N.Y. Comp. Codes R. & Regs. tit. 9 § 518.1

Current through Register Vol. 46, No. 25, June 18, 2024

Section 518.1 - Introduction

Subdivisions (a) and (b) of this section discuss the two articles of the code that are located in the punitive article part of the code, but which are not punitive as such: ML, 130.73, principals; and ML, 130.75, lesser included offenses. N.Y.R.C.M. 307 prescribes rules for preferral of charges. The discussion under that rule explains how to allege violations under the code using the format of charge and specification. Beginning with subdivision (c) of this section, the punitive articles of the code are discussed using the following sequence:

Text of the article

Elements of the offense or offenses

Explanation

Lesser included offenses

Sample specifications

The maximum punishment for each offense under the code is that which is the jurisdictional limit of the court-martial before which the case is being heard (see N.Y.R.C.M. 1002).

(a)Principals.

[ML, 130.73]

(1) Text.

"Any person subject to this code who:

(1) commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this code; is a principal."

(2) Explanation.

(i) Purpose. 130.73, ML does not define an offense. Its purpose is to make clear that a person need not personally perform the acts necessary to constitute an offense to be guilty of it. A person who aids, abets, counsels, commands, or procures the commission of an offense, or who causes act to be done which, if done by that person directly, would be an offense if equally guilty of the offense as one who commits it directly, and may be punished to the same extent. ML, 130.73 eliminates the common law distinctions between principal in the first degree ("perpetrator"); principal in the second degree (one who aids, counsels, commands, or encourages the commission of an offense and who is present at the scene of the crime - commonly known as an "aider and abettor"); and accessory before the fact (one who aids, counsels, commands, or encourages the commission of an offense and who is not present at the scene of the crime). All of these are now "principals."

(ii) Who may be liable for an offense.

(a) Perpetrator. A perpetrator is one who actually commits the offense, either by the perpetrator's own hand, or by causing an offense to be committed by knowingly or intentionally inducing or setting in motion acts by an animate or inanimate agency or instrumentality which result in the commission of an offense. For example, a person who knowingly conceals contraband drugs in an automobile, and then induces another person, who is unaware and has no reason to know of the presence of drugs, to drive the automobile onto a military installation, is, although not present in the automobile, guilty of wrongful introduction of drugs onto a military installation. (On these facts, the driver would be guilty of no crime.) Similarly, if, upon orders of a superior, a soldier shot a person who appeared to the soldier to be an enemy, but was known to the superior as a friend, the superior would be guilty of murder (but the soldier would be guilty of no offense).

(b) Other parties. If one is not a perpetrator, to be guilty of an offense committed by the perpetrator, the person must:

(1) assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command another in the commission of the offense; and

(2) share in the criminal purpose or design.

One who, without knowledge of the criminal venture or plan, unwittingly encourages or renders assistance to another in the commission of an offense is not guilty of a crime. See the parentheticals in the examples in clause (a) of this subparagraph. In some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person (for example, a security guard) has a duty to interfere in the commission of an offense, but does not interfere, that person is a party to the crime if such noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator.

(iii) Presence.

(a) Not necessary. Presence at the scene of the crime is not necessary to make one a party to the crime and liable as a principal. For example, one who, knowing that a person intends to shoot another person and intending that such an assault be carried out, provides the person with a pistol, is guilty of assault when the offense is committed, even though not present at the scene.

(b) Not sufficient. Mere presence at the scene of a crime does not make one a principal unless the requirements of clauses (a) or (b) of this subparagraph have been met.

(iv) Parties whose intent differs from the perpetrator's. When an offense charged requires proof of a specific intent or particular state of mind as an element, the evidence must prove that the accused had that intent or state of mind, whether the accused is charged as a perpetrator or and "other party" to the crime. It is possible for a party to have a state of mind more or less culpable than the perpetrator of the offense. In such a case, the party may be guilty of a more or less serious offense than that committed by the perpetrator. For example, when a homicide is committed, the perpetrator may act in the heat of sudden passion caused by adequate provocation and be guilty of manslaughter, while the party who, without such passion, hands the perpetrator a weapon and encourages the perpetrator to kill the victim, would be guilty of murder. On the other hand, if a party assists a perpetrator in an assault on a person who, known only to the perpetrator, is an officer, the party would be guilty only of assault, while the perpetrator would be guilty of assault on an officer.

(v) Responsibility for other crimes. A principal may be convicted of crimes committed by another principal if such crimes are likely to result as a natural and probable consequence of the criminal venture or design. For example, the accused who is a party to a burglary is guilty as a principal not only of the offense of burglary, but also, if the perpetrator kills an occupant in the course of the burglary, of murder. (See also subdivision [e] of this section concerning liability for offenses committed by co-conspirators.)

(vi) Principals independently liable. One may be a principal, even if the perpetrator is not identified or prosecuted, or is acquitted.

(vii) Withdrawal. A person may withdraw from a common venture or design and avoid liability for any offenses committed after the withdrawal. To be effective, the withdrawal must meet the following requirements:

(a) it must occur before the offense is committed;

(b) the assistance, encouragement, advice, instigation, counsel, command, or procurement given by the person must be effectively countermanded or negated; and

(c) the withdrawal must be clearly communicated to the would-be perpetrators or to appropriate law enforcement authorities in time for the perpetrators to abandon the plan or for law enforcement authorities to prevent the offense.

(b)Conviction of lesser included offenses.

[ML, 130.75]

(1) Text.

"An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein."

(2) Explanation.

(i) In general. A lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged. This requirement of notice may be met when:

(a) all of the elements of the lesser offense are included in the greater offense, and the common elements are identical (for example, larceny as a lesser included offense of robbery);

(b) all of the elements of the lesser offense are included in the greater offense, but one or more elements is legally less serious; or

(c) all of the elements of the lesser offense are included and necessary parts of the greater offense, but the mental element legally less serious (for example, absence without leave is a lesser included offense of desertion).

The notice requirement may also be met, depending on the allegations in the specification, even though an included offense requires proof of an element not required in the offense charged.

(ii) Multiple lesser included offenses. When the offense charged is a compound offense comprising two or more included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged.

(iii) Findings of guilty to a lesser included offense. A court-martial may find an accused not guilty of the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, if necessary, substitute language appropriate of the lesser included offense. If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a violation of the specific punitive article violated and not a violation of ML, 130.75.

(iv) Specific lesser included offenses. Specific lesser included offenses, if any, are listed for each offense discussed in this Part, but the lists are not all-inclusive.

(c)Accessory after the fact.

[ML, 130.74]

(1) Text.

"Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct."

(2) Elements:

(i) that an offense punishable by the code was committed by a certain person;

(ii) that the accused knew that this person had committed such offense;

(iii) that thereafter the accused received, comforted, or assisted the offender; and

(iv) that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.

(3) Explanation.

(i) In general. The assistance given a principal by an accessory after the fact is not limited to assistance designed to effect the escape or concealment of the principal, but also includes acts performed to conceal the commission of the offense by the principal (for example, by concealing evidence of the offense).

(ii) Failure to report offense. The mere failure to report a known offense will not make one an accessory after the fact. Such failure may violate a general order or regulation, however, and thus constitute an offense under ML, 130.88 (see subdivision (p) of this section). If the offense involved is a serious offense, failure to report it may constitute the offense of misprision of a serious offense, under ML, 130.115. (See paragraph 95.)

(iii) Offense punishable by the code. The term offense punishable by this code in the text of the article means any offense described in the code.

(iv) Status of principal. The principal who committed the offense in question need not be subject to the code, but the offense committed must be punishable by the code.

(v) Conviction of acquittal of principal. The prosecution must prove that a principal committed the offense to which the accused is allegedly an accessory after the fact. However, evidence of the conviction or acquittal of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. Furthermore, an accused may be convicted as an accessory after the fact despite the acquittal in a separate trial of the principal whom the accused allegedly comforted, received, or assisted.

(vi) Accessory after the fact not a lesser included offense. The offense of being an accessory after the fact is not a lesser included offense of the primary offense.

(vii) Actual knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______(personal jurisdiction data), knowing that (at/on board - location), on or about ______19_, ______had committed an offense punishable by the New York Code of Military Justice, to wit: ______, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 _, in order to (hinder) (prevent) the (apprehension) (trial) (punishment) of the said ______, (receive) (comfort) (assist) the said______, by______.

(d)Attempts.

[ ML, 130.76]

(1) Text.

(a)" An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending but failing to effect its commission, is an attempt to commit that offense.

(b) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court martial may direct, unless otherwise specifically prescribed.

(c) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated."

(2) Elements:

(i) that the accused did a certain overt act;

(ii) that the act was done with the specific intent to commit a certain offense under the code;

(iii) that the act amounted to more than mere preparation; and

(iv) that the act apparently tended to effect the commission of the intended offense.

(3) Explanation.

(i) In general. To constitute an attempt there must be a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.

(ii) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

(iii) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reached into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

(iv) Solicitation. Soliciting another to commit an offense does not constitute an attempt. See subdivision (f) of this section for a discussion of ML, 130.78, solicitation.

(v) Attempts not under ML, 130.76. While most attempts should be charged under article 80, the following attempts are specifically addressed by some other article, and should be charged accordingly:

(a) ML, 130.81 - desertion;

(b) ML, 130.90 - mutiny or sedition;

(c) ML, 130.96 - subordinate compelling;

(d) ML, 130.100 - aiding the enemy.

(vi) Regulations. An attempt to commit conduct which would violate a lawful general order or regulation under 130.88, ML (see subdivision [p] of this section) should be charged under ML, 130.76. It is not necessary in such cases to prove that the accused intended to violate the order or regulation, but it must be proved that the accused intended to commit the prohibited conduct.

(4) Lesser included offenses.

If the accused is charged with an attempt under ML, 130.76, and the offense attempted has a lesser included offense, then the offense of attempting to commit the lesser included offense would ordinarily be a lesser included offense to the charge of attempt. For example, if an accused was charged with attempted larceny, the offense of attempted wrongful appropriation would be a lesser included offense, although it, like the attempted larceny, would be a violation of ML, 130.76.

(5) Sample specification.

In that______ (personal jurisdiction data) did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 _, attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element).

(e)Conspiracy.

[ML, 130.77]

(1) Text.

"Any person subject to this code who conspires with any other person or persons to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct."

(2) Elements:

(i) that the accused entered into an agreement with one or more persons to commit an offense under the code; and

(ii) that, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.

(3) Explanation.

(i) Co-conspirators. Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the criminal purpose need not be established. The accused must be subject to the code, but the other co-conspirators need not be. A person may be guilty of conspiracy although incapable of committing the intended offense. For example, a bedridden conspirator may knowingly furnish the car to be used in a robbery. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. However, the conspirator who joined an existing conspiracy can be convicted of this offense only if, at or after the time of joining the conspiracy, an overt act in furtherance of the object of the agreement is committed.

(ii) Agreement. The agreement in a conspiracy need not be in any particular form or manifested in any formal words. It is sufficient if the minds of the parties arrive at a common understanding to accomplish the object of the conspiracy, and this may be shown by the conduct of the parties. The agreement need not state the means by which the conspiracy is to be accomplished or what part each conspirator is to play.

(iii) Object of the agreement. The object of the agreement must, at least in part, involve the commission of one or more offenses under the code. An agreement to commit several offenses is ordinarily but a single conspiracy. Some offenses require two or more culpable actors acting in concert. There can be no conspiracy where the agreement exists only between the persons necessary to commit such an offense. Examples include dueling, bigamy, incest, adultery, and bribery.

(iv) Overt act.

(a) The overt act must be independent of the agreement to commit the offense; must take place at the time of or after the agreement; must be done by one or more of the conspirators, but not necessarily the accused; and must be done to effectuate the object of the agreement.

(b) The overt act need not be in itself criminal, but it must be a manifestation that the agreement is being executed. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. Any overt act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that the agreement is being executed.

(c) An overt act by one conspirator becomes the act of all without any new agreement specifically directed to that act and each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details of the execution of the conspiracy.

(v) Liability for offenses. Each conspirator is liable for all offenses committed pursuant to the conspiracy by any of the co-conspirators while the conspiracy continues and the person remains a party to it.

(vi) Withdrawal. A party to the conspiracy who abandons or withdraws from the agreement to commit the offense before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct which is wholly inconsistent with adherence to the unlawful agreement and which shows that the party has severed all connection with the conspiracy. A conspirator who effectively abandons or withdraws from the conspiracy after the performance of an overt act by one of the conspirators remains guilty or conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the abandonment or withdrawal. However, a person who has abandoned or withdrawn from the conspiracy is not liable for offenses committed thereafter by the remaining conspirators. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.

(vii) Factual impossibility. It is not a defense that the means adopted by the conspirators to achieve their object, if apparently adapted to that end, were actually not capable of success, or that the conspirators were not physically able to accomplish their intended object.

(viii) Conspiracy as a separate offense. A conspiracy to commit an offense is a separate and distinct offense from the offense which is the object of the conspiracy, and both the conspiracy and the consummated offense which was its object may be charged, tried, and punished. The commission of the intended offense may also constitute the overt act which is an element of the conspiracy to commit that offense.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on ______or about 19_, conspire with ______(and ______) to commit an offense under the New York Code of Military Justice, to wit: and in order to effect the object of the conspiracy the said ______, (and______) did ______.

(f)Solicitation.

[ML, 130.78]

(1) Text.

(a)" Any person subject to this code who solicits or advises another or others to desert in violation of section 130.81 or mutiny in violation of section 130.90 shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but if the offense solicited or advised is not committed or attempted, he shall be punished as a court-martial may direct.

(b) Any person subject to this code who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of 130.95 or sedition in violation of section 130.90 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but if the offense solicited or advised is not committed, he shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused solicited or advised a certain person or persons to commit any of the four offenses named in ML, 130.78; and

(ii) that the accused did so with the intent that the offense actually be committed.

Note:

[If the offense solicited or advised was attempted or committed, add the following element.]

(iii) that the offense solicited or advised was (committed) (attempted) as the proximate result of the solicitation.

(3) Explanation.

(i) Instantaneous offense. The offense is complete when a solicitation is made or advice is given with the specific wrongful intent to influence another or others to commit any of the four offenses named in ML, 130.78. It is not necessary that the person or persons solicited or advised agree to act upon the solicitation or advice.

(ii) Form of solicitation. Solicitation may be by means other than word of mouth or writing. Any act or conduct which reasonably may be construed as a serious request or advice to commit one of the four offenses named in ML, 130.78 may constitute solicitation. It is not necessary that the accused act alone in the solicitation or in the advising; the accused may act through other persons in committing this offense.

(iii) Solicitations in violation of ML, 130.115. Solicitation to commit offenses other than violations of the four offense named in ML, 130.78 may be charged as violations of ML, 130.115. (See paragraph 105.) However, some offenses require, as an element, of proof, some act of solicitation by the accused. These offenses are separate and distinct from solicitations under ML, 130.78 and ML, 130.115. When the accused's act of solicitation constitutes, by itself, a separate offense, the accused should be charged with that separate, distinct offense in violation of ML, 130.115.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) For soliciting desertion (ML, 130.81) or mutiny (ML, 130.90).

In that______(personal jurisdiction data), did, (at/on board - location), on or about ______ 19 _, (a time of war) by (here state the manner and ford of solicitation or advice), (solicit) ______(advise) (and ______) to (desert in violation of ML, 130.81) (mutiny in violation of ML, 130.90). [Note: If the offense solicited or advised is attempted or committed, add the following at the end of the specification:] and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about ______19__, (at/on board - location), committed by ______ (and ______).

(ii) For soliciting an act of misbehavior before the enemy (ML, 130.95) or sedition (ML, 130.90).

In that ______ (personal jurisdiction data) did, (at/on board - location), on or about ______19 __, (a time of war) by (here state the manner and form of solicitation or advice), (solicit), (advise), ______ (and ______) to commit (an act of misbehavior before the enemy in violation of ML, 130.95) (sedition in violation of ML, 130.90). [Note: If the offense solicited or advised is committed, add the following at the end of the specification:] and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about ______19 __, (at/on board - location), committed by (and).

(g)Fraudulent enlistment, appointment, or separation.

[ML, 130.79]

(1) Text.

"Any person who- (1) procures his own enlistment or appointment in the organized militia by means of knowingly false representations or deliberate concealment as to his qualifications for such enlistment or appointment and receives pay or allowances thereunder; or (2) procures his own separation from the organized militia by knowingly false representations or deliberate concealment as to his eligibility for that separation; shall be punished as a court-martial may direct."

(2) Elements.

(i) Fraudulent enlistment or appointment.

(a) that the accused was enlisted or appointed in a force of the organized militia;

(b) that the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment;

(c) that the accused's enlistment or appointment was obtained or procured by that knowingly false representation or deliberate concealment; and

(d) that under this enlistment or appointment the accused received pay or allowances or both.

(ii) Fraudulent separation:

(a) that the accused was separated from a force of the organized militia;

(b) that the accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused's eligibility for separation; and

(c) that the accused's separation was obtained or procured by that knowingly false representation or deliberate concealment.

(3) Explanation.

(i) In general. A fraudulent enlistment, appointment, or separation is one procured by either a knowingly false representation as to any of the qualifications or disqualifications prescribed by law, regulation, or orders for the specific enlistment, appointment, or separation, or deliberate concealment as to any of those disqualifications. Matters that may be material to an enlistment, appointment, or separation include any information used by the recruiting, appointing, or separating officer in reaching a decision as to enlistment, appointment, or separation in any particular case, and any information that normally would have been so considered had it been provided to that officer.

(ii) Receipt of pay or allowances. A member of a force of the organized militia who enlists or accepts an appointment without being regularly separated from a prior enlistment or appointment should be charged under ML, 130.79 only if that member has received pay or allowances under the fraudulent enlistment or appointment. Acceptance of food, clothing, shelter, or transportation from the government constitutes receipt of allowances. However, whatever is furnished the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment is not considered an allowance. The receipt of pay or allowances may be proved by circumstantial evidence.

(iii) One offense. One who procures one's own enlistment, appointment, or separation by several misrepresentations or concealments as to qualifications for the one enlistment, appointment, or separation so procured, commits only one offense under ML, 130.79.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) For fraudulent enlistment or appointment.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19__, by means of [knowingly false representations that (here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment which were concealed)], procure himself/herself to be (enlisted as a ______) (appointed as a ______) in the (here state the force of the organized militia in which the accused procured the enlistment or appointment), and did thereafter, (at/on board - location), receive (pay) (allowances) (pay and allowances) under the (enlistment) (appointment) so procured.

(ii) For fraudulent separation.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19__, by means of [knowingly false representations that (here state the fact or facts material to eligibility for separation which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts concealed which made the accused ineligible for separation)], procure himself/herself to be separated from the (here state the force of the organized militia from which the accused procured his/her separation).

(h)Effecting unlawful enlistment, appointment, or separation.

[ML, 130.80]

(1) Text.

"Any person subject to this code who effects an enlistment or appointment in or a separation from the organized militia of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused effected the enlistment, appointment, or separation of the person named;

(ii) that this person was ineligible for this enlistment, appointment, or separation because it was prohibited by law, regulation, or order; and

(iii) that the accused knew of the ineligibility at the time of the enlistment, appointment, or separation.

(3) Explanation.

It must be proved that the enlistment, appointment, or separation was prohibited by law, regulation, or order when effected and that the accused then knew that the person enlisted, appointed, or separated was ineligible for the enlistment, appointment, or separation.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, effect [the (enlistment) (appointment) of ______ as a ______ in (here state the force of the organized militia in which the person was enlisted or appointed)] [the separation of ______ from (here state the force of the organized militia from which the person was separated)], then well knowing that the said ______ was ineligible for such (enlistment) (appointment) (separation) because (here state facts whereby the enlistment, appointment, or separation was prohibited by law, regulation, or order).

(i)Desertion.

[ML, 130.81]

(1) Text:

(a)" Any member of the organized militia who:

(1) without proper authority goes or remains absent from his place of service, organization, or place of duty with intent to remain away therefrom permanently; or

(2) quits his unit or organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the forces of the organized militia enlists or accepts an appointment in the same or another one of the forces of the organized militia without fully disclosing the fact that he has not been so regularly separated;

(4) is guilty of desertion.

(b) Any officer of the organized militia who, having tendered his resignation and prior to due notice of the acceptance of same, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert shall be punished as a court-martial may direct."

(2) Elements.

(i) Desertion with intent to remain away permanently:

(a) that the accused absented himself or herself from his or her place of service, organization, or place of duty;

(b) that such absence was without authority;

(c) that the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and

(d) that the accused remained absent until the date alleged.

Note:

[If the absence was terminated by apprehension, add the following element.]

(e) that the accused's absence was terminated by apprehension.

(ii) Desertion with intent to avoid hazardous duty or to shirk important service:

(a) that the accused quit his or her unit, organization, or other place of duty;

(b) that the accused did so with the intent to avoid a certain duty or shirk a certain service;

(c) that the duty to be performed was hazardous or the service important;

(d) that the accused knew that he or she would be required for such duty or service; and

(e) that the accused remained absent until the date alleged.

(iii) Desertion before notice of acceptance of resignation:

(a) that the accused was a commissioned officer of a force of the organized militia, and had tendered his or her resignation;

(b) that before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties;

(c) that the accused did so with the intent to remain away permanently from his or her post or proper duties; and

(d) that the accused remained absent until the date alleged.

Note:

[If the absence was terminated by apprehension, add the following element.]

(e) that the accused's absence was terminated by apprehension.

(iv) Attempted desertion.

(a) that the accused did a certain overt act;

(b) that the act was done with the specific intent to desert;

(c) that the act amounted to more that mere preparation; and

(d) that the act apparently tended to effect the commission of the offense of desertion.

(3) Explanation.

(i) Desertion with intent to remain away permanently.

(a) In general. Desertion with intent to remain away permanently is complete when the person absents himself or herself without authority from his or her unit, organization, or place of duty, with the intent to remain away therefrom permanently. A prompt repentence and return, while material in extenuation, is no defense. It is not necessary that the person be absent entirely from military jurisdiction and control.

(b) Absence without authority-inception, duration, termination (see paragraph [j][3] of this section).

(c) Intent to remain away permanently.

(1) The intent to remain away permanently from the unit, organization, or place of duty may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.

(2) The accused must have intended to remain away permanently from the unit, organization, or place of duty. When the accused had such an intent, it is not defense that the accused also intended to report to elsewhere, or to enlist or accept an appointment in the same or a different armed force.

(3) The intent to remain away permanently may be established by circumstantial evidence. Among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently or that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused's station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused's unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another force of the organized militia without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the State. On the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only.

