UCMJ Article 99: Misbehavior Before the Enemy

Article 99 lists nine forms of misconduct by a member of the armed forces “before or in the presence of the enemy,” from running away and cowardly conduct to causing false alarms and failing to assist forces engaged in battle. Every one is punishable by death or such other punishment as a court-martial may direct. Whether someone was “before the enemy” depends on their tactical role, not on distance.

The nine offenses

10 U.S.C. § 899 reaches a member of the armed forces who, before or in the presence of the enemy:

1. runs away;
2. shamefully abandons, surrenders, or delivers up a command, unit, place, or military property it is the member’s duty to defend;
3. through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or property;
4. casts away arms or ammunition;
5. is guilty of cowardly conduct;
6. quits a place of duty to plunder or pillage;
7. causes false alarms in a command, unit, or place under control of the armed forces;
8. willfully fails to do the utmost to encounter, engage, capture, or destroy enemy forces or things it is the member’s duty to engage; or
9. does not afford all practicable relief and assistance to U.S. or allied forces engaged in battle.

“Before or in the presence of the enemy”

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 27.c(1)(c), states that this “is a question of tactical relation, not distance.” A member of an antiaircraft gun crew waiting for an air attack, or a unit about to move into combat, can be before the enemy “although miles from the enemy lines.” A unit some distance from the front that is not part of a tactical operation then under way or in immediate prospect is not.

“Enemy” includes the organized forces of an enemy in time of war and “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 military members (¶ 27.c(1)(b)).

How the Manual reads the key offenses

• Running away is “an unauthorized departure to avoid actual or impending combat.” It “need not, however, be the result of fear,” and the accused need not literally run (¶ 27.c(1)(a)).
• Shameful abandonment or surrender concerns primarily commanders responsible for defending a command or position; a subordinate’s abandonment is ordinarily charged as running away. It is shameful if done without justification, and it can be justified “only by the utmost necessity or extremity” (¶ 27.c(2)).
• Endangering safety through intentional misconduct “does not include a mere error in judgment” (¶ 27.c(3)(b)).
• Cowardly conduct is misbehavior motivated by fear. “The mere display of apprehension does not constitute this offense”; it is a refusal or abandonment of duty because of fear. “Genuine and extreme illness, not generated by cowardice, is a defense” (¶ 27.c(5)).
• Quitting to plunder is complete on quitting the place of duty with that intent, “even if the intended misconduct is not done” (¶ 27.c(6)(c)).
• False alarms include “spreading of false or disturbing rumors or reports,” not only false alarm signals (¶ 27.c(7)).
• Failing to do the utmost can include willfully refusing a lawful order to go on a combat patrol (¶ 27.c(8)).
• Failing to afford relief is limited to forces engaged in battle, and “all practicable” relief means what is possible within the limits of the accused’s own tasks or mission (¶ 27.c(9)).

Each form of misbehavior is a capital offense

Under ¶ 27.d, every Article 99 offense carries “death or such other punishment as a court-martial may direct.” Short of death, the sentence may be life with or without eligibility for parole; the second option exists for any offense subject to life confinement under 10 U.S.C. § 856(c)(6)(A). In a capital case, the members decide on death under the separate procedure of 10 U.S.C. § 853(c).

Surrender, aid, and desertion compared

A subordinate who compels a commander to surrender, or strikes the colors without authority, commits Article 100. Supplying or communicating with the enemy is aiding the enemy under Article 103b. Leaving a unit with intent to avoid hazardous duty can also be desertion under Article 85.

Sources

• 10 U.S.C. § 899, Article 99, Misbehavior before the enemy (Cornell LII)
• 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
• 10 U.S.C. § 853, Article 53, Findings and sentencing (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 27

General information about military law, not legal advice for any individual case.