UCMJ Article 104: Public Records Offenses

Article 104 punishes willfully and unlawfully altering, concealing, removing, mutilating, obliterating, or destroying a public record, or taking one with intent to do any of those things. No intent to defraud is required, and “public records” include classified matters and records in any form. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 3 years.

Altering, concealing, or destroying a public record

Under 10 U.S.C. § 904, a person subject to the UCMJ commits the offense who, “willfully and unlawfully,” either “alters, conceals, removes, mutilates, obliterates, or destroys a public record,” or “takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record.”

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 34.b, has two elements: the act (including taking with the listed intent) against a certain public record, and that the act was willful and unlawful.

The current offense was added by the Military Justice Act of 2016 (Pub. L. 114-328, § 5415). Before January 1, 2019, “Article 104” was aiding the enemy, which is now Article 103b.

What counts as a public record

Under ¶ 34.c, “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.” They also “include classified matters.”

“In any form” brings electronic records within the article. For example, deleting or overwriting a government database entry or digital log can fall within it just as tearing a page from a paper file can. And taking a record with the intent to destroy it completes the offense even if the record is never destroyed.

What the government does not have to prove

The elements contain no intent to defraud and no requirement that anyone was harmed or misled. Willfulness and unlawfulness carry the case. For example, an accidental deletion is not willful, and destruction that is authorized, such as under an approved records-disposition schedule, would not be unlawful.

Maximum punishment: 3 years

Under ¶ 34.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

False entries and other record offenses

Making a false entry in a record, rather than altering or destroying one, can be a false official statement under Article 107. Falsely making or altering a writing with legal effect, with intent to defraud, is forgery under Article 105. Destroying evidence to impede a pending or expected case can also be obstructing justice under Article 131b.

Sources

• 10 U.S.C. § 904, Article 104, Public records offenses (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 34

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