(4) Entries on documents, such as personnel accountability records, which administratively refer to an accused as a "deserter" are not evidence of intent to desert.

(5) Proof of, or a plea of guilty to, and unauthorized absence, even of extended duration, does not, without more, prove guilt of desertation.

(d) Effect of enlistment or appointment in the same or a different force of the organized militia. ML, 130.81(a)(3) does not state a separate offense. Rather, it is a rule of evidence by which the prosecution may prove intent to remain away permanently. Proof of an enlistment or acceptance of an appointment in a service without disclosing a pre-existing duty status in the same or a different service provides the basis from which an inference of intent to permanently remain away from the earlier unit, organization, or place of duty may be drawn. Furthermore, if a person, without being regularly separated from one of the forces of the organized militia enlists or accepts an appointment in the same or another force, the person's presence in the military service under such an enlistment or appointment is not a return to military control and does not terminate any desertion or absence without authority from the earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If a person, while in desertion, enlists or accepts an appointment in the same or another force of the organized militia, and deserts while serving that enlistment or appointment, the person may be tried and convicted for each desertion.

(ii) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.

(a) Hazardous duty or important service. "Hazardous duty" or "important service" may include service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid of the civil power, in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice, maneuvers, and practice marches are not ordinarily "hazardous duty or important service." Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court-martial to decide.

(b)Quits in ML, 130.81 means "goes absent without authority."

(c) Actual knowledge. ML, 130.81(a)(2) requires proof that the accused actually knew of the hazardous duty or important service. Actual knowledge may be proved by circumstantial evidence.

(iii) Attempting to desert. Once the attempt is made, the fact that the person deserts, voluntarily or otherwise, does not cancel the offense. The offense is complete, for example, if the person, intending to desert, hides in an empty freight car on a military reservation, intending to escape by being taken away in the car. Entering the car with the intent to desert the overt act. For a more detailed discussion of attempts, see subdivision (d) of this section. For an explanation concerning intent to remain away permanently, see clause (i)(c) of this paragraph.

(iv) Prisoner with executed punitive discharge. A prisoner whose dismissal or dishonorable or bad-conduct discharge has been executed is not a "member of the organized militia" within the meaning of ML, 130.81 or ML, 130.82 although the prisoner may still be subject to the code.

(4) Lesser included offense (ML, 130.82 - absence without leave).

(5) Sample specifications.

(i) Desertion with intent to remain away permanently.

In that ______(personal jurisdiction data), did, on or about ______ 19 _, (a time of war) without authority and with intent to remain away therefrom permanently, absent himself/herself from his/her (place of service) (organization) (place of duty), to wit: ______, located at (______), and did remain so absent in desertion until (he/she was apprehended) on or about ______ 19 __.

(ii) Desertion with intent to avoid hazardous duty or shirk important service.

In that ______ (personal jurisdiction data), did, on or about ______19 _, (a time of war) with intent to (avoid hazardous duty) (shirk important service), namely: ______, quit his/her (unit) (organization) (place of duty), to wit: ______, located at (______), and did remain so absent in desertion until on or about ______19__.

(iii) Desertion prior to acceptance of resignation.

In that ______ (personal jurisdiction data) having tendered his/her resignation and prior to due notice of the acceptance of the same, did, on or about ______19, _, (a time of war) without leave and with intent to remain away therefrom permanently, quit his/her (post) (proper duties), to wit: ______, and did remain so absent in desertion until (he/she was apprehended) on or about ______ 19__.

(iv) Attempted desertion.

In that ______ (personal jurisdiction data), did (at/on board -location), on or about ______ 19 __, (a time of war) attempt to [absent himself/herself from his/her (unit) (organization) (place of duty) to wit: ______, without authority and with intent to remain away therefrom permanently] [quit his/her (unit) (organization) (place of duty), to wit: ______, located at ______, with intent to (avoid hazardous duty) (shirk important service) namely ______] [______].

(j)Absence without leave.

(1) Text.

"Any person subject to this code who, without proper authority:

(1) fails to go to his appointed place of duty at the time prescribed; or

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct."

(2) Elements.

(i) Failure to go to appointed place of duty:

(a) that a certain authority appointed a certain time and place of duty for the accused;

(b) that the accused knew of that time and place; and

(c) that the accused, without authority, failed to go to the appointed place of duty at the time prescribed.

(ii) Going from appointed place of duty:

(a) that a certain authority appointed a certain time and place of duty for the accused;

(b) that the accused knew of that time and place; and

(c) that the accused, without authority, went from the appointed place of duty after having reported at such place.

(iii) Absence from unit, organization, or place of duty:

(a) that the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;

(b) that the absence was without authority from anyone competent to give him or her leave; and

(c) that the absence was for a certain period of time.

Note:

[If the absence was terminated by apprehension, add the following element.]

(d) that the absence was terminated by apprehension.

(iv) Abandoning watch or guard:

(a) that the accused was a member of a guard, watch, or duty;

(b) that the accused absented himself or herself from his or her guard, watch, or duty section;

(c) that the absence of the accused was without authority; and

(d) that the accused intended to abandon his or her guard, watch, or duty section.

(v) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises:

(a) that the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;

(b) that the absence of the accused was without authority;

(c) that the absence was for a certain period of time;

(d) that the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and

(e) that the accused intended to avoid all or part of a period of maneuvers or field exercises.

(3) Explanation.

(i) In general. This article is designed to cover every case not elsewhere provided for in which any member of the organized militia is through the member's own fault not at the place where the member is required to be at a prescribed time. It is not necessary that the person be absent entirely from military jurisdiction and control. The first part of this Article-relating to the appointed place of duty-applies whether the place is appointed as a rendezvous for several or for one only.

(ii) Actual knowledge. The offenses of failure to go to and going from appointed place of duty require proof that the accused actually knew of the appointed time and place of duty. The offense of absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises requires proof that the accused actually knew that the absence would occur during a part of a period of maneuvers or field exercises. Actual knowledge may be proved by circumstantial evidence.

(iii) Intent. Specific intent is not an element of unauthorized absence. Specific intent is an element for certain aggravated unauthorized absences.

(iv) Aggravated forms of unauthorized absence. There are variations of unauthorized absence under ML, 130.82(3) which are more serious because of aggravating circumstances such as duration of the absence, a special type of duty from which the accused absents himself or herself, and a particular specific intent which accompanies the absence. These circumstances are not essential elements of a violation of ML, 130.82. They simply constitute special matters in aggravation. The following are aggravated unauthorized absences:

(a) Duration of the unauthorized absence.

(b) Unauthorized absence from a guard, watch, or duty (special type of duty).

(c) Unauthorized absence from guard, watch, or duty section with the intent to abandon it (special type of duty and specific intent).

(d) Unauthorized absence with the intent to avoid maneuvers or field exercises (special type of duty and specific intent).

(v) Control by civilian authorities. A member of the organized militia turned over to the civilian authorities upon request under ML, 130.14 (see N.Y.R.C.M. 106) is not absent without leave while held by them under that delivery. When a member of the organized militia, being absent with leave, or absent without leave, is not thereby changed, regardless how long held. The fact that a member of the organized militia is convicted by the civilian authorities, or adjudicated to be a juvenile offender, or the case is "diverted" out of the regular criminal process for a probationary period does not excuse any unauthorized absence, because the member's inability to return was the result of willful misconduct. If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member's own misconduct.

(vi) Inability to return. The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave.

(vii) Determining the unit or organization of an accused. A person undergoing transfer between activities is ordinarily considered to be attached to the activity to which ordered to report. A person on temporary additional duty continues as a member of the regularly assigned unit and if the person is absent from the temporary duty assignment, the person becomes absent without leave from both units, and may be charged with being absent without leave from either unit.

(viii) Duration. Unauthorized absence under ML, 130.82(3), is an instantaneous offense. It is complete at the instant an accused absents himself or herself without authority. Duration of the absence is a matter in aggravation for the purpose of increasing the maximum punishment authorized for the offense. Even if the duration of the absence is not over three days, it is ordinarily alleged in an ML, 130.82(3) specification. If the duration is not alleged or if alleged but not proved, an accused can be convicted of and punished for only one day of unauthorized absence.

(ix) Computation of duration. In computing the duration of an unauthorized absence, any one continuous period of absence found that totals not more than 24 hours is counted as one day; any such period that totals more than 24 hours and not more than 48 hours is counted as two days, and so on. The hours of departure and return on different dates are assumed to be the same if not alleged and proved. For example, if an accused is found guilty of unauthorized absence from 0600 hours, 4 April, to 1000 hours, 7 April of the same year (76 hours) the maximum punishment would be based on absence of four days. However, if the accused is found guilty simply of unauthorized absence from 4 April to 7 April, the maximum punishment would be based on an absence of three days.

(x) Termination-methods of return to military control.

(a) Surrender to military authority. A surrender occurs when a person presents himself or herself to any military authority, whether or not a member of the same armed force, notifies that authority of his or her unauthorized absence status, and submits or demonstrates a willingness to submit to military control. Such a surrender terminates the unauthorized absence.

(b) Apprehension by military authority. Apprehension by military authority of a known absentee terminates an unauthorized absence.

(c) Delivery to military authority. Delivery of a known absentee terminates an unauthorized absence.

(d) Apprehension by civilian authorities at the request of the military. When an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated.

(e) Apprehension by civilian authorities without prior military request. When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee's availability.

(xi) Findings of more than one absence under one specification. An accused may properly be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not misled. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Failing to go or leaving place of duty.

In that ______ (personal jurisdiction data), did (at/on board -location), on or about ______ 19 __, without authority, (fail to go at the time prescribed to) (go from) his/her appointed place of duty, to wit: (here set forth the appointed place of duty).

(ii) Absence from unit, organization, or place of duty.

In that ______(personal jurisdiction data), did (at/on board -location), on or about ______19 __, without authority, absent himself/herself from his/her (unit) (organization) (place of duty at which he/she was required to be), to wit: ______, located at ______, and did remain so absent until (he/she was apprehended) on or about______19__.

(iii) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.

In that ______(personal jurisdiction data), did, on or about ______19 __, without authority and with intent to avoid (maneuvers) (field exercises), absent himself/herself from his/her (unit) (organization) (place of duty at which he/she was required to be), to wit: ______located at (______), and did remain so absent until on or about ______19__.

(iv) Abandoning watch or guard.

In that ______ (personal jurisdiction data), being a member of the ______ (guard) (watch) (duty section), did, (at/on board-location), on or about ______19 __ without authority, go from his/her (guard) (watch) (duty section) with intent to abandon the same.

(k)Missing movement.

[ML, 130.83]

(1) Text.

"Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused was required in the course of duty to move with a ship, aircraft or unit;

(ii) that the accused knew of the prospective movement of the ship, aircraft or unit;

(iii) that the accused missed the movement of the ship, aircraft or unit; and

(iv) that the accused missed the movement through design or neglect.

(3) Explanation.

(i) Movement. "Movement" as used in ML, 130.83 includes a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and period of time. Whether a particular movement is substantial is a question to be determined by the court-martial considering all the circumstances. Changes which do not constitute a "movement" include practice marches of a short duration with a return to the point of departure, and minor changes in location of ships, aircraft, or units, as when a ship is shifted from one berth to another in the same shipyard or harbor or when a unit is moved from one barracks to another on the same post.

(ii) Mode of movement.

(a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or walking. The word "unit" is not limited to any specific technical category such as those listed in a table of organization and equipment, but also includes units which are created before the movement with the intention that they have organizational continuity upon arrival at their destination regardless of their technical designation, and units intended to be disbanded upon arrival at their destination.

(b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is essential to establish the offense of missing movement.

(iii)Design means on purpose, intentionally, or according to plan and requires specific intent to miss the movement.

(iv)Neglect means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some act without giving attention to its probable consequences in connection with the prospective movement, such as a departure from the vicinity of the prospective movement to such a distance as would make it likely that one could not return in time for the movement.

(v) Actual knowledge. In order to be guilty of the offense, the accused must have actually known of the prospective movement that was missed. Knowledge of the exact hour or even of the exact date of the scheduled movement is not required. It is sufficient if the approximate date was known by the accused as long as there is a casual connection between the conduct of the accused and the missing of the scheduled movement. Knowledge may be proved by circumstantial evidence.

(vi) Proof of absence. That the accused actually missed the movement may be proved by documentary evidence, as by a proper entry in a log or a morning report. This fact may also be proved by the testimony of personnel of the ship, aircraft, or unit (or by other evidence) that the movement occurred at a certain time, together with evidence that the accused was physically elsewhere at that time.

(4) Lesser included offenses.

(i) Design.

(a) ML, 130.83 - missing movement through neglect;

(b) ML, 130.82 - absence without authority;

(c) ML, 130.76 - attempts.

(ii) Neglect. ML, 130.82 - absence without authority.

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, through (neglect) (design) miss the movement of (Aircraft No. ______) (Flight ______) (the USS______) (Company A, 1st Battalion, 7th Infantry) (______) with which he/she was required in the course of duty to move.

(l)Contempt toward officials.

[ML, 130.84]

(1) Text.

"Any person subject to this code who uses contemptuous words against the President, Vice-President, Congress, Secretary of Defense, Secretary of a Military Department, Secretary of Transportation, the Governor or the Legislature shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused was a person subject to the code;

(ii) that the accused used certain words against an official or legislature named in the article;

(iii) that by an act of the accused these words came to the knowledge of a person other than the accused; and

(iv) that the words used were contemptuous, whether in themselves or by virtue of the circumstances under which they were used.

(3) Explanation.

The official or Legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in ML, 130.84, at the time of the offense. "Legislature" does not include its members individually. "Governor" does not include "Lieutenant Governor." It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation or the article. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this Article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, [use (orally and publicly) (______) the following words] against the [(President)] [(Governor) (Legislature) of the State of New York)], to wit " ______", or words to that effect.

(m) Disrespect towards superior officer.

[ML, 130.85]

(1) Text.

"Any person subject to this code who behaves with disrespect toward his superior officer shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused did or omitted certain acts or used certain language to or concerning a certain officer;

(ii) that such behavior or language was directed toward that officer;

(iii) that the officer toward whom the acts, omissions, or words were directed was the superior officer of the accused;

(iv) that the accused then knew that the officer toward whom the acts, omissions, or words were directed was the accused's superior officer; and

(v) that, under the circumstances, the behavior or language was disrespectful to that officer.

(3) Explanation.

(i) Superior officer (see ML, 130.1[3]).

(a) Accused and victim in same force of the organized militia. If the accused and the victim are in the same force of the organized militia, the victim is a "superior officer" of the accused when either superior in rank or command to the accused; however, the victim is not a "superior officer" or the accused if the victim is inferior in command, even though superior in rank.

(b) Accused and victim in different forces of the organized militia. If the accused and the victim are in different forces of the organized militia, the victim is a "superior officer" of the accused when the victim is an officer and superior in the chain of command over the accused or when the victim, not a medical officer or a chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse to the normal chain of command is prevented. The victim is not a "superior officer" the accused merely because the victim is superior in grade to the accused.

(c) Execution of office. It is not necessary that the "superior officer" be in the execution of office at the time of the disrespectful behavior.

(ii) Knowledge. If the accused did not know that the person against whom the acts or words were directed was the accused's superior officer, the accused may not be convicted of a violation of this Article. Knowledge may be proved by circumstantial evidence.

(iii) Disrespect. Disrespectful behavior is that which detracts from the respect due the authority and person of a superior officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute, or showing a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the presence of the superior officer.

(iv) Presence. It is not essential that the disrespectful behavior be in the presence of the superior, but ordinarily one should not be held accountable under this Article for what was said or done in a purely private conversation.

(v) Special defense-unprotected victim. A superior officer whose conduct in relation to the accused under all the circumstances; departs substantially from the required standards appropriate to that officer's rank or position under similar circumstances loses the protection of this Article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by ML, 130.85.

(4) Lesser included offenses.

(i) ML, 130.111 - provoking speeches or gestures;

(ii) ML, 130.76 - attempts.

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board -location), on or about ______ 19 __, behave himself/herself with disrespect toward ______, his/her superior officer, then known by the said ______ to be his/her superior officer by (saying to him/her "______," or words to that effect) (contemptuously turning from and leaving him/her while he/she, the said ______, was talking to him/her, the said ______) (______).

(n)Assaulting or willfully disobeying officer.

[ML, 130.86]

(1) Text.

"Any person subject to this code who- (1) strikes his superior officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or (2) willfully disobeys a lawful command of his superior officer; shall be punished as a court-martial may direct."

(2) Elements.

(i) Striking or assaulting superior officer.

(a) that the accused struck, drew, or lifted up a weapon against, or offered violence against, a certain officer;

(b) that the officer was the superior officer of the accused;

(c) that the accused then knew that the officer was the accused's superior officer; and

(d) that the superior officer was then in the execution of office.

(ii) Disobeying superior officer:

(a) that the accused received a lawful command from a certain officer;

(b) that this officer was the superior officer of the accused;

(c) that the accused then knew that this officer was the accused's superior officer; and

(d) that the accused willfully disobeyed the lawful command.

(3) Explanation.

(i) Striking or assaulting superior officer.

(a) Definitions.

(1)Superior officer. The definitions in clauses (m)(3)(1) ( a) and (b) of this section apply here and in subparagraph (ii) of this paragraph.

(2)Strikes means an intentional blow, and includes any offensive touching of the person of an officer, however slight.

(3) The phrase draws or lifts up any weapon against covers any simple assault committed in the manner stated. The drawing of any weapon in an aggressive manner or the raising or brandishing of the same in a threatening manner in the presence of and at the superior is the sort of act prescribed. The raising in a threatening manner of a firearm, whether or not loaded, of a club, or of anything by which a serious blow or injury could be given is included in "lifts up."

(4) The phrase offers any violence against includes any form of battery or of mere assault not embraced in the preceding more specific terms "strikes" and "draws or lifts up." If not executed, the violence must be physically attempted or menaced. A mere threatening in words is not an offering of violence in the sense of this Article.

(b) Execution of office. An officer is in the execution of office when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a superior, or military usage. In general, any striking or use of violence against any superior officer by a person over whom it is the duty of that officer to maintain discipline at the time, would be striking or using violence against the officer in the execution of office. The commanding officer on board a ship or the commanding officer of a unit in the field is generally considered to be on duty at all times.

(c) Knowledge. If the accused did not know the officer was the accused's superior officer, the accused may not be convicted of this offense. Knowledge may be proved by circumstantial evidence.

(d) Defenses. In a prosecution for striking or assaulting a superior officer in violation of this Article, it is a defense that the accused acted in the proper discharge of some duty, or that the victim behaved in a manner toward the accused such as to lose the protection of this Article (see subparagraph [m][3][v] of this section). For example, if the victim initiated an unlawful attack on the accused, this would deprive the victim of the protection of this Article.

(ii) Disobeying superior officer.

(a) Lawfulness of the order.

(1) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.

(2) Authority of issuing officer. The officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service.

(3) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this Article.

(4) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order.

(b) Personal nature of the order. The order must be directed specifically to the subordinate. Violations of regulations, standing orders or directives, or failure to perform previously established duties are not punishable under this Article, but may violate ML, 130.88.

(c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused.

(d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to "obey the law" or to perform one's military duty does not constitute an order under this Article.

(e) Knowledge. The accused must have actual knowledge of the order and of the fact that the person issuing the order was the accused's superior officer. Actual knowledge may be proved by circumstantial evidence.

(f) Nature of the disobedience. "Willfull disobedience" is an intentional defiance of authority. Failure to comply through heedlessness, remissness, or forgetfulness is not a violation of this Article but may violate ML, 130.88.

(g) Time for compliance. When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. If an order does not indicate the time within which it is to be complied with, either expressly or by implication, then a reasonable delay in compliance does not violate this Article. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.

(4) Lesser included offenses.

(i) Striking superior officer in execution of office:

(a) ML, 130.86 - drawing or lifting up a weapon or offering violence to superior officer in execution of office:

(b) ML, 130.76 - attempts.

(ii) Drawing or lifting up a weapon or offering violence to superior officer in execution of office:

(a) ML, 130.76 - attempts.

(iii) Willfully disobeying lawful order of superior officer.

(a) ML, 130.88 - failure to obey lawful order;

(b) ML, 130.85 - disrespect to superior commissioned officer;

(c) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Striking superior officer.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19__, (a time of war) strike ______, his/her superior officer, then known by the said ______ to be his/her superior officer, who was then in the execution of his/her office, (in) (on) the ______ with (a) (his/her)______.

(ii) Drawing or lifting up a weapon against superior officer.

In that ______ (personal jurisdiction data), (at/on board -location) (subject-matter jurisdiction data, if required), on or about______ 19 __, (a time of war) (draw) (lift up) a weapon, to wit: a ______, against ______, his/her superior officer, then known by the said ______ to be his/her superior officer, who was then in the execution of his/her office.

(iii) Offering violence to superior commissioned officer.

In that ______ (personal jurisdiction data), did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, (a time of war) offer violence against ______, his/her superior officer, then known by the said ______to be his/her superior officer, who was then in the execution of his/her office, by ______.

(iv) Willful disobedience of superior officer.

In that ______ (personal jurisdiction data), having received a lawful command from ______, his/her superior officer, then known by the said ______to be his/her superior officer, to ______, or words to that effect, did, (at/on board - location), on or about ______ 19 __, willfully disobey the same.

(o)Insubordinate conduct toward noncommissioned officer.

[ML, 130.87]

(1) Text.

"Any warrant officer or enlisted person who- (1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while such officer is in the execution of his office; or (2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or (3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while such officer is in the execution of his office; shall be punished as a court-martial may direct."

(2) Elements.

(i) Striking or assaulting warrant, noncommissioned, or petty officer:

(a) that the accused was a warrant officer or enlisted member;

(b) that the accused struck or assaulted a certain warrant, noncommissioned, or petty officer;

(c) that the striking or assault was committed while the victim was in the execution of office; and

(d) that the accused then knew that the person struck or assaulted was a warrant, noncommissioned, or petty officer.

Note:

[If the victim was the superior noncommissioned or petty officer of the accused, add the following elements.]

(e) that the victim was the superior noncommissioned, or petty officer of the accused; and

(f) that the accused then knew that the person struck or assaulted was the accused's superior noncommissioned, or petty officer.

(ii) Disobeying a warrant, noncommissioned, or petty officer:

(a) that the accused was a warrant officer or enlisted member;

(b) that the accused received a certain lawful order from a certain warrant, noncommissioned, or petty officer;

(c) that the accused then knew that the person giving the order was a warrant, noncommissioned, or petty officer;

(d) that the accused had a duty to obey the order; and

(e) that the accused willfully disobeyed the order.

