, he sits there and cries in the stairwell while his buddy is knifed to death. There are few characters that veterans despise more than PFC Oppum.

soldier saluting the US Flag

As such, when the military justice system is charging you under Article 99, they are attempting to associate you with the worst conduct in military history. They are trying to shame you into admitting guilt on lesser charges, but rarely, are they actually convinced that they have a rock solid case under Article 99. Article 99 charges can bring the death penalty and they can use that to their advantage.

What Specific Charges Fall Under Article 99 Of The UCMJ?

As mentioned, there are 9 specific charges one can face under Article 99 and they are designed to cover just about any action that can be considered dishonorable before the enemy. They do not take into account the fog of war that can take place or the human emotions that can derail the best intentions of any man or woman. They are objective charges to cover subjection actions and intent. As such, misapplication is not only possible, but likely. So, let’s cover the 9 elements that can lead to charges under Article 99.

Running Away

Running away occurs under Article 99 when a service member was (before) (in the presence of) the enemy; then misbehaved by running away to avoid actual or impending combat with the enemy

Abandonment, Surrender, or Delivering Up of Command

This occurs when a service member was charged by (orders) or (circumstances) with the duty to defend a certain (command) (unit) (place) (ship) (military property) who then shamefully (abandoned) (surrendered or delivered up) that (command) (unit) (place) (ship) (military property); and that the act took place before or in the presence of the enemy.

Endangering Safety Of Command

This violation of the UCMJ takes place under Article 99 when a service member had the duty to defend a certain (command) (unit) (ship) (military property) and that they subsequently committed an act or failed to act in a manner that amounted to negligence, disobedience, or intentional misconduct. It also requires that the act or failure to act took place before or in the presence of the enemy that endangered safety.

Casting Away Arms Or Ammunition

This violation occurs when the accused was before or in the presence of the enemy and that they then cast away (his) (her) (rifle) (ammunition) or other specified arms.

Cowardly Conduct

The accused is reported to have committed an act of cowardice that took place before or in the presence of the enemy that was the result of fear. Conduct is “cowardly” only if it amounts to misbehavior which was motivated by fear. A mere display of apprehension is not sufficient.

Quitting Place Of Duty To Plunder Or Pillage

This charge of misbehavior before the enemy takes place when an alarm was caused in a certain (command) (unit) (place) under control of the armed forces and that the accused caused the alarm without any reasonable or sufficient justification or excuse; and that this act occurred before or in the presence of the enemy. “Alarm” means any excitement, commotion, or apprehension of danger.

Causing False Alarm

This charge of misbehavior before the enemy takes place when an alarm was caused in a certain (command) (unit) (place) under control of the armed forces and that the accused caused the alarm without any reasonable or sufficient justification or excuse; and that this act occurred before or in the presence of the enemy. “Alarm” means any excitement, commotion, or apprehension of danger.

Willful Failure To Do Utmost

This action occurs when a service member was serving before or in the presence of the enemy and had a duty to (encounter) (engage) (capture) (destroy) certain enemy (troops) (combatants) (vessels) (aircraft) or other and willfully failed to do (his) (her) utmost to perform this duty.

Failure To Afford Relief

Failure to afford relief takes place under Article 99 when certain (troops) (combatants) (vessels) or (aircraft) of the armed forces of the United States or an ally of the United States were engaged in battle and required relief and assistance; that the accused failed to render that relief and assistance while before or in the presence of the enemy.

To sum it up, the military justice system has broad abilities to charge you with any act they deemed inappropriate in the presence of the enemy. Nevermind that such charges may come from a command that hasn’t so much as stepped outside the wire once or heard the snap and crack of a bullet fly overhead, if they think you have misbehaved, they can charge you.

A Modern Example Of Misbehavior Before the Enemy Under Article 99 UCMJ

Whereas charges of misbehavior before the enemy draws its roots from the earliest traditions of military justice, there is a modern example we can draw upon for lessons learned. On the evening of June 30, 2009, Army PFC Bowe Bergdahl made a decision that would forever change his life. While serving with 1st Battalion of the 501st Infantry Regiment in Afghanistan, Bergdahl was reported missing by his fellow Soldiers. While there were initial reports that he had been abducted while using a latrine, the evidence quickly began to mount that Bergdahl had voluntarily walked off his post and headed into the Afghan countryside.

