DA·PAM 27-9 Military Judges

DA·PAM 27-9 Military Judges

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DA·PAM 27-9  Military Judges

Department of the Army Pamphlet 27-9
Legal Services
Military
Judges'

Benchbook

Headquarters Department of the Army Washington, DC 1 January 2010
UNCLASSIFIED


SUMMARY ofCHANGE

DA·PAM 27-9
Military Judges' Benchbook

This revised Department of the Army Pamphlet incorporates the substantive
criminal law found in the Manual for Courts-Martial, through the 2008 Edition;
decisions of military and higher courts; and comments and opinions of individual
legal specialists on criminal law. Highlighted below are some of the changes to
the 2001 edition of this Benchbook:
•     
Conforms the Article 111 instruction (Drunken or Reckless Operation of a
Vehicle, Aircraft or Vessel) to recent amendments of 10 USC Section 911
regarding the blood / breath alcohol limits.


•     
Adds a missing portion of an element for Desertion with Intent to Shirk
Important Service.


•     
Amends the Article 134 instruction (Adultery) to conform to 2002 changes to
the Manual for Courts-Martial.


•     
Adds a quick reference list of Evidentiary Instructions to the beginning of
Chapter 7.


•     
To conform to recent case law:


Clarifies Vicarious Liability -Principals and Co-conspirators (instruction 7-1) and Principals -Aiding and Abetting (instruction 7-1-1) that the aider and abettor need not agree with, or even know of, the means by which the perpetrator is to carry out the shared criminal intent.
Clarifies the Article 93 instruction (Cruelty and Maltreatment) that there is no requirement for actual physical or mental harm or suffe!ing by the victim.
Adds an additional reference to the Article 134 instruction (Obstructing
Justice) .
Removes the term "ineradicable" when discussing the stigma associated with punitive discharges.
Amends the Article 130 instruction (Housebreaking) instruction to include the Williams factors the fact finder may consider when deciding if the accused's entry was unlawful, including the accused's intent upon entry.
Amends the Article 126 instructions (Arson -Aggravated -Inhabited
Dwelling; Arson -Aggravated -Structure; and Arson -Simple) to clarify that an accused can be guilty of aggravated arson of his own property.
Also clarifies that the accused need not specifically intend to burn or
char the property burned or charred, so long as the accused willfully and
maliciously started the fired that resulted in the burning or charring.
•     Corrects minor typographical errors.
DA PAM 27-9·01 January 2010
RESERVED
DA PAM 27-9 • 01 January 2010
FOREWORD
This Benchbook should be regarded as a supplement to the Uniform Code of Military Justice, as amended; the Manual for Courts-Martial, 2008 Edition; opinions of appellate courts; other departmental publications dealing primarily with trial procedure; and similar legal reference material. Statutes, Executive Orders, and appellate decisions are the principal sources for this Benchbook, and such publications, rather than this Benchbook, should be cited as legal authority
DA PAM 27-9·01 January 2010
Headquarters
*Department of the Army
Department of the Army
Pamphlet 27-9
Washington, DC 01 January 2010 Legal Services Military Judges' Benchbook
By Order of the Secretary of the Army:
GEORGE W. CASEY, JR. General, United States Army Chief of Staff
Official
: also intended as a practical guide for counsel,
JOYCE E. MORROW Active Army, the Army National Guard of Agency, ATTN: JALS-TJ, 901 N. Stuart St.,
Administrative Assistant to the Secretary of the Army
edition publishes the 2010 edition.
History.

Summary. This pamphlet sets forth pattern instructions and suggested procedures applicable to trials by general and special court-martial. It has been prepared primarily to meet the needs of military judges. It is staff judge advocates, commanders, legal specialists, and others engaged in the administration of military justice.
Applicability.
This pamphlet applies to the Chief Trial Judge, U.S. Army Legal Services
the United States, and the U.S. Army Reserve.
Proponent and exception authority. ARNG: To be distributed in accordance with
Advocate General (TJAG). The proponent has the authority to approve exceptions to this pUblication that are consistent with controlling law and regulation. The proponent may delegate this approval authority, in writing, to a division chief within the proponent agency in the grade of colonel or the civilian equivalent.
Suggested Improvements. Users are
invited to send comments and suggested
improvements to the Military Judges'
Benchbook on DA Form 2028
(Recommended Changes to Publications and
Blank Forms) directly to the Office of the
Arlington, VA 22203.

Distribution. Active Army, USAR, This pUblication was originally published on 0 I April 2001. This electronic The proponent of this pamphlet is The Judge Initial Distribution Number 094060.
Contents (Listed by paragraph and page number)
Chapter 1 INTRODUCTION ................................................. 1

1-3. Elements of offenses.............................................................. 4
Section V Court Members (Contested) .......................................... 35
35
40

1-4. Other Instructions ................................................................... 4
2-5. PRELIMINARY INSTRUCTIONS .....................................
1-5. References .............................................................................. 5
2-5-1. VOIRDIRE ......................................................................
1-2. Necessity for tailoring ........................................................... .4

Section I Initial Session Through Arraignment ............................... 8
2-5-4. ANNOUNCEMENT OF PLEA ....................................... 45
........................................................ 46

2-1.
PROCEDURAL GUIDE FOR ARTICLE 39(a)
2-5-5. TRIAL ON MERITS
2-5-6. TRIAL RESUMES WITH DEFENSE CASE, IF

SESSION ................................................................................. 8
2-1-1. RIGHTS TO COUNSEL.. .................................................. 9
ANY ...................................................................................... 46
46
47

2-1-2. FORUM RIGHTS ............................................................ 10
2-5-7. REBUTTAL AND SURREBUTTAL, IF ANY ...............
2-1-3. ARRAIGNMENT ............................................................ 12
2-5-8. DISCUSSION OF FINDINGS INSTRUCTIONS ...........
2-2-2. STIPULATION OF FACT INQUIRY ............................. 16
2-2-3. GUILTY PLEA FACTUAL BASIS ................................. 17

2-2-5. IF NO PRETRIAL AGREEMENT EXISTS .................... 20

2-2-8. ACCEPTANCE OF GUILTY PLEA ............................... 27

2-2-7. PRETRIAL AGREEMENT (MEMBERS) ...................... 23
2-5-16. FINDINGS ..................................................................... 56

2-2-6. PRETRIAL AGREEMENT (JUDGE ALONE) ............... 20
2-5-15. PRESENTENCING SESSION ...................................... 55

2-2-4. MAXIMUM PUNISHMENT INQUIRY ......................... 19
2-5-13. FINDINGS ARGUMENT .............................................. 51

Section II Guilty Plea Inquiry ........................................................ 14
2-2-1. GUILTY PLEA INTRODUCTION ................................. 14
2-5-10. LESSER INCLUDED OFFENSE(S) ............................. 49

Section III Judge Alone (Contested Findings) ............................... 29
2-5-18. REBUTTAL AND SURREBUTTAL, IF ANY ............. 58
2-3-1. TRIAL PROCEEDS WITH GOVERNMENT CASE ...... 29
.................................................................. 58

2-5-19. DISCUSSION OF SENTENCING

2-3-2.
TRIAL RESUMES WITH THE DEFENSE CASE,
INSTRUCTIONS
IF
ANY ................................................................................. 29
2-5-20. SENTENCING ARGUMENTS ..................................... 59
60
63

2-3-3. REBUTTAL AND SURREBUTTAL, IF ANY ............... 29
2-5-21. SENTENCING INSTRUCTIONS .................................
2-3-4. ANNOUNCEMENT OF FINDINGS ............................... 30
2-5-22. TYPES OF PUNISHMENT ...........................................
Section IV Judge Alone (Sentencing) ............................................ 31

2-4-1. ANNOUNCEMENT OF SENTENCE ............................. 32

1-1. Purpose and scope .................................................................. 2
2-4-2. POST-TRIAL AND APPELLATE RIGHTS
ADVICE ............................................................................... 33

2-5-2. INDIVIDUAL VOIR DIRE 43

.............................................Chapter 2 TRIAL PROCEDURE AND INSTRUCTIONS ..... 7
2-5-3. CHALLENGES................................................................ 43

2-5-9. PREFATORY INSTRUCTIONS ON FINDINGS ........... 48

2-5-11. OTHER APPROPRIATE INSTRUCTIONS ................. 50

2-5-12. CLOSING SUBSTANTIVE INSTRUCTIONS ON
FINDINGS ............................................................................ 50

2-5-14. PROCEDURAL INSTRUCTIONS ON FINDINGS ...... 51

2-5-17. SENTENCING PROCEEDINGS .................................. 57

2-5-23. OTHER INSTRUCTIONS ............................................. 71

-This pamphlet supersedes DA Pamphlet 27-9, 01 April 2001.
DA PAM 27-9·01 January 2010
UNCLASSIFIED
2-5-24. CONCLUDING SENTENCING INSTRUCTIONS .......74

2-5-25. ANNOUNCEMENT OF SENTENCE ...........................76

2-5-26.
POST-TRIAL AND APPELLATE RIGHTS
ADVICE ................................................................................78

Section VI Court Members (Sentencing Only) ...............................80

2-6-1. PRELIMINARY INSTRUCTIONS .................................82

2-6-2. VOIR DIRE ......................................................................85

2-6-3. INDIVIDUAL VOIR DIRE ..............................................87

2-6-4. CHALLENGES ................................................................87

2-6-5. SENTENCING PROCEEDINGS .....................................89

2-6-6. REBUTTAL AND SURREBUTTAL, IF ANY ...............90

2-6-7. DISCUSSION OF SENTENCING INSTRUCTIONS .....90

2-6-8. SENTENCING ARGUMENTS ........................................91

2-6-9. SENTENCING INSTRUCTIONS ....................................91

2-6-10. TYPES OF PUNISHMENT ...........................................93

2-6-11. OTHER INSTRUCTIONS ........................................... 101

2-6-12. CONCLUDING SENTENCING INSTRUCTIONS ..... 104

2-6-13. ANNOUNCEMENT OF SENTENCE ......................... 106

2-6-14.
POST-TRIAL AND APPELLATE RIGHTS
ADVICE .............................................................................. 108

Section VII Miscellaneous Procedural Guides ............................110
2-7-1. WAIVER OF STATUTORY WAITING PERIOD ........ 110

2-7-2. PRO SE REPRESENTATION ....................................... 111

2-7-3.
WAIVER OF CONFLICT-FREE COUNSEL (DC
REPRESENTING MULTIPLE ACCUSED) ......................114

2-7-4.
PRETRIAL AGREEMENT: DISMISSAL OF
CHARGE CLAUSE ............................................................ 116

2-7-5.
PRETRIAL AGREEMENT: TESTIFY IN
ANOTHER CASE ............................................................... 117

2-7-6.
PRETRIAL AGREEMENT: OPERATION OF
ARTICLE 58a ON A SUSPENDED SENTENCE ..............118

2-7-7.
PRETRIAL AGREEMENT: SUSPENSION
WITHOUT DEFERMENT .................................................. 119

2-7-8.
PRETRIAL AGREEMENT: ARTICLE 32

WAIVER ............................................................................. 120

2-7-9.
PRETRIAL AGREEMENT: WAIVER OF
MEMBERS.......................................................................... 122

2-7-10.
PRETRIAL AGREEMENT: WAIVER OF
MOTIONS ........................................................................... 123
2-7-11.

PRETRIAL AGREEMENT: WAIVER OF
MOTION FOR ILLEGAL PRETRIAL PUNISHMENT (ARTICLE 13) SENTENCING CREDIT ............................ 125

2-7-12. STATUTE OF LIMITATIONS .................................... 128

2-7-13. MOTION FOR FINDING OF NOT GUILTY .............129

2-7-14.
RECONSIDERATION INSTRUCTION
(FINDINGS) ........................................................................ 130

2-7-15. RELATIVE SEVERITY OF SENTENCE ...................132

2-7-16.
CLEMENCY (RECOMMENDATION FOR
SUSPENSION).................................................................... 133

2-7-17. CLEMENCY (ADDITIONAL INSTRUCTIONS) ....... 134

2-7-18. "HUNG JURY" INSTRUCTION ................................. 135

2-7-19.
RECONSIDERATION INSTRUCTION
(SENTENCE) ...................................................................... 136

2-7-20.
COMMENT ON RIGHTS TO SILENCE OR
COUNSEL.. ......................................................................... 138

2-7-21. CREDIT FOR ARTICLE 15 PUNISHMENT .............. 139

2-7-22. VIEWS AND INSPECTIONS ...................................... 142

2-7-23.
ABSENT ACCUSED INSTRUCTION:
PRELIMINARY FINDINGS .............................................. 146

2-7-24.