(iii) Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, or petty officer:

(a) that the accused was a warrant officer or enlisted member;

(b) that the accused did or omitted certain acts, or used certain language;

(c) that such behavior or language was used toward and within sight or hearing of a certain warrant, noncommissioned, or petty officer;

(d) that the accused then knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty officer;

(e) that the victim was then in the execution of office; and

(f) that under the circumstances the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer.

Note:

[If the victim was the superior noncommissioned, or petty officer of the accused, add the following elements.]

(g) that the victim was the superior noncommissioned, or petty officer of the accused; and

(h) that the accused then knew that the person toward whom the behavior or language was directed was the accused's superior noncommissioned, or petty officer.

(3) Explanation.

(i) In general. ML, 130.87 has the same general objects with respect to warrant, noncommissioned, and petty officers as ML, 130.85 and ML, 130.86 have with respect to officers, namely, to ensure obedience to their lawful orders, and to protect them from violence, insult, or disrespect. Unlike ML, 130.85 and ML, 130.86, however, this Article does not require a superior-subordinate relationship as an element of any of the offenses denounced. This article does not protect an acting noncommissioned officer or acting petty officer, nor does it protect military police or members of the shore patrol who are not warrant, noncommissioned, or petty officers.

(ii) Knowledge. All of the offenses prohibited by ML, 130.87 require that the accused have actual knowledge that the victim was a warrant, noncommissioned, or petty officer. Actual knowledge may be proved by circumstantial evidence.

(iii) Striking or assaulting a warrant, noncommissioned, or petty officer. For a discussion of "strikes" and "in the execution of office," see paragraph (n)(3) of this section. Discussion of "assault" follows.

(iv) Disobeying a warrant, noncommissioned, or petty officer. See subparagraph (n)(3)(ii) of this section for a discussion of lawfulness, personal nature, form, transmission, and specificity of the order, nature of the disobedience, and time for compliance with the order.

(v) Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, or petty officer. "Towards" requires that the behavior and language be within the sight or hearing of the warrant, noncommissioned, or petty officer concerned. For a discussion of "in the execution of his office," see paragraph (n)(3) of this section. For a discussion of disrespect, see paragraph (m)(3) of this section.

(4) Lesser included offenses.

(i) Striking or assaulting warrant, noncommissioned, or petty officer (ML, 130.76 - attempts).

(ii) Disobeying a warrant, noncommissioned, or petty officer:

(a) ML, 130.88 - failure to obey a lawful order;

(b) ML, 130.76 - attempts.

(iii) Treating with contempt or being disrespectful in language or deportment toward warrant, noncommissioned, or petty officer in the execution of office:

(a) ML, 130.111 - provoking speeches or gestures;

(b) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Striking or assaulting warrant, noncommissioned, or petty officer.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19__, (strike) (assault) ______, a ______ officer, then known to the said ______ to be a (superior) ______ officer who was then in the execution of his/her (in) (on) (the ______) with (a) ______ (his/her) ______.

(ii) Willful disobedience of warrant, noncommissioned, or petty officer.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, [did treat with contempt] [was disrespectful in (language) (deportment) toward] ______, a ______ officer, then known by the said ______ to be a (superior) ______ officer, who was then in the execution of his/her office, by (saying to him/her, " ______", or words to that effect) (spitting at his/her feet) (______).

(iii) Contempt or disrespect toward warrant, noncommissioned, or petty officer.

In that ______ (personal jurisdiction data) (at/on board -location), on or about ______ 19 __, (did treat with contempt] [was disrespectful in (language) (deportment) toward] ______, a ______ officer, then known by the said ______ to be a (superior) ______ officer, who was then in the execution of his/her officer, by (saying to him/her, " ______", or words to that effect) (spitting at his/her feet) (______).

(p)Failure to obey order or regulation.

[ML, 130.88]

(1) Text.

"Any person subject to this code who:

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the Armed Forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct."

(2) Elements.

(i) Violation of or failure to obey a lawful general order or regulation:

(a) that there was in effect a certain lawful general order or regulation.

(b) that the accused had a duty to obey it; and

(c) that the accused violated or failed to obey the order or regulation.

(ii) Failure to obey other lawful order:

(a) that a member of the Armed Forces issued a certain lawful order;

(b) that the accused had knowledge of the order;

(c) that the accused had a duty to obey the order; and

(d) that the accused failed to obey the order.

(iii) Dereliction in the performance of duties:

(a) that the accused had certain duties;

(b) that the accused had knowledge of the duties; and

(c) that the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

(3) Explanation.

(i) Violation of or failure to obey a lawful general order or regulation.

(a) Authority to issue general orders and regulations. General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the Governor, the Chief of Staff to the Governor, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:

(1) an officer having general court-martial jurisdiction;

(2) a general or flag officer in command; or

(3) a commander superior to subclause (1) or (2) of this clause.

(b) Effect of change of command on validity of order. A general order or regulation issued by a commander with authority under ML, 130.88(i) retains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed by another officer who is not a general or flag officer.

(c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitutions, the laws of the United States or New York, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in clause (n)(3)(ii)( a) of this section.

(d) Knowledge. Knowledge of a general order or regulation need not be alleged or proved, as knowledge is not an element of this offense and a lack of knowledge does not constitute a defense.

(e) Enforceability. Not all provisions in general orders or regulations can be enforced under ML, 130.88(1). Regulations which only supply general guidelines or advice for conducting military functions may not be enforceable under ML, 130.88(1).

(ii) Violation of or failure to obey other lawful order.

(a) Scope. ML, 130.88(2) includes all other lawful orders which may be issued by a member of the organized militia, violations of which are not chargeable under ML, 130.86, 130.87, or 130.88(1). It includes the violation of written regulations which are not general regulations. See also clause (i)(e) of this paragraph as applicable.

(b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the order or regulation. Knowledge of the order may be proved by circumstantial evidence.

(c) Duty to obey order.

(1) From a superior. A member of one force of the organized militia who is senior in rank to a member of another force of the organized militia is the superior of that member with authority to issue orders which that member has a duty to obey under the same circumstances as an officer of one force of the organized militia is the superior officer of a member of another force of the organized militia for the purposes of ML, 130.85 and ML, 130.86. See subparagraph (m)(3)(i) of this section.

(2) From one not a superior. Failure to obey the lawful order of one not a superior is an offense under ML, 130.88(2), provided the accused has a duty to obey the order, such as one issued by a sentinel. See subparagraph (o)(2)(ii) of this section if the order was issued by a warrant, noncommissioned, or petty officer in the execution of office.

(iii) Dereliction in the performance of duties.

(a) Duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.

(b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the duties. Knowledge of the duties may be proved by circumstantial evidence.

(c) Derelict. A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person's duties or when that person performs them in a culpably inefficient manner. Willfully means intentionally. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences of the act. Negligently means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. "Culpable inefficiency" is inefficiency for which there is no reasonable or just excuse.

(d) Ineptitude. A person is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency, and may not be charged under this Article, or otherwise punished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Violation or failure to obey lawful general order or regulation.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, (violate) (fail to obey) a lawful general (order) (regulation), to wit: [specifically identify the order] [______], by (wrongfully) ______.

(ii) Violation or failure to obey other lawful written order.

In that ______ (personal jurisdiction data), having knowledge of a lawful order issued by ______, to wit: [specifically identify the order], an order which it was his/her duty to obey, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, fail to obey the same by (wrongfully) ______.

(iii) Failure to obey other lawful order.

In that ______, (personal jurisdiction data) having knowledge of a lawful order issued by ______ (to submit to certain medical treatment) (to ______) (not to ______) ( ______), an order which it was his/her duty to obey, did (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, fail to obey the same [by (wrongfully) ______.]

(iv) Dereliction in the performance of duties.

In that ______, (personal jurisdiction data), (at/on board -location) (subject-matter jurisdiction data, if required), (on or about ______ 19__) (from about ______ 19__ to about______19 __), having knowledge of his/her duties, was derelict in the performance of those duties in that he/she (negligently) (willfully) (by culpable inefficiency) failed to ______, as it was his/her duty to do.

(q)Cruelty and maltreatment.

(1) Text.

"Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his order shall be punished as a court-martial may direct."

(2) Elements:

(i) that a certain person was subject to the orders of the accused; and

(ii) that the accused was cruel toward, or oppressed, or maltreated that person.

(3) Explanation.

(i) Nature of victim. "Any person subject to his orders" means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.

(ii) Nature of act. The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature. The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazardous or both.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, [was cruel toward] [did (oppress) (maltreat)] ______, a person subject to his/her orders, by (kicking him/her in the stomach) (confining him/her for 24 hours without water) (______).

(r)Mutiny or sedition.

[ML, 130.90]

(1) Text.

(a)" Any person subject to this code:

(1) who with intent to usurp or override lawful military authority, refuses, in concert with any other person or persons, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) who with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person or persons, revolt, violence, or other disturbance against such authority is guilty of sedition;

(3) who fails to do his utmost to prevent and suppress an offense of mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior or commanding officer of an offense of mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct."

(2) Elements.

(i) Mutiny by creating violence or disturbance:

(a) that the accused created violence or a disturbance; and

(b) that the accused created this violence or disturbance with intent to usurp or override lawful military authority.

(ii) Mutiny by refusing to obey orders or to perform duty:

(a) that the accused refused to obey orders or otherwise do the accused's duty;

(b) that the accused in refusing to obey orders or perform duty acted in concert with another person or persons; and

(c) that the accused did so with intent to usurp or override lawful military authority.

(iii) Sedition:

(a) that the accused created revolt, violence, or disturbance against lawful civil authority;

(b) that the accused acted in concert with another person or persons; and

(c) that the accused did so with the intent to cause the overthrow or destruction of that authority.

(iv) Failure to prevent and suppress a mutiny or sedition:

(a) that an offense of mutiny or sedition was committed in the presence of the accused; and

(b) that the accused failed to do the accused's utmost to prevent and suppress the mutiny or sedition.

(v) Failure to report mutiny or sedition:

(a) that an offense of mutiny or sedition occurred;

(b) that the accused knew or had reason to believe that the offense was taking place; and

(c) that the accused failed to take all reasonable means to inform the accused's superior commissioned officer or commander of the offense.

(vi) Attempted mutiny:

(a) that the accused committed a certain overt act;

(b) that the act was done with specific intent to commit the offense of mutiny;

(c) that the act amounted to more than mere preparation; and

(d) that the act apparently tended to effect the commission of the offense of mutiny.

(3) Explanation.

(i) Mutiny. ML, 130.90(a)(1) defines two types of mutiny, both requiring an intent to usurp or override military authority.

(a) Mutiny by creating violence or disturbance. Mutiny by creating violence or disturbance may be committed by one person acting alone or by more than one acting together.

(b) Mutiny by refusing to obey orders or perform duties. Mutiny by refusing to obey orders or perform duties requires collective insubordination and necessarily includes some combination of two or more persons in resisting lawful military authority. This concert of insubordination need not be preconceived, nor is it necessary that the insubordination be active or violent. It may consist simply of a persistent and concerted refusal or omission to obey orders, or to do duty, with an insubordinate intent, that is, with an intent to usurp or override lawful military authority. The intent may be declared in words or inferred from acts, omissions, or surrounding circumstances.

(ii) Sedition. Sedition requires a concert of action in resistance to civil authority. This differs from mutiny by creating violence or disturbance. See clause (i)(a) of this paragraph.

(iii) Failure to prevent and suppress a mutiny or sedition. Utmost means taking those measures to prevent and suppress a mutiny or sedition which may properly be called for by the circumstances, including the rank, responsibilities, or employment of the person concerned. "Utmost" includes the use of such force, including deadly force, as may be reasonably necessary under the circumstances to prevent and suppress a mutiny or sedition.

(iv) Failure to report a mutiny or sedition. Failure to "take all reasonable means to inform" includes failure to take the most expeditious means available. When the circumstances known to the accused would have caused a reasonable person in similar circumstances to believe that a mutiny or sedition was occurring, this may establish that the accused had such "reason to believe" that mutiny or sedition was occurring. Failure to report an impending mutiny or sedition is not an offense in violation of ML, 130.90. But see subparagraph (p)(3)(iii) of this section (dereliction of duty).

(v) Attempted mutiny. For a discussion of attempts, see subparagraph (iv) of this paragraph.

(4) Lesser included offenses.

(i) Mutiny by creating violence or disturbance:

(a) ML, 130.86 - assault on commissioned officer;

(b) ML, 130.87 - insubordinate conduct toward noncommissioned officer;

(c) ML, 130.90 - attempted mutiny;

(d) ML, 130.110 - riot; breach of peace;

(e) ML, 130.115 - disorderly conduct.

(ii) Mutiny by refusing to obey orders or perform duties:

(a) ML, 130.86 - willful disobedience of officer;

(b) ML, 130.87 - insubordinate conduct toward noncommissioned officer;

(c) ML, 130.88 - failure to obey lawful order;

(d) ML, 130.90 - attempted mutiny.

(iii) Sedition:

(a) ML, 130.110 - riot; breach of peace;

(b) ML, 130.115 - disorderly conduct;

(c) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Mutiny by creating violence or disturbance.

In that ______ (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, create (violence) (a disturbance) by (attacking the officers of the said ship) (barricading himself/herself in Barracks T7, firing his/her rifle at ______, and exhorting other persons to join him/her in defiance of ______) (______).

(ii) Mutiny by refusing to obey orders or perform duties.

In that ______ (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board - location) on or about ______ 19 __, refuse, in concert with ______ (and ______) (others whose names are unknown), to (obey the orders of ______ to ______) (perform his/her duty as ______).

(iii) Sedition.

In that ______ (personal jurisdiction data), with intent to cause the (overthrow) (destruction) (overthrow and destruction) of lawful civil authority, to wit: ______, did, (at/on board - location) (subject-matter jurisdiction data, if required) on or about ______19__, in concert with (______) and ( ______) (others whose names are unknown), create (revolt) (violence) (a disturbance) against such authority by (entering the Town Hall of ______ and destroying property and records therein) (marching upon and compelling the surrender of the police of ______) (______).

(iv) Failure to prevent and suppress a mutiny or sedition.

In that ______ (personal jurisdiction data), did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about 19 __, fail to do his/her utmost to prevent and suppress a (mutiny) (sedition) among the (soldiers) (sailors) (airmen) (marines) ( ______) of ______, which (mutiny) (sedition) was being committed in his/her presence, in that (he/she took no means to compel the dispersal of the assembly) (he/she made no effort to assist ______who was attempting to quell the mutiny) (______).

(v) Failure to report a mutiny or sedition.

In that ______ (personal jurisdiction data), did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, fail to take all reasonable means to inform his/her superior officer or his/her commander of a (mutiny) (sedition) among the (soldiers) (sailors) (airmen) (marines) (______) of ______, which (mutiny) (sedition) he/she, the said ______ (knew) (had reason to believe) was taking place.

(vi) Attempted mutiny.

In that ______ (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about______ 19 __, attempt to [create (violence (a disturbance) by ______] [______].

(s)Arrest and confinement.

[ML, 130.91]

(1) Text.

"Any person subject to this code who resists apprehension or breaks arrest or who escapes from custody or confinement shall be punished as a court-martial may direct."

(2) Elements.

(i) Resisting apprehension:

(a) that a certain person attempted to apprehend the accused;

(b) that said person was authorized to apprehend the accused; and

(c) that the accused actively resisted the apprehension.

(ii) Breaking arrest:

(a) that a certain person ordered the accused into arrest;

(b) that said person was authorized to order the accused into arrest; and

(c) that the accused when beyond the limits of arrest before being released from that arrest by proper authority.

(iii) Escape from custody:

(a) that a certain person apprehended the accused;

(b) that said person was authorized to apprehend the accused; and

(c) that the accused freed himself or herself from custody before being released by proper authority.

(iv) Escape from confinement:

(a) that a certain person ordered the accused into confinement;

(b) that said person was authorized to order the accused into confinement; and

(c) that the accused freed himself or herself from confinement before being released by proper authority.

(3) Explanation

(i) Resisting apprehension:

(a) Apprehension. Apprehension is the taking of a person into custody. See N.Y.R.C.M. 302.

(b) Authority to apprehend. See N.Y.R.C.M. 302(b) concerning who may apprehend. Whether the statutes of a person authorized that person to apprehend the accused is a question of law to be decided by the military judge. Whether the person who attempted to make an apprehension had such a status is a question of fact to be decided by the factfinder.

(c) Nature of the resistance. The resistance must be active, such as assaulting the person attempting to apprehend or flight. Mere words of opposition, argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension although they may constitute other offenses.

(d) Mistake. It is a defense that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. However, the accused's belief at the time that no basis exists for the apprehension is not a defense.

(e) Illegal apprehension. A person may not be convicted of resisting apprehension if the attempted apprehension is illegal, but may be convicted of other offenses, depending on all the circumstances. An attempted apprehension by a person authorized to apprehend is presumed to be legal in the absence of evidence to the contrary. Ordinarily the legality of an apprehension is a question of law to be decided by the military judge.

(ii) Breaking arrest.

(a) Arrest. There are two types of arrest: pretrial arrest under ML, 130.9 (see N.Y.R.C.M. 304) and arrest under ML, 130.15 (see paragraph 5c[3], Part V). This article prohibits breaking any arrest.

(b) Authority to order arrest. See N.Y.R.C.M. 304(b) and paragraphs 2 and 5b, Part V concerning authority to order arrest.

(c) Nature of restraint imposed by arrest. In arrest, the rerestraint is moral restraint imposed by orders fixing the limits of arrest.

(d) Breaking. Breaking arrest is committed when the person in arrest infringes the limits set by orders. The reason for the infringement is immaterial. For example, innocence of the offense with respect to which an arrest may have been imposed is not a defense.

(e) Illegal arrest. A person may not be convicted of breaking arrest if the arrest is illegal. An arrest ordered by one authorized to do so is presumed to be legal in the absence of some evidence to the contrary. Ordinarily, the legality of an arrest is a question of law to be decided by the military judge.

(iii) Escape from custody.

(a) Custody. Custody is restraint of free locomotion imposed by lawful apprehension. The restraint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, it may consist of control exercised in the presence of the prisoner by official acts or orders. Custody is temporary restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is released.

(b) Authority to apprehend (see clause [i][b] of this paragraph).

(c) Escape. For a discussion of escape, see clause (iv)(c) of this paragraph.

(d) Illegal custody. A person may not be convicted of this offense if the custody was illegal. An apprehension effected by one authorized to apprehend is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of an apprehension is a question of law to be decided by the military judge.

(e) Correctional custody, see subdivision (as) of this section.

(iv) Escape from confinement.

(a) Confinement. Confinement is physical restraint imposed under N.Y.R.C.M. 305; 1101; or paragraph 5b, Part V.

(b) Authority to order confinement. See N.Y.R.C.M. 304(b); 1101; and paragraphs 2 and 5b, Part V concerning who may order confinement.

(c) Escape. An escape may be either with or without force or artifice, and either with or without the consent of the custodian. However, where a prisoner is released by one with apparent authority to do so, the prisoner may not be convicted of escape from confinement (see also clause [t][3][i] [b] of this section). Any completed casting off of the restraint of confinement, before release by proper authority, is an escape, and lack of effectiveness of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from the restraint. If the movement toward escape is opposed, of before it is completed, an immediate pursuit follows, there is not escape until opposition is overcome or pursuit is shaken off.

(d) Status when temporarily outside confinement facility. A prisoner who is temporarily escorted outside a confinement facility for a work detail or other reason by a guard, who has both the duty and means to prevent that prisoner from escaping, remains in confinement.

(e) Legality of confinement. A person may not be convicted of escape from confinement if the confinement is illegal. Confinement ordered by one authorized to do so is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be decided by the military judge.

(4) Lesser included offenses.

(i) Breaking arrest. ML, 130.76 - attempts.

(ii) Escape from custody. ML, 130.76 - attempts.

(iii) Escape from confinement. ML, 130.76 - attempts.

(5) Sample specifications.

(i) Resisting apprehension.

In that ______ (personal jurisdiction data), did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______ 19__, resist being apprehended by ______, a person authorized to apprehend the accused.

(ii) Breaking arrest.

In that ______ (personal jurisdiction data), having been placed in arrest (in quarters) (in his/her company area) (______) by a person authorized to order the accused into arrest, did, (at/on board -location) on or about ______ 19 __, break said arrest.

(iii) Escape from custody.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19__, escape from the custody of ______, a person authorized to apprehend the accused.

(iv) Escape from confinement.

In that ______ (personal jurisdiction data), having been placed in confinement in (place of confinement), by a person authorized to order the accused into confinement did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19__, escape from confinement.

(t)Releasing prisoner without proper authority.

[ML, 130.92]

(1) Text.

"Any person subject to this code who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct."

(2) Elements.

(i) Releasing a prisoner without proper authority:

(a) that a certain prisoner was committed to the charge of the accused; and

(b) that the accused released the prisoner without proper authority.

(ii) Suffering a prisoner to escape through neglect:

(a) that a certain prisoner was committed to the charge of the accused;

(b) that the prisoner escaped;

(c) that the accused did not take 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

(d) that the escape was the proximate result of the accused's neglect.

(iii) Suffering a prisoner to escape through design:

(a) that a certain prisoner was committed to the charge of the accused;

(b) that the design of the accused was to suffer the escape of that prisoner; and

(c) that the prisoner escaped as a result of the carrying out of the design of the accused.

(3) Explanation.

(i) Releasing a prisoner without proper authority.

(a) Prisoner. Prisoner includes a civilian or military person who has been confined.

(b) Release. The release of a prisoner is removal of restraint by the custodian rather than by the prisoner.

(c) Authority to release. See N.Y.R.C.M. 305(g) as to who may release pretrial prisoners. Normally, the lowest authority competent to order release of a postrial prisoner is the commander who convened the court-martial which sentenced the prisoner or the officer exercising general court-martial jurisdiction over the prisoner (see also N.Y.R.C.M. 1101).

(d) Committed. Once a prisoner has been confined, the prisoner has been "committed" in the sense of ML, 130.92 and only a competent authority (see clause [c] of this subparagraph) may order release, regardless of failure to follow procedures prescribed by the code, this Chapter, or other law.

(ii) Suffering a prisoner to escape through neglect.

(a) Suffer. Suffer means to allow or permit; not to forbid or hinder.

(b) Neglect. Neglect is a relative term. It is the absence of conduct which would have been taken by a reasonably careful person in the same or similar circumstances.

(c) Escape. Escape is defined in clause (s)(3)(iv)(c) of this section.