Regardless of his motivations, the fact that he was missing was enough to prompt a massive search and rescue operation. Leaflets were dropped in the surrounding countryside and frequent patrols were sent out in search of the wayward PFC. It’s reported that at least six Soldiers from his battalion were killed during his search with many more wounded. In July of 2009, the first video came out showing Bergdahl in custody of the Taliban.

This would be the beginning of a 5 year journey through what we could only assume was hell on Earth for the man. He was tortured, raped, and kept in complete isolation for extended periods of time. He was frequently used in propaganda videos by the Taliban and it was Bergdahl that became the leverage that forced the United States to release 5 high-profile Taliban leaders from Guantanamo Bay in a prisoner exchange. On May 31, 2014, Bergdahl was released from captivity as a result of that exchange and would spend the next two months in mental and physical recovery.

Now, Bergdahl wouldn’t find much sympathy from his fellow Soldiers as it was common knowledge what his decision to walk away from his post cost this country. In fact, still today we wouldn’t recommend that Bergdahl show up to any Army reunions or even his local Applebee’s on Veterans Day for some free chicken strips. It was only a matter of time before the military justice system would come looking for Bergdahl and one of the rare cases where his fellow Soldiers were pleading with the military justice system to take everything from him.

By March of 2015, Bergdahl was charged with one count of “desertion with intent to shirk important or hazardous duty” and as it pertains to this writing, “misbehavior before the enemy by endangering the safety of a command under Article 99. He would eventually be found guilty and sentenced to be dishonorably discharged, reduced in rank, fined $1,000 per month for 10 months. He avoided prison time, which was likely only a result of the military justice system believing that 5 years of Taliban captivity was enough.

How To Fight And Win Charges Under Article 99 UCMJ

As with any article of the UCMJ, if they can charge you with it, then you can fight it. Now, as to how you beat charges of misbehavior before the enemy, the first step would be not to be a Soldier named Bowe Bergdahl. Don’t get fellow Soldiers in your unit killed while trying to recover you for doing something stupid and don’t become the leverage that forces this country to release 5 high-profile Taliban leaders. Which, by the way, 4 of those leaders now have senior positions within the Taliban government now ruling Afghanistan. Bowe Berdahl displayed misbehavior before the enemy in every classical sense and keeping him out of prison for the rest of his life or receiving the death sentence was about all he could have hoped for.

As for the rest of you facing charges of misbehavior before the enemy, there is always more to the story and we make sure the full story gets told. There are often many witnesses in such cases and not every witness is going to see the story the same way. If you let the government cherry pick the witnesses who see it the same way they do, you are screwed. We’re going to do our investigative work and find those that can understand your decision. The fog of war can cloud the judgement of even veteran Soldiers and some prosecutors who never stepped outside the wire don’t get to dictate what is appropriate behavior

Most other cases involving Article 99 are not as clear cut as the Bergdahl case. In fact, it is likely that the prosecution knows they can’t prove misbehavior and they are just trying to scare you into pleading guilty to lesser charges. That’s why you need a legal defense that doesn’t scare easily and doesn’t back down. Look, if they’ve brought up Article 99, they are looking to destroy you, plain and simple. You cannot coexist with a military justice system that is out to destroy you. You must fight back and show them that you are no easy target. Reach out to us and get us into that fight. About the only thing Bergdahl did right was hire a civilian lawyer, because you can be certain that your average JAG defense attorney was just as pissed at Bergdahl as the average Soldier in his unit. You might be reading this page for fun or education and if so, you got what you came for and you are done. If you are actually facing these very serious charges, you need to give us a call because the military justice system is about to bear down upon you with everything they have. As long as your name isn’t Bowe Bergdahl, we’ll pick up the phone and we’ll get into the fight on your behalf. 

Bilecki Law Group are court-martial attorneys who will help you fight back against charges under Article 99: Misbehavior Before the Enemy

Don’t just plead guilty… Fight Back !

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