UCMJ Article 101: Improper Use of Countersign
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Article 101 makes it a capital offense, in time of war, to disclose the parole or countersign to someone not entitled to it, or to give an entitled person a different word from the one authorized. Intent, motive, negligence, and an honest belief that the recipient was entitled are all no defense: the Manual puts the burden of checking the recipient on the person disclosing. Outside time of war, the article cannot be violated.
Disclosing or misusing the countersign in wartime
Any person subject to this chapter 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 by death or such other punishment as a court-martial may direct.
Source: 10 U.S.C. § 901.
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 29.b, sets out two offenses:
- Disclosure: in time of war, the accused disclosed the parole or countersign to a person, identified or unidentified, who was not entitled to receive it.
- Giving a different word: in time of war, the accused knew he or she was authorized and required to give a certain parole or countersign, and gave a different one to a person entitled to receive and use it.
Both elements include “in time of war,” defined in R.C.M. 103.
Countersign and parole
A countersign is “a word, signal, or procedure given from the principal headquarters of a command to aid guards and sentinels in their scrutiny of persons who apply to pass the lines”; it consists of a secret challenge and a password, signal, or procedure. A parole is “a word used as a check on the countersign,” given only to those entitled to inspect guards and to commanders of guards (¶ 29.c(1)-(2)).
Strict liability for disclosure
Paragraph 29.c sets rules that remove the defenses a reader might expect:
- Who may receive it expands and contracts with the circumstances of war and is determined largely 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” (¶ 29.c(3)).
- Intent and motive are immaterial, 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” (¶ 29.c(4)).
- How the accused got the word does not matter, whether in the regular course of duty or otherwise (¶ 29.c(5)).
A mistaken belief that the recipient was cleared to receive the countersign is therefore not a defense to the disclosure offense. The second offense differs: giving a different word requires that the accused knew which word he or she was authorized and required to give.
Misusing a countersign is a capital offense
Under ¶ 29.d, the punishment is “death or such other punishment as a court-martial may direct.” Confinement for life without eligibility for parole is also available, because the offense is subject to confinement for life (10 U.S.C. § 856(c)(6)(A)).
Sentinels and other information given to the enemy
A sentinel who sleeps on post or leaves it is charged under Article 95. Passing other information to the enemy is aiding the enemy under Article 103b, and delivering national defense information to a foreign government is espionage under Article 103a.
Sources
- 10 U.S.C. § 901, Article 101, Improper use of countersign (Cornell LII)
- 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 29
General information about military law, not legal advice for any individual case.