(d) Status of prisoner after escape not a defense. After escape, the fact that a prisoner returns, is captured, killed, or otherwise dies is not a defense.

(iii) Suffering a prisoner to escape through design. An escape is suffered through design when it is intended. 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.

(4) Lesser included offenses.

(i) Releasing a prisoner without proper authority (ML, 130.76 -attempts).

(ii) Suffering a prisoner to escape through neglect. None.

(iii) Suffering a prisoner to escape through design.

(a) ML, 130.92 - suffering a prisoner to escape through neglect;

(b) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Releasing a prisoner without proper authority.

In that ____ (personal jurisdiction data), did, (at/on board - location), on or about ____ 19 __, without proper authority, release ____, a prisoner committed to his/her charge.

(ii) Suffering a prisoner to escape through neglect or design.

In that ____ (personal jurisdiction data), did, (at/on board - location), on or about ____ 19 __, through (neglect) (design), suffer ____, a prisoner committed to his/her charge, to escape.

(u)Unlawful detention.

[ML, 130.93]

(1) Text.

"Any person subject to this code who, except as provided by law or regulations, apprehends, arrests, or confines any person shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused apprehended, arrested, or confined a certain person; and

(ii) that the accused unlawfully exercised the accused's authority to do so.

(3) Explanation.

(i) Scope. This article prohibits improper acts by those empowered by the code to arrest, apprehend, or confine. See ML, 130.7 and 130.9; N.Y.R.C.M. 302, 304, 305, and 1101, and paragraphs 2 and 5b, Part V. It does not apply to private acts of false imprisonment or unlawful restraint of another's freedom of movement by one not acting under such a delegation of authority under the code.

(ii) No force required. The apprehension, arrest, or confinement must be against the will of the person restrained, but force is not required.

(iii) Defense. A reasonable belief held by the person imposing restraint that it is lawful is a defense.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ____ (personal jurisdiction data), did, (at/on board - location), on or about ____ 19 __, unlawfully (apprehend ____) (place ____ in arrest) (confine ____ in ____).

(v)Noncompliance with procedural rules.

[ML, 130.94]

(1) Text.

"Any person subject to this code who-

(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code; or

(2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct."

(2) Elements.

(i) Unnecessary delay in disposing of case:

(a) that the accused was charged with a certain duty in connection with the disposition of a case of a person accused of an offense under the code;

(b) that the accused knew that the accused was charged with this duty;

(c) that delay occurred in the disposition of the case;

(d) that the accused was responsible for the delay; and

(e) that, under the circumstances, the delay was unnecessary.

(ii) Knowingly and intentionally failing to enforce or comply with the provisions of the code;

(a) that the accused failed to enforce or comply with a certain provision of the code regulating a proceeding before, during, or after a trial;

(b) that the accused had the duty of enforcing or complying with that provision of the code;

(c) that the accused knew that the accused was charged with this duty; and

(d) that the accused's failure to enforce or comply with that provision was intentional.

(3) Explanation.

(i) Unnecessary delay in disposing of case. The purpose of section (1) of ML, 130.94 is to ensure expeditious disposition of cases of persons accused of offenses under the code. A person may be responsible for delay in the disposition of a case only when that person's duties require action with respect to the disposition of that case.

(ii) Knowingly and intentionally failing to enforce or comply with provisions of the code. Section (2) of ML, 130.94 does not apply to errors made in good faith before, during, or after trial. It is designed to punish intentional failure to enforce or comply with the provisions of the code regulating the proceedings before, during, and after trial. Unlawful command influence under ML, 130.37 may be prosecuted under this Article. See also ML, 130.31 and N.Y.R.C.M. 104.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Unnecessary delay in disposing of case.

In that ____ (personal jurisdiction data), being charged with the duty of [(investigating) (taking immediate steps to determine the proper disposition of) charges preferred against ____, a person accused of an offense under the New York Code of Military Justice] [____ ], was, (at/on board - location), on or about ____19 __, responsible for unnecessary delay in (investigating said charges) (determining the proper disposition of said charges, (____), in that he/she (did ____) (failed to ____) (____).

(ii) Knowingly and intentionally failing to enforce or comply with provisions of the code.

In that ______ (personal jurisdiction data), being charged with the duty of ______, did, (at/on board - location), on or about ______ 19 __, knowingly and intentionally fail to (enforce) (comply with) 130.94, New York Code of Military Justice, in that he/she ______.

(w)Misbehavior before the enemy.

[ML, 130.95]

(1) Text.

"Any person subject to this code who before or in the presence of the enemy- (1) runs away; or (2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend; or (3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property; or (4) casts away his arms or ammunition; or (5) is guilty of cowardly conduct; or (6) quits his place of duty to plunder or pillage; (7) causes false alarms in any command, unit, or place under control of the Armed Forces of the United States or the organized militia; or (8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or (9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the Armed Forces belonging to the United States or their allies or to any other state or to the organized militia, when engaged in battle; shall be punished as a court-martial may direct."

(2) Elements.

(i) Running away:

(a) that the accused was before or in the presence of the enemy;

(b) that the accused misbehaved by running away; and

(c) that the accused intended to avoid actual or impending combat with the enemy by running away.

(ii) Shamefully abandoning, surrendering, or delivering up command:

(a) that the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property; and

(b) that, without justification, the accused shamefully abandoned, surrendered, or delivered up that command, unit, place, ship, or military property; and

(c) that this act occurred while the accused was before or in the presence of the enemy.

(iii) Endangering safety of a command, unit, place, ship, or military property:

(a) that it was the duty of the accused to defend a certain command, unit, place, ship, or certain military property;

(b) that the accused committed certain disobedience, neglect, or intentional misconduct;

(c) that the accused thereby endangered the safety of the command, unit, place, ship, or military property; and

(d) that this act occurred while the accused was before or in the presence of the enemy.

(iv) Casting away arms or ammunition:

(a) that the accused was before or in the presence of the enemy; and

(b) that the accused cast away certain arms or ammunition.

(v) Cowardly conduct:

(a) that the accused committed an act of cowardice;

(b) that this conduct occurred while the accused was before or in the presence of the enemy; and

(c) that this conduct was the result of fear.

(vi) Quitting place of duty to plunder or pillage:

(a) that the accused was before or in the presence of the enemy;

(b) that the accused quit the accused's place of duty; and

(c) that the accused's intention in quitting was to plunder or pillage public or private property.

(vii) Causing false alarms:

(a) that an alarm was caused in a certain command, unit, or place under control of the Armed Forces of the United States or the organized militia;

(b) that the accused caused the alarm;

(c) that the alarm was caused without any reasonable or sufficient justification or excuse; and

(d) that this act occurred while the accused was before or in the presence of the enemy.

(viii) Willfully failing to do utmost to encounter enemy:

(a) that the accused was serving before or in the presence of the enemy;

(b) that the accused had a duty to encounter, engage, capture, or destroy certain enemy troops, combatants, vessels, aircraft, or a certain other thing; and

(c) that the accused willfully failed to do the utmost to perform that duty.

(ix) Failing to afford relief and assistance:

(a) that certain troops, combatants, vessels, or aircraft of the Armed Forces belonging to the United States or an ally of the United States or any other state or the organized militia were engaged in battle and required relief and assistance;

(b) that the accused was in a position and able to render relief and assistance to these troops, combatants, vessels, or aircraft, without jeopardy to the accused's mission;

(c) that the accused failed to afford all practicable relief and assistance; and

(d) that, at the time, the accused was before or in the presence of the enemy.

(3) Explanation.

(i)

(a)Running away means an unauthorized departure to avoid actual or impending combat. It need not, however, be the result of fear, and there is no requirement that the accused literally run.

(b) Enemy. Enemy includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. "Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.

(c) Before the enemy. Whether a person is "before the enemy" is a question of tactical relation, not distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into combat may be before the enemy although miles from the enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not a part of tactical operation then going on or in immediate prospect is not "before or in the presence of the enemy", within the meaning of this Article.

(ii) Shamefully abandoning, surrendering, or delivering up of command.

(a) Scope. This provision concerns primarily commanders chargeable with responsibility for defending a command, unit, place, ship or military property. Abandonment by a subordinate would ordinarily be charged as running away.

(b) Shameful. Surrender or abandonment without justification is shameful within the meaning of this Article.

(c) Surrender; delivers up. "Surrenders" and "delivers up" are synonymous for the purposes of this Article.

(d) Justification. Surrender or abandonment of a command, unit, place, ship, or military property by a person charged with its defense can be justified only by the utmost necessity or extremity.

(iii) Endangering safety of a command, unit, place, ship, or military property.

(a) Neglect. Neglect is the absence of conduct which would have been taken by a reasonably careful person in the same or similar circumstances.

(b) Intentional misconduct. "Intentional misconduct" does not include a mere error in judgment.

(iv) Casting away arms or ammunition. Self-explanatory.

(v) Cowardly conduct.

(a) Cowardice. Cowardice is misbehavior motivated by fear.

(b) Fear. Fear is a natural feeling of apprehension when going into battle. The mere display of apprehension does not constitute this offense.

(c) Nature of offense. Refusal or abandonment of a performance of duty before or in the presence of the enemy as a result of fear constitutes this offense.

(d) Defense. Genuine and extreme illness, not generated by cowardice, is a defense.

(vi) Quitting place of duty to plunder or pillage.

(a) Place of duty. Place of duty includes any place of duty, whether permanent or temporary, fixed or mobile.

(b) Plunder or pillage. Plunder or pillage means to seize or appropriate public or private property unlawfully.

(c) Nature of offense. The essence of this offense is quitting the place of duty with intent to plunder or pillage. Merely quitting with that purpose is sufficient, even if the intended misconduct is not done.

(vii) Causing false alarms. This provision covers spreading of false or disturbing rumors or reports, as well as the false giving of established alarm signals.

(viii) Willfully failing to do utmost to encounter enemy. Willfully refusing a lawful order to go on a combat patrol may violate this provision.

(ix) Failing to afford relief and assistance.

(a)All practicable relief and assistance means all relief and assistance which should be afforded within the limitations imposed upon a person by reason of that person's own specific tasks or mission.

(b) Nature of offense. This offense is limited to a failure to afford relief and assistance to forces "engaged in battle."

(4) Lesser included offenses.

(i) Running away:

(a) ML, 130.81 - desertion with intent to avoid hazardous or important service;

(b) ML, 130.82 - absence without authority; going from appointed place of duty;

(c) ML, 130.76 - attempts.

(ii) Shamefully abandoning, surrendering, or delivering up command. ML, 130.76 - attempts.

(iii) Endangering safety of a command, unit, place, ship, or military property.

(a) Through disobedience of order. ML, 130.88 - failure to obey lawful order.

(b) ML, 130.76 - attempts.

(iv) Casting away arms or ammunition:

(a) ML, 130.103 - military property, loss, damage, destruction, or wrongful disposition;

(b) ML, 130.76 - attempts.

(v) Cowardly conduct:

(a) ML, 130.81 - desertion with intent to avoid hazardous duty or important service;

(b) ML, 130.82 - absence without authority;

(c) ML, 130.95 - running away;

(d) ML, 130.76 - attempts.

(vi) Quitting place of duty to plunder or pillage:

(a) ML, 130.82 - going from appointed place of duty;

(b) ML, 130.76 - attempts.

(vii) Causing false alarms. ML, 130.76 - attempts.

(viii) Willfully failing to do utmost to encounter enemy ML, 130.76 -attempts

(ix) Failing to afford relief and assistance. ML, 130.76 - attempts.

(5) Sample specifications.

(i) Running away.

In that ______ (personal jurisdiction data), did, (at/on board -location), on or about ______19 ______, (before) (in the presence of) the enemy, run away (from his/her company) (and hide) ( ______), (and did not return until after the engagement had been concluded) (______).

(ii) Shamefully abandoning, surrendering, or delivering up command.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______19 __, (before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up)______, which it was his/her duty to defend.

(iii) Endangering safety of a command, unit, place, ship, or military property.

In that ______ (personal jurisdiction data), did, (at/on board -location, on or about ______19 __, (before) (in the presence of) the enemy, endanger the safety of ______ which it was his/her duty to defend, by (disobeying an order from ______ to engage the enemy) (neglecting his/her duty as a sentinel by engaging in a card game while on his/her post) (intentional misconduct in that he/she became drunk and fired flares, thus revealing the location of his/her unit) (______).

(iv) Casting away arms or ammunition.

In that ______(personal jurisdiction data), did, (at/on board -location), on or about ______19 __, (before) (in the presence of) the enemy, cast away his/her (rifle) (ammunition) (______).

(v) Cowardly conduct.

In that ______(personal jurisdiction data), did, (at/on board -location), on or about ______19 __, (before) (in the presence of) the enemy, was guilty of cowardly conduct as a result of fear, in that ______.

(vi) Quitting place of duty to plunder or pillage.

In that ______(personal jurisdiction data), did, (at/on board -location), on or about ______19 __, (before) (in the presence of) the enemy, quit his/her place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging).

(vii) Causing false alarms.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______19 __, (before) (in the presence of) the enemy, cause a false alarm in (Fort ______) (the said ship) (the camp) ( ______) by [needlessly and without authority (causing the call to arms to be sounded) (sounding the general alarm)] [______].

(viii) Willfully failing to do utmost to encounter enemy.

In that ______ (personal jurisdiction data), being (before) (in the presence of) the enemy, did, (at/on board - location), on or about ______19 __, by, (ordering his/her troops to halt their advance) ( ______), willfully fail to do his/her utmost to (encounter) (engage) (capture) (destroy), as it was his/her duty to do, (certain enemy troops which were in retreat) (______).

(ix) Failing to afford relief and assistance.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, (before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the USS ______, which was engaged in battle and had run aground, in that he/she failed to take her in tow) (certain troops of the ground forces of ______, which were engaged in battle and were pinned down by enemy fire, in that he/she failed to furnish air cover) (______) as he/she properly should have done.

(t)Subordinate compelling surrender.

[ML, 130.96]

(1) Text.

"Any person subject to this code who compels or attempts to compel a commander of any place, vessel, aircraft, or other military property, or of any body of members of the armed forces of the United States or of any other state, or of the organized militia to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct."

(2) Elements.

(i) Compelling surrender:

(a) that a certain person was in command of a certain place, vessel, aircraft, or other military property or of a body of members of the Armed Forces of the United States or of and other state or of the organized militia.

(b) that the accused did an overt act which was intended to and did compel that commander to give it up to the enemy or abandon it; and

(c) that the place, vessel, aircraft, or other military property or body of members of the Armed Forces of the United States or of any other state or of the organized militia was actually given up to the enemy or abandoned.

(ii) Attempting to compel surrender:

(a) that a certain person was in command of a certain place, vessel, aircraft, or other military property or of a body of members of the Armed Forces of the United States or of any other state or of the organized militia;

(b) that the accused did a certain overt act;

(c) that the act was done with the intent to compel that commander to give up to the enemy or abandon the place, vessel, aircraft, or other military property or body of members of the Armed Forces of the United States or of any other state, or of the organized militia;

(d) that the act amounted to more than mere preparation; and

(e) that the act apparently intended to bring about the compelling of surrender or abandonment.

(iii) Striking the colors or flag:

(a) that there was an offer of surrender to an enemy;

(b) that this offer was made by striking the colors or flag to the enemy or in some other manner;

(c) that the accused made or was responsible for the offer; and

(d) that the accused did not have proper authority to make the offer.

(3) Explanation.

(i) Compelling surrender.

(a) Nature of offense. The offenses under this Article are similar to mutiny or attempted mutiny designed to bring about surrender or abandonment. Unlike some cases of mutiny, however, concert of action is not an essential element of the offenses under this Article. The offense is not complete until the place, military property, or command is actually abandoned or given up to the enemy.

(b) Surrender. "Surrender" and "to give it up to an enemy" are synonymous.

(c) Acts required. The surrender or abandonment must be compelled or attempted to be compelled by acts rather than words.

(ii) Attempting to compel surrender. The offense of attempting to compel a surrender or abandonment does not require actual abandonment or surrender, but there must be some act done with this purpose in view, even if it does not accomplish the purpose.

(iii) Striking the colors or flag.

(a) In general. To strike the colors or flag is to haul down the colors or flag in the face of the enemy or to make any other offer of surrender. It is traditional wording for an act of surrender.

(b) Nature of offense. The offense is committed when one assumes the authority to surrender a military force or position when not authorized to do so either by competent authority or by the necessities of battle. If continued battle has become fruitless and it is impossible to communicate with higher authority, those facts will constitute proper authority to surrender. The offense may be committed whenever there is sufficient contact with the enemy to give the opportunity of making an offer of surrender and it is not necessary that an engagement with the enemy be in progress. It is unnecessary to prove that the offer was received by the enemy or that it was rejected or accepted. The sending of an emissary charged with making the offer of surrender is an act sufficient to prove the offer, even though the emissary does not reach the enemy.

(iv) Enemy. For a discussion of "enemy", see clause (w)(3)(i)( b) of this section.

(4) Lesser included offense.

Striking the colors or flag (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Compelling surrender or attempting to compel surrender.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, (attempt to) compel ______, the commander of ______, (to give up to the enemy) (to abandon) said ______, by ______.

(ii) Striking the colors or flag.

In that ____ (personal jurisdiction data), did, (at/on board - location), on or about ____ 19 __, without proper authority, offer to surrender to the enemy by [striking the (colors) (flag)] [ ____ ].

(y)Improper use of countersign.

[ML, 130.97]

(1) Text.

"Any person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished as a court-martial may direct."

(2) Elements.

(i) Disclosing the parole or countersign to one not entitled to receive it:

(a) that, in time of war, the accused disclosed the parole or countersign to a person, identified or unidentified; and

(b) that this person was not entitled to receive it.

(ii) Giving a parole or countersign different from that authorized:

(a) that, in time of war, the accused knew that the accused was authorized and required to give a certain parole or countersign; and

(b) that the accused gave to a person entitled to receive and use this parole or countersign a different parole or countersign from that which the accused was authorized and required to give.

(3) Explanation.

(i) Countersign. A countersign is a word, signal, or procedure given from the principal headquarters of a command to aid guards and sentinel in their scrutinyof persons who apply to pass the lines. It consists of a secret challenge and a password, signal or procedure.

(ii) Parole. A parole is a word used as a check on the countersign; it is given only to those who are entitled to inspect guards and to commanders of guards.

(iii) Who may receive countersign. The class of persons entitled to receive the counter sign or parole will expand and contract under the varying circumstances of war. Who these persons are will be determined largely, in any particular case, by the general or special orders under which the accused was acting. Before disclosing such a word, a person subject to military law must determine at that person's peril that the recipient is a person authorized to receive it.

(iv) Intent, motive, negligence, mistake, ignorance not defense. The accused's intent or motive in disclosing the countersign or parole is immaterial to the issue of guilt, as is the fact that the disclosure was negligent or inadvertent. It is no defense that the accused did not know that the person to whom the countersign or parole was given was not entitled to receive it.

(v) How accused received countersign or parole. It is immaterial whether the accused had received the countersign or parole in the regular course of duty or whether it was obtained in some other way.

(vi) In time of war. This phrase means a period of war declared by Congress of the factual determination by the President that the existence of hostilities warrants a finding that a "time of war" exists.

(4) Lesser included offense (130.76, ML - attempts).

(5) Sample specifications.

(i) Disclosing the parole or countersign to one not entitled to receive it.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, a time of war, disclose the (parole) (countersign), to wit: ______, to ______, a person who was not entitled to receive it.

(ii) Giving a parole or countersign different from that authorized.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, a time of war, give to ______, a person entitled to receive and use the (parole) (countersign), a (parole) (countersign), namely: ______ which was different from that which, to his/her knowledge, he/she was authorized and required to give, to wit: ______.

(z)Forcing a safeguard.

[ML, 130.98]

(1) Text.

"Any person subject to this code who forces a safeguard shall be punished as a court-martial may direct."

(2) Elements:

(i) that a safeguard had been issued or posted for the protection of a certain person or persons, place, or property;

(ii) that the accused knew or should have known of the safeguard; and

(iii) that the accused forced the safeguard.

(3) Explanation.

(i) A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, or of a neutral affected by the relationship of belligerent forces in their prosecution of war or during circumstances amounting to a state of belligerency. The term also includes a written order left by a commander with an enemy subject or posted upon enemy property for the protection of that person or property. A safeguard is not a device adopted by a belligerent to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a commander takes those actions to protect enemy or neutral persons or property. The effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national armed forces.

(ii) Forcing a safeguard. Forcing a safeguard means to perform an act or acts in violation of the protection of the safeguard.

(iii) Nature of offense. Any trespass on the protection of the safeguard will constitute an offense under this Article, whether the safeguard was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war.

(iv) Knowledge. Actual knowledge of the safeguard is not required. It is sufficient if an accused should have known of the existence of the safeguard.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, force a safeguard, [known by him/her to have been placed over the premises occupied by at by (overwhelming the guard posted for the protection of the same) (______)] [ ______ ].________________________________________

(aa)Captured or abandoned property.

[ML, 130.99]

(1) Text.

(a)" All persons subject to this code shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.

(b) Any person subject to this code who-

(1) fails to carry out the duties prescribed in subdivision (a) of this section; or

(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he shall receive or expect any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be punished as a court-martial may direct."

(2) Elements.

(i) Failing to secure public property taken from the enemy:

(a) that certain public property was taken from the enemy;

(b) that this property was of a certain value; and

(c) that the accused failed to do what was reasonable under the circumstances to secure this property for the service of the United States.

(ii) Failing to report and turn over captured or abandoned property:

(a) that certain captured or abandoned public or private property came into the possession, custody, or control of the accused;

(b) that this property was of a certain value; and

(c) that the accused failed to give notice of its receipt and failed to turn over to proper authority, without delay, the captured or abandoned public or private property.

(iii) Dealing in captured or abandoned property:

(a) that the accused bought, sold, traded, or otherwise dealt in or disposed of certain public or private captured or abandoned property;

(b) that this property was of certain value; and

(c) that by so doing the accused received or expected some profit, benefit, or advantage to the accused or to a certain person or persons connected directly or indirectly with the accused.

(iv) Looting or pillaging:

(a) that the accused engaged in looting, pillaging, or looting and pillaging by unlawfully seizing or appropriating certain public or private property;

(b) that this property was located in enemy or occupied territory, or that it was on board a seized or captured vessel; and

(c) that this property was:

(1) left behind, owned by, or in the custody of the enemy, an occupied state, an inhabitant of an occupied state, or a person under the protection of the enemy or occupied state, or who, immediately prior to the occupation of the place where the act occurred, was under the protection of the enemy or occupied state; or

(2) part of the equipment of a seized or captured vessel; or

(3) owned by, or in the custody of the officers, crew, or passengers on board a seized or captured vessel.

