§ Article 99 : Misbehavior Before the Enemy

Article 99 of the UCMJ (10 U.S.C. § 899) punishes a range of conduct by a member of the armed forces before or in the presence of the enemy — running away, shamefully abandoning a position or property, cowardice, casting away arms, causing false alarms, and related failures of combat duty.

Who It Applies To

Any member of the armed forces who, before or in the presence of the enemy, runs away; shamefully abandons, surrenders, or delivers up a command, unit, place, or military property they have a duty to defend; endangers the safety of a command, unit, place, or military property through disobedience, neglect, or intentional misconduct; casts away their arms or ammunition; is guilty of cowardly conduct; quits their place of duty to plunder or pillage; causes false alarms in a command, post, camp, or quarters; willfully fails to do their utmost to encounter, engage, capture, or destroy enemy troops, combatants, vessels, aircraft, or other property when it is their duty to do so; or fails to afford all practicable relief and assistance to certain troops, combatants, vessels, or aircraft of the armed forces or of an ally when engaged in battle.

What It Covers

Article 99 defines nine separate offenses. Each requires that the accused was before or in the presence of the enemy.

1. Running away

1. The accused was before or in the presence of the enemy.
2. The accused misbehaved by running away.
3. The accused intended, by running away, to avoid actual or impending combat with the enemy.

2. Shamefully abandoning, surrendering, or delivering up a command

1. The accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property.
2. Without justification, the accused shamefully abandoned, surrendered, or delivered it up.
3. This occurred while the accused was before or in the presence of the enemy.

3. Endangering the safety of a command, unit, place, ship, or military property

1. It was the accused’s duty to defend a certain command, unit, place, ship, or military property.
2. The accused committed certain disobedience, neglect, or intentional misconduct.
3. The accused thereby endangered its safety.
4. This occurred while the accused was before or in the presence of the enemy.

4. Casting away arms or ammunition

1. The accused was before or in the presence of the enemy.
2. The accused cast away certain arms or ammunition.

5. Cowardly conduct

1. The accused committed an act of cowardice.
2. This occurred while the accused was before or in the presence of the enemy.
3. The conduct was the result of fear.

6. Quitting place of duty to plunder or pillage

1. The accused was before or in the presence of the enemy.
2. The accused quit the accused’s place of duty.
3. The accused’s intention in quitting was to plunder or pillage public or private property.

7. Causing false alarms

1. An alarm was caused in a certain command, unit, or place under the control of U.S. armed forces.
2. The accused caused the alarm.
3. The alarm was caused without reasonable or sufficient justification or excuse.
4. This occurred while the accused was before or in the presence of the enemy.

8. Willfully failing to do the utmost to encounter the enemy

1. The accused was serving before or in the presence of the enemy.
2. The accused had a duty to encounter, engage, capture, or destroy certain enemy troops, combatants, vessels, aircraft, or another thing.
3. The accused willfully failed to do the utmost to perform that duty.

9. Failing to afford relief and assistance

1. Certain troops, combatants, vessels, or aircraft of the United States or an ally were engaged in battle and required relief and assistance.
2. The accused was in a position and able to render relief and assistance without jeopardy to the accused’s mission.
3. The accused failed to afford all practicable relief and assistance.
4. The accused was then before or in the presence of the enemy.

Key rules

• Before or in the presence of the enemy is a question of tactical relation, not distance. A unit about to move into combat may be before the enemy though miles from enemy lines; a unit well away from the front and not part of a current or imminent tactical operation is not.
• Enemy includes organized enemy forces in time of war and any hostile body U.S. forces may be opposing, including civilians.
• Running away means an unauthorized departure to avoid actual or impending combat. It need not result from fear, and the accused need not literally run.
• Shameful surrender covers surrender or abandonment without justification; it can be justified only by the utmost necessity or extremity. The provision is aimed primarily at commanders responsible for a defense.
• Intentional misconduct does not include a mere error in judgment.
• Cowardice is misbehavior motivated by fear. A mere display of apprehension is not the offense.
• Quitting place of duty to plunder or pillage is complete on quitting with that intent, even if no property is taken.
• False alarms include spreading false or disturbing rumors or reports, as well as falsely giving established alarm signals.

Maximum Punishment

Maximum authorized punishment. Death or such other punishment as a court-martial may direct, for every offense under Article 99.

Sentencing parameters. Article 99 is a sentencing-criteria offense (no numbered category). Sentencing parameters and criteria do not apply to the decision whether to impose death.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 100 addresses a subordinate who compels or attempts to compel a commander to surrender, and unauthorized offers of surrender. Article 94 addresses mutiny and sedition, which require intent to override military authority or overthrow civil authority. Soliciting another person to misbehave before the enemy is addressed by Article 82.

What the Provision Does

Article 99 applies before or in the presence of the enemy and covers a range of failures of combat duty, including running away, shamefully abandoning a position or property, cowardly conduct, casting away arms, and causing false alarms. Every form authorizes death or such other punishment as a court-martial may direct.

History

Article 99 appeared in the original 1950 Uniform Code of Military Justice and was codified at 10 U.S.C. § 899 in 1956. Its text has not been amended since.

Sources

• 10 U.S.C. § 899 (Article 99, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 27
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12D