Ask the Lawyer: 'Misbehavior before enemy' can be near or far

Q. Can I be charged with “misbehavior before the enemy” if the enemy is nowhere in sight?

A. Near or far, so long as a service member has what the Manual for Courts-Martial calls a “tactical relation” to the enemy, misbehavior before that enemy could qualify as a violation of Article 99 of the Uniform Code of Military Justice.

It is possible for a service member to be miles from enemy lines and still violate Article 99. This offense, unique to the military, should not be treated lightly; Article 99 is one of the few offenses in the UCMJ for which the death penalty is an option.

The misbehavior in question is not just about goofing off on the front lines. Under Article 99, there are multiple ways service members can misbehave before the enemy. A few of those ways are running away; shamefully abandoning, surrendering or delivering up a command, place, unit or military property; casting away arms and ammunition; and cowardly conduct.

The U.S. Navy-Marine Corps Court of Criminal Appeals case U.S. v. Thomas H. King (2006) illustrates the tactical relationship needed to satisfy the before-the-enemy element of an Article 99 offense.

This case involved a Marine lance corporal who pleaded guilty at a special court-martial to misbehavior before the enemy. He was part of a battalion in Iraq that provided security to convoys and delivered supplies. Out of a fear of dying and while at a coalition air base, he refused to provide security for an outbound convoy. The lance corporal then appealed, claiming his plea to the Article 99 charge was improvident because the fact that enemy guerrillas were near the base was not enough to satisfy the before-the-enemy element.

He claimed that for his conduct to qualify as misbehavior before the enemy, the base would have to have been under the immediate threat of an attack. The court rejected this reasoning, noting that the lance corporal “displayed cowardice at a time when his unit was about to embark on a tactical operation in an area teeming with both organized and unorganized forces of the Iraqi insurgency.”

The court said explicitly that the issue was not distance but the tactical relationship with the enemy, and that “the refusal to advance with one’s command so as to engage enemy forces” qualifies as an Article 99 offense.

Service members charged with misbehavior before the enemy should immediately contact a military law attorney, who may be able to show the service member’s conduct did not qualify as misbehavior or that he or she did not misbehave before the enemy.