(3) Explanation.

(i) Failing to secure public property taken from the enemy.

(a) Nature of property. Unlike the remaining offenses under this Article, failing to secure public property taken from the enemy involves only public property. Immediately upon its capture from the enemy, public property becomes the property of the United States. Neither the person who takes it nor any other person has any private right in this property.

(b) Nature of duty. Every person subject to the code has an immediate duty to take such steps as are reasonably within that person's power to secure public property for the service of the United States and to protect it from destruction or loss.

(ii) Failing to report and turn over captured or abandoned property.

(a) Reports. Reports of receipt of captured or abandoned property are to be made directly or through such channels as are required by current regulations, orders, or the customs of the service.

(b) Proper authority. Proper authority is any authority competent to order disposition of the property in question.

(iii) Dealing in captured or abandoned property. Disposed of includes destruction or abandonment.

(iv) Looting or pillaging. Looting or pillaging means unlawfully seizing or appropriating property which is located in enemy or occupied territory.

(v) Enemy. For a discussion of "enemy", see clause (w)(3)(i)( b) of this section.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Failing to secure public property taken from the enemy.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, fail to secure for the service of the United States certain public property taken from the enemy, to wit: ______, of a value of (about) $______.

(ii) Failing to report and turn over captured or abandoned property.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______19 __, fail to give notice and turn over to proper authority without delay certain (captured) (abandoned) property, which had come into his/her (possession) (custody) (control), to wit: ______, of a value of (about), $______.

(iii) Dealing in captured or abandoned property.

In that ______(personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, (buy) (sell) (trade) (deal in) (dispose of) (______) certain (captured) (abandoned) property, to wit: ______, of a value of (about) $ ______, thereby (receiving) (expecting a (profit) (benefit) (advantage) to (himself/herself) (______, his/her accomplice) ( ______ his/her brother) (______).

(iv) Looting or pillaging.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, engage in (looting) (pillaging) (looting and pillaging) by unlawfully (seizing) (appropriating) ______, [property which had been left behind] (the property of ______, (an inhabitant of ______) ( ______)].

(ab)Aiding the enemy.

[ML, 130.100]

(1) Text.

"Any person subject to this code who- (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall be punished as a court-martial may direct."

(2) Elements.

(i) Aiding the enemy:

(a) that the accused aided the enemy; and

(b) that the accused did so with certain arms, ammunition, supplies, money, or other things.

(ii) Attempting to aid the enemy:

(a) that the accused did a certain overt act;

(b) that the act was done with the intent to aid the enemy with certain arms, ammunition, supplies, money, or other things;

(c) that the act amounted to more than mere preparation; and

(d) that the act apparently tended to bring about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or other things.

(iii) Harboring or protecting the enemy:

(a) that the accused, without proper authority, harbored or protected a person;

(b) that the person so harbored or protected was the enemy; and

(c) that the accused knew that the person so harbored or protected was an enemy.

(iv) Giving intelligence to the enemy:

(a) that the accused, without proper authority, knowingly gave intelligence information to the enemy; and

(b) that the intelligence information was true, or implied the truth, at least in part.

(iv) Communicating with the enemy:

(a) that the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy; and

(b) that the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

(3) Explanation.

(i) Scope of ML, 130.100. In contrast to article 104 of the Uniform Code of Military Justice, this Article denounces offenses by all persons committed only by persons subject to the code.

(ii) Enemy. For a discussion of "enemy", see clause (w)(3)(i)( b) of this section.

(iii) Aiding or attempting to aid the enemy. It is not a violation of this Article to furnish prisoners of war subsistence, quarters, and other comforts or aid to which they are lawfully entitled.

(iv) Harboring or protecting the enemy.

(a) Nature of offense. An enemy is harbored or protected when, without proper authority, that enemy is shielded, either physically or by use of any artifice, aid, or representation from any injury or misfortune which in the chance of war may occur.

(b) Knowledge. Actual knowledge is required, but may be proved by circumstantial evidence.

(v) Giving intelligence to the enemy:

(a) Nature of offense. Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be conveyed by direct or indirect means.

(b) Intelligence. "Intelligence" imports that the information conveyed is true or implies the truth, at least in part.

(c) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(vi) Communicating with the enemy.

(a) Nature of the offense. No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly. A prisoner of war may violate this Article by engaging in unauthorized communications with the enemy. See also subparagraph (ac)(3)(iii) of this section.

(b) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(4) Lesser included offense.

For harboring or protecting the enemy, giving intelligence to the enemy, or communicating with the enemy (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Aiding or attempting to aid the enemy.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, (attempt to) aid the enemy with (arms) (ammunition) (supplies) (money) (______), by (furnishing and delivering to ______, members of the enemy's armed forces ______) (______).

(ii) Harboring or protecting the enemy.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, without proper authority, knowingly (harbor) (protect) ______, an enemy, by (concealing the said ______ in his/her house) (______).

(iii) Giving intelligence to the enemy.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about______ 19 __, without proper authority, knowingly give intelligence to the enemy, by (______).

(iv) Communicating with the enemy.

In that______(personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, without proper authority, knowingly (communicate with) (correspond with) (hold intercourse with) the enemy [by writing and transmitting secretly through the lines to one ______, whom he/she, the said ______, knew to be (an officer of the enemy's armed forces) ( ______) a communication in words and figures substantially as follows, to wit: ______)] [(indirectly by publishing in ______, a newspaper published at ______, a communication in words and figures as follows, to wit: ______ which communication was intended to reach the enemy)] [(______)].

(ac)Misconduct as a prisoner.

[ML, 130.101]

(1) Text.

"Any person subject to this code who, while in the hands of the enemy in time of war- (1) for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct."

(2) Elements.

(i) Acting without authority to the detriment of another for the purpose of securing favorable treatment:

(a) that without proper authority the accused acted in a manner contrary to law, custom, or regulation;

(b) that the act was committed while the accused was in the hands of the enemy in time of war;

(c) that the act was done for the purpose of securing favorable treatment of the accused by the captors; and

(d) that other prisoners held by the enemy, either military or civilian, suffered some detriment because of the accused's act.

(ii) Maltreating prisoners while in a position of authority:

(a) that the accused maltreated a prisoner held by the enemy;

(b) that the act occurred while the accused was in the hands of the enemy in time of war;

(c) that the accused held a position of authority over the person maltreated; and

(d) that the act was without justifiable cause.

(3) Explanation.

(i) Enemy. For a discussion of "enemy", see clause (w)(3)(i)( b) of this section.

(ii) In time of war. See subparagraph (y)(3)(vi) of this section.

(iii) Acting without authority to the detriment of another for the purpose of securing favorable treatment.

(a) Nature of offense. Unauthorized conduct by a prisoner of war must be intended to result in improvement by the enemy of the accused's condition and must operate to the detriment of other prisoners either by way of closer confinement, reduced rations, physical punishment, or other harm. Examples of this conduct include reporting plans of escape being prepared by others or reporting secret food caches, equipment, or arms. The conduct of the prisoner must be contrary to law, custom, or regulation.

(b) Escape. Escape from the enemy is authorized by custom. An escape or escape attempt which results in closer confinement or other measures against fellow prisoners still in the hands of the enemy is not an offense under this Article.

(iv) Maltreating prisoners while in a position of authority.

(a) Authority. The source of authority is not material. It may arise from the military rank of the accused or - despite service regulations or customs to the contrary - designation by the captor authorities, or voluntary election or selection by other prisoners for their self-government.

(b) Maltreatment. The maltreatment must be real, although not necessarily physical, and it must be without justifiable cause. Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, constitute this offense.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Acting without authority to the detriment of another for the purpose of securing favorable treatment.

In that ______ (personal jurisdiction data), while in the hands of the enemy, did, (at/on board - location) on or about ______ 19 __, a time of war, without proper authority and for the purpose of securing favorable treatment by his/her captors, (report to the commander of Camp ______ the preparations by ______, a prisoner at said camp, to escape, as a result of which report the said ______ was placed in solitary confinement) (______).

(ii) Maltreating prisoner while in a position of authority.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, a time of war, while in the hands of the enemy and in a position of authority over ______, a prisoner at ______, as (officer in charge of prisoners at ______) (______), maltreat the said ______ by (depriving him/her of ______) (______), without justifiable cause.

(ad)False official statements.

[ML, 130.102]

(1) Text.

"Any person subject to this code who with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing the same to be false, or makes any other false official statement knowing the same to be false, shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused signed a certain official document or made a certain official statement;

(ii) that the document or statement was false in certain particulars;

(iii) that the accused knew it to be false at the time of signing it or making it; and

(iv) that the false document or statement was made with the intent to deceive.

(3) Explanation.

(i) Official documents and statements. Official documents and official statements include all documents and statements made in the line of duty.

(ii) Status of victim of the deception. The rank of any person intended to be deceived is immaterial if that person was authorized in the execution of a particular duty to require or receive the statement or document from the accused. The government may be the victim of this offense.

(iii) Intent to deceive. The false representation must be made with the intent to deceive. It is not necessary that the false statement be material to the issue under inquiry. If, however, the falsity is in respect to a material matter, it may be considered as some evidence of the intent to deceive, while immateriality may tend to show an absence of this intent.

(iv) Material gain. The expectation of material gain is not an element of this offense. Such expectation or lack of it, however, is circumstantial evidence bearing on the element of intent to deceive.

(v) Knowledge that the document or statement was false. The false representation must be one which the accused actually knew was false. Actual knowledge may be proved by circumstantial evidence. An honest, although erroneous, belief that a statement made is true, is a defense.

(vi) Statements made during an interrogation.

(a) Person without an independent duty or obligation to speak. A statement made by an accused or suspect during an interrogation is not an official statement within the meaning of the article if that person did not have an independent duty or obligation to speak. (But see paragraph 79 [false swearing].)

(b) Person with an independent duty or obligation to speak. If a suspect or accused does have an independent duty or obligation to speak, as in the case of a custodian who is required to account for property, a statement made by that person during an interrogation into the matter is official. While the person could remain silent (ML, 130.31 [b]), if the person chooses to speak, the person must do so truthfully.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location), (subject-matter jurisdiction data, if required), on or about ______ 19 __, with intent to deceive, [sign an official (record) (return) (______), to wit: ______ ] [make to ______, an official statement, to wit: ______], which (record) (return) (statement) ( ______), was (totally false) (false in that ______), and was then known by the said ______ to be so false.

(ae) Military property - loss, damage, destruction, or wrongful disposition.

[ML, 130.103]

(1) Text.

"Any person subject to this code who, without proper authority- (1) sells or otherwise disposes of; or (2) willfully or through neglect damages, destroys, or loses; or (3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States or of the state shall be punished as a court-martial may direct."

(2) Elements.

(i) Selling or otherwise disposing of military property:

(a) that the accused sold or otherwise disposed of certain property (which was a firearm or explosive);

(b) that the sale or disposition was without proper authority;

(c) that the property was military property of the United States or of the state; and

(d) that the property was of a certain value.

(ii) Damaging, destroying, or losing military property:

(a) that the accused, without proper authority, damaged or destroyed certain property in a certain way, or lost certain property;

(b) that the property was military property of the United States or of the state;

(c) that the damage, destruction, or loss was willfully caused by the accused or was the result of neglect by the accused; and

(d) that the property was of a certain value or the damage was of a certain amount.

(iii) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of:

(a) that certain property (which was a firearm or explosive) was lost, damaged, destroyed, sold, or wrongfully disposed of;

(b) that the property was military property of the United States or of the state;

(c) that the loss, damage, destruction, sale, or wrongful disposition was suffered by the accused, without proper authority, through a certain omission of duty by the accused;

(d) that this omission was willful or negligent; and

(e) that the property was of a certain value or the damage was of a certain amount.

(3) Explanation.

(i) Military property. Military property is all property, real or personal, owned, held, or used by one of the military departments of the United States or of the state. It is immaterial whether the property sold, disposed of, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. Retail merchandise of service exchange stores is not military property under this section.

(ii) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. To suffer means to allow or permit. The willful or negligent sufference specified by this Article includes: deliberate violation or intentional disregard of some specific law, regulation, or order; reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person, known to be irresponsible, by whom it is damaged.

(iii) Value and damage. In the case of loss, destruction, sale, or wrongful disposition, the value of the property controls the maximum punishment which may be adjudged. In the case of damage, the amount of damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair by the government agency normally employed in such work, or the cost of replacement, as shown by government price lists or otherwise, whichever is less.

(4) Lesser included offenses.

(i) Sale or disposition of military property:

(a) ML, 130.76 - attempts;

(b) ML, 130.115 - sale or disposition of nonmilitary government property.

(ii) Willfully damaging military property:

(a) ML, 130.103 - damaging military property through neglect;

(b) ML, 130.76 - attempts.

(iii) Willfully suffering military property to be damaged:

(a) ML, 130.103 - through neglect suffering military property to be damaged;

(b) ML, 130.76 - attempts.

(iv) Willfully destroying military property:

(a) ML, 130.103 - through neglect destroying military property;

(b) ML, 130.103 - willfully damaging military property;

(c) ML, 130.103 - through neglect damaging military property;

(d) ML, 130.76 - attempts.

(v) Willfully suffering military property to be destroyed:

(a) ML, 130.103 - through neglect suffering military property to be destroyed;

(b) ML, 130.103 - willfully suffering military property to be damaged;

(c) ML, 130.103 - through neglect suffering military property to be damaged;

(d) ML, 130.76 - attempts.

(vi) Willfully losing military property:

(a) ML, 130.103 - through neglect, losing military property;

(b) ML, 130.76 - attempts.

(vii) Willfully suffering military property to be lost:

(a) ML, 130.103 - through neglect, suffering military property to be lost;

(b) ML, 130.76 - attempts.

(viii) Willfully suffering military property to be sold:

(a) ML, 130.103 - through neglect, suffering military property to be sold;

(b) ML, 130.76 - attempts.

(ix) Willfully suffering military property to be wrongfully disposed of:

(a) ML, 130.103 - through neglect, suffering military property to be wrongfully disposed of in the manner alleged;

(b) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Selling or disposing of military property.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, without proper authority, (sell to ______) (dispose of by ______) ______[(a firearm) (an explosive)] of a value of (about) $______, military property of [(the United States) (the State of New York)].

(ii) Damaging, destroying, or losing military property.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, without proper authority, [(willfully) (through neglect)] [(damage by ______) (destroy by ______) (lose)] ______ [of a value of (about) $ ______,] military property of the [(the United States) (the State of New York)] [the amount of said damage being in the sum of (about) $ ______].

(iii) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of.

In that ______ (personal jurisdiction data), did, (at/or board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, without proper authority, (willfully) (through neglect) suffer ______, [(a firearm) (an explosive)] [of a value of (about) $ ______] military property of the [(the United States) (the State of New York)], to be (lost) (damaged by ______) (destroyed by ______) (sold to ______) (wrongfully disposed of by ______)[the amount of said damage being in the sum of (about) $ ______].

(af)Property other than military property-waste, spoil, or destruction.

(1) Text.

"Any person subject to this code who, while on active state duty or in a duty status other than active state duty, willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of the state shall be punished as a court-martial may direct."

(2) Elements.

(i) Wasting or spoiling of nonmilitary property:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused willfully or recklessly wasted or spoiled certain real property in a certain manner;

(c) that the property was that of another person; and

(d) that the property was of a certain value.

(ii) Destroying or damaging nonmilitary property:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused willfully and wrongfully destroyed or damaged certain personal property in a certain manner;

(c) that the property was that of another person; and

(d) that the property was of a certain value or the damage was of a certain amount.

(3) Explanation.

(i) Active state duty or in a duty status other than active state duty. The code was enacted in 1953, after several years study of prior military law. Such prior law had provided court-martial jurisdiction over many offenses primarily civil in nature. Because of the disparity in sentencing authority between what civilian criminal courts and courts- martial could adjudge. The 1953 codification deleted many of these civilian-cognizable offenses. One group of exceptions is that contained in ML, 130.104. Although this offense is primarily civil in nature and cognizable in civilian criminal courts in the interests of military discipline, it was felt necessary that courts-martial retain jurisdiction over this group of offenses. Hence, the duty status of the accused was specifically made an element of each offense.

(ii) Wasting or spoiling nonmilitary property. This portion of ML, 130.104 prescribes willful or reckless waste or spoilation of the real property of another. The terms wastes and spoils as used in this Article refer to such wrongful acts of voluntary destruction of or permanent damage to real property as burning down buildings, burning piers, tearing down fences, or cutting down trees. This destruction is punishable whether done willfully, that is intentionally, or recklessly, that is through a culpable disregard of the foreseeable consequences of some voluntary act.

(iii) Destroying or damaging nonmilitary property. This portion of ML, 130.104 prescribes the willful and wrongful destruction or damage of the personal property of another. To be destroyed, the property need not be completely demolished or annihilated, but must be sufficiently injured to be useless for its intended purpose. Damage consists of any physical injury to the property. To constitute an offense under this section, the destruction or damage of the property must have been willful and wrongful. As used in this section willfully means intentionally and wrongfully means contrary to law, regulation, lawful order, or custom. Willfulness may be proved by circumstantial evidence, such as the manner in which the acts were done.

(iv) Value and damage. In the case of destruction, the value of the property destroyed controls the maximum punishment which may be adjudged. In the case of damage, the amount of the damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair by artisans employed in this work who are available to the community wherein the owner resides, or the replacement cost, whichever is less. (Paragraph 46c[1][g]).

(4) Lesser included offense. (ML, 130.76 - attempts)

(5) Sample specification.

In that ______ (personal jurisdiction data), [(while on active state duty) (while in a duty status other than active state duty)], did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, [(willfully) (recklessly) waste] [(willfully) (recklessly) spoil] $______]willfully and wrongfully (destroy) (damage) by______,] [of a value of (about) $ ______] [the amount of said damage being in the sum of (about) $______], the property of ______.

(ag)Improper hazarding of vessel.

(1) Text.

(a)" Any person subject to this code who willfully and wrongfully hazards or suffers to be hazarded any vessel of the United States or the organized militia shall be punished as a court-material may direct.

(b) Any person subject to this code who negligently hazards or suffers to be hazarded any vessel of the United States or of the organized militia shall be punished as a court-martial may direct."

(2) Elements:

(i) that a vessel of the United States or of the organized militia was hazarded in a certain manner; and

(ii) that the accused by certain acts or omissions, willfully and wrongfully or negligently, caused or suffered the vessel to be hazarded.

(3) Explanation.

(i)Hazard means to put in danger of loss or injury. Actual damage to, or loss of, a vessel of the Armed Forces by collision, stranding, running upon a shoal or a rock, or by any other cause, is conclusive evidence that the vessel was hazarded but not of the fact of culpability on the part of any particular person. Stranded means run aground so that the vessel is fast for a time. If the vessel "touches and goes," she is not stranded; if she "touches and sticks," she is. A shoal is a sand, mud, or gravel bank or bar that makes the water shallow.

(ii) As used in this Article, willfully means intentionally and wrongfully means contrary to law, regulation, lawful order, or custom.

(iii)Negligence as used in this Article means the failure to exercise the care, prudence, or attention to duties, which the interests of the government require a prudent and reasonable person to exercise under the circumstances. This negligence may consist of the omission to do something the prudent and reasonable person would have done, or the doing of something which such a person would not have done under the circumstances. No person is relieved of culpability who fails to perform such duties as are imposed by the general responsibilities of that person's grade or rank, or by the customs of the service for the safety and protection of vessels of the Armed Forces, simply because these duties are not specifically enumerated in a regulation or order. However, a mere error in judgment that a reasonably able person might have committed under the same circumstances does not constitute an offense under this Article.

(iv) To suffer means to allow or permit. A ship is willfully suffered to be hazarded by one who, although not in direct control of the vessel, knows a danger to be imminent but takes no steps to prevent it as by a plotting officer of a ship under way who fails to report to the officer of the deck a radar target which is observed to be on a collision course with, and dangerously close to, the ship. A suffering through neglect implies an omission to take such measures as were appropriate under the circumstances to prevent a foreseeable danger.

(4) Lesser included offenses.

(i) Willfully and wrongfully hazarding a vessel:

(a) ML, 130.105 - negligently hazarding a vessel;

(b) ML, 130.76 - attempts.

(ii) Willfully and wrongfully suffering a vessel to be hazarded:

(a) ML, 130.105 - negligently suffering a vessel to be hazarded;

(b) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Hazarding or suffering to be hazarded any vessel, willfully and wrongfully.

In that ______ (personal jurisdiction data), did, on ______19__, while serving as ______ aboard the ______ in the vicinity of ______, willfully and wrongfully (hazard the said vessel) (suffer the said vessel to be hazarded) by (causing the said vessel to collide with ______) (allowing the said vessel to run aground) (______).

(ii) Hazarding of vessel, negligently.

(a) Example 1.

In that ______ (personal jurisdiction data), on ______19__, while serving in command of the ______, making entrance to (Boston Harbor), did negligently hazard the said vessel by failing and neglecting to maintain or cause to be maintained an accurate running plot of the true position of said vessel while making said approach, as a result of which neglect the said ______, at or about ______, hours on the day aforesaid, became stranded in the vicinity of (Channel Buoy Number Three).

(b) Example 2.

In that ______ (personal jurisdiction data), on ______, while serving as navigator of the ______, cruising on special service in the ______ ocean off the coast of ______, notwithstanding the fact that at about midnight, ______19__, the ______ point of ______ bore abeam and was about ______ miles distant, the said ship being then under way and making a speed of about 10 knots, and well knowing the position of the said ship at the time stated, and that the charts of the locality were unreliable and the currents thereabouts uncertain, did then and there negligently hazard the said vessel by failing and neglecting to exercise proper care and attention in navigating said ship while approaching ______ Island, in that he/she neglected and failed to lay a course that would carry said ship clear of the last aforesaid island, and to change the course in due time to avoid disaster; and the said ship, as a result of said negligence on the part of said ______, ran upon a rock off the ______ coast of ______ Island, at about ______hours, ______ 19 __, in consequence of which the said ______ was lost.

(c) Example 3.

In that ______ (personal jurisdiction data), on ______19__, while serving as navigator of the ______ and well knowing that at about sunset of said day the said ship had nearly run her estimated distance from the ______ position, obtained and plotted by him/her, to the position of ______, and well knowing the difficulty of sighting ______, from a safe distance after sunset, did then and there negligently hazard the said vessel by failing and neglecting to advise his/her commanding officer to lay a safe course for said ship to the northward before continuing on a ______ course, as it was the duty of said ______ to do; in consequence of which the said ship was, at about ______ hours on the day above mentioned, run upon ______ bank in the ______ sea, About latitude ______ degrees, __ minutes, ______, and longitude ______ degrees, __ minutes ______, and seriously injured.