STIPULATIONS OF FACT AND EXPECTED
TESTIMONY (NOT lAW A PRETRIAL AGREEMENT) ................................................................... 147

2-7-25.
CONFESSIONAL STIPULATION OF FACT
INQUIRY ............................................................................ 149

2-7-26.
ADVICE ON CONSEQUENCES OF
VOLUNTARY ABSENCE ................................................. 152

2-7-27.
ARGUMENT OR REQUEST FOR A PUNITIVE
DISCHARGE ...................................................................... 153

Chapter 3 INSTRUCTIONS ON ELEMENTS
OF OFFENSES ......................................................... 157

3-1-1.
PRINCIPALS-AIDING, ABETTING,
COUNSELING, COMMANDING, OR PROCURING
(ARTICLE 77) .................................................................... 158

3-1-2. JOINT OFFENDERS (ARTICLE 77) ............................ 159

3-2-1. ACCESSORY AFTER THE FACT (ARTICLE 78) ...... 160

3-3-1.
CONVICTION OF LESSER INCLUDED
OFFENSE (ARTICLE 79) .................................................. 162

3-4-1.
ATTEMPTS-OTHER THAN MURDER AND
VOLUNTARY MANSLAUGHTER (ARTICLE 80) ......... 163

3-4-2.
ATTEMPTS-MURDER, PREMEDITATED AND
UNPREMEDITATED (ARTICLE 80) ............................... 166

3-4-3.
ATTEMPTS-VOLUNTARY MANSLAUGHTER
(ARTICLE 80) .................................................................... 173

3-5-1. CONSPIRACY (ARTICLE 81)...................................... 177

3-6-1.
SOLICITATION OF DESERTION OR MUTINY
(ARTICLE 82) .................................................................... 180

3-6-2.
SOLICITATION OF MISBEHAVIOR BEFORE
THE ENEMY OR SEDITION (ARTICLE 82) ................... 183

3-7-1.
FRAUDULENT ENLISTMENT OR
APPOINTMENT (ARTICLE 83)........................................ 185

3-7-2. FRAUDULENT SEPARATION (ARTICLE 83)........... 187

3-8-1.
EFFECTING UNLAWFUL ENLISTMENT,
APPOINTMENT, OR SEPARATION (ARTICLE 84)....... 188

3-9-1.
DESERTION WITH INTENT TO REMAIN AWAY
PERMANENTLY (ARTICLE 85) ...................................... 190

3-9-2.
DESERTION WITH INTENT TO AVOID
HAZARDOUS DUTY OR TO SHIRK IMPORTANT
SERVICE (ARTICLE 85) ................................................... 195

3-9-3.
DESERTION BEFORE NOTICE OF ACCEPTANCE OF RESIGNATION (ARTICLE 85) ........ 197

3-9-4. ATTEMPTED DESERTION (ARTICLE 85) ................200

3-10-1.
FAILING TO GO TO OR LEAVING PLACE OF
DUTY (ARTICLE 86) ........................................................202

3-10-2.
ABSENCE FROM UNIT, ORGANIZATION, OR
PLACE OF DUTY (ARTICLE 86) .....................................204

3-10-3.
ABSENCE FROM UNIT, ORGANIZATION, OR

PLACE OF DUTY WITH INTENT TO AVOID
MANEUVERS OR FIELD EXERCISES (ARTICLE
86) .......................................................................................208

3-10-4.
ABANDONING WATCH OR GUARD (ARTICLE
86) .......................................................................................212

3-11-1. MISSING MOVEMENT (ARTICLE 87).....................214

3-12-1.
CONTEMPT TOWARD OFFICIALS BY
COMMISSIONED OFFICER (ARTICLE 88) ....................216

3-13-1.
DISRESPECT TOWARD A SUPERIOR
COMMISSIONED OFFICER (ARTICLE 89) .................... 218

3-14-1.
ASSAULTING-STRIKING, DRAWING,
LIFTING UP A WEAPON AGAINST, OFFERING
VIOLENCE TO-SUPERIOR COMMISSIONED
OFFICER (ARTICLE 90) ................................................... 221

3-14-2.
WILLFUL DISOBEDIENCE OF A SUPERIOR
COMMISSIONED OFFICER (ARTICLE 90)....................226

3-15-1.
ASSAULT ON WARRANT,
NONCOMMISSIONED, OR PETTY OFFICER
(ARTICLE 91) ....................................................................230

3-15-2.
WILLFUL DISOBEDIENCE OF WARRANT,
NONCOMMISSIONED, OR PETTY OFFICER
(ARTICLE 91) ....................................................................234

DA PAM 27-9·01 January 2010
3-15-3.
CONTEMPT OR DISRESPECT TOWARD
WARRANT, NONCOMMISSIONED, OR PETTY
OFFICER (ARTICLE 91) ................................................... 237

3-16-1.
VIOLATING GENERAL ORDER OR
REGULATION (ARTICLE 92) .......................................... 240

3-16-2.
VIOLATING OTHER WRITTEN ORDER OR
REGULATION (ARTICLE 92) .......................................... 243

3-16-3.
FAILURE TO OBEY LAWFUL ORDER
(ARTICLE 92) .................................................................... 245

3-16-4. DERELICTION OF DUTY (ARTICLE 92) ................ 247

3-17-1.
CRUELTY, OPPRESSION, OR
MALTREATMENT OF SUBORDINATES (ARTICLE
93) ....................................................................................... 249

3-18-1.
MUTINY BY REFUSING TO OBEY ORDERS
OR TO PERFORM DUTY (ARTICLE 94) ........................ 251

3-18-2.
MUTINY BY CREATING VIOLENCE OR
DISTURBANCE (ARTICLE 94) ........................................ 253

3-18-3. SEDITION (ARTICLE 94) .......................................... 254

3-18-4.
FAILURE TO PREVENT AND SUPPRESS A
MUTINY OR SEDITION (ARTICLE 94) .......................... 255

3-18-5.
FAILURE TO REPORT A MUTINY OR
SEDITION (ARTICLE 94) ................................................. 257

3-18-6. ATTEMPTED MUTINY (ARTICLE 94) .................... 259

3-19-1. RESISTING APPREHENSION (ARTICLE 95) .......... 260

3-19-2. FLEEING APPREHENSION (ARTICLE 95) ............. 263

3-19-3. BREAKING ARREST (ARTICLE 95) ........................ 266

3-19-4. ESCAPE FROM CUSTODY (ARTICLE 95) .............. 269

3-19-5.
ESCAPE FROM CONFINEMENT-PRETRIAL
AND POST-TRIAL CONFINEMENT (ARTICLE 95) ..... 272

3-20-1.
RELEASING PRISONER WITHOUT
AUTHORITY (ARTICLE 96) ............................................ 277

3-20-2.
SUFFERING A PRISONER TO ESCAPE
THROUGH NEGLECT (ARTICLE 96) ............................. 278

3-20--3.
SUFFERING A PRISONER TO ESCAPE
THROUGH DESIGN (ARTICLE 96) ................................. 279

3-21-1. UNLAWFUL DETENTION (ARTICLE 97) ............... 280

3-22-1.
UNNECESSARY DELAY IN DISPOSING OF
CASE (ARTICLE 98) ......................................................... 282

3-22-2.
FAILING TO ENFORCE OR COMPLY WITH
CODE (ARTICLE 98) ......................................................... 283

3-23-1.
MISBEHAVIOR BEFORE THE ENEMY,
RUNNING AWAY (ARTICLE 99) .................................... 284

3-23-2.
MISBEHAVIOR BEFORE THE ENEMY­
ABANDONMENT, SURRENDER, OR DELIVERING
UP OF COMMAND (ARTICLE 99) .................................. 286

3-23-3.
MISBEHAVIOR BEFORE THE ENEMY­
ENDANGERING SAFETY OF COMMAND
(ARTICLE 99) .................................................................... 288

3-23-4.
MISBEHAVIOR BEFORE THE ENEMY­
CASTING AWAY ARMS OR AMMUNITION
(ARTICLE 99) .................................................................... 290

3-23-5.
MISBEHAVIOR BEFORE THE ENEMY­COWARDLY CONDUCT (ARTICLE 99) ........................ 291

3-23-6.
MISBEHAVIOR BEFORE THE ENEMY­QUITTING PLACE OF DUTY TO PLUNDER OR
PILLAGE (ARTICLE 99) ................................................... 293

3-23-7.
MISBEHAVIOR BEFORE THE ENEMY­CAUSING FALSE ALARM (ARTICLE 99) ..................... 295

3-23-8.
MISBEHAVIOR BEFORE THE ENEMY­FAILURE TO DO UTMOST (ARTICLE 99) .................... 297

3-23-9.
MISBEHAVIOR BEFORE THE ENEMY­FAILURE TO AFFORD RELIEF (ARTICLE 99) ............. 299

3-24-1. COMPELLING SURRENDER (ARTICLE 100) ......... 301

3-24-2.
COMPELLING SURRENDER-ATTEMPTS
(ARTICLE 100) .................................................................. 303

3-24-3.
STRIKING THE COLORS OR FLAG (ARTICLE
100) ..................................................................................... 305

3-25-1.
IMPROPER USE OF COUNTERSIGN­
DISCLOSING PAROLE OR COUNTERSIGN
(ARTICLE 101) .................................................................. 307

3-25-2.
GIVING DIFFERENT PAROLE OR
COUNTERSIGN (ARTICLE 101) ..................................... 308

3-26-1. FORCING A SAFEGUARD (ARTICLE 102) ............ 310

3-27-1.
FAILING TO SECURE PUBLIC PROPERTY
TAKEN FROM THE ENEMY (ARTICLE 103) ................ 311

3-27-2.
CAPTURED OR ABANDONED PROPERTY­
FAILURE TO REPORT AND TURN OVER
(ARTICLE 103) .................................................................. 313

3-27-3.
CAPTURED OR ABANDONED PROPERTY­DEALING IN (ARTICLE 103) .......................................... 315

3-27-4. LOOTING OR PILLAGING (ARTICLE 103) ............ 317

3-28-1.
AIDING THE ENEMY-FURNISHING ARMS
OR AMMUNITION (ARTICLE 104) ................................ 319

3-28-2.
AIDING THE ENEMY-ATTEMPTING TO
FURNISH ARMS OR AMMUNITION (ARTICLE
104) ..................................................................................... 320

3-28-3.
AIDING THE ENEMY-HARBORING OR
PROTECTING (ARTICLE 104) ......................................... 322

3-28-4.
AIDING THE ENEMY-GIVING
INTELLIGENCE TO THE ENEMY (ARTICLE 104) ....... 323

3-28-5.
AIDING THE ENEMY-COMMUNICATING
WITH THE ENEMY (ARTICLE 104) ............................... 324

3-29-1.
MISCONDUCT AS A PRISONER (ARTICLE
105) ..................................................................................... 326

3-29-2.
MISCONDUCT AS A PRISONER­MALTREATMENT OF PRISONER (ARTICLE 105) ...... 328

3-30-1. SPYING (ARTICLE 106) ............................................ 330

3-30A-1. ESPIONAGE (ARTICLE 106a) ................................ 332

3-30A-2. ATTEMPTED ESPIONAGE (ARTICLE 106a) ....... 334

3-31-1. FALSE OFFICIAL STATEMENT (ARTICLE 107) ... 336

3-32-1.
SELLING OR DISPOSING OF MILITARY
PROPERTY (ARTICLE 108) ............................................. 338

3-32-2.
DAMAGING, DESTROYING, OR LOSING
MILITARY PROPERTY (ARTICLE 108) ......................... 342

3-32-3.
SUFFERING MILITARY PROPERTY TO BE
LOST, DAMAGED, SOLD, OR WRONGFULLY
DISPOSED OF (ARTICLE 108) ........................................ 348

3-33-1.
NONMILITARY PROPERTY-REAL
PROPERTY-WASTING OR SPOILING (ARTICLE
109) ..................................................................................... 355

3-33-2.
NONMILITARY PROPERTY-PERSONAL
PROPERTY-DESTROYING OR DAMAGING
(ARTICLE 109) .................................................................. 357

3-34-1.
HAZARDING OF VESSEL-WILLFUL
(ARTICLE 110) .................................................................. 359

3-34-2.
HAZARDING OF VESSEL-THROUGH
NEGLECT (ARTICLE 110) ............................................... 360

3-35-1.
DRUNKEN OR RECKLESS OPERATION OF A
VEHICLE, AIRCRAFT, OR VESSEL (ARTICLE 111) .... 361

3-36-1. DRUNK ON DUTY (ARTICLE 112) .......................... 369

3-37-1.
DRUGS-WRONGFUL POSSESSION-WITH
INTENT TO DISTRIBUTE (ARTICLE 112a) ................... 371

3-37-2. DRUGS-WRONGFUL USE (ARTICLE 112a) ........ 378

3-37-3.
DRUGS, WRONGFUL DISTRIBUTION
(ARTICLE 112a) ................................................................ 384

3-37-4.
DRUGS-WRONGFUL INTRODUCTION­WITH INTENT TO DISTRIBUTE (ARTICLE 112a) ........ 390

3-37-5.
DRUGS-WRONGFUL MANUFACTURE­WITH INTENT TO DISTRIBUTE (ARTICLE 112a) ........ 397

3-37-6.
DRUGS-WRONGFUL IMPORTATION OR
EXPORTATION (ARTICLE 112a) ................................... .404

DA PAM 27-9' 01 January 2010
3-38-1.
MISBEHAVIOR OF SENTINEL OR LOOKOUT
(ARTICLE 113) ...................................................................410

3-39-1. DUELING (ARTICLE 114) ........................................ .412

3-39-2. PROMOTING A DUEL (ARTICLE 114) ................... .413

3-39-3.
CONNIVING AT FIGHTING A DUEL (ARTICLE
114)..................................................................................... .414

3-39-4. FAILURE TO REPORT A DUEL (ARTICLE 114) ....415

3-40--1.
MALINGERING, SELF-INFLICTED INJURY
(ARTICLE 115) .................................................................. .416

3-41-1. RIOT (ARTICLE 116) ................................................. .418

3-41-2. BREACH OF THE PEACE (ARTICLE 116) .............. .420

3-42-1.
PROVOKING SPEECHES OR GESTURES
(ARTICLE 117) ...................................................................421

3-43-1. PREMEDITATED MURDER (ARTICLE 118) .......... .423

3-43-2. UNPREMEDITATED MURDER (ARTICLE 118) .....426

3-43-3.
MURDER WHILE ENGAGING IN AN ACT
INHERENTLY DANGEROUS TO ANOTHER
(ARTICLE 118) .................................................................. .430

3-43-4. FELONY MURDER (ARTICLE 118) ........................ .432

3-44-1.
VOLUNTARY MANSLAUGHTER (ARTICLE
119)..................................................................................... .435

3-44-2.
INVOLUNTARY MANSLAUGHTER­CULPABLE NEGLIGENCE (ARTICLE 119) .................. .438

3-44-3.
INVOLUNTARY MANSLAUGHTER-WHILE
PERPETRATING OR ATTEMPTING TO
PERPETRATE CERTAIN OFFENSES (ARTICLE
119)......................................................................................441

3-44A-1.
INJURING AN UNBORN CHILD (ARTICLE
119a) ................................................................................... .444

3-44A-2.
KILLING AN UNBORN CHILD (ARTICLE
119a) ................................................................................... .447

3-44A-3.
ATTEMPTED KILLING OF AN UNBORN
CHILD (ARTICLE 119a) ................................................... .450

3-44A-4.
INTENTIONALLY KILLING AN UNBORN
CHILD (ARTICLE 119a) ................................................... .454

3-45. Preface to Article 120 Instructions................................... .457

3-45-1. RAPE (ARTICLE 120) ................................................ .459

3-45-2. CARNAL KNOWLEDGE (ARTICLE 120) ............... .480

3-45-3. RAPE (ARTICLE 120) ................................................ .484

3-45-4.
AGGRAVATED SEXUAL CONTACT (ARTICLE
120)..................................................................................... .494

3-45-5.
AGGRAVATED SEXUAL ASSAULT (ARTICLE
120)......................................................................................504

3-45-6. ABUSIVE SEXUAL CONTACT (ARTICLE 120) .....514

3-45-7.
AGGRAVATED SEXUAL ABUSE OF A CHILD
(ARTICLE 120) ...................................................................524

3-45-8.
INDECENT LIBERTY WITH A CHILD
(ARTICLE 120) ................................................................... 528