(iii) Suffering a vessel to be hazarded, negligently.

In that ______ (personal jurisdiction data), while serving as combat intelligence center officer on board the ______, making passage from ______ to ______, and having, between ______ and ______ hours on ______19 __, been duly informed of decreasing radar ranges and constant radar bearing indicating that the said ______was upon a collision course approaching a radar target, did then and there negligently suffer the said vessel to be hazarded by failing and neglecting to report said collision course with said radar target to the officer of the deck, as it was his/her duty to do, and he/she, the said ______, through negligence, did cause the said ______ to collide with the ______ at or about ______ hours on said date, with resultant damage to both vessels.

(ah)Drunken or reckless driving.

(1) Text.

"Any person subject to this code who, while on active state duty or in a duty status other than active state duty, operates any vehicle while drunk, or in a reckless or wanton manner, or while impaired by drugs, shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(ii) that the accused was operating a vehicle; and

(iii) that the accused was drunk while operating the vehicle; or that the accused operated the vehicle in a reckless or wanton manner.

Note:

[If injury resulted add the following element.]

(iv) that the accused thereby caused the vehicle to injure a person.

(3) Explanation.

(i) Active state duty or in a duty status other than active state duty (See subparagraph (af)(3)(i) of this section).

(ii) Vehicle (See N.Y.R.C.M. 103[34]). Drunken or reckless operation of water and air transportation may be alleged under other articles of the code, as appropriate.

(iii) Operating. Operating a vehicle includes not only driving or guiding it 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 or its controls so as to cause the particular vehicle to move.

(iv)Drunk and impaired means any intoxication which is sufficient sensibly to impair the rational and dull exercise of the mental or physical faculties. Whether the drunkenness or impairment was caused by liquor or drugs is immaterial.

(v) Reckless. The operation of a vehicle is reckless when it exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. 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, but all these factors may be admissible and relevant as bearing upon the ultimate question: whether, under all the circumstances, the accused's manner of operation of the vehicle was of that heedless nature which made it actually or imminently dangerous to the occupants, or to the rights or safety of others. It is driving with such a high degree of negligence that if death were caused, the accused would have committed involuntary manslaughter, at least. The condition of the surface on which the vehicle is operated, the time of day or night, the traffic, and the condition of the vehicle are often matters of importance in the proof of an offense charged under this Article, and, where they are of importance, may properly be alleged.

(vi) Wanton. Wanton includes "reckless", but in describing the operation of a vehicle, it may, in a proper case, connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

(vii) Separate offenses. While the same course of conduct may constitute both drunken and reckless driving, this Article prescribes these are separate offenses, and both offenses may be charges. However, as recklessness is a relative matter, evidence of all the surrounding circumstances which made the operation dangerous, whether alleged or not, may be admissible. Thus, on a charge of reckless driving, evidence of drunkenness might be admissible as establishing one aspect of the recklessness, and evidence that the vehicle exceeded a safe speed, at a relevant prior point and time, might be admissible as corroborating other evidence of the specific recklessness charged. Similarly, on a charge of drunken driving, relevant evidence of recklessness might have probative value as corroborating other proof of drunkeness.

(4) Lesser included offenses.

Drunken driving.

(i) ML, 130.107 - drunk on duty;

(ii) ML, 130.115 - drunk on station.

(5) Sample specification.

In that ______ (personal jurisdiction data) [(while on active state duty) (while in a duty status other than active state duty)], did (at/on board-location) (subject-matter jurisdiction data, if required), on or about ______19__, (in the motor pool area) (near the officer's Club) (on ______Street between ______ and ______Avenues) (______) operate a vehicle, to wit: (a truck) (a passenger car) (______), [while drunk] [while impaired by ______] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (driving at a speed in excess of 50 miles per hour on the sidewalk and wrong side of said street) (______)] (and did thereby cause said vehicle to (strike and) injure ______).

(ai)Drunk on duty-misbehavior.

(1) Text.

"Any person subject to this code who is found drunk on duty or drunk or sleeping upon his post, or who leaves his post before he is regularly relieved, shall be punished as a court-martial may direct."

(2) Elements.

(i) that the accused was on a certain duty or was posted or on post as a sentinel or lookout;

(ii) that the accused was found drunk while on that duty or post, was found sleeping while on post, or left post before being regularly relieved.

(3) Explanation.

(i) In general. This article encompasses the offenses found in articles 112 and 113 of the Uniform Code of Military Justice, and defines four kinds of misbehavior committed by those on duty as sentinels, lookouts, or otherwise, being found drunk on duty, or sleeping or leaving it before being regularly relieved.

(ii) Post. Post is the area where the sentinel or lookout is required to be for the performance of duties. It is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the sentinel or lookout goes an immaterial distance from the post, unless it is such a distance that the ability to fully perform the duty for which posted is impaired.

(iii) On post. A sentinel or lookout becomes "on post" after having been given a lawful order to go "on post" as a sentinel or lookout and being formally or informally posted. The fact that a sentinel or lookout is not posted in the regular way is not a defense. It is sufficient, for example, the sentinel or lookout has taken the post in accordance with proper instruction, whether or not formally given. A sentinel or lookout is on post within the meaning of the article not only when at a post physically defined, as is ordinarily the case in garrison or aboard ship, but also, for example, when stationed in observation against the approach of an enemy, or detailed use any equipment designed to locate friend, foe, or possible danger, or at a designated place to maintain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work.

(iv) Sentinel or lookout. A sentinel or lookout is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place and to sound the alert, if necessary.

(v)Duty as used in this Article means military duty. Every duty which an officer or enlisted person may legally be required by superior authority to execute is necessarily a military duty. Within the meaning of this Article, when in the actual exercise of command, the commander of a post, or of a command, or of a detachment in the field is constantly on duty, as is the commanding officer on board a ship. In the case of other officers or enlisted persons, "on duty" relates to duties of routine or detail, in garrison, at a station, or in the field, and does not relate to those periods when no duty being required of them by orders or regulations, officers and enlisted persons occupy the status of leisure known as "off duty" or "on liberty". In a region of active hostilities, the circumstances are often such that all members of a command may properly be considered as being continuously on duty within the meaning of this Article. So also, an officer of the day and members of the guard, or of the watch, are on duty during their entire tour within the meaning of this Article.

(vi) Drunk. For an explanation of "drunk", see subparagraph (ah)(3)(iv) of this section.

(vii) Sleeping. As used in this Article, sleeping is that condition of insentience which is sufficient sensibly to impair the full exercise of the mental and physical faculties of a sentinel or lookout. It is not necessary to show that the accused was in a wholly comatose condition.

(viii) Defenses. The fact that the accused's sleeping resulted from a physical incapacity caused by disease or accident is an affirmative defense (See N.Y.R.C.M. 916[i]). If the accused is known by superior authorities to be drunk at the time a duty is assigned and the accused is allowed to assume that duty anyway or if the drunkenness resulted from an accidental over dosage administered for medicinal purposes, the accused will have a defense to an offense wherein drunkenness is an element. But see subdivision (ay) of this section (incapacitation for duty).

(4) Lesser included offenses:

(i) Drunk on duty.

ML, 130.115 - drunk on station;

(ii) Drunk on post;

(a) ML, 130.107 - drunk on duty;

(b) ML, 130.88 - dereliction of duty;

(c) ML, 130.115 - drunk on station;

(d) ML, 130.115 - drunk in uniform in a public place.

(iii) Sleeping on post:

(a) ML, 130.88 - dereliction of duty;

(b) ML, 130.115 - loitering or wrongfully sitting down on post.

(iv) Leaving post:

(a) ML, 130.88 - dereliction of duty;

(b) ML, 130.82 - going from appointed place of duty.

(5) Sample specifications.

(i) Drunk on duty.

In that ______ (personal jurisdiction data), was, (at/on board - location), on or about ______19 __, found drunk while on duty as ______.

(ii) Duty as sentinel or lookout.

In that ______ (personal jurisdiction data), on or about ______(at/on board - location), being (posted) (on post) as a (sentinel) (lookout) at (warehouse No. 7) (post No. 11) (for radar observation) (______) [was found (drunk) (sleeping) upon his/her post] [did leave his/her post before he/she was regularly relieved].

(aj)Dueling.

(1) Text.

"Any person subject to this code who, while on active state duty or in a duty status other than active state duty, fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct."

(2) Elements.

(i) Dueling:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused fought another person with deadly weapons;

(c) that the combat was for private reasons; and

(d) that the combat was by prior agreement.

(ii) Promoting a duel:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused promoted a duel between certain persons; and

(c) that the accused did so in a certain manner.

(iii) Conniving at fighting a duel:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that certain persons intended to and were about to engage in duel;

(c) that the accused had knowledge of the planned duel; and

(d) that the accused connived at the fighting of the duel in a certain manner.

(iv) Failure to report a duel:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that a challenge to fight a duel had been sent or was about to be sent;

(c) that the accused had knowledge of this challenge; and

(d) that the accused failed to report this fact promptly to proper authority.

(3) Explanation.

(i) Active state duty or in a duty status other than active state duty (see subparagraph [af][3][i] of this section).

(ii) Duel. A duel is combat between two persons for private reasons fought with deadly weapons by prior agreement.

(iii) Promoting a duel. Urging or taunting another to challenge or to accept a challenge to duel, acting as a second or as carrier of a challenge or acceptance, or otherwise furthering or contributing to the fighting of a duel are examples of promoting a duel.

(iv) Conniving at fighting a duel. Anyone who has knowledge that steps are being taken or have been taken toward arranging or fighting a duel and who fails to take reasonable preventive action thereby connives at the fighting of a duel.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Dueling.

In that ______ (personal jurisdiction data) (and ______), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, fight a duel (with ______), using as weapons therefor (pistols) (swords) ( ______).

(ii) Promoting a duel.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, promote a duel between ______ and ______by (telling said ______he/she would be a coward if he/she failed to challenge said ______to a duel) (knowingly carrying from said ______to said ______a challenge to fight a duel).

(iii) Conniving at fighting a duel.

In that ______ (personal jurisdiction data) [(while on active state duty) (while in a duty status other than active state duty)], having knowledge that ______ and ______ were about to engage in a duel, did (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, connive at the fighting of said duel by (failing to take reasonable preventive action) ( ______).

(iv) Failure to report a duel.

In that ______ (personal jurisdiction data) [(while on active state duty) (while in a duty status other than active state duty)], having knowledge that a challenge to fight a duel (had been sent) (was about to be sent) by ______to ______, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 ______ fail to report that fact promptly to the proper authority.

(ak)Malingering.

(1) Text.

"Any person subject to this code who for the purpose of avoiding work, duty, or service in the militia-

(1) feigns illness, physical disablement, mental lapse or derangement; or

(2) intentionally inflicts self-injury; shall be punished as a court-martial may direct."

(2) Elements:

(i) that the accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service in the militia;

(ii) that the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself; and

(iii) that the accused's purpose or intent in doing so was to avoid the work, duty, or service.

(3) Explanation.

(i) Nature of offense. The essence of this offense is the design to avoid performance of any work, duty, or service which may properly or normally be expected of one in the militia. Whether to avoid all duty, or only a particular job, it is the purpose to shirk which characterizes this offense. Hence, the nature or permanency of a self-inflicted injury is not material on the question of guilty, nor is the seriousness of a physical or mental disability which is a sham. Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.

(ii) How injury inflicted. The injury may be inflicted by nonviolent as well as by violent means and may be accomplished by any act or omission which produces, prolongs, or aggravates any sickness or disability. Thus, voluntary starvation which results in debility is a self-inflicted injury and when done for the purpose of avoiding work, duty, or a service constitutes a violation of this Article.

(4) Lesser included offenses.

(i) ML, 130.115 - self-injury without intent to avoid service;

(ii) ML, 130.76 - attempts.

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location) (in a hostile fire pay zone) (subject-matter jurisdiction data, if required) (on or about ______ 19) (from about ______ 19 __ to about ______ 19 __), (a time of war) for the purpose of avoiding (his/her duty as officer of the day) (his/her duty as aircraft mechanic) (work in the mess hall) (service as an enlisted person (______) [feign (a headache) (a sore back) (illness) (mental lapse) (mental derangement) ( ______)] [intentionally injure himself/herself by ______].___________________________________

(al)Riot or breach of peace.

(1) Text.

"Any person subject to this code who, while on active state duty or in a duty status other than active state duty, causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct."

(2) Elements.

(i) Riot:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused was a member of an assembly of three or more persons;

(c) that the accused and at least two other members of this group mutually intended to assist one another against anyone who might oppose them in doing an act for some private purpose;

(d) that the group or some of its members, in furtherance of such purpose, unlawfully committed a tumultuous disturbance of the peace in a violent or turbulent manner; and

(e) that these acts terrorized the public in general in that they caused or were intended to cause public alarm or terror.

(ii) Breach of the peace:

(a) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(b) that the accused caused or participated in a certain act of a violent or turbulent nature; and

(c) that the peace was thereby unlawfully disturbed.

(3) Explanation.

(i) Active state duty or in a duty status other than active state duty (see subparagraph [af][3][i] of this section).

(ii)Riot is a tumultuous disturbance of the peace by three or more persons assembled together in furtherance of a common purpose to execute some enterprise of a private nature by concerted action against anyone who might oppose them, committed in such a violent and turbulent manner as to cause or be calculated to cause public terror. The gravamen of the offense of riot is terrorization of the public. It is immaterial whether the act intended was lawful. Furthermore, it is not necessary that the common purpose be determined before the assembly. It is sufficient if the assembly begins to execute in a tumultuous manner a common purpose formed after it assembled.

(iii) A breach of the peace is an unlawful disturbance of the peace by an outward demonstration of a violent or turbulent nature. The acts or conduct contemplated by this Article are those which disturb the public tranquility or impinge upon the peace and good order to which the community is entitled. Engaging in an affray and unlawful discharge of firearms in a public street are examples of conduct which may constitute a breach of the peace. Loud speech and unruly conduct may also constitute a breach of the peace by the speaker. A speaker may also be guilty or causing a breach of the peace if the speaker uses language which can reasonably be expected to produce a violent or turbulent response and a breach of the peace results. The fact that the words are true or used under provocation is not a defense, nor is tumultuous conduct excusable because incited by others.

(iv)Community and public include a military organization, post, camp, ship, aircraft, or station.

(4) Lesser included offenses.

(i) Riot:

(a) ML, 130.110 - breach of the peace;

(b) ML, 130.115 - disorderly conduct;

(c) ML, 130.76 - attempts.

(ii) Breach of the peace:

(a) ML, 130.115 - disorderly conduct;

(b) ML, 130.76 - attempts.

(5) Sample specifications.

(i) Riot.

In that ______(personal jurisdiction data), [(while on active state duty) (while in a duty status other than active state duty)] did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, (cause) (participate in) a riot by unlawfully assembling with ______(and ______) (and) (others to the number of about ______whose names are unknown) for the purpose or (resisting the police of ______) (assaulting passers-by) ( ______) ( ______), to the terror and disturbance of ______.

(ii) Breach of the peace.

In that ______ (personal jurisdiction data), [(while on active state duty) (while in a duty status other than active state duty)] did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, (cause) (participate in) a breach of the peace by [wrongfully engaging in a fist fight in the dayroom with ______] [using the following provoking language (toward ______), to wit: " ______," or words to that effect] [wrongfully shouting and singing in a public place, to wit: ______] [ ______].

(am)Provoking speeches or gestures.

(1) Text.

"Any person subject to this code who, while on active state duty or in a duty status other than active state duty, uses provoking or reproachful words or gestures towards any other person subject to this code shall be punished as a court- martial may direct."

(2) Elements:

(i) that the accused was on active state duty or in a duty status other than active state duty at the time of the offense;

(ii) that the accused wrongfully used words or gestures toward a certain person;

(iii) that the words or gestures used were provoking or reproachful; and

(iv) that the person toward whom the words or gestures were used was a person subject to the code.

(3) Explanation.

(i) In general. As used in this Article, provoking and reproachful describe those words or gestures which are used in the presence of the person to whom they are directed and which a reasonable person would expect to induce a breach of the peace under the circumstances. These words and gestures do not include reprimands, censures, reproofs and the like which may properly be administered in the interests of training, efficiency, or discipline in the Armed Forces.

(ii) Active state duty or in a duty status other than active state duty (see subparagraph [ af][3][i] of this section).

(iii) Knowledge. It is not necessary that the accused have knowledge that the person toward whom the words or gestures are directed is a person subject to the code.

(4) Lesser included offenses (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), [(while an active state duty) (which in a duty status other than active state duty)] did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, wrongfully use (provoking) (reproachful) (words, to wit; " ______:" or words to that effect) (and) (gestures, to wit: ______) towards (Sergeant ______, ( ______).

(an)Perjury.

(1) Text.

"Any person subject to this code who in a judicial proceeding or course of justice willfully and corruptly (1) gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry; or, (2) in any declaration, certificate, verification, or statement under penalty of perjury, serves any false statement material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court- martial may direct."

(2) Elements.

(i) Giving false testimony:

(a) that the accused took an oath or affirmation in a certain judicial proceeding or course of justice;

(b) that the oath or affirmation was administered to the accused in a matter in which an oath or affirmation was required or authorized by law;

(c) that the oath or affirmation was administered by a person having authority to do so;

(d) that upon the oath or affirmation the accused willfully gave certain testimony;

(e) that the testimony was material;

(f) that the testimony was false.

(ii) Subscribing false statement:

(a) that the accused subscribed a certain statement in a judicial proceeding or course of justice;

(b) that in the declaration, certification, verification or statement under the penalty of perjury, the accused declared, certified, verified or stated the truth of that certain state ment;

(c) that the accused willfully subscribed the statement;

(d) that the statement was material;

(e) that the statement was false; and

(f) that the accused did not then believe the statement to be true.

(iii) That the accused did not then believe the testimony to be true.

(3) Explanation.

(i) In general. "Judicial proceeding" includes a trial by court-martial and "course of justice" includes an investigation conducted under 130.32, ML. If the accused is charged with having committed perjury before a court-martial, it must be shown that the court-martial was duly constituted.

(ii) Giving false testimony.

(a) Nature. The testimony must be false and must be willfully and corruptly given; that is, it must be proved that the accused gave the false testimony willfully and did not believe it to be true. A witness may commit perjury by testifying to the truth of matter when in fact the witness knows nothing about it at all or is not sure about it, whether the thing is true or false in fact. A witness may also commit perjury in testifying falsely as to a belief, remembrance, or impression, or as to a judgment or opinion. It is no defense that the witness voluntarily appeared, that the witness was incompetent as a witness, or that the testimony was given in response to questions that the witness could have declined to answer.

(b) Material matter. The false testimony must be with respect to a material matter, but that matter need not be the main issue in the case. Thus, perjury may be committed by giving false testimony with respect to the credibility of a material witness or in an affidavit in support of a request for a continuance, as well as by giving false testimony with respect to a fact form which a legitimate inference may be drawn as the the existence or nonexistence of a fact in issue. Whether the allegedly false testimony was with respect to a material matter is a question of law to be determined as an interlocutory question.

(c) Proof. The falsity of the allegedly perjured statement cannot be proved by circumstantial evidence alone, except with respect to matters which by their nature are not susceptible of direct proof.

The falsity of the statement cannot be proved by the testimony of a single witness unless that testimony directly contradicts the statement and is corroborated by other evidence, either direct or circumstantial, tending to prove the falsity of the statement. However, documentary evidence directly disproving the truth of the statement charged to have been perjured need not be corroborated if: the document is an official record shown to have been well known to the accused at the time the oath was taken; or the documentary evidence originated from the accused-or had in any manner been recognized by the accused as containing the truth-before the allegedly perjured statement was made.

(d) Oath. The oath must be one recognized or authorized by law and must be duly administered by one authorized to administer it. When a form of oath has been prescribed, a literal following of that form is not essential; it is sufficient if the oath administered conforms in substance to the prescribed form. Oath includes an affirmation when the latter is authorized in lieu of an oath.

(e) Belief of accused. The fact that the accused did not believe the statement to be true may be proved by testimony of one witness without corroboration or by circumstantial evidence.

(iii) Subscribing false statement, see subparagraphs (i) and (ii) of this paragraph, as applicable. Section 210 of the New York Penal Law provides for subscribing to the truth of a document by signing it expressly subject to the penalty of perjury. The signing must take place in a judicial proceeding or course of justice. For example, if a witness signs under penalty of perjury, summarized testimony given at a ML 130.32 investigation, it is not required that the document be sworn before a third party. Section 210 does not change the requirement that a deposition be given under oath or alter the situation where an oath is required to be taken before a specific person.

(4) Lesser included offenses.

(i) ML, 130.115 - false swearing;

(ii) ML, 130.76 - attempts.

(5) Sample specification.

In that ______ (personal jurisdiction data), having taken a lawful (oath) (affirmation in a (trial by ______ court-martial of ______) (trial by a court of competent jurisdiction, to wit: ______of ______) (deposition for use in a trial by ______ of ______) ( ______) that he/she would (testify) (depose) truly, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, willfully, corruptly, and contrary to such (oath) (affirmation), (testify) (depose) falsely in substance that, which (testimony)(deposition) was upon a material matter and which he/she did not then believe to be true.

(ao)Frauds against the government.

(1) Text.

"Any person subject to this code-

(1) who, knowing it to be false or fraudulent-

(A) makes any claim against the United States, the state, or any officer thereof; or

(B) presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States, the state or any office thereof; or

(2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States, the state or any officer thereof-

(A) makes or uses any writing or other paper knowing the same to contain any false or fraudulent statements; or

(B) makes any oath to any fact or to any writing or other paper knowing such oath to be false; or

(C) forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; or (3) who, having charge, possession, custody, or control of any money or other property of the United States, or the state, furnished or intended for the Armed Forces of the United States or the organized militia or any force thereof, knowingly delivers to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or (4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state furnished or intended for the armed forces or the organized militia or any force thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state; shall, upon conviction, be punished as a court-martial may direct."

(2) Elements.

(i) Making a false or fraudulent claim:

(a) that the accused made a certain claim against the United States, or the state, or an officer thereof;

(b) that the claim was false or fraudulent in certain particulars; and

(c) that the accused then knew that the claim was false or fraudulent in these particulars.

(ii) Presenting for approval or payment a false or fraudulent claim:

(a) that the accused presented for approval or payment to a certain person in the civil or military service of the United States or the state having authority to approve or pay it a certain claim against the United States, the state, or an officer thereof;

(b) that the claim was false or fraudulent in certain particulars; and

(c) that the accused then knew that the claim was false or fraudulent in these particulars.

(iii) Making or using a false writing or other paper in connection with claims:

(a) that the accused made or used a certain writing or other paper;

(b) that certain material statements in the writing or other paper were false or fraudulent;

(c) that the accused then knew the statements were false or fraudulent; and

(d) that the act of the accused was for the purpose of obtaining the approval, allowance, or payment of a certain claim or claims against the United States, the state or an officer thereof.

(iv) False oath in connection with claims:

(a) that the accused made an oath to a certain fact or to a certain writing or other paper;

(b) that the oath was false in certain particulars;

(c) that the accused then knew it was false; and

(d) that the act was for the purpose of obtaining the approval, allowance, or payment of a certain claim or claims against the United States, the state or an officer thereof.

(v) Forgery of signature in connection with claims:

(a) that the accused forged or counterfeited the signature of a certain person on a certain writing or other paper; and

(b) that the act was for the purpose of obtaining the approval, allowance, of payment of a certain claim against the United States, the state, or an office thereof.

(vi) Using forged signature in connection with claims:

(a) that the accused used the forged or counterfeited signature of a certain person;

(b) that the accused then know that the signature was forged or counterfeited; and

(c) that the act was for the purpose of obtaining the approval, allowance, or payment of a certain claim against the United States, the state, or an officer thereof.

(vii) Delivering less than amount called for by receipt:

(a) that the accused had charge, possession, custody, or control of certain money or property of the United States, or the state, or an officer thereof or any of them;

(b) that the accused obtained a certificate or receipt for a certain amount or quantity of that money or property;

(c) that for the certificate or receipt the accused knowingly delivered to a certain person having authority to receive it an amount or quantity of money or property less than the amount or quantity thereof specified in the certificate or receipt; and

(d) that the undelivered money or property was of a certain value.

(viii) Making or delivering receipt without having full knowledge that it is true:

(a) that the accused was authorized to make or deliver a paper certifying the receipt form a certain person of certain property of the United States or the state furnished or intended for the Armed Forces thereof or any of them;

(b) that the accused made or delivered to that person a certificate or receipt;

(c) that the accused made or delivered the certificate without having full knowledge or the truth of a certain material statement or statements therein;

(d) that the act was done with intent to defraud the United States, or the state; and

(e) that the property certified as being received was of a certain value.

(3) Explanation.

(i) Making a false or fraudulent claim:

(a) Claim. A claim is a demand for a transfer of ownership of money or property and does not include requisitions for the mere use of property. This Article applies only to claims against the United States, the State or any officer thereof as such, and not to claims against an officer of the United States or of New York in that officer's private capacity.

(b) Making a claim. Making a claim is a distinct act from presenting it. A claim may be made in one place and presented in another. The mere writing of a paper in the form of a claim, without any further act to cause the paper to become a demand against the United States, the State, or an officer thereof, does not constitute making a claim. However, any act placing the claim in official channels constitutes making a claim, even if that act does not amount to presenting a claim. It is not necessary that the claim be allowed or paid or that it be made by the person to be benefited by the allowance or payment (see also subparagraph (ii) of this paragraph).

(c) Knowledge. The claim must be made with knowledge of its fictitious or dishonest character. This article does not proscribe claims, however groundless they may be, that the maker believes to be valid, or claims that are merely made negligently or without ordinary prudence.

(ii) Presenting for approval or payment a false or fraudulent claim.

(a) False and fraudulent. False and fraudulent claims include not only those containing some material false statement, but also claims which the claimant knows to have been paid or for some other reason the claimant knows the claimant is not authorized to present or upon which the claimant knows the claimant has no right to collect.

(b) Presenting a claim. The claim must be presented, directly or indirectly, to some person having authority to pay it. The person to whom the claim is presented may be identified by position or authority to approve the claim, and need not be identified by name in the specification. A false claim may be tacitly presented, as when a person who knows that there is no entitlement to certain pay accepts it nevertheless without disclosing a disqualification, even though the person may not have made any representation of entitlement to the pay. For example, a person cashing a paycheck which includes an amount for a dependency allowance, knowing at the time that the entitlement no longer exists because of a change in that dependency status, has tacitly presented a false claim (see also subparagraph [i] of this paragraph).

(iii) Making or using a false writing or other paper in connection with claims. The false or fraudulent statement must be material, that is, it must have a tendency to mislead governmental officials in their consideration or investigation of the claim. The offense of mailing a writing or other paper known to contain a false or fraudulent statement for the purpose of obtaining the approval, allowance, or payment of a claim is complete when the writing or paper is made for that purpose, whether or not any use of the paper has been attempted and whether or not the claim has been presented (see also the explanation in subparagraphs [i] and [ii] of this paragraph).

(iv) False oath in connection with claims (see subparagraphs [i] and [ii] of this paragraph).

(v) Forgery of signature in connection with claims. Any fraudulent making of the signature of another is forging or counterfeiting, whether or not an attempt is made to imitate the handwriting (see paragraph [iv][3] of this section and subparagraphs [i] and [ii] of this paragraph).

(vi) Delivering less than amount called for by receipt. It is immaterial by what means-whether deceit, collusion, or otherwise-the accused effected the transaction, or what was the accused's purpose.

(vii) Making or delivering receipt without having full knowledge that it is true. When an officer or other person subject to military law is authorized to make or deliver any paper certifying the receipt of any property of the United States or the state furnished or intended for the Armed Forces thereof, and a receipt or other paper is presented for signature stating that a certain amount of supplies has been furnished by a certain contractor, it is that person's duty before signing the paper to know that the full amount of supplies therein stated to have been furnished has in fact been furnished, and that the statements contained in the paper are true. If the person signs the paper with intent to defraud the United States or the state and without that knowledge, that person is guilty of a violation of this section of the article. If the person signs the paper with knowledge that the full amount was not received, it may be inferred that the person intended to defraud the United States or the state.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Making false claim.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, [by preparing (a voucher) ( ______) for presentment for approval or payment] [ ______], make a claim against the [(United States) (States of New York)] (finance officer at ______) in the amount of $ __for [private property alleged to have been (lost) (destroyed) in the military service] [______], which claim was (false) (fraudulent) (false and fraudulent) in the amount of $ ______ in that ______ and was then known by the said ______ to be (false) (fraudulent) (false and fraudulent).

(ii) Presenting false claim.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, by presenting (a voucher) ( ______) to ______, an officer of the [(United States) (the State of New York)] duly authorized to (approve) (pay) (approve and pay) such claim, present for (approval) (payment) (approval and payment) a claim against the [(United States) (the State of New York)] (finance officer at __) (__) in the amount of $ __for (services alleged to have been rendered to the [(United States) (the State of New York)] by ______ during ______) ( ______), which claim was (false) (fraudulent) (false and fraudulent) in the amount of $ __ in that ______, and was then known by the said ______ to be (false) (fraudulent) (false and fraudulent).

(iii) Making or using false writing.

In that ______ (personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the [(United States) (the State of New York)] in the amount of $ __, did (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, (make) (use) (make and use) a certain (writing) (paper), to wit: ______, which said (writing) (paper), as he/she, the said ______, then knew, contained a statement that ______, which statement was (false) (fraudulent) (false and fraudulent) in that ______, and was then known by the said ______ to be (false) (fraudulent) (false and fraudulent).

(iv) Making false oath.

In that ______ (personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the [(United States) (the State of New York)] did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, make an oath [to the fact that ______], [to a certain (writing) (paper), to wit: ______, to the effect that ______ ], which said oath was false in that ______, and was then known by the said ______ to be false.

(v) Forging or counterfeiting signature.

In that ______(personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the [(United States) (the State of New York)] did, (at/on board - location) (subject-matter jurisdiction data, if required), of or about ______ 19 __, (forge) (counterfeit) (forge and counterfeit) the signature of ______ upon a ______in words and figures as follows: ______.

(vi) Using forged signature.

In that ______, for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the [(United States) (the State of New York)] did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, use the signature of ______ on a certain (writing) (paper), to wit: ______, then knowing such signature to be (forged) (counterfeited) (forge and counterfeited).

(vii) Paying amount less than called for by receipt.

In that ______ (personal jurisdiction data), having (charge) (possession) (custody) (control) of (money) ( ______) of the [(United States) (the State of New York)] (furnished) (intended) (furnished and intended) for the Armed Forces thereof, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______19 __, knowingly deliver to ______, the said ______ having authority to receive the same, (an amount) ( ______), which, as he/she, ______, then knew, was ($ ______) (______) less than the (amount) ( ______) for which he/she received a (certificate) (receipt) from the said ______.

(viii) Making receipt without knowledge of the facts.

In that ______ (personal jurisdiction data), being authorized to (make) (deliver) (make and deliver) a paper certifying the receipt of property of the [(United States) (the State of New York)] (furnished) (intended) (furnished and intended) for the Armed Forces thereof, did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, without having full knowledge of the statement therein contained and with intent to defraud the [(United States) (the State of New York)], (make) (deliver) (make and deliver) to ______, such a writing, in words and figures as follows: ______, the property therein certified as received being of a value of (about) $______.

(ap)Conduct unbecoming an officer and gentleman.

(ML, 130.114)

(1) Text.

"Any officer, who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."

(2)

(i) that the accused did or omitted to do certain acts; and

(ii) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and a gentleman.

(3) Explanation.

(i) Gentleman. As used in this Article, gentleman includes both male and female officers.

(ii) Nature of offense. Conduct violative of this Article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer cannot fall without seriously compromising the person's standing as an officer or the person's character as a gentleman. This article prohibits conduct as officer which, taking all the circumstances into consideration, is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Whenever the offense charged is the same as a specific offense set forth in this Chapter, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.

(iii) Examples of offenses. Instances of violation of this Article include knowingly making a false official statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer's presence or about that officer to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer's family.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Copying or using examination paper.

In that ______ (personal jurisdiction data), did, (at/on board - location), on or about ______ 19 __, while undergoing a written examination on the subject of ______, wrongfully and dishonorably (receive) (request) unauthorized aid by [(using) (copying) the examination paper of ] [______].

(ii) Drunk or disorderly.

In that ______ (personal jurisdiction data), was, (at/on board - location), on or about ______ 19 __, in a public place, to wit: ______, (drunk) (disorderly) (drunk and disorderly) while in uniform, to the disgrace of the organized militia.

(aq)General article.

[ML, 130.115]

(1) Text.

"Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the organized militia and all conduct of a nature to bring discredit upon the organized militia of a force thereof, of which persons subject to this code may be guilty, shall be taken cognizance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court."

(2) Elements. The following proof is required to punish the offense as a disorder or neglect to the prejudice of good order and discipline in the organized militia, or of a nature to bring discredit upon the organized militia of a force thereof:

(i) that the accused did or failed to do certain acts; and

(ii) that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia of a force thereof.

(3) Explanation.

(i) In general. ML, 130.115 makes punishable acts in two categories of offenses not specifically covered in any other article of the code. These are referred to as "clauses 1 and 2" of ML, 130.115. Clause 1 offenses involved disorders and neglects to the prejudice of good order and discipline in the organized militia. Clause 2 offenses involve conduct of a nature to bring discredit upon the organized militia or a force thereof. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See clause (v)(a) of this paragraph. However, see paragraph (bg)(3) of this section for offenses committed by officers.

(ii) Disorders and neglects to the prejudice of good order and discipline in the organized militia (clause 1).

(a) To the prejudice of good order and discipline. "To the prejudice of good order and discipline" refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the organized militia could be regarded as prejudicial in some indirect or remote sense; however, this Article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. An act in violation of local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the organized militia. However, see N.Y.R.C.M. 302 concerning subject-matter jurisdiction.

(b) Breach of custom of the service. A breach of a custom of the service may result in a violation of clause 1 of ML, 130.115. In its legal sense, custom means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the various forces of the organized militia. Violations of these customs should be charged under ML, 130.88 as violations of the regulations in which they appear if the regulation is punitive. See paragraph (p)(3) of this section.

(iii) Conduct of a nature to bring discredit upon the organized militia or a force thereof (clause 2). Discredit means to injure the reputation of. This clause of ML, 130.115 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the Armed Forces. However, see N.Y.R.C.M. 203 concerning subject-matter jurisdiction.

(iv) Preemption doctrine. The preemption doctrine prohibits application of ML, 130.115 to conduct covered by ML, 130.73 through ML, 130.113.

(v) Drafting specifications for offenses under ML, 130.115.

(a) In general. A specification alleging a violation of ML, 130.115 need not expressly allege that the conduct was "a disorder or neglect," that it was "of a nature to bring discredit upon the organized militia or a force thereof." The same conduct may constitute a disorder or neglect to the prejudice of good order and discipline in the organized militia and at the same time be of a nature to bring discredit upon the organized militia of a force thereof.

(b) Specifications for clause 1 or 2 offenses not listed. If conduct by an accused does not fall under any of the listed offenses for violations of section 130.15 in this Chapter (subdivisions [ar] through [bn] of this section) a specification not listed in this Chapter may be used to allege the offense.

(ar)Abusing public animal.

[ML, 130.115].

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused wrongfully abused a certain public animal; and

(ii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. A public animal is any animal owned or used by the United States; any animal owned or used by a local or State government in the United States, its territories or possessions; or any wild animal located on any public lands in the United States, the state, its territories or possessions. This would include, for example, drug detector dogs used by the U.S. or State government.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, wrongfully (kick a public drug detector dog in the nose) ( ______).

(as)Correctional custody - offenses against.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements.

(i) Escape from correctional custody:

(a) that the accused was placed in correctional custody by a person authorized to do so;

(b) that, while in such correctional custody, the accused was under physical restraint;

(c) that the accused freed himself of herself from the physical restraint of this correctional custody before being released therefrom by proper authority; and

(d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(ii) Breach of correctional custody:

(a) that the accused was placed in correctional custody by a person authorized to do so;

(b) that, while in correctional custody, a certain restraint was imposed upon the accused;

(c) that the accused went beyond the limits of the restraint imposed before having been released from the correctional custody or relieved of the restraint by proper authority; and

(d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Escape from correctional custody. Escape from correctional custody is the act of a person undergoing the punishment of correctional custody pursuant to 130.15, ML, who, before being set at liberty by proper authority, casts off any physical restraint imposed by the custodian or by the place or conditions of custody.

(ii) Breach of correctional custody. Breach of restraint during correctional custody is the act of a person undergoing the punishment who, in the absence of physical restraint imposed by a custodian or by the place or conditions of custody, breaches any form of restraint imposed during this period.

(iii) Authority to impose correctional custody. See Part 519 of this Title concerning who may impose correctional custody. Whether the status of a person authorized that person to impose correctional custody is a question of law to be decided by the military judge. Whether the person who imposed correctional custody had such a status is a question of fact to be decided by the factfinder.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Escape from correctional custody.

In that ______ (personal jurisdiction data), while undergoing the punishment of correctional custody imposed by a person authorized to do so, did, (at/on board - location), on or about ______ 19 __, escape from correctional custody.

(ii) Breach of correctional custody.

In that ______ (personal jurisdiction data), while duly undergoing the punishment of correctional custody imposed by a person authorized to do so, did, (at/on board - location), on or about ______ 19 __, breach the restraint imposed thereunder by ______.

(at)Debt, dishonorably failing to pay.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements.

(i) that the accused was indebted to a certain person or entity in a certain sum;

(ii) that this debt became due and payable on or about a certain date;

(iii) that while the debt was still due and payable the accused dishonorably failed to pay this debt; and

(iv) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. More than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment of grossly indifferent attitude toward one's just obligations. For a debt to form the basis of this offense, the accused must not have had a defense, or an equivalent offset or counterclaim, either in fact or according to the accused's belief, at the time alleged. The offense should not be charged if there was a genuine dispute between the parties as to the facts or law relation to the debt which would affect the obligation of the accused to pay. The offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor with respect to payment. The length of the period of nonpayment and any denial of indebtedness which the accused may have made may tend to prove that the accused's conduct was dishonorable, but the court-martial may convict only if it finds from all of the evidence that the conduct was in fact dishonorable.

(4) Lesser included offenses. None.

(5) Sample specification.

In that ______ (personal jurisdiction data), being indebted to in ______ the sum of $______ for ______, which amount became due and payable (on) (about) (on or about) _____19 __, dishonorably fail to pay said debt.

(au) Disloyal statements.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused made a certain statement;

(ii) that the statement was communicated to another person;

(iii) that the statement was disloyal to the United States;

(iv) that the statement was made with the intent to promote disloyalty or disaffection toward the United States by any member of the Armed Forces or to interfere with or impair the loyalty to the United States or good order and discipline of any member of the organized militia; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. Certain disloyal statements by military personnel may not constitute an offense under 18 U.S.C. 2385, 2387, and 2388, but may, under the circumstances, be punishable under this Article. Examples include praising the enemy, attacking the war aims of the United States, or denouncing our form of government with the intent to promote disloyalty or disaffection among members of the organized militia. A declaration of personal belief can amount to a disloyal statement if it disavows allegiance owed to the United States by the declarant. The disloyalty involved for this offense must be to the United States as a political entity and not merely to a department or other agency that is a part of its administration.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did (at/on board - location) on or about ______ 19 __, with intent to [promote (disloyalty) (disaffection) (disloyalty and disaffection)] [(interfere with) (impair) the (loyalty) (good order and discipline)] of any member of the Armed Forces of the United States communicate to ______, the following statement, to wit: " ______," or words to that effect, which statement was disloyal to the United States.

(av)Disorderly conduct, drunkenness.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused was drunk, disorderly, or drunk and disorderly on board ship or in some other place; and

(ii) that, under the circumstances, the conduct of the accused was to the prejudice or good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Drunkenness. See subparagraph (ah)(3)(iv) of this section for a discussion of intoxication.

(ii) Disorderly. Disorderly conduct is conduct of such a nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment thereby. It includes conduct that endangers public morals or outrages public decency and any disturbance of a contentious or turbulent character.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), was (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, (drunk) (disorderly) (drunk and disorderly).

(aw)Drinking liquor with prisoner.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused was a sentinel or in another assignment in charge of a prisoner;

(ii) that, while in such capacity, the accused unlawfully drank intoxicating liquor with a prisoner;

(iii) that the prisoner was under the charge of the accused;

(iv) that the accused knew that the prisoner was a prisoner under the accused's charge; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Prisoner. A prisoner is a person who is in confinement or custody imposed under N.Y.R.C.M. 302, 304, or 305, or under sentence of a court-martial who has not been set free by proper authority.

(ii) Liquor. For the purposes of this offense, liquor includes any alcoholic beverage.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that

(ax)Drunk prisoner.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused was a prisoner;

(ii) that while in such status the accused was found drunk; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Prisoner. See subparagraph (aw)(3)(i) of this section.

(ii) Drunk. See subparagraph (ah)(3)(iv) of this section for a discussion of intoxication.

(4) Lesser included offenses. None.

(5) Sample specifications.

In that ______ (personal jurisdiction data), a prisoner, was (at/on board - location), on or about ______19 __, found drunk.

(ay) Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused had certain duties to perform;

(ii) that the accused was incapacitated for the proper performance of such duties;

(iii) that such incapacitation was the result of previous wrongful indulgence in intoxicating liquor or any drug; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Liquor. See subparagraph (aw)(3)(ii) of this section.

(ii) Incapacitated. Incapacitated means unfit or unable to perform properly. A person is "unfit" to perform duties if at the time the duties are to commence, the person is drunk, even though physically able to perform the duties. Illness resulting from previous overindulgence is an example of being "unable" to perform duties. For a discussion of "drunk" see subparagraph (ah)(3)(iv) of this section.

(iii) Affirmative defense. The accused's lack of knowledge of the duties assigned is an affirmative defense to this offense.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), was (at/on board - location), on or about ______ 19 __, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his/her duties.

(az)False or unauthorized pass offenses.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements.

(i) Wrongful making, altering, counterfeiting, or tampering with a military or official pass, permit, discharge certificate, or identification card.

(a) that the accused wrongfully and falsely made, altered, counterfeited, or tampered with a certain military or official pass, permit, discharge certificate, or identification card; and

(b) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(ii) Wrongful sale, gift, loan, or disposition of a military or official pass, permit, discharge certificate, or identification card.

(a) that the accused wrongfully sold, gave, loaned, or disposed of a certain military of official pass, permit, discharge certificate, or identification card;

(b) that the pass, permit, discharge certificate, or identification card was false or unauthorized;

(c) that the accused then knew that the pass, permit, discharge certificate, or identification card was false or unauthorized; and

(d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(iii) Wrongful use or possession of a false or unauthorized military or official pass, permit, discharge certificate, or identification card.

(a) that the accused wrongfully used or possessed a certain military or official pass, permit, discharge certificate, or identification card;

(b) that the pass, permit, discharge certificate, or identification card was false or unauthorized;

(c) that the accused knew that the pass, permit, discharge certificate, or identification card was false or unauthorized; and

(d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

Note:

[When there is intent to defraud or deceive, add the following element after clause (c) of this subparagraph: That the accused used or possessed the pass, permit, discharge certificate, or identification card with an intent to defraud or deceive.]

(3) Explanation.

(i) In general. "Military or official pass, permit, discharge certificate, or identification card" includes, as well as the more usual forms of these documents, all documents issued by any governmental agency for the purpose of identification and copies thereof.

(ii) Intent to defraud or deceive. See paragraph 49c(14) and (15), MCM.

(4) Lesser included offenses.

(i) Wrongful use or possession of false or unauthorized military or official pass, permit, discharge certificate, or identification card, with the intent to defraud or deceive (ML, 130.115 - same offenses, except without the intent to defraud or deceive).

(ii) All false or unauthorized pass offenses (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Wrongful making, altering, counterfeiting, or tampering with military or official pass, permit, discharge certificate, or identification card.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, wrongfully and falsely (make) (forge) (alter by ______) (counterfeit) (tamper with by ______) (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) (______) in words and figures as follows: ______.

(ii) Wrongful sale, gift, loan, or disposition of a military or official pass, permit, discharge certificate, or identification card.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19__, wrongfully (sell to ______) (give to ______) (loan to ______) (dispose of by ______) (a certain instrument purporting to be) (a) (an) (another' s) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) (______) in words and figures as follows: ______, he/she, the said ______, then well knowing the same to be (false) (unauthorized).

(iii) Wrongful use or possession of a false or unauthorized military of official pass, permit, discharge certificate, or identification card.

In that ______ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19 __, wrongfully (use) (possess) [with intent to (defraud) (deceive)] (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) ( ______), he/she, the said ______, then well knowing the same to be (false) (unauthorized).

(ba)False pretenses, obtaining services under.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused wrongfully obtained certain services;

(ii) that the obtaining was done by using false pretenses;

(iii) that the accused then knew of the falsity of the pretenses;

(iv) that the obtaining was with intent to defraud;

(v) that the services were of a certain value; and

(vi) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia of a force thereof.

(3) Explanation.

This offense is similar to the offenses of larceny and wrongful appropriation by false pretenses, except that the object of the obtaining is services (for example, telephone service) rather than money personal property, or articles of value of any kind.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board - location)(subject-matter jurisdiction data, if required), on or about ______19 __, with intent to defraud, falsely pretend to ______ that ______, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from _____ services, of a value of (about) $______, to wit: ______.

(bb)False swearing.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused took an oath or equivalent;

(ii) that the oath or equivalent was administered to the accused in a matter in which such oath or equivalent was required or authorized by law;

(iii) that the oath or equivalent was administered by a person having authority to do so;

(iv) that upon this oath or equivalent the accused made or subscribed a certain statement;

(v) that the statement was false;

(vi) that the accused did not then believe the statement to be true; and

(vii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Nature of offense. False swearing is the making under a lawful oath or equivalent of any false statement, oral or written, not believing the statement to be true. It does not include such statements made in a judicial proceeding or course of justice, as these are under ML, 130.112, perjury (see subdivision [an] of this section. Unlike a false official statement under ML, 130.102 (see subdivision [ad] of this section) there is no requirement that the statement be made with an intent to deceive or that the statement be official. See subparagraph (a)(3)(i), clauses (an)(3)(ii)(c) and (e) of this section concerning "judicial proceeding or course of justice," proof of the falsity, and the belief of the accused, respectively.

(ii) Oath. See ML, 131.2 and N.Y.R.C.M. 807 as to the authority to administer oaths, and see section 517.9 of this Title (Military Rules of Evidence) concerning proof of the signatures of persons authorized to administer oaths. An oath includes an affirmation when authorized in lieu of an oath.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that ______(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about ______ 19______, (in an affidavit) (in ______), wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a false statement in substance as follows: ______, which statement he/she did not then believe to be true.

(bc) Firearm, discharging-through negligence.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused discharged a firearm;

(ii) that such discharge was caused by the negligence of the accused; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia of a force thereof.

(3) Explanation.

For a discussion of negligence, see paragraph 85c(2).

(4) Lesser included offenses.

None.

(5) Sample specification.

In that______ (personal jurisdiction data), did ______, (at/on board - location) (subject-matter jurisdiction data, if required), on or about______ 19 __, through negligence, discharge a (service rifle) (______) in the (squadron) (tent) (barracks) (______) of ______.

(bd)Firearm, discharging-willfully, under such circumstances as to endanger human life.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused discharged a firearm;

(ii) that the discharge was willful and wrongful;

(iii) that the discharge was under circumstances such as to endanger human life; and

(iv) that, under the circumstances, conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

"Under circumstances such as to endanger human life" refers to a reasonable potentiality for harm to human beings in general. The test is not whether the life was in fact endangered but whether, considering the circumstances surrounding the wrongful discharge of the weapon, the act was unsafe to human life in general.

(4) Lesser included offenses.

(i) ML, 130.115 - firearm, discharging-through negligence;

(ii) ML, 130.76 - attempts.

(5) Sample specification.

In that ______ (personal jurisdiction data), did, (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______19 __, wrongfully and willfully discharge a firearm, to wit: ______, (in the mess hall of ______) ( ______), under circumstances such as to endanger human life.

(be)Fraternization.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused was a commissioned or warrant officer;

(ii) that the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;

(iii) that the accused then knew the person(s) to be (an) enlisted member(s);

(iv) that such fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia of a force thereof.

(3) Explanation.

(i) In general. The gist of this offense is a violation of the custom of the organized militia against fraternization. Not all contact or association between officers and enlisted persons is an offense. Whether the contact or association in question is an offense depends on the surrounding circumstances. Factors to be considered include whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale. The acts and circumstances must be such as to lead a reasonable person experienced in the problems of military leadership to conclude that the good order and discipline of the organized militia has been prejudiced by their tendency to compromise the respect of enlisted persons for the professionalism, integrity, and obligations of an officer.

(ii) Regulations. Regulation, directives, and orders may also govern conduct between officer and enlisted personnel on both a service wide and a local basis. Relationships between enlisted persons of different ranks, or between officers of different ranks may be similarly covered. Violations of such regulations, directives, or orders may be punishable under ML, 130.88. See subdivision (p) of this section.

(4) Lesser included offenses (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data), did, (at/on board - location), on or about _____, knowingly fraternize with _____, an enlisted person, on terms of military equality, to wit: _____, in violation of the custom of the particular force of the organized militia that officers shall not fraternize with enlisted persons on terms of military equality.

(bf)Gambling with subordinate.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused gambled with a certain servicemember;

(ii) that the accused was then a noncommissioned or petty officer;

(iii) that the servicemember was not then a noncommissioned or petty officer and was subordinate to the accused;

(iv) that the accused knew that the servicemember was not then a noncommissioned or petty officer and was subordinate to the accused; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. This offense can only be committed by a noncommissioned or petty officer gambling with an enlisted person of less than noncommissioned or petty officer rank. Gambling by an officer with an enlisted person may be a violation of ML, 130.114. See also subdivision (be) of this section.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data), did, (at/on board - location)(subject-matter jurisdiction data, if required), on or about _____ 19 __, gamble with _____, then knowing that the said _____was not a noncommissioned or petty officer and was subordinate to the said _____.

(bg) Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused impersonated a commissioned, warrant, noncommissioned, or petty officer, or an agent of superior authority of one of the Armed Forces of the United States, or of one of the forces of the organized militia, or an official of a certain government, in a certain manner;

(ii) that the impersonation was wrongful and willful; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of nature to bring discredit upon the organized militia or a force thereof.

[Note 1:

If intent to defraud is an issue, add the following additional element after subparagraph (ii) of this paragraph: That the accused did so with the intent to defraud a certain person or organization in a certain manner.]

[Note 2:

If the accused is charged with impersonating an official of a certain government without an intent to defraud, use the following additional element after subparagraph (ii) of this paragraph: That the accused committed one or more acts which exercised or asserted the authority of the office the accused claimed to have.]

(3) Explanation.

(i) Nature of offense. Impersonation does not depend upon the accused deriving a benefit from the deception or upon some third party being misled, although this is an aggravating factor.

(ii) Willfulness. Willful means with the knowledge that one is falsely holding one's self out as such.

(iii) Intent to defraud (paragraph 49c[14], MCM).

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, wrongfully and willfully impersonate [a (commissioned officer) (warrant officer) (noncommissioned officer) (petty officer) (agent of superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the Government of _____ ] by [publicly wearing the uniform an insignia of rank of a (lieutenant of the _____) (_____)] [showing the credentials of _____] [ _____] (with intent of defraud _____by _____.^*) [and (exercised) (asserted) the authority of _____by _____^** ].

(bh)Indecent language.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused orally or in writing communicated to another person certain language;

(ii) that such language was indecent; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia of a force thereof.

(3) Explanation. Indecent language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. The language must violate community standards.

(4) Lesser included offenses.

(i) ML, 130.76 - attempts;

(ii) ML, 130.111 - provoking speeches.

(5) Sample specification.

In that _____(personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, (orally) (in writing) communicate to _____, certain indecent language, to wit: _____.

(bi)Jumping from vessel into the water.

[Article 134]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused jumped from a vessel in use by the Armed Forces of the United States or by the organized militia into the water;

(ii) that such act by the accused was wrongful and intentional; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. In use by means any vessel operated by or under the control of the Armed Forces of the United States or by the organized militia. This offense may be committed at sea, at anchor, or in port.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data), did, on board _____, at (location), on or about _____19 __, wrongfully and intentionally jump from _____, a vessel in use by the [(Armed Forces of the United States) (organized militia)], into the (sea) (lake) (river).

(bj)Obstructing justice.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused wrongfully did a certain act;

(ii) that the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending;

(iii) that the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. This offense may be based on conduct that occurred before preferral of charges. Actual obstruction of justice is not an element of this offense. For purposes of this paragraph criminal proceedingsincludes nonjudicial punishment proceedings under Part 519 of this Title. Examples of obstruction of justice include wrongfully influencing, intimidating, impeding, or injuring a witness, a person acting on charges under this section, an investigation officer under N.Y.R.C.M. 406, or a party; and by means of bribery, intimidation, misrepresentation, or force or threat of force delaying or preventing communication of information relating to a violation of any criminal stature of the United States or New York to a person authorized by a department, agency, or Armed Forces of the United States or of the organized militia to conduct or engage in investigations or prosecutions of such offenses; or endeavoring to do so. See also subdivision (v) of this section and ML, 130.37.

(4) Lesser included offenses. None.

(5) Sample specification.

In that _____ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, (wrongfully endeavor to) [impede (a trial by court-martial) (an investigation) ( _____)] [influence the actions of _____, (a trial counsel of the court-martial) (a defense counsel of the court-martial) (an officer responsible for making a recommendation concerning disposition of charges) (_____)] [(influence) (alter) the testimony of _____ as a witness before (a court-martial) (an investigating officer) ( _____)] in the case of _____, by [(promising) (offering) (giving) to the said _____, (the sum of $ _____) ( _____, of a value of about $ _____)] [communicating to the said _____ a threat to _____] [ _____], (if) (unless) he/she, the said _____, would [recommend dismissal of charges against said _____] [(wrongfully refuse to testify) (testify falsely concerning _____) ( _____)] [(at such trial) (before such investigating officer)] [_____ ].

(bk)Perjury: subordination of.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused induced and procured a certain person to take an oath or its equivalent and to falsely testify, depose, or state upon such oath or its equivalent concerning a certain matter;

(ii) that the oath or its equivalent was administered to said person in a matter in which an oath or its equivalent was required or authorized by law;

(iii) that the oath or its equivalent was administered by a person having authority to do so;

(iv) that upon the oath or its equivalent said person willfully made or subscribed a certain statement;

(v) that the statement was material;

(vi) that the statement was false;

(vii) that the accused and the said person did not then believe that the statement was true; and

(viii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. See paragraph (an)(3) of this section for applicable principles. Induce and procure means to influence, persuade, or cause.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, procure _____ to commit perjury by inducing him/her, the said _____, to take a lawful (oath) (affirmation) in a (trial by court-martial of ( _____) (trial by a court of competent jurisdiction, to wit: _____ of _____) (deposition for use in a trial by _____ of _____) ( _____) that he/she, the said _____, would (testify) (depose) ( _____) truly, and to (testify) (depose) ( _____) willfully, corruptly, an contrary to such (oath) (affirmation) in substance that _____, which (testimony) (deposition) ( _____) was upon a material matter and which the accused and the said _____ did not then believe to be true.

(bl)Public record: altering, concealing, removing, mutilating, obliterating, or destroying.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused altered, concealed, removed, mutilated, obliterated, destroyed, or took with the intent to alter, conceal, remove, mutilate, obliterate, or destroy, a certain public record;

(ii) that the act of the accused was willful and unlawful; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. Public records include records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to which matters there was a duty to report. Public records includes classified matters.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____ (personal jurisdiction data), did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, willfully and unlawfully [alter) (conceal) (remove) (mutilate) (obliterate) (destroy)] [take with intent to (alter) (conceal) (remove) (mutilate) (obliterate) (destroy)] a public record, to wit: _____.

(bm) Quarantine: medical, breaking.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that a certain person ordered the accused into medical quarantine;

(ii) that the person was authorized to order the accused into medical quarantine;

(iii) that the accused knew of this medical quarantine and the limits thereof;

(iv) that the accused went beyond the limits of the medical quarantine before being released therefrom by proper authority; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. None.

(4) Lesser included offenses (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data) having been placed in medical quarantine by a person authorized to order the accused into medical quarantine, did, (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____19 __, break said medical quarantine.

(bn)Requesting commission of an offense.

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that the accused communicated certain language;

(ii) that the language advised, directed, requested, or suggested to certain person(s) to commit an offense under the code;

(iii) that the communication was wrongful; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. This offense differs from solicitation to commit an offense (see subdivisions [f] and [bq] of this section) in that for this offense the accused need not have specifically intended that the offense advised, directed, requested, or suggested be committed. Advice or a direction, request, or suggestion is wrongful if it is made in a manner or under circumstances which the accused could reasonably expect the persons to whom it was made to take seriously and act upon.

(4) Lesser included offenses. None.

(5) Sample specification.

In that _____ did (personal jurisdiction data), (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, wrongfully communicate certain language, to wit: _____ to _____, which language (advised) (directed) (requested) (suggested to) the said _____to commit _____, an offense under the code.

(bo)Seizure: destruction, removal, or disposal of property to prevent.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) that one or more persons authorized to make searches and seizures were seizing, about to seize, or endeavoring to seize certain property;

(ii) that the accused destroyed, removed, or otherwise disposed of that property with intent to prevent the seizure thereof;

(iii) that the accused then knew that person(s) authorized to make searches were seizing, about to seize, or endeavoring to seize the property; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation. See Mil. R. Evid. 316(e) concerning military personnel who may make seizures. It is not a defense that a search or seizure was technically defective.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specification.

In that _____(personal jurisdiction data), did (at/on board - location) (subject-matter jurisdiction data, if required), on or about _____ 19 __, with intent to prevent its seizure, (destroy) (remove) (dispose of) _____, property which, as _____then knew, (a) person(s) authorized to make searches and seizures were (seizing) (about to seize) (endeavoring to seize).

(bp)Sentinel or lookout: offenses against or by.

[ML, 130.115]

(1) Text. See subdivision (aq) of this section.

(2) Elements:

(i) disrespect to a sentinel or lookout:

(a) that a certain person was a sentinel or lookout;

(b) that the accused knew that said person was a sentinel or lookout;

(c) that the accused used certain disrespectful language or behaved in a certain disrespectful manner;

(d) that such language or behavior was wrongful;

(e) that such language or behavior was directed toward and within the sight or hearing of the sentinel or lookout;

(f) that said person was at the time in the execution of duties as a sentinel or lookout; and

(g) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(ii) Loitering or wrongfully sitting on post by a sentinel or lookout:

(a) that the accused was posted as a sentinel or lookout;

(b) that while so posted, the accused loitered or wrongfully sat down on post; and

(c) that, under the circumstances, the conduct of the accused was to the prejudices of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3)

(i) Explanation. Disrespect. For a discussion of disrespect, see subparagraph (m)(3)(iii) of this section.

(ii) Loitering or wrongfully sitting on post:

(a) In general. The discussion set forth in paragraph (ai)(3) of this section applies to loitering or sitting down while posted as a sentinel or lookout as well.

(b) Loiter. Loiter means to stand around, to move about slowly, to linger, or to lay behind when that conduct is in violation of known instructions or accompanied by a failure to give complete attention to duty.

(4) Lesser included offenses.

(i) Disrespect to a sentinel or lookout (ML, 130.76 - attempts).

(ii) Loitering or wrongfully sitting on post by a sentinel or lookout (ML, 130.76 - attempts).

(5) Sample specification.

(i) Disrespect to a sentinel or lookout.

In that ______ (personal jurisdiction data), did (at/on board - location) on or about ______19 __, then knowing that ______ was a sentinel or lookout, [wrongfully use the following disrespectful language "______," or words to that effect, to ______wrongfully behave in a disrespectful manner toward ______ by ______] a (sentinel) (lookout) in the execution of his/her duty.

(ii) Loitering or wrongfully sitting down on post by a sentinel or lookout.

In that ______ (personal jurisdiction data), while posted as a (sentinel) (lookout), did, (at/on board - location) on or about ______19 ______, (a time of war) (loiter) (wrongfully sit down) on his/her post.

(bq)Soliciting another to commit an offense.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused solicited or advised a certain person or persons to commit a certain offense under the code other than one of the four offenses named in ML, 130.78;

(ii) that the accused did so with the intent that the offense actually be committed; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

See paragraph (f)(3) of this section. If the offense solicited was actually committed, see also subdivision (a) of this section.

(4) Lesser included offenses.

(i) ML, 130.115 - Requesting another to commit an offense, wrongful communication of language.

(ii) ML, 130.76 - attempts.

(5) Sample specification.

In that ______ (personal jurisdiction data), did (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______19__, wrongfully (solicit) (advise) ______(to disobey a general regulation, to wit: ______) (to steal ______, of a value of (about) $ ______, the property of ______) (to ______), by ______.

(br)Straggling.

[ML, 130.76]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused, while the accompanying the accused's organization on a march, maneuvers, or similar exercise, straggled;

(ii) that the straggling was wrongful; and

(iii) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

Straggle means to wander away, to stray, to become separated from, or to lag or linger behind.

(4) Lesser included offense (ML 130.76 - attempts).

(5) Sample specification.

In that ______ (personal jurisdiction data), did at, ______, on or about ______, 19 __, while accompanying his/her organization on (a march) (maneuvers) (______), wrongfully straggle.

(bs)Testify: wrongful refusal.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused was in the presence of a court-martial, board of officer(s), military commission, court of inquiry, an officer conducting an investigation under ML, 130.32, or an officer taking a deposition, of or for the United States or the state, at which a certain person was presiding;

(ii) that the said person presiding directed the accused to qualify as a witness or, having so qualified, to answer a certain question;

(iii) that the accused refused to qualify as a witness or answer said question;

(iv) that the refusal was wrongful; and

(v) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

To qualify as a witness means that the witness declares that the witness will testify truthfully. See N.Y.R.C.M. 807; Mil. R. Evid. 603. A good faith but legally mistaken belief in the right to remain silent does not constitute a defense to a charge of wrongful refusal to testify. See also Mil. R. Evid. 301 and Section V.

(4) Lesser included offenses.

None.

(5) Sample specification.

In that ______ (personal jurisdiction data), being in the presence of (a) (an) [(general) (special) (summary) court-martial] [board of officer(s)] [military commission] [court of inquiry] [officer taking a deposition] [______] (of) (for) the State of New York, of which ______ was (military judge) (president), ( ______), (and having been directed by the said ______ to qualify as a witness) (and having qualified as a witness and having been directed by the said ______ to answer the following question(s) put to him/her as a witness, "______"), did, (at/on board - location), on or about ______ 19 __, wrongfully refuse (to qualify as a witness) [to answer said question(s)].

(bt)Threat or hoax: bomb.

[ML, 130.15]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) Bomb threat.

(a) that the accused communicated certain language;

(b) that the language communicated amounted to a threat;

(c) that the harm threatened was to be done by means of an explosive;

(d) that the communication was wrongful; and

(e) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(ii) Bomb hoax.

(a) that the accused communicated or conveyed certain information;

(b) that the language or information concerned an attempt made or to be made by means of an explosive to unlawfully kill, injure, or intimidate a person or to unlawfully damage or destroy certain property;

(c) that the information communicated by the accused was false and that the accused then knew it was false;

(d) that the communication of the information by the accused was malicious; and

(e) that, under the circumstances, the conduct of the accused was to the prejudice of good order an discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Threat. A threat is an expressed present determination or intent to kill, injure, or intimidate a person or to damage or destroy certain property presently or in the future. Proof that the accused actually intended to kill, injure, intimidate, damage, or destroy is not required. See also subdivision (bu) of this section.

(ii) Malicious. A communication is malicious if the accused believed that the information would probably interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or would cause fear or concern to one or more persons.

(iii) Explosive (See N.Y.R.C.M. 103[13]).

(4) Lesser included offenses.

(i) Bomb threat:

(a) ML, 130.115 - communicating a threat;

(b) ML, 130.76 - attempts.

(ii) Bomb hoax (ML, 130.76 - attempts).

(5) Sample specifications.

(i) Bomb threat.

In that ______ (personal jurisdiction data), did (at/on board -location) (subject matter jurisdiction data, if required), on or about ______19 __, wrongfully communicate certain language, to wit:______, which language constituted a threat to harm a person or property by means of an explosive.

(ii) Bomb hoax.

In that ______ (personal jurisdiction data), did (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______19 __, maliciously (communicate) (convey) certain information concerning an attempt being made or to be made to unlawfully [(kill) (injure) (intimidate) ______] [(damage) (destroy)______] by means of an explosive, to wit: ______, which information was false and which ______then knew to be false.

(bu)Threat, communicating.

[ML, 130.76]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

(ii) that the communication was made known to that person or to a third person;

(iii) that the communication was wrongful; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

To establish the threat it is not necessary that the accused actually intended to do the injury threatened. However, a declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to another. See also subdivision (bt) of this section concerning bomb threat.

(4) Lesser included offenses.

(i) ML, 130.111 - provoking speeches or gestures;

(ii) ML, 130.76 - attempts.

(5) Sample specifications.

In that ______ (personal jurisdiction data), did (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______19__, wrongfully communicate to ______a threat to (injure ______by ______) (accuse ______ of having committed the offense of ______) ( ______).

(bv)Weapon: concealed, carrying.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused carried a certain weapon concealed on or about the accused's person;

(ii) that the carrying was unlawful;

(iii) that the weapon was a dangerous weapon; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

(i) Concealed weapon. A weapon is concealed when it is carried by a person and intentionally covered or kept from sight.

(ii) Dangerous weapon. For purposes of this subdivision, a weapon is dangerous if it was specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do grievous bodily harm.

(iii)On or about means the weapon was carried on the accused's person or was within the immediate reach of the accused.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

In that ______ (personal jurisdiction data), did (at/on board -location) (subject-matter jurisdiction data, if required), on or about ______19 __, unlawfully carry on or about his/her person a concealed weapon, to wit: a______.

(bw)Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.

[ML, 130.115]

(1) Text.

See subdivision (aq) of this section.

(2) Elements.

(i) that the accused wore a certain insignia, decoration, badge, ribbon, device, or lapel button upon the accused's uniform or civilian clothing;

(ii) that the accused was not authorized to wear the item;

(iii) that the wearing was wrongful; and

(iv) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the organized militia or was of a nature to bring discredit upon the organized militia or a force thereof.

(3) Explanation.

None.

(4) Lesser included offense (ML, 130.76 - attempts).

(5) Sample specifications.

In that ______ (personal jurisdiction data), did (at/on board - location), on or about ______ 19 __, wrongfully and without authority wear upon his/her (uniform) (civilian clothing) [the insignia of grade of a (master sergeant of ______) (chief gunner's mate of ______ ______)] [Combat Infantryman Badge] [The Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing the Legion of Merit] [______].

Footnotes

^* [See note 1 of paragraph (2) of this subdivision.]

^**

[See note 2 of paragraph (2) of this subdivision.]

N.Y. Comp. Codes R. & Regs. Tit. 9 § 518.1