3-45-9. INDECENT ACT (ARTICLE 120) ..............................533

3-45-10. FORCIBLE PANDERING (ARTICLE 120) ..............535

3-45-11.
WRONGFUL SEXUAL CONTACT (ARTICLE
120)......................................................................................537

3-45-12. INDECENT EXPOSURE (ARTICLE 120) ................542

3-45A-1. STALKING (ARTICLE 120a) ..................................543

3-46-1. LARCENY (ARTICLE 121) ........................................546

3-46-2. WRONGFUL APPROPRIATION (ARTICLE 121) ....558

3-47-1. ROBBERY (ARTICLE 122) ........................................568

3-48-1.
FORGERY-MAKING OR ALTERING
(ARTICLE 123) ...................................................................571

3-48-2. FORGERY-UTTERING (ARTICLE 123) .................574

3-49-1.
CHECK, WORTHLESS, WITH INTENT TO
DEFRAUD (ARTICLE 123a) .............................................577

3-49-2.
CHECK, WORTHLESS, WITH INTENT TO
DECEIVE (ARTICLE 123a) ...............................................582

3-50-1. MAIMING (ARTICLE 124) .........................................586

3-51-1.
SODOMY-NOT INVOLVING FORCE
(ARTICLE 125) .................................................................. 588

3-51-2. FORCIBLE SODOMY (ARTICLE 125) ..................... 590

3-52-1.
ARSON-AGGRAVATED-INHABITED
DWELLING (ARTICLE 126) ............................................. 610

3-52-2.
ARSON-AGGRAVATED-STRUCTURE
(ARTICLE 126) ..................................................................612

3-52-3. ARSON-SIMPLE (ARTICLE 126) ........................... 614

3-53-1. EXTORTION (ARTICLE 127) .................................... 616

3-54-1. SIMPLE ASSAULT (ARTICLE 128) ..........................618

3-54-1A.
SIMPLE ASSAULT (WITH AN UNLOADED
FIREARM) (ARTICLE 128) ............................................... 620

3-54-2.
ASSAULT CONSUMMATED BY A BATTERY
(ARTICLE 128) ..................................................................623

3-54-3.
ASSAULT UPON A COMMISSIONED OFFICER
(ARTICLE 128) .................................................................. 624

3-54-4.
ASSAULT UPON A WARRANT,
NONCOMMISSIONED, OR PETTY OFFICER
(ARTICLE 128) .................................................................. 627

3-54-5.
ASSAULT UPON A SENTINEL OR LOOKOUT
(ARTICLE 128) .................................................................. 630

3-54-6.
ASSAULT UPON A PERSON IN THE
EXECUTION OF LAW ENFORCEMENT DUTIES
(ARTICLE 128) .................................................................. 633

3-54-7.
BATTERY UPON A CHILD UNDER THE AGE
OF 16 (ARTICLE 128) ........................................................ 636

3-54-8.
AGGRAVATED ASSAULT-DANGEROUS
WEAPON, MEANS, OR FORCE (ARTICLE 128) ............638

3-54-9.
AGGRAVATED ASSAULT-INTENTIONALLY
INFLICTING GRIEVOUS BODILY HARM
(ARTICLE 128) .................................................................. 643

3-55-1. BURGLARY (ARTICLE 129) ..................................... 647

3-56-1. HOUSEBREAKING (ARTICLE 130) ......................... 649

3-57-1.
PERJURY-FALSE TESTIMONY (ARTICLE
131) ..................................................................................... 652

3-57-2.
PERJURY-SUBSCRIBING FALSE
STATEMENT (ARTICLE 131) .......................................... 655

3-58-1. MAKING FALSE CLAIM (ARTICLE 132) ................ 658

3-58-2. PRESENTING FALSE CLAIM (ARTICLE 132) ........ 660

3-58-3.
MAKING OR USING FALSE WRITING IN
CONNECTION WITH A CLAIM (ARTICLE 132) ........... 662

3-58-4.
MAKING FALSE OATH IN CONNECTION
WITH A CLAIM (ARTICLE 132) ...................................... 664

3-58-5.
FORGING OR COUNTERFEITING SIGNATURE
IN CONNECTION WITH A CLAIM (ARTICLE 132) ...... 667

3-58-6.
USING FORGED SIGNATURE IN
CONNECTION WITH A CLAIM (ARTICLE 132) ........... 668

3-58-7.
PAYING AMOUNT LESS THAN CALLED FOR
BY RECEIPT (ARTICLE 132) ........................................... 669

3-58-8.
MAKING RECEIPT WITHOUT KNOWLEDGE
OF THE FACTS (ARTICLE 132) ...................................... 671

3-59-1.
COPYING OR USING EXAMINATION PAPER
(ARTICLE 133) .................................................................. 673

3-59-2. DRUNK OR DISORDERLY (ARTICLE 133) ............ 674

3-59-3.
FAILING, DISHONORABLY, TO PAY DEBT
(ARTICLE 133) .................................................................. 676

3-59-4.
FAILURE TO KEEP PROMISE TO PAY DEBT
(ARTICLE 133) .................................................................. 678

3-60-1. GENERAL ARTICLE (ARTICLE 134) ....................... 680

3-60-2A.
DISORDERS AND NEGLECTS TO THE
PREJUDICE OF GOOD ORDER AND DISCIPLINE
OR OF A NATURE TO BRING DISCREDIT UPON
THE ARMED FORCES-OFFENSES NOT LISTED
IN THE MCM (ARTICLE 134, CLAUSES 1 AND 2.) ...... 681

DA PAM 27-9·01 January 2010
3-60-2B.
CRIMES AND OFFENSES NOT CAPITAL­
VIOLATIONS OF FEDERAL LAW (ARTICLE 134,

CLAUSE 3) ......................................................................... 684

3-60-2C.
CRIMES AND OFFENSES NOT CAPITAL­
VIOLATIONS OF STATE LAW AS VIOLATIONS
OF FEDERAL LAW UNDER THE ASSIMILATIVE
CRIMES ACT (ARTICLE 134, CLAUSE 3) ..................... 685

3-60-3.
UNLAWFULLY TRANSPORTING A VEHICLE
OR AIRCRAFT IN INTERSTATE OR FOREIGN
COMMERCE (ARTICLE 134) ........................................... 687

3-60-4.
UNCLEAN ACCOUTERMENT, ARMS, OR
UNIFORM (ARTICLE 134) ............................................... 688

3-60-5.
UNIFORM-APPEARING IN UNCLEAN OR
IMPROPER (ARTICLE 134) .............................................. 689

3-61-1. ABUSING PUBLIC ANIMAL (ARTICLE 134) ......... 690

3-62-1. ADULTERY (ARTICLE 134) ..................................... 691

3-63-1. INDECENT ASSAULT (ARTICLE 134) .................... 695

3-64-1.
ASSAULT WITH INTENT TO COMMIT
CERTAIN OFFENSES (ARTICLE 134) ............................ 698

3-65-1. BIGAMY (ARTICLE 134) .......................................... 701

3-66-1.
BRIBERY AND GRAFT-ASKING,
ACCEPTING, OR RECEIVING (ARTICLE 134) ............. 702

3--66-2.
BRIBERY AND GRAFT-PROMISING,
OFFERING, OR GIVING (ARTICLE 134) ........................ 704

3-67-1.
BURNING WITH INTENT TO DEFRAUD
(ARTICLE 134) .................................................................. 706

3-68-1.
CHECK-WORTHLESS-MAKING AND
UTTERING-BY DISHONORABLY FAILING TO
MAINTAIN SUFFICIENT FUNDS (ARTICLE 134) ........ 708

3-68A-1. CHILD ENDANGERMENT (ARTICLE 134) .......... 712

3-69-1. WRONGFUL COHABITATION (ARTICLE 134) ..... 715

3-70-1.
CORRECTIONAL CUSTODY-ESCAPE FROM
(ARTICLE 134) .................................................................. 716

3-70-2.
CORRECTIONAL CUSTODY-BREACH OF
RESTRAINT DURING (ARTICLE 134) ........................... 719

3-71-1.
DEBT, DISHONORABLY FAILING TO PAY
(ARTICLE 134) .................................................................. 722

3-72-1. DISLOYAL STATEMENTS (ARTICLE 134) ............ 725

3-73-1.
DISORDERLY CONDUCT-DRUNKENNESS
(ARTICLE 134) .................................................................. 727

3-74--1.
DRINKING LIQUOR WITH PRISONER
(ARTICLE 134) .................................................................. 730

3-75-1. PRISONER FOUND DRUNK (ARTICLE 134) .......... 731

3-76-1.
DRUNKENNESS-INCAPACITATION FOR
PERFORMANCE OF DUTIES THROUGH PRIOR
INDULGENCE IN INTOXICATING LIQUORS OR
ANY DRUG (ARTICLE 134) ............................................. 732

3-77-1.
FALSE OR UNAUTHORIZED PASS-MAKING,
ALTERING, COUNTERFEITING, TAMPERING
(ARTICLE 134) .................................................................. 734

3-77-2.
FALSE OR UNAUTHORIZED PASS­WRONGFUL SALE, GIFT, OR LOAN (ARTICLE
134) ..................................................................................... 735

3-77-3.
WRONGFUL USE OR POSSESSION OF FALSE
OR UNAUTHORIZED PASS (ARTICLE 134) ................. 737

3-78-1.
OBTAINING SERVICES UNDER FALSE
PRETENSES (ARTICLE 134) ............................................ 739

3-79-1. FALSE SWEARING (ARTICLE 134) ......................... 741

3-80-1.
FIREARM-DISCHARGING THROUGH
NEGLIGENCE (ARTICLE 134) ........................................ 745

3-81-1.
FIREARM-WILLFUL DISCHARGE UNDER
CIRCUMSTANCES TO ENDANGER HUMAN LIFE
(ARTICLE 134) .................................................................. 746

3-82-1.
FLEEING THE SCENE OF AN ACCIDENT­DRIVER OR PASSENGER CHARGED AS A
PRINCIPAL (ARTICLE 134) ............................................. 747

3-82-2.
FLEEING THE SCENE OF AN ACCIDENT­SENIOR PASSENGER (ARTICLE 134) ........................... 749

3-83-1. FRATERNIZATION (ARTICLE 134) ........................ 751

3-84--1.
GAMBLING WITH SUBORDINATE (ARTICLE
134) ..................................................................................... 753

3-85-1. NEGLIGENT HOMICIDE (ARTICLE 134) ............... 754

3-86-1.
IMPERSONATING A COMMISSIONED,
WARRANT, NONCOMMISSIONED, OR PETTY
OFFICER OR AGENT OR OFFICIAL (ARTICLE 134) ... 757

3-87-1.
INDECENT ACTS WITH A CHILD-PHYSICAL
CONTACT (ARTICLE 134) ............................................... 760

3-87-2.
INDECENT ACTS (LIBERTIES) WITH A
CHILD-NO PHYSICAL CONTACT (ARTICLE 134) .... 762

3-88-1. INDECENT EXPOSURE (ARTICLE 134) ................. 764

3-89-1.
INDECENT LANGUAGE COMMUNICATED TO
ANOTHER (ARTICLE 134) .............................................. 766

3-90-1.
INDECENT ACTS WITH ANOTHER (ARTICLE
134) ..................................................................................... 769

3-91-1.
JUMPING FROM VESSEL INTO THE WATER
(ARTICLE 134) .................................................................. 770

3-92-1. KIDNAPPING (ARTICLE 134) .................................. 771

3-93-1. MAIL-TAKING (ARTICLE 134) ............................. 773

3-93-2.
MAIL-OPENING, SECRETING, OR
DESTROYING (ARTICLE 134) ........................................ 777

3-93-3. MAIL-STEALING (ARTICLE 134) ......................... 780

3-94--1.
MAIL-DEPOSITING OR CAUSING TO BE
DEPOSITED OBSCENE MATTER IN (ARTICLE
134) ..................................................................................... 783

3-95-1.
MISPRISION OF SERIOUS OFFENSE (ARTICLE
134) ..................................................................................... 785

3-96A-l.
WRONGFUL INTERFERENCE WITH AN
ADVERSE ADMINISTRATIVE PROCEEDING
(ARTICLE 134) .................................................................. 787

3-96-1. OBSTRUCTING JUSTICE (ARTICLE 134) .............. 792

3-97-1. PROSTITUTION (ARTICLE 134) .............................. 797

3-97-2.
PROSTITUTION-PATRONIZING (ARTICLE
134) ..................................................................................... 799

3-97-3.
PANDERING BY INDUCING, ENTICING, OR
PROCURING ACT OF PROSTITUTION (ARTICLE
134) ..................................................................................... 801

3-97--4.
PANDERING BY ARRANGING OR RECEIVING
COMPENSATION FOR ARRANGING FOR SEXUAL
INTERCOURSE OR SODOMY (ARTICLE 134) ............. 803

3-97A-I. PAROLE-VIOLATION OF (ARTICLE 134) ........ 805

3-98-1. PERJURY-SUBORNATION OF (ARTICLE 134) ... 807

3-99-1.
PUBLIC RECORD-ALTERING,
CONCEALING, REMOVING, MUTILATING,
OBLITERATING, OR DESTROYING (ARTICLE 134) ... 811

3-100-1.
QUARANTINE-MEDICAL-BREAKING
(ARTICLE 134) .................................................................. 813

3-100A-1.
RECKLESS ENDANGERMENT (ARTICLE
134) ..................................................................................... 814

3-101-1.
REQUESTING COMMISSION OF AN
OFFENSE (ARTICLE 134) ................................................ 817

3-102-1. RESTRICTION-BREAKING (ARTICLE 134) ...... 818

3-103-1.
SEIZURE-DESTRUCTION, REMOVAL, OR
DISPOSAL OF PROPERTY TO PREVENT
(ARTICLE 134) .................................................................. 820

3-103A-1.
SELF-INJURY WITHOUT INTENT TO
AVOID SERVICE (ARTICLE 134) ................................... 822

3-104--1.
SENTINEL OR LOOKOUT-DISRESPECT TO
(ARTICLE 134) .................................................................. 824

3-104--2.
SENTINEL OR LOOKOUT-LOITERING
(ARTICLE 134) .................................................................. 826

3-105-1.
SOLICITING ANOTHER TO COMMIT AN
OFFENSE (ARTICLE 134) .................... ., .......................... 828

DA PAM 27-9·01 January 2010
3-106-1.
STOLEN PROPERTY-KNOWINGLY
RECEIVING, BUYING, CONCEALING (ARTICLE
134)......................................................................................831

3-107-1. STRAGGLING (ARTICLE 134) ................................833

3-108-1.
TESTIFY-WRONGFUL REFUSAL (ARTICLE
134)......................................................................................834

3-109-1. BOMB THREAT (ARTICLE 134) .............................837

3-109-2.
BOMB HOAX-DESIGNED OR INTENDED
TO CAUSE PANIC OR PUBLIC FEAR (ARTICLE
134)......................................................................................839

3-110-1.
THREAT-COMMUNICATING (ARTICLE
134)......................................................................................842

3-111-1. UNLAWFUL ENTRY (ARTICLE 134) ....................844

3-112-1.
WEAPON-CARRYING CONCEALED
(ARTICLE 134) ................................................................... 845

3-113-1.
WEARING UNAUTHORIZED INSIGNIA,
DECORATION, BADGE, RIBBON, DEVICE, OR
LAPEL BUTTON (ARTICLE 134) ....................................847

Chapter 4 CONFESSIONS INSTRUCTIONS ................... 849

4--1. CONFESSIONS AND ADMISSIONS ...............................850

Chapter 5 SPECIAL AND OTHER DEFENSES ............... 853

5-1.
GENERAL INFORMATION ABOUT
INSTRUCTIONS IN THIS CHAPTER ..............................854

5-2.
SELF-DEFENSE GENERALLY AND USING
THESE INSTRUCTIONS ...................................................856

5-2-1.
HOMICIDE OR ASSAULT AND/OR BATTERY
INVOLVING DEADLY FORCE ........................................857

5-2-2.
ASSAULT OR ASSAULT AND BATTERY
INVOLVING OTHER THAN DEADLY FORCE ..............859

5-2-3.
HOMICIDE OR AGGRAVATED ASSAULT WITH
ASSAULT CONSUMMATED BY A BATTERY OR
ASSAULT AS A LESSER INCLUDED OFFENSE. ..........861

5-2-4.
DEATH OF VICTIM UNINTENDED-DEADLY
FORCE NOT AUTHORIZED (SELF-DEFENSE) ............864

5-2-5.
EXCESSIVE FORCE TO DETER (SELF­DEFENSE) ..........................................................................867

5-2-6. OTHER INSTRUCTIONS (SELF-DEFENSE) .............869

5-3-1.
DEFENSE OF ANOTHER (HOMICIDE OR
AGGRAVATED ASSAULT CHARGED; NO LESSER
ASSAULTS IN ISSUE) ......................................................874

5-3-2.
DEFENSE OF ANOTHER (ASSAULT OR
ASSAULT AND BATTERY CHARGED) .........................876

5-3-3.
DEFENSE OF ANOTHER (HOMICIDE OR
AGGRAVATED ASSAULT CHARGED AND A
LESSER ASSAULT RAISED AS A LESSER
INCLUDED OFFENSE) .....................................................878

5-4. ACCIDENT ........................................................................881

5-5. DURESS (COMPULSION OR COERCION) ....................885

5-6. ENTRAPMENT .................................................................887

5-7. DEFENSE OF PROPERTY ............................................... 890

5-8-1.
OBEDIENCE TO ORDERS-UNLAWFUL
ORDER ...............................................................................892

5-8-2. OBEDIENCE TO ORDERS-LAWFUL ORDER ........894

5-9-1. PHYSICAL IMPOSSIBILITY .......................................895

5-9-2. PHYSICAL INABILITy ................................................897

5-10. FINANCIAL AND OTHER INABILITY ........................898

5-11.
IGNORANCE OR MISTAKE OF FACT OR LAW­GENERAL DISCUSSION ..................................................899

5-11-1.
IGNORANCE OR MISTAKE-WHERE
SPECIFIC INTENT OR ACTUAL KNOWLEDGE IS
IN ISSUE .............................................................................900

5-11-2.
IGNORANCE OR MISTAKE-WHEN ONLY
GENERAL INTENT IS IN ISSUE ......................................902

5-11-3.
IGNORANCE OR MISTAKE-CHECK
OFFENSES UNDER ARTICLE 134 .................................. 904

5-11-4. IGNORANCE OR MISTAKE-DRUG OFFENSES ... 906

5-12. VOLUNTARY INTOXICATION .................................... 908

5-13. ALIBI ............................................................................... 910

5-14. CHARACTER .................................................................. 911

5-15. VOLUNTARY ABANDONMENT ................................. 912

5-16. PARENTAL DISCIPLINE ............................................... 914

5-17. EVIDENCE NEGATING MENS REA ............................ 917

5-18. CLAIM OF RIGHT .......................................................... 921

5-19.
LACK OF CAUSATION, INTERVENING CAUSE,
OR CONTRIBUTORY NEGLIGENCE ............................. 925

Chapter 6

MENTAL CAPACITY AND RESPONSiBILITy ......... 931

6-1. SANITY INQUIRY. ........................................................... 932

6-2. MENTAL CAPACITY AT TIME OF TRIAL.. ................. 933

6-3. PRELIMINARY INSTRUCTIONS ON SANITY ............. 934

6-4.
MENTAL RESPONSIBILITY AT TIME OF
OFFENSE............................................................................ 935

6-5. PARTIAL MENTAL RESPONSIBILITY ......................... 939

6-6. EVALUATION OF TESTIMONY .................................... 942

6-7.
PROCEDURAL INSTRUCTIONS ON FINDINGS
(MENTAL RESPONSIBILITY AT ISSUE) ....................... 944

6-8.
RECONSIDERATION INSTRUCTIONS
(FINDINGS-MENTAL RESPONSIBILITY AT
ISSUE) ................................................................................ 949

6-9. SENTENCING FACTORS ................................................ 952

Chapter 7 EVIDENTIARY INSTRUCTIONS ..................... 953

EVIDENTIARY INSTRUCTIONS: ........................................... 954

7-1.
VICARIOUS LIABILITY-PRINCIPALS AND CO­CONSPIRATOR ................................................................. 956

7-1-1. PRINCIPALS-AIDING AND ABETTING ................. 958

7-1-2.
PRINCIPALS-COUNSELING, COMMANDING,
OR PROCURING ............................................................... 960

7-1-3. PRINCIPALS-CAUSING AN ACT TO BE DONE .... 961

7-1-4. VICARIOUS LIABILITY -CO-CONSPIRATORS ..... 962

7-2. JOINT OFFENDERS ......................................................... 966

7-3. CIRCUMSTANTIAL EVIDENCE .................................... 968

7-4--1. STIPULATIONS OF FACT...........................................970

7-4--2. STIPULATIONS OF EXPECTED TESTIMONY ......... 971

7-5. DEPOSITIONS .................................................................. 972

7-6. JUDICIAL NOTICE .......................................................... 974

7-7-1. CREDIBILITY OF WITNESSES .................................. 975

7-7-2. EYEWITNESS IDENTIFICATION .............................. 976

7-8-1.
CHARACTER-GOOD-OF ACCUSED TO
SHOW PROBABILITY OF INNOCENCE ........................ 979

7-8-2.
CHARACTER-VICTIM-VIOLENCE OR
PEACEFULNESS ............................................................... 980

7-8-3. CHARACTER FOR UNTRUTHFULNESS .................. 981

7-9-1. EXPERT TESTIMONY ................................................. 982

7-9-2. POLYGRAPH EXPERT ................................................ 985

7-10. ACCOMPLICE TESTIMONY ........................................ 987

7-11-1. PRIOR INCONSISTENT STATEMENT .................... 989

7-11-2.
PRIOR CONSISTENT STATEMENT-RECENT
FABRICATION ..................................................................991

7-12. ACCUSED'S FAILURE TO TESTIFY ........................... 992

7-13-1.
OTHER CRIMES, WRONGS, OR ACTS
EVIDENCE ......................................................................... 993

7-13-2. PRIOR CONVICTION TO IMPEACH ........................ 998

7-14.
PAST SEXUAL BEHAVIOR OF
NONCONSENSUAL SEX VICTIM ................................... 999

7-15.
VARIANCE-FINDINGS BY EXCEPTIONS AND
SUBSTITUTIONS ............................................................ 1000

7-16. VARIANCE -VALUE, DAMAGE, OR AMOUNT .... 1001

DA PAM 27-9·01 January 2010
7-17.
"SPILLOVER"-FACTS OF ONE CHARGED
OFFENSE TO PROVE ANOTHER ................................. 1003

7-18.
"HAVE YOU HEARD" QUESTIONS TO IMPEACH
OPINION .......................................................................... 1006

7-19.
WITNESS TESTIFYING UNDER A GRANT OF
IMMUNITY OR PROMISE OF LENIENCY ................... 1008

7-20. CHAIN OF CUSTODY ................................................. 1010

7-21. PRIVILEGE ................................................................... 1011

7-22. FALSE EXCULPATORY STATEMENTS ................... 1012

7-23.
"CLOSED TRIAL SESSION" -IMPERMISSIBLE
INFERENCE OF GUILT .................................................. 1014

7-24. BRAIN DEATH ............................................................. 1018

7-25. DIVERS OR SPECIFIED OCCASIONS ....................... 1019

Chapter 8 TRIAL PROCEDURE AND INSTRUCTIONS
FOR A CAPITAL CASE ...........................................1021

Section 1 Initial Session Through Arraignment ......................... 1022

8-l.
PROCEDURAL GUIDE FOR ARTICLE 39(a)
SESSION........................................................................... 1022

8-1-l. RIGHTS TO COUNSEL.............................................. 1023

8-1-2. FORUM RIGHTS ........................................................ 1025

8-1-3. ARRAIGNMENT ........................................................ 1026

Section 11 Guilty Plea Inquiry .................................................... 1028

8-2-l. GUILTY PLEA INTRODUCTION ............................. 1028

8-2-2. STIPULATION OF FACT INQUIRY ......................... 1029

8-2-3. GUILTY PLEA FACTUAL BASIS ............................. 1031

8-2-4. MAXIMUM PUNISHMENT INQUIRY ..................... 1033

8-2-5. PRETRIAL AGREEMENT ......................................... 1033

8-2-6. IF NO PRETRIAL AGREEMENT EXISTS ................ 1035

8-2-7. ACCEPTANCE OF GUILTY PLEA ........................... 1035

Section III Court Members (Contested) ..................................... 1038

8-3. PRELIMINARY INSTRUCTIONS ................................. 1038

8-3-1. VOIR DIRE .................................................................. 1043

8-3-2. CHALLENGES ............................................................ 1047

8-3-3. ANNOUNCEMENT OF PLEA ................................... 1048

8-3-4. TRIAL ON MERITS .................................................... 1049

8-3-5.
TRIAL RESUMES WITH DEFENSE CASE, IF
ANy .................................................................................. 1050

8-3-6. REBUTTAL AND SURREBUTTAL, IF ANY ........... 1050

8-3-7. DISCUSSION OF FINDINGS INSTRUCTIONS ....... 1051

8-3-8. PREFATORY INSTRUCTIONS ON FINDINGS ....... 1052

8-3-9. LESSER INCLUDED OFFENSE(S) ........................... 1052

8-3-10. OTHER APPROPRIATE INSTRUCTIONS ............. 1053

8-3-1l.
CLOSING SUBSTANTIVE INSTRUCTIONS ON
FINDINGS ........................................................................ 1054

8-3-12. FINDINGS ARGUMENT .......................................... 1055

8-3-13. PROCEDURAL INSTRUCTIONS ON FINDINGS .. 1056

8-3-14. PRE SENTENCING SESSION ................................... 1060

8-3-15. FINDINGS ................................................................. 1061

8-3-16. SENTENCING PROCEEDINGS ............................... 1063

8-3-17. REBUTTAL AND SURREBUTTAL, IF ANY ......... 1063

8-3-18.
DISCUSSION OF SENTENCING
INSTRUCTIONS .............................................................. 1064

8-3-19. SENTENCING ARGUMENTS ................................. 1065

8-3-20. SENTENCING INSTRUCTIONS ............................. 1065

8-3-2l. MAXIMUM PUNISHMENT ..................................... 1066

8-3-22. TYPES OF PUNISHMENT ....................................... 1067

8-3-23. PUNITIVE DISCHARGE .......................................... 1067

8-3-24. DISHONORABLE DISCHARGE ............................. 1068

8-3-25. BAD-CONDUCT DISCHARGE ............................... 1068

8-3-26. DISMISSAL ............................................................... 1068

8-3-27.
FORFEITURES OF ALL PAY AND
ALLOWANCES ............................................................... 1069

8-3-28. EFFECT OF ARTICLE 58b IN GCM ........................ 1069

8-3-29.
PRETRIAL CONFINEMENT CREDIT (IF
APPLICABLE) ................................................................. 1070

8-3-30. CONFINEMENT ....................................................... 1070

8-3-31. REDUCTION ............................................................. 1070

8-3-32. EFFECT OF ARTICLE 58a-U.S. ARMY ................. 1071

8-3-33. DEATH ...................................................................... 1071

8-3-34.
CLEMENCY (RECOMMENDATION FOR
SUSPENSION) ................................................................. 1071

8-3-35. PLEA OF GUILTY .................................................... 1072

8-3-36. ACCUSED'S NOT TESTIFYING ............................. 1072

8-3-37. ACCUSED'S NOT TESTIFYING UNDER OATH .. 1072

8-3-38. MENDACITy ............................................................ 1073

8-3-39. ARGUMENT FOR A SPECIFIC SENTENCE .......... 1073

8-3-40. CONCLUDING SENTENCING INSTRUCTIONS .. 1074

8-3-4l.
POST-TRIAL and APPELLATE RIGHTS
ADVICE ........................................................................... 1081

8-3-42. IF MORE THAN ONE DEFENSE COUNSEL.. ....... 1082

8-3-43. ANNOUNCEMENT OF SENTENCE ....................... 1083

Appendix A References .............................................................. 1085

Appendix B ................................................................................ 1085

Findings Worksheets ................................................................. 1085

Appendix c. ............................................................................... 1095

Sentence Worksheets ................................................................. 1095

Appendix D Rehearings and Proceedings in Revision .............. 1105

Appendix E Contempt Procedure .................................. ............ 1144

Appendix F General and Special Findings ............................... 1149

Appendix G Rules ofPractice Before Army Courts-Martial ..... 1156

AppendixH
Form for Certificate ofCorrection ofRecord ofTrial ...... 1157

Appendix 1 Instructions Checklists ............................................ 1158

Appendix J DuBay Hearing Procedure .................................... 1166

Glossary......................................................................... 1171

Index............................................................................... 1173

Table B-4 Sample Findings Worksheet-Exceptions and Substitutions ...................................................................... 1091

Table 2-1 Votes Needed for a Finding ofGuilty ...........................52
Table 8-1 Votes Needed for a Finding ofGuilty ....................... l056
Table B-1 Sample Findings Worksheet-No Lesser Included
Offenses ............................................................................. 1 087
Table B-2 Sample Findings Worksheet-Lesser Included
Offenses ............................................................................. 1 088
Table B-3 Sample Findings Worksheet-Capital Cases ........... 1 089

Table 2-2 Votes Needed for Sentencing .......................................75

Table 2-3 Votes Needed for Sentencing ..................................... 105

Table 2-4 Votes Needed Reconsideration of Findings ................ 130

Table 2-5 Votes Needed for Reconsideration ofSentence .......... 136

Table 2-6 Table of Equivalent Punishments ............................... 140

Table 2-7 Table of Equivalent Nonjudicial Punishments ............ 141

Table 6-1 Votes Needed for a Finding of Guilty (Mental
Responsibility).....................................................................945

Table 6-2 Votes Needed for Mental Responsibility ....................946

Table 6-3 Votes Needed for Reconsideration of Findings ..........949

,.

Table B-5 Sample Findings Worksheet-Sample Alternative
Findings Worksheet ........................................................... 1093

Table C-I Sample Sentence Worksheet-Special Court-
Martial Not Authorized to Adjudge a Bad-Conduct
Discharge........................................................................... 1096

Table C-2 Sample Sentence Worksheet-Special Court­
Martial Authorized to Adjudge a Bad-Conduct
Discharge........................................................................... 1097

Table C-3 Sample Sentence Worksheet-General Court-
Martial (Noncapital) .......................................................... 1 099
Table C-4 Sample Sentence Worksheet-General Court-
Martial (Capital Case) ....................................................... 110 I

Table F-I Sample Letter-Special Findings ............................. 1151

Table F-2 Sample Letter-Essential Findings ofFact.............. 1152

Table H-I Sample Letter-Certificate of Correction ................ 1157

Table 6-1


Votes Needed for a Finding of Guilty (Mental Responsibility)

No.
of Members Two-thirds
3 2

4 3

5 4

6 4

7 5

8 6

9 6

10 7

11 8

12 8

NOTE 2
: Article 106 offenses. Modify the above instruction in the event ofa Charge
under Article 106, UCMJ.
(22) Variance-Findings by Exceptions and Substitutions: Instruction 7-15

(23) Variance-Value, Damage, or Amount: Instruction 7-16

(24) "Spillover"-Facts of One Charged Offense to Prove Another: Instruction 7-17

(25) "Have You Heard" Questions to Impeach Opinion: Instruction 7-18

(26) Witness Testifying Under a Grant of Immunity or Promise of Leniency: Instruction 7-19

(27) Chain of Custody: Instruction 7-20

(28) Privilege: Instruction 7-21

(29) False Exculpatory Statements: Instruction 7-22

(30) "Closed Trial Session," Impermissible Inference of Guilt: Instruction 7-23

(31) Brain Death: Instruction 7-24

(32) Divers or Specified Occasions: Instruction 7-25










DA PAM 27-9·01 January 2010
Table List

DA PAM 27-9·01 January 2010
Chapter 1
INTRODUCTION

DA PAM 27-9 • 01 January 2010
1-1. PURPOSE AND SCOPE.
a. Obligations, duties, and essential characteristics ofmilitary judges. Although the primary thrust of this Benchbook is to assist military judges in the preparation of trial instructions, military judges must constantly be mindful of their judicial responsibilities in and out of the courtroom. In this regard, additional guidance may be found in publications of such organizations as the American Bar Association, American Judicature Society, and National Conference of State Trial Judges. Particular attention should be given to the Code of Judicial Conduct and Standards for the Administration of Criminal Justice pertaining to the Special Functions of the Trial Judge as promulgated by the American Bar Association.
(1)
General obligations.

(a)
A military judge must maintain a thorough knowledge ofmilitary law, including all its latest developments, by careful analysis of the decisions of military appellate tribunals, the United States Court ofAppeals for the Armed Forces, and pertinent decisions of other federal courts.

(b)
A military judge must administer justice fairly and promptly, and in a simple, uniform, and efficient manner. All judges should retain a flexible trial docket to avoid unnecessary delays in the scheduling and conduct oftrials. Whenever practicable and consistent with each accused's right to a speedy trial, judges should endeavor to conduct trials consecutively during specified periods and at specified locations.

(c)
A military judge has responsibilities beyond deciding cases. The judge should provide statistical records of the activities ofthe court at regular intervals. In addition, the judge should conduct formal or informal training sessions for counsel to improve the quality of military justice.

(d)
A military judge should analyze problems arising in court and, ifappropriate, should recommend legislative and other changes that will improve the administration and cause ofjustice.

(e)
Judges should participate in judicial associations and confer with other judges, particularly with those having similar jurisdiction, to increase their competence.

(2)
General duties during trials.

(a)
A military judge must administer justice and faithfully, impartially, and independently perform all duties to the best of the judge's ability and understanding in accordance with the law, the evidence admitted in court, and the judge's own conscience.

(b)
The judge should seek a full understanding of the factual issues and the applicable law. The judge should generally hear the arguments of counsel regarding interlocutory matters and the admissibility of evidence out of the hearing of the court members.

(c)
A military judge is not merely an umpire between counsel. As a representative ofjustice, the judge is sworn to uphold the law and to ensure that justice is done. The judge should maintain the dignity of trial proceedings and preside with independence and impartiality. However, the judge should not unnecessarily interfere with or interrupt counsel.

(d)
A military judge should refrain from displays of temper, personal pique, or manifestations of idiosyncrasies. The judge should avoid comment, conduct, or appearance that may unfairly influence court members or affect their judgment on the outcome of the case. The judge must endeavor to show


DA PAM 27-9 • 01 January 2010
restraint and understanding and to curb any tendency toward arbitrary or sarcastic remarks, bearing in mind that every word spoken during trial is not merely momentarily audible but is permanently recorded. The judge should therefore insure that all statements are uttered with due regard not only for the immediate impact upon those present, but upon all those who may subsequently examine the record in close detail.
(e)
While proceedings must never be unduly protracted by an excessive display of legal acumen, or other unnecessary verbiage, they must also never be unnecessarily abbreviated by a natural reluctance to avoid repetition in similar but different cases. Through maximum use of the Military Judges' Benchbook and other aids, the judge must always skillfully maintain a prudent balance in this regard.

(1)
When delivering instructions, the military judge should speak in a conversational voice, using language that is clear, simple, and understandable. The judge should avoid any inflection, act, or demeanor that suggests a personal opinion, or conveys a meaning that is not expressed in the language employed.

(3)
Essential characteristics.

(a)
Judicial office imposes great moral responsibilities. However, the mantle of responsibility which goes with the judge does not mean the judge must be aloof to human relations. The judge's individual character, warmth, and human qualities should not be adversely affected by judicial status but should be developed fully as necessary ingredients of a proper judicial temperament. A military judge must have a deep sense ofjustice and an abiding faith in the law. The judge must possess honesty and courage; wisdom and learning; courtesy and patience; thoroughness and decisiveness; understanding and social consciousness; and independence and impartiality.

(b)
"The Kind of Judges We Need." One ofthe best descriptions ofthe kind ofjudges we need is contained in a statement by the late Chief Justice Arthur T. Vanderbilt ofNew Jersey, who devoted nearly all ofhis life to the promotion ofprograms to improve the administration of civilian and military justice: "We need judges learned in the law, not merely the law in books but, something far more difficult to acquire, the law as applied in action in the courtroom; judges deeply versed in the mysteries ofhuman nature and adept in the discovery ofthe truth in the discordant testimony of fallible human beings; judges beholden to no man, independent and honest -equally important -believed by all men to be independent and honest; judges above all, fired with consuming zeal to mete out justice according to law to every man, woman, and child that may come before them and to preserve individual freedom against any aggression of government; judges with the humility born of wisdom, patient and untiring in the search for truth, and keenly conscious ofthe evils arising in a workaday world from any unnecessary delay. Judges with all of these attributes are not easy to find, but which ofthese traits dare we eliminate if we are to hope for evenhanded justice? Such ideal judges can after a fashion make even an inadequate system of substantive law achieve justice; on the other hand, judges who lack these qualifications will defeat the best system of substantive and procedural law imaginable."

b.
Primary objective. This Benchbook is primarily designed to assist military judges of courts-martial in the drafting of necessary instructions to courts. Since instructional requirements vary in each case, the pattern instructions are intended only as guides from which the actual instructions are to be drafted. In addition, this publication is designed to suggest workable solutions for many specific problems which may arise at a trial and to guide the military judge past certain pitfalls which might otherwise result in error. Specific examples of situations with which the military judge may have to deal are set forth, and in many instances actual language which may be employed in meeting these situations is suggested.


DA PAM 27-9 • 01 January 2010
1-2. NECESSITY FOR TAILORING.
No standardized set of instructions can cover every situation arising in a trial by court-martial. Special circumstances will invariably be presented, requiring instructions not dealt with in this Benchbook, or adaptation of one or more ofthese instructions to the facts of a case. These instructions are not intended to be a substitute for the ingenuity, resourcefulness, and research skill ofthe military judge. They will be of maximum value when used as a guide to carefully tailor instructions to be given to court members. The tailoring of instructions to the particular facts of a case contemplates the affirmative submission of the respective theories, both of the government and of the accused, to the members of courts, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them.
1-3. ELEMENTS OF OFFENSES.
a.
Each pattern instruction contained in Chapter 3 bears the same number as the corresponding paragraph in Chapter 4 of the Manual for Courts-Martial, United States, 2008 Edition (MCM). For example, regarding larceny, paragraph 46, MCM, the pattern instruction is numbered 3-46-1. The instruction for the lesser included offense of wrongful appropriation, also contained in paragraph 46, is Instruction 3-46-2. For most punitive offenses, if there are two or more methods by which the punitive article can be violated, the instructions are set forth separately, and are numbered with a -2, -3, -4, and so forth. Each instruction includes the maximum punishment; the form specification, which may be slightly different from the MCM form specification; the elements of the offense; definitions ofterms; and required or desirable supplementary instructions. If an instruction includes a term having a special legal connotation (term ofart), the term should be defined for the benefit of the court, and ordinarily appears in the "DEFINITIONS AND OTHER INSTRUCTIONS" section of each instruction. Each pattern instruction set out in Chapter3 should be prefaced by the language found in Chapters 2 (2-5-9) or 8 (8-3-8), PREFATORY INSTRUCTIONS ON FINDINGS. In the body ofthe instructions, that is, the elements and definitions sections, language found in parentheses is ordinarily not required in each case, but may be in a particular case, depending on the pleadings, the facts, and the contentions ofthe parties. Language set forth in brackets denotes elements which are alternative means ofcommitting an offense, or aggravating factors which are not required to be instructed upon in each case, unless pled in the specification. For example, Article 123 may be violated by forging a document or uttering a forged document; thus, the form specification and elements for forgery are found in one set ofbrackets, and those for uttering are set forth in a second set ofbrackets.

b.
NOTEs are used extensively throughout the instructions in Chapter 3. When an instruction follows a note in the "DEFINITIONS AND OTHER INSTRUCTIONS" section, that instruction should be given only ifthe subject matter ofthe note applies to the facts and circumstances of that case. NOTEs in other portions of Chapter 3 are intended to explain the applicability ofthe instruction generally, or to alert the trial judge to optional elements or unusual applications of the instruction.


1-4. OTHER INSTRUCTIONS.
a.
When court members are to determine findings in a case involving a plea ofnot guilty, the military judge should instruct as to the elements of each offense charged and all lesser included offenses, any special or other defense in issue, and other supplementary matters, bearing in mind the need for tailoring such instructions to the facts ofthe case. These instructions should conclude with mandatory advice concerning the burden ofproof, reasonable doubt, presumption ofinnocence, and guidance concerning procedures to follow in deliberations and voting in closed session found in Chapter 2. When court members are to determine a sentence, instructions must be tailored to the law and evidence just as in the case ofpre-findings advice.

b.
Instructions in Chapter 5 cover general and special defenses, and Chapter 7 includes common evidentiary instructions. As in Chapter 3, instructional language which follows a note is to be given only when the note applies to the facts and circumstances of the offense.


DA PAM 27-9 • 01 January 2010
1-5. REFERENCES.
Paragraph numbers in Chapter 3 conform to the paragraph numbers in the MCM. Therefore, no MCM citations are listed at paragraph e, "Reference." Absent other citations, paragraph e is omitted.
DA PAM 27-9·01 January 2010


RESERVED
DA PAM 27-9·01 January 2010
6

Chapter 2
TRIAL PROCEDURE AND INSTRUCTIONS

DA PAM 27-9 • 01 January 2010
This procedural guide modifies the Guide for General and Special Courts-Martial in Appendix 8, Manual for Courts-Martial,2008. This guide is intended for use in any case to which a military judge (MJ) has been detailed. In addition to serving as a procedural guide for contested and uncontested trials, this chapter provides the majority of standard, nonevidentiary instructions on findings and sentencing. The order in which the guide and instructions appear generally corresponds with the point in the trial when the particular wording or instruction is needed or is otherwise appropriate.
Section I Initial Session Through Arraignment
2-1. PROCEDURAL GUIDE FOR ARTICLE 39(A) SESSION
MJ: Please be seated. This Article 39(a) session is called to order.
TC: This court-martial is convened by Court-Martial Convening Order No. _, HQ, , dated _____ (as amended by CMCO _, same Headquarters, dated ) copies of which have been furnished to the military judge, counsel, and the accused, and which will be inserted at this point in the record.
NOTE: The MJ should examine the convening order(s) and any amendments for
accuracy. IF A CAPITAL CASE, GO TO CHAPTER 8.

(TC: The following corrections are noted in the convening orders: ----.)
NOTE: Only minor changes may be made at trial to the convening orders. Any correction that affects the identity ofthe individual concerned must be made by an amending or correcting order.
TC: The charges have been properly referred to this court for trial and were served on the accused on ____. The (three) (five) day statutory waiting period has (not) expired.
NOTE: The MJ mustpay attention to the date ofservice. In peacetime, ifless than3 days (SPCM) or 5 days (GCM) have elapsed from the date ofservice, the MJ must inquire. If the accused objects, the MJ must grant a continuance. (When computing the days, do not count the day ofservice or day oftrial.) Ifa waiver must be obtained, a suggested guide can be found at paragraph 2-7-1, WAIVER OF STATUTORY WAITING PERIOD.
TC: The prosecution is ready to proceed (with the arraignment) in the case of United States v._____ The accused and the following persons detailed to this court are present: , Military Judge; _____, Trial Counsel; and , Defense Counsel. The members (and the following persons detailed to this court) are absent: _____
TC: _____ has been detailed reporter for this court and (has been previously sworn) (will now be sworn).
NOTE: When detailed, the reporter is responsible for recording the proceedings, for accountingfor the parties to the trial, andfor keeping a record ofthe hour and date ofeach opening and closing ofeach session, whether a recess, adjournment, or otherwise, for insertion in the record.
DA PAM 27-9·01 January 2010
TC: (I) (All members of the prosecution) have been detailed to this court-martial by . (I am) (All members ofthe prosecution are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code ofMilitary Justice. (I have not) (No member of the prosecution has) acted in any manner that might tend to disqualify (me) (us) in this court-martial.
NOTE: Oaths for counsel. When counsel for either side, including any associate or assistant, is notpreviously sworn, the following oath, as appropriate, will be administered bytheMJ:
"Do you (swear) (affirm) that you will faithfully perform all the duties of (trial) (assistant trial) (defense) (associate defense) (assistant defense) counsel in the case now in hearing (so help you God)?"
2-1-1. RIGHTS TO COUNSEL MJ: _____, you have the right to be represented by _____, your detailed military defense counsel. (He) (She) is a lawyer, certified by The Judge Advocate General as qualified to act as your defense counsel (and (he) (she) is a member ofthe Army's Trial Defense Service). (His) (Her) services are provided at no expense to you.
You also have the right to be represented by a military counsel of your own selection, provided that the counsel you request is reasonably available. Ifyou were represented by military counsel of your own selection, then your detailed defense counsel would normally be excused. However, you could request that your detailed counsel continue to represent you, but your request would not have to be granted. Do you understand that? ACC: (Responds.)
MJ: In addition to your military defense counsel, you have the right to be represented by a civilian counsel at no expense to the government. Civilian counsel may represent you along with your military defense counselor you could excuse your military counsel and be represented only by your civilian counsel. Do you understand that? ACC: (Responds.)
MJ: Do you have any questions about your rights to counsel? ACC: (Responds.)
MJ: By whom do you wish to be represented? ACC: (Responds.)
MJ: And by (him) (her) (them) alone? ACC: (Responds.)
DA PAM 27-9 • 01 January 2010
NOTE: Ifthe accused elects pro g, representation, see applicable inquiry at paragraph 2­7-2, PRO SE REPRESENTATION. The MJ must be aware ofany possible conflict of interest by counsel, and ifa conflict exists, the MJ must obtain a waiver from the accused or order new counsel appointed for the accused. See applicable inquiry atparagraph 2-7-3, WAIVER OF CONFLICT-FREE COUNSEL.
MJ: Defense Counsel, please announce your detailing and qualifications.
DC: (I) (All detailed members ofthe defense) have been detailed to this court-martial by . (I am) (All detailed members of the defense are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code of Military Justice. (I have not) (No member of the defense has) acted in any manner that might tend to disqualify (me) (us) in this court-martial.
NOTE: Ifany defense counsel needs to be sworn, the MJ will provide the following oath: "(Name ofdefense counsel), do you swear or affirm that you will faithfully perform all the duties ofdefense counsel in the case now in hearing (so help you God)?"
Civilian DC: I am an attorney and licensed to practice law in the state(s) of . I am a member in good standing ofthe ( ) bares). I have not acted in any manner which might tend to disqualify me in this court-martial.
(OATH FOR CIVILIAN COUNSEL:) MJ: Do you, , (swear) (affirm) that you will faithfUlly perform the duties ofindividual defense counsel in the case now in hearing (so help you God)?
MJ: I have been properly certified and sworn, and detailed (myself) (by ____.-» to this court-
martial. I am not aware of any matter that might be a ground for challenge against me ('-___-').
Does either side desire to question or challenge me?
TCIDC: (Respond.)
MJ: Counsel for both sides appear to have the requisite qualifications, and all personnel required to
be sworn have been sworn. Trial Counsel will announce the general nature of the charge(s).
TC: The general nature of the charge(s) in this case is . The charge(s) (was) (were) preferred by _____, (and) forwarded with recommendations as to disposition by , (and investigated by ____~). (The Article 32 investigation was waived.)
NOTE: Ifthe accused waived the Article 32 investigation, the MJ should inquire to ensure that it was a knowing and voluntary waiver. The script atparagraph 2-7-8, PRETRIAL AGREEMENT: ARTICLE 32 WAIVER, may be used, but ifthe waiver was not IAWa pretrial agreement, the first sentence ofthe first question should be omitted. Ifthe waiver was part ofa pretrial agreement, the MJ may defer this inquiry until discussion ofthe pretrial agreement at paragraph 2-2-6.
2-1-2. FORUM RIGHTS
MJ: _____, you have a right to be tried by a court consisting of at least (three) (five) officer
members (that is, a court composed of commissioned and/or warrant officers).
DA PAM 27-9·01 January 2010
(IF ACCUSED IS ENLISTED:) MJ: Also, if you request it, you would be tried by a court consisting
of at least one-third enlisted members, but none of those enlisted members could come from your unit.

You are also advised that no member of the court would be junior in rank to you. Do you understand
what I have said so far?
ACC: (Responds.)

MJ: Now, ifyou are tried by court members, the members will vote by secret, written ballot and two­
thirds of the members must agree before you could be found guilty of any offense. Ifyou were found
guilty, then two-thirds must also agree in voting on a sentence (and ifthat sentence included
confinement for more than 10 years, then three-fourths would have to agree).

NOTE: IF CAPITAL CASE, use procedural guide in Chapter 8. In capital cases, there is no right to request trial by judge alone.
(IN NON CAPITAL CASE:) MJ: You also may request to be tried by military judge alone. Ifyour request is approved there will be no court members and the military judge alone will decide whether you are guilty, and iffound guilty, the military judge alone will determine your sentence. Do you understand the difference between trial before members and trial before military judge alone? ACC: (Responds.)
MJ: Do you understand the choices that you have? ACC: (Responds.)
MJ: By what type of court do you wish to be tried? ACC: (Responds.)
NOTE: Ifaccused elects enlisted court members and the request is written, mark it as an appellate exhibit. Proceed to paragraph 2-1-3, ARRAIGNMENT. Ifaccused elects officer members, proceed to paragraph 2-1-3, ARRAIGNMENT. Ifaccused elects trial by judge alone, continue below:
MJ: Is there a written request for trial by military judge alone?
DC: There is (not).

MJ: Does the accused have a copy in front of (him) (her)?
DC: (Responds.)

MJ: _____, Appellate Exhibit _ is a request for trial by military judge alone. Is that your
signature on this exhibit?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: At the time you signed this request, did you know I would be the military judge in your case?
ACC: (Responds.)

MJ: Is your request a voluntary one? By that, I mean are you making this request of your own free
will?
ACC: (Responds.)

MJ: IfI approve your request for trial by me alone, you give up your right to be tried by a court
composed of members. Do you understand that?
ACC: (Responds.)

MJ: Do you still wish to be tried by me alone?
ACC: (Responds.)

MJ: Your request is approved. (MJ should indicate so by signing and dating the written request, if
one exists).

NOTE: Ifthe MJ disapproves the request, the MJ should develop the facts surrounding the denial, require argument from counsel, and state reasons for denying the request.
MJ: The court is assembled.
2-1-3. ARRAIGNMENT
MJ: The accused will now be arraigned.
TC: All parties to the trial have been furnished with a copy ofthe charge(s). Does the accused want (it)
(them) read?

DC: The accused (waives the reading ofthe charge(s)) (wants the charge(s) read).
MJ: (The reading may be omitted.) (Trial Counsel will read the charge(s).)
TC: The charge(s) (is) (are) signed by , a person subject to the Code, as accuser; (is) (are) properly sworn to before a commissioned officer ofthe armed forces authorized to administer oaths; and (is) (are) properly referred to this court for trial by , the Convening Authority.
MJ: Accused and Defense Counsel, please rise. _____, how do you plead? Before receiving
your plea, I advise you that any motions to dismiss or to grant other appropriate relief should be made
at this time. Your defense counsel will speak for you.
DC: The defense (has (no) (the following) motions.) (requests to defer motions at this time.)

NOTE: Whenever factual issues are involved in ruling on a motion, the MJ shall state essential findings offact. Ifthe trial counsel gives notice that the government desires a
DA PAM 27-9' 01 January 2010
continuance to file an appeal under Article 62 ($ee RCM 908), the MJ should note the time on the record so that the 72-hour period may be accurately calculated.
DC: The accused, _____, pleads as follows:
NOTE: The MJ must ensure that pleas are entered after all motions are litigated. IF GUILTYPLEA, go to paragraph 2-2-1, GUILTYPLEA INTRODUCTION.
IF NOT GUILTY (JUDGE ALONE), go to Section IlL
IF NOT GUILTY (MEMBERS), mark the flyer as an Appellate Exhibit; ensure each court
member packet contains copies ofthe flyer, convening orders, note paper, and witness
question forms; then go to Section V.
DA PAM 27-9' 01 January 2010
Section II Guilty Plea Inquiry
2-2-1. GUILTY PLEA INTRODUCTION MJ: ____, your counsel has entered a plea of guilty for you to «the) (all) (several) charge(s) and specification(s» ('-_____). Your plea of guilty will not be accepted unless you understand its meaning and effect. I am going to discuss your plea of guilty with you. You may wish to consult with your defense counsel prior to answering any of my questions. Ifat any time you have questions, feel free to ask them.
A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law. On your plea alone, and without receiving any evidence, this court can find you guilty of the offense(s) to which you have pled guilty. Your plea will not be accepted unless you realize that by your plea you admit every act or omission, and element of the offense(s) to which you have pled guilty, and that you are pleading guilty because you actually are, in fact, gUilty. Ifyou do not believe that you are guilty, then you should not for any reason plead gUilty. Do you understand what I have said so far? ACC: (Responds.)
MJ: By your plea of guilty, you give up three important rights (but you give up these rights solely with respect to the offenses to which you have pled guilty).
First, the right against self-incrimination, that is, the right to say nothing at all.
Second, the right to a trial of the facts by this court, that is, your right to have this court-martial decide whether or not you are guilty based upon evidence the prosecution would present and on any evidence you may introduce.
Third, the right to be confronted by and to cross-examine any witness called against you.
Do you have any questions about any of these rights? ACC: (Responds.)
MJ: Do you understand that by pleading guilty you no longer have these rights? ACC: (Responds.)
DA PAM 27-9·01 January 2010
MJ: Ifyou continue with your guilty plea, you will be placed under oath and I will question you to
determine whether you are, in fact, gUilty. Anything you tell me may be used against you in the
sentencing portion of the trial. Do you understand this?
ACC: (Responds.)

MJ: Ifyou tell me anything that is untrue, your statements may be used against you later for charges
of perjury or making false statements. Do you understand this?
ACC: (Responds.)

(MJ: Your plea of guilty to a lesser included offense may also be used to establish certain elements of
the charged offense, if the government decides to proceed on the charged offense. Do you understand
this?
ACC: (Responds.))

MJ: Trial Counsel, please place the accused under oath.
TC: ,please stand and face me. Do you (swear) (affirm) that the statements you are about to make shall be the truth, the whole truth, and nothing but the truth (so help you God)?
ACC: (Responds.)
MJ: Is there a stipulation of fact? TC: (Yes) (No), Your Honor.
NOTE: Ifno stipulation exists, go to paragraph 2-2-3, GUILTY PLEA FACTUAL BASIS. Ifa stipulation exists, continue below.
DA PAM 27-9' 01 January 2010
2-2-2. STIPULATION OF FACT INQUIRY
MJ: Please have the stipulation marked as a Prosecution Exhibit, present it to me, and make sure the
accused has a copy. ,I have before me Prosecution Exhibit _ for Identification, a
stipulation of fact. Did you sign this stipulation?
ACC: (Responds.)

MJ: Did you read this document thoroughly before you signed it?
ACC: (Responds.)

MJ: Do both counsel agree to the stipulation and that your signatures appear on the document?
TC/DC: (Responds.)

MJ: , a stipulation of fact is an agreement among the trial counsel, your defense counsel,
and you that the contents of the stipulation are true and if entered into evidence are uncontradicted
facts in this case. No one can be forced to enter into a stipulation, so you should enter into it only if
you truly want to do so. Do you understand this?
ACC: (Responds.)

MJ: Are you voluntarily entering into this stipulation because you believe it is in your best interest to
do so?
ACC: (Responds.)

MJ: IfI admit this stipulation into evidence it will be used in two ways. First, I will use it to
determine if you are, in fact, guilty of the offense(s) to which you have pled gUilty.

(IF JUDGE ALONE TRIAL): Second, I will use it to determine an appropriate sentence for you.

(IF MEMBERS TRIAL): Second, the trial counsel may read it to the court members and they will
have it with them when they decide upon your sentence.

Do you understand and agree to these uses of the stipulation?
ACC: (Responds.)

MJ: Do both counsel also agree to these uses?
TC/DC: (Responds.)

DA PAM 27-9·01 January 2010
MJ: _____, a stipulation of fact ordinarily cannot be contradicted. Ifit should be contradicted after I have accepted your guilty plea, I will reopen this inquiry. You should, therefore, let me know if there is anything whatsoever you disagree with or feel is untrue. Do you understand that? ACC: (Responds.)
MJ: At this time, I want you to read your copy of the stipulation silently to yourself as I read it to myself.
NOTE: The MJ should read the stipulation and be alert to resolve inconsistencies between what is stated in the stipulation and what the accused says during the providence inquiry.
MJ: Have you finished reading it?
ACC: (Responds.)

MJ: _____, is everything in the stipulation true?
ACC: (Responds.)

MJ: Is there anything in the stipulation that you do not wish to admit is true?
ACC: (Responds.)

MJ: Do you agree under oath that the matters contained in the stipulation are true and correct to the
best of your knowledge and belief?
ACC: (Responds.)

MJ: Defense Counsel, do you have any objections to Prosecution Exhibit _ for Identification?
DC: (Responds.)

MJ: Prosecution Exhibit _ for Identification is admitted into evidence subject to my acceptance of
the accused's guilty plea.

2-2-3. GUILTY PLEA FACTUAL BASIS
MJ: _____, I am going to explain the elements of the offense(s) to which you have pled guilty.
By "elements," I mean those facts which the prosecution would have to prove beyond a reasonable

doubt before you could be found guilty if you had pled not gUilty. When I state each element, ask
yourself two things: First, is the element true; and second, whether you wish to admit that it is true.
After I list the elements for you, be prepared to talk to me about the facts regarding the offense(s). Do
you have a copy ofthe charge sheet(s) in front of you?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
NOTE: For each specijication to which the accused pled guilty, proceed as follows:
MJ: Please look at (The) Specification L) of (The) (Additional) Charge L), in violation of Article_ of the Uniform Code of Military Justice. The elements of that offense, _____, are:
NOTE: List elements and explain appropriate definitions using applicable language from Chapter 3.
MJ: Do you understand the elements (and definitions) as I have read them to you?
ACC: (Responds.)

MJ: Do you have any questions about any of them?
ACC: (Responds.)

MJ: Do you understand that your plea of guilty admits that these elements accurately describe what
you did?
ACC: (Responds.)

MJ: Do you believe and admit that the elements (and definitions taken together) correctly describe
what you did?
ACC: (Responds.)

MJ: At this time, I want you to tell me why you are guilty ofthe offense listed in (The) Specification
L-J of (The) (Additional) Charge L-J. Tell me what happened.
ACC: (Responds.)

NOTE: The MJ must elicit the facts leading to the guilty plea by conducting a direct and personal examination ofthe accused as to the circumstances ofthe alleged offense(s). The MJ must do more than elicit legal conclusions. The MJ's questions should be aimed at developing the accused's version ofwhat happened in the accused's own words and determining ifthe acts or omissions encompass each and every element ofthe offense(s) to which the guilty plea relates. The MJ must be alert to the existence ofany inconsistencies or possible defenses raised by the stipulation or the accused's testimony, and ifthey arise, the MJ must discuss them thoroughly with the accused. The MJ must resolve them or declare the plea improvident to the applicable specijication(s).
NOTE: After obtaining the factual basis from the accused, the MJ should secure the accused's specijic admission as to each element ofthe offense, fYb as follows:
MJ: Do you admit that you (left your unit on ___--')('-_____) ? ACC: (Responds.)
DA PAM 27-9 • 01 January 2010
MJ: Do you admit that you (left without authority from someone who could give you leave)
('------')? ACC: (Responds.)
MJ: And that (you did not return until ___-'H'-___-I)? ACC: (Responds.)
NOTE: After covering all offenses to which the accused pled guilty, the MJ continues as follows:
MJ: Does either counsel believe any further inquiry is required?
TCIDC: (Respond.)

2-2-4. MAXIMUM PUNISHMENT INQUIRY
MJ: Trial Counsel, what do you calculate to be the maximum punishment authorized in this case
based solely on the accused's guilty plea?
TC: (Responds.)

MJ: Defense Counsel, do you agree?
DC: (Responds.)

MJ: _____, the maximum punishment authorized in this case based solely on your guilty plea is
____. (A fine may also be adjudged.)

NOTE: Before total forfeitures and afine can be approved resulting from a gUilty plea at a GeM, the accused must be advised that the pecuniary loss could exceed total forfeitures. Moreover, to have any fine approved, the MJ must advise the accused ofthe possibility ofa fine during the providence inquiry.
MJ: On your plea of guilty alone this court could sentence you to the maximum punishment which I
just stated. Do you understand that?
ACC: (Responds.)

MJ: Do you have any questions as to the sentence that could be imposed as a result of your guilty
plea?
ACC: (Responds.)

MJ: Trial Counsel, is there a pretrial agreement in this case?
TC: (Responds.)

DA PAM 27-9' 01 January 2010
NOTE: Ifno pretrial agreement exists, continue below. Ifa pretrial agreement exists and trial is by Judge Alone: Go to paragraph 2-2-6, PRETRIAL AGREEMENT (JUDGE ALONE). Ifa pretrial agreement exists and trial is with court members: Go to paragraph 2-2-7, PRETRIAL AGREEMENT (MEMBERS).
2-2-5. IF NO PRETRIAL AGREEMENT EXISTS MJ: Counsel, even though there is no formal pretrial agreement, are there any unwritten agreements or understandings in this case?
TCIDC: (Respond.)
MJ: ('-___-'), has anyone made any agreements with you or promises to you to get you to plead
gUilty?
ACC: (Responds.)

NOTE: Go to paragraph 2-2-8, ACCEPTANCE OF GUILTY PLEA.
2-2-6. PRETRIAL AGREEMENT (JUDGE ALONE)
MJ: Trial Counsel, have both the offer portion and the quantum portion marked as separate
Appellate Exhibits and then hand me only the offer portion. Also, ensure that the accused has a copy
of the entire agreement in front of (him) (her).
TC: (Complies.)

MJ: ____, I have before me what has been marked as Appellate Exhibit _, which is the offer
portion of your pretrial agreement, and your defense counsel is showing to you Appellate Exhibit _,
the quantum portion ofyour pretrial agreement. Did you sign this pretrial agreement?
ACC: (Responds.)

MJ: Did you read it thoroughly before you signed it?
ACC: (Responds.)

MJ: Do you understand the contents of your pretrial agreement?
ACC: (Responds.)

MJ: ____, did anyone force you in any way to enter into this agreement?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: _____, does this agreement contain all the understandings or agreements that you have in
this case?
ACC: (Responds.)
MJ: Has anyone made any promises to you that are not written into this agreement in an attempt to
get you to plead gUilty?
ACC: (Responds.)
MJ: Counsel, are Appellate Exhibits _ and _ the full and complete agreement in this case and are
you satisfied that there are no other agreements?
TCIDC: (Responds.)
MJ: Basically, a pretrial agreement means you agree to plead guilty and in return, the convening
authority agrees to take some favorable action in your case, usually in the form of limiting the sentence
that (she) (he) will approve. Do you understand that?
ACC: (Responds.)
MJ: The law requires that I discuss the conditions of your agreement with you. Let's look at
Appellate Exhibit _, the offer portion of your agreement.
NOTE: Pretrial Agreement Terms. The military judge must discuss each provision in a pretrial agreement with the accused and obtain the accused's understanding ofthe agreement. Special attention must be given to terms that purport to waive motions. ReM 705(c) prohibits any term in a pretrial agreement to which the accused did notfreely and voluntarily agree or any term which deprives the accused ofthe right to counsel, the right to due process, the right to challenge the jurisdiction ofthe court-martial, the right to a speedy trial, the right to complete sentencing proceedings, or the right to complete and effective exercise ofpost-trial and appellate rights. While military appellate courts have generally upheld waiver ofevidentiary objections in pretrial agreements, they have voided pretrial agreement termswhich require the accused to waive all motions or to waive unlawful command influence issues unless the waiver originated with the defense and concerned only unlawful command influence issues during the accusatory phase ofthe court-martial. The pretrial agreement cannot make a trial an empty ritual. See Section VII for scriptsfor the following clauses that may appear in pretrial agreements:
Dismissal ofcharge: paragraph 2-7-4 Testify truthfully in another case: paragraph 2-7-5 Operation ofArticle 58a on suspended sentence: paragraph 2-7-6 Suspension without deferment: paragraph 2-7-7 Waiver ofArticle 32 investigation: paragraph 2-7-8 Waiver ofmembers: paragraph 2-7-9 Waiver ofcertain motions: paragraphs 2-7-10 and 2-7-11
DA PAM 27-9' 01 January 2010
MJ: I am not going to look at Appellate Exhibit _, the quantum portion, until after I announce the
sentence in your case. But, I want you to now look at the quantum portion and read it to yourself.
Does that document correctly state what you and the convening authority agreed to?
ACC: (Responds.)

MJ: Counsel, are there any conditions or terms in the quantum portion other than a limitation on
sentence?
TCIDC: (Responds.)

NOTE: Ifother conditions exist, the MJ should cover the conditions without discussing the sentence limitation.
MJ: _____, you get the benefit of whichever is less, each element of the sentence of the court or that contained in your pretrial agreement. Ifthe sentence adjudged by this court is greater than the one provided in the pretrial agreement, the convening authority must reduce the sentence to one no more severe than the one in your pretrial agreement. On the other hand, ifthe sentence of this court is less than the one in your agreement, the convening authority cannot increase the sentence adjudged. Do you understand that? ACC: (Responds.)
NOTE: The MJ may ask the following question ifappropriate:
(IF ACCUSED IS CLOSE TO ETS DATE) (MJ: Ifyour ETS date arrives while you are serving
confinement as a part of your sentence, then all of your military pay and allowances will stop on your
ETS date. Do you understand that?
ACC: (Responds»

MJ: _____" have you had enough time to discuss this agreement with your defense counsel?
ACC: (Responds.)

MJ: Are you satisfied with your defense counsel's advice concerning this pretrial agreement?
ACC: (Responds.)

MJ: Did you enter the agreement of your own free will?
ACC: (Responds.)

MJ: Has anyone tried to force you to make this pretrial agreement?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
"-
Ch 2, §II, para 2-2-6
MJ: Do you have any questions about your pretrial agreement?
ACC: (Responds.)

MJ: Do you fully understand all the terms of the pretrial agreement and how they affect your case?
ACC: (Responds.)

MJ: _____, are you pleading guilty not only because you hope to receive a lighter sentence, but
also because you are convinced that you are, in fact, gUilty?
ACC: (Responds.)

MJ: Do counsel for both sides agree with the court's interpretation ofthe pretrial agreement?
TCIDC: (Respond.)

NOTE: Go to paragraph 2-2-8, ACCEPTANCE OF GUILTYPLEA.
2-2-7. PRETRIAL AGREEMENT (MEMBERS)
MJ: Trial Counsel, have both the offer portion and the quantum portion of the pretrial agreement
marked as separate appellate exhibits, ensure that the accused has a copy in front of (him) (her), and
then hand them to me.
TC: (Complies.)

MJ: _____, I have before me Appellate Exhibit _, the offer portion, and Appellate Exhibit
_, the quantum portion, of your pretrial agreement. Did you sign these documents?
ACC: (Responds.)

MJ: Did you read them thoroughly before you signed them?
ACC: (Responds.)

MJ: Do you understand the contents of your pretrial agreement?
ACC: (Responds.)

MJ: _____, did anyone force you in any way to enter into this agreement?
ACC: (Responds.)

MJ: _____, does this agreement contain all the understandings or agreements that you have in
this case?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
MJ: Has anyone made any promises to you that are not written into this agreement in an attempt to
get you to plead gUilty?
ACC: (Responds.)

MJ: Counsel, are Appellate Exhibits _ the full and complete agreement in this case and are you
satisfied that there are no other agreements?
TC/DC: (Respond.)

MJ: Basically, a pretrial agreement means you agree to plead guilty and in return the convening
authority agrees to take some favorable action in your case, usually in the form of limiting the sentence
that (she) (he) will approve. Do you understand that?
ACC: (Responds.)

MJ: The law requires that I discuss the conditions of your agreement with you. Let's look at the offer
portion of your agreement.

NOTE: Pretrial Agreement Terms. The military judge must discuss each provision in a pretrial agreement with the accused and obtain the accused's understanding ofthe agreement. Special attention must be given to terms that purport to waive motions. ReM 705(c) prohibits any term in a pretrial agreement to which the accused did notfreely and voluntarily agree or any term which deprives the accused ofthe right to counsel, the right to due process, the right to challenge the jurisdiction ofthe court-martial, the right to a speedy trial, the right to complete sentencing proceedings, or the right to complete and effective exercise ofpost-trial and appellate rights. While military appellate courts have generally upheld waiver ofevidentiary objections in pretrial agreements, they have voided pretrial agreement terms which require the accused to waive all motions or to waive unlawful command influence issues unless the waiver originated with the defense and concerned only unlawful command influence issues during the accusatory phase ofthe court-martial. The pretrial agreement cannot make a trial an empty ritual. See Section VII for scriptsfor the following clauses that may appear in pretrial agreements:
Dismissal ofcharge: paragraph 2-7-4 Testify truthfully in another case: paragraph 2-7-5 Operation ofArticle 58a on suspended sentence: paragraph 2-7-6 Suspension without deferment: paragraph 2-7-7 Waiver ofArticle 32 investigation: paragraph 2-7-8 Waiver ofmembers: paragraph 2-7-9 Waiver ofcertain motions: paragraphs 2-7-10 and 2-7-11
MJ: Appellate Exhibit _, the quantum portion of your pretrial agreement states: _____. Is
that a correct statement of what you and the convening authority agreed to?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: _____:, you get the benefit of whichever is less, each element of the sentence of the court or that contained in your pretrial agreement. Ifthe sentence adjudged by this court is greater than the one provided in the pretrial agreement, the convening authority must reduce the sentence to one no more severe than the one in your pretrial agreement. On the other hand, if the sentence of this court is less than the one in your agreement, the convening authority cannot increase the sentence adjudged. Do you understand that? ACC: (Responds.)
NOTE: The MJ may want to ask the following question ifappropriate: (IF ACCUSED IS CLOSE TO ETS DATE) (MJ: Ifyour ETS date arrives while you are serving confinement as a part of your sentence, then all of your military pay and allowances will stop on your ETS date. Do you understand that?) ACC: (Responds.))
MJ: , have you had enough time to discuss this agreement with your defense counsel?
ACC: (Responds.)

MJ: Are you satisfied with your defense counsel's advice concerning this pretrial agreement?
ACC: (Responds.)

MJ: Did you enter the agreement of your own free will?
ACC: (Responds.)

MJ: Has anyone tried to force you to make this pretrial agreement?
ACC: (Responds.)

MJ: Do you have any questions about your pretrial agreement?
ACC: (Responds.)

MJ: Do you fully understand all the terms of the pretrial agreement and how they affect your case?
ACC: (Responds.)

MJ: _____, are you pleading guilty not only because you hope to receive a lighter sentence, but
because you are convinced that you are, in fact, gUilty?
ACC: (Responds.)

DA PAM 27-9' 01 January 2010
MJ: Do counsel for both sides agree with the court's interpretation of the pretrial agreement? TCIDC: (Respond.)
NOTE: Go to paragraph 2-2-8, ACCEPTANCE OF GUILTY PLEA.
DA PAM 27-9·01 January 2010
2-2-8. ACCEPTANCE OF GUILTY PLEA
MJ: Defense Counsel, have you had enough time and opportunity to discuss this case with
( )?
DC: (Responds.)

MJ: ____, have you had enough time and opportunity to discuss this case with your defense
counsel?
ACC: (Responds.)

MJ: , have you, in fact, consulted fully with your defense counsel and received the full
benefit of (his) (her) (their) advice?
ACC: (Responds.)

MJ: Are you satisfied that your defense counsel's advice is in your best interest?
ACC: (Responds.)

MJ: And are you satisfied with your defense counsel?
ACC: (Responds.)

MJ: Are you pleading guilty voluntarily and ofyour own free will?
ACC: (Responds.)

MJ: Has anyone made any threat or tried in any way to force you to plead guilty?
ACC: (Responds.)

MJ: Do you have any questions as to the meaning and effect of a plea of guilty?
ACC: (Responds.)

MJ: Do you fully understand the meaning and effect of your plea of guilty?
ACC: (Responds.)

MJ: Do you understand that even though you believe you are guilty, you have the legal right to plead
not guilty and to place upon the government the burden of proving your guilt beyond a reasonable
doubt?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
NOTE: Ifthe accused has pleaded guilty to an offense listed in DoD Instruction 1325.7, Enclosure 27: Listing ofOffenses Requiring Sex Offender Processing, the MJ must ask the following question:
MJ: Defense Counsel, did you advise the accused prior to trial of the sex offender reporting and
registration requirements resulting from a finding of guilty of (state Specification(s) and Charge(s»?
DC: (Responds.)

MJ: Take a moment now and consult again with your defense counsel, then tell me whether you still
want to plead guilty? (Pause.) Do you still want to plead gUilty?
ACC: (Responds.)

MJ: _____, I find that your plea of guilty is made voluntarily and with full knowledge of its
meaning and effect. I further find that you have knowingly, intelligently, and consciously waived your
rights against self-incrimination, to a trial of the facts by a court-martial, and to be confronted by the
witnesses against you. Accordingly, your plea of guilty is provident and is accepted. However, I
advise you that you may request to withdraw your guilty plea at any time before the sentence is
announced, and if you have a good reason for your request, I will grant it.

NOTE: Ifthe accused has pled gUilty to only some ofthe charges and specifications or has pled guilty to lesser included offenses, ask the trial counsel ifthe government is going forward on the offenses to which the accused has pled not gUilty. Ifthe government is going forward on any offenses, do not enter findings except to those offenses to which the accusedpled guilty as charged in a members' trial (i.e., ifthe plea was to a LIO or by exceptions and substitutions and the government is going forward as charged, do not enter findings).
NOTE: Ifissues ofgUilt remain in ajudge alone (contest), go to Section III and in a court members (contest) go to Section V. The MJ should not inform the court members ofplea andfindings ofguilty prior to presentation ofthe evidence on another specification to which the accused pled not guilty unless the accused requests it or the guilty plea was to a LIO and the prosecution intends to prove the greater offense. Unless one ofthese two exceptions exists, the flyer should not have any specificationslcharges which reflect provident guilty pleas ifother offenses are being contested.
NOTE: Ifno issues ofguilt remain, continue below:
MJ: Accused and Defense Counsel, please rise. _____,. in accordance with your plea of guilty, this court finds you:
NOTE: For judge alone (sentencing), go to Section IV andfor court members (sentencing only), after marking the flyer, go to Section VI
DA PAM 27-9' 01 January 2010
Section III
Judge Alone (Contested Findings)

MJ: Does the government have an opening statement? TC: (Responds.)
MJ: Does the defense have an opening statement or do you wish to reserve? DC: (Responds.)
MJ: Trial Counsel, you may call your first witness.
2-3-1. TRIAL PROCEEDS WITH GOVERNMENT CASE
NOTE: The TC administers the oath/affirmation to all witnesses. After a witness testifies, the MJ should instruct the witness along the following lines:
MJ: You are excused (permanently) (temporarily). As long as this trial continues, do not discuss your testimony or knowledge of the case with anyone other than counsel and accused. You may step down (and) (return to the waiting room) (go about your duties) (return to your activities) (be available by telephone to return within _ minutes). TC: The government rests.
NOTE: This is the time that the Defense may make motions for a finding ofnot gUilty. The MJ's standardfor ruling on the motion is at RCM 917. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation ofthe credibility of witnesses.
2-3-2. TRIAL RESUMES WITH THE DEFENSE CASE, IF ANY
MJ: Defense Counsel, you may proceed.
DC: (Responds.)

NOTE: Ifthe DC reserved opening statement, the MJ should ask ifthe DC wishes now to make an opening statement.
DC: The defense rests.

2-3-3. REBUTTAL AND SURREBUTTAL, IF ANY
MJ: Trial Counsel, any rebuttal?
TC: (Responds I presents case.)

MJ: Defense Counsel, any surrebuttal?

DA PAM 27-9 • 01 January 2010
NOTE: Ifthe accused did not testify, the MJ must ask the following question:
MJ: ____, you did not testify. Was it your personal decision not to testify? ACC: (Responds.)
MJ: Trial Counsel, you may present argument. TC: (Argument.)
MJ: Defense, you may present argument. DC: (Argument.)
MJ: Trial Counsel, rebuttal argument? TC: (Responds.)
MJ: The court is closed.
2-3-4. ANNOUNCEMENT OF FINDINGS MJ: ____, this court finds you: ____
NOTE: Ifaccused is found guilty ofany offense, go to Section IV, Ifcompletely acquitted, adjourn the court.
DA PAM 27-9' 01 January 2010
Section IV
Judge Alone (Sentencing)

MJ: _____, we now enter the sentencing phase of the trial where you have the right to present
matters in extenuation and mitigation, that is, matters about the offense(s) or yourself, which you want
me to consider in deciding your sentence. In addition to testimony of witnesses and the offering of
documentary evidence, you may, yourself, testify under oath as to these matters, or you may remain
silent, in which case I will not draw any adverse inference from your silence. On the other hand, ifyou
desire, you may make an unsworn statement. Because the statement is unsworn, you cannot be cross­
examined on it; however, the government may offer evidence to rebut any statement of fact contained
in an unsworn statement. An unsworn statement may be made orally, in writing, or both. It may be
made by you, by your counsel on your behalf, or by both. Do you understand these rights?
ACC: (Responds.)

MJ: Is the personal data on the front page of the charge sheet correct?
TCIDC: (Respond.)

MJ: Defense Counsel, has the accused been punished in any way prior to trial that would constitute
illegal pretrial punishment under Article 13?
DC: (Responds.)

MJ: _____, is that correct?
ACC: (Responds.)

MJ: Counsel, based on the information on the charge sheet, the accused is to be credited with _ days
of pretrial confinement credit. Is that the correct amount?
TCIDC: (Respond.)

MJ: Trial Counsel, do you have other evidence to present at this time?
TC: (Responds and presents case on sentencing, if any.)

TC: The government rests.

MJ: Defense Counsel, do you have any evidence to present at this time?
DC: (Responds and presents case on sentencing, if any.)

DC: The defense rests.

DA PAM 27-9·01 January 2010
NOTE: Ifthe accused did not testify or provide an unsworn statement, the MJ must ask the following question:
MJ: _____, you did not testify or provide an unsworn statement during the sentencing phase of the trial. Was it your personal decision not to testify or provide an unsworn statement? ACC: (Responds.)
MJ: Trial Counsel, do you have rebuttal evidence to offer?
TC: (Responds.)
NOTE: Credit (or Article 15 Punishment. Ifevidence ofan Article 15 was admitted at trial that reflects that the accused received nonjudicial punishment for the same offense for which the accused was also convicted at the court-martial, see paragraph 2-7-21, CREDIT FOR ARTICLE 15 PUNISHMENT.
MJ: Trial Counsel, you may present argument.
TC: (Argument.)
MJ: Defense Counsel, you may present argument.
DC: (Argument.)
NOTE: Ifthe DC concedes that a punitive discharge is appropriate or argues for a
discharge, the MJ should conduct an inquiry with the accused to ascertain ifthe accused
knowingly and intelligently agrees with DC's actions. Ifthe matter is raised before
argument, the MJ should caution the DC to limit the request to a bad-conduct discharge.
See paragraph 2-7-27for the procedural instructions on ARGUMENT OR REQUEST
FOR A PUNITIVE DISCHARGE.
MJ: The court is closed.
2-4-1. ANNOUNCEMENT OF SENTENCE
MJ: The court is called to order.
TC: All parties present when the court closed are again present.

.. MJ: Accused and Defense Counsel please rise. _____, this court sentences you to: _____ (The accused will be credited with _ days of pretrial confinement against the accused's term of confinement. ) NOTE: Ifa pretrial agreement exists, continue below; ifnone exists, go to paragraph 2-4­2, POST-TRIAL AND APPELLATE RIGHTS ADVICE.
DA PAM 27-9 • 01 January 2010
MJ: Please hand me Appellate Exhibit _, the quantum portion of the agreement. Appellate Exhibit
_ states that the convening authority agrees to _____ _ ____,' have I correctly stated the
sentence agreement that you have with the convening authority?
ACC: (Responds.)

MJ: Counsel, do you agree?
TC/DC: (Respond.)

MJ: My understanding of the effect of the pretrial agreement on the sentence is that the convening
authority may approve _____. Do counsel agree with my interpretation?
TC/DC: (Responds.)

MJ: _____, is that also your understanding?
ACC: (Responds.)

NOTE: The MJ must ensure that all parties have the same understanding concerning the operation ofthe quantum portion on the sentence ofthe court; otherwise, the plea may be improvident.
2-4-2. POST-TRIAL AND APPELLATE RIGHTS ADVICE
MJ: Defense Counsel, have you advised the accused orally and in writing of (his) (her) post-trial and
appellate rights?
DC: (Responds.)

MJ: Does the accused have a copy in front of (him) (her)?
DC: (Responds.)

MJ: _____, I have before me Appellate Exhibit _, an appellate rights advice form. Is that your
signature on this form?
ACC: (Responds.)

MJ: Defense Counsel, is that your signature on Appellate Exhibit _?
DC: (Responds.)

MJ: _____, did your defense counsel explain these post-trial and appellate rights to you?
ACC: (Responds.)

MJ: Did your defense counsel explain to you what matters you may submit to the convening authority
for his/her consideration under RCM 1105 and RCM 1106?

DA PAM 27-9·01 January 2010
ACC: (Responds.)
MJ: Did your defense counsel explain to you that under RCM 1105 and RCM 1106 you may submit
any matters to the convening authority to include, but not limited to, a personal letter and documents,
letters and documents from any other person, requests for deferment and waiver of forfeitures, and
any other matter you desire for the convening authority to consider before taking action on your case?
ACC: (Responds.)

MJ: Do you understand that it is your responsibility to keep in contact with your defense counsel and
let him/her know your desires in this regard?
ACC: (Responds.)

MJ: Do you understand that if your defense counsel cannot locate you it will be difficult for him/her
to know what to submit for you to the convening authority?
ACC: (Responds.)

MJ: Now, ifyour defense counsel tries to contact you but is unsuccessful, do you authorize him or her
to submit clemency matters on your behalf to the Convening authority as he or she deems
appropriate?
ACC: (Responds.)

MJ: _____, do you have any questions about your post-trial and appellate rights?
ACC: (Responds.)

NOTE: Ifmore than one DC, the MJ should determine which counsel will be responsible for post-trial actions and upon whom the staffjudge advocate's post-trial recommendation is to be served.
MJ: Which counsel will be responsible for post-trial actions in this case and upon whom is the staff
judge advocate's post-trial recommendation to be served?
DC: (Responds.)

MJ: Are there other matters to take up before this court adjourns?
TCIDC: (Respond.)

MJ: This court is adjourned.
DA PAM 27-9·01 January 2010
Section V
Court Members (Contested)

2-5. PRELIMINARY INSTRUCTIONS
MJ: Bailiff, call the court members.
NOTE: Whenever the members enter the courtroom, all persons except the MJ and court reporter shall rise. The members are seated alternately to the right and left ofthe president according to rank.
MJ: You may be seated. The court is called to order.
TC: The court is convened by Court-Martial Convening Order No. _, Headquarters dated ____ (as amended by ), (a copy) (copies) of which (has) (have) been furnished to each member ofthe court. The accused and the following persons detailed to this court-martial are present:
_____, Military Judge;
_____, Trial Counsel;
, Defense Counsel; and
_______________, and _____, Court Members.
The following person(s) (is) (are) absent:
NOTE: Members who have been relieved (viced) by orders need not be mentioned.
The prosecution is ready to proceed with trial in the case ofthe United States versus (PVT) ( )
MJ: The members of the court will now be sworn. All persons in the courtroom, please rise.
TC: Do you swear or affirm that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trials by court-martial, the case ofthe accused now before this court; and that you will not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the findings or sentence unless required to do so in the due course oflaw, so help you God?
MBRS: (Respond.)
MJ: Please be seated. The court is assembled.
DA PAM 27-9·01 January 2010
Members of the court, it is appropriate that I give you some preliminary instructions. My duty as military judge is to ensure this trial is conducted in a fair, orderly, and impartial manner according to the law. I preside over open sessions, rule upon objections, and instruct you on the law applicable to this case. You are required to follow my instructions on the law and may not consult any other source as to the law pertaining to this case unless it is admitted into evidence. This rule applies throughout the trial, including closed sessions and periods of recess and adjournment. Any questions you have of me should be asked in open court.
As court members, it is your duty to hear the evidence and to determine whether the accused is guilty or not guilty and if you find (him) (her) guilty to adjudge an appropriate sentence.
Under the law, the accused is presumed to be innocent ofthe offense(s). The government has the burden of proving the accused's guilt by legal and competent evidence beyond a reasonable doubt. A reasonable doubt is an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. "Proof beyond a reasonable doubt" means proofto an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must exclude every fair and reasonable hypothesis of the evidence except that of guilt. The fact that charges have been preferred against this accused and referred to this court for trial does not permit any inference of guilt. You must determine whether the accused is guilty or not guilty based solely upon the evidence presented here in court and upon the instructions I will give you. Because you cannot properly make that determination until you have heard all the evidence and received the instructions, it is of vital importance that you keep an open mind until all the evidence has been presented and the instructions have been given. I will instruct you fully before you begin your deliberations. In so doing, I may repeat some of the instructions which I will give now or possibly during the trial. Bear in mind that all of these instructions are designed to help you perform your duties as court members.
The final determination as to the weight of the evidence and the credibility of the witnesses in this case rests solely upon you. You have the duty to determine the believability of the witnesses. In performing this duty you must consider each witness's intelligence and ability to observe and accurately remember, in addition to the witness's sincerity and conduct in court, friendships, prejudices, and character for truthfulness. Consider also the extent to which each witness is either supported or contradicted by other evidence, the relationship each witness may have with either side, and how each witness might be affected by the verdict. In weighing a discrepancy by a witness or between witnesses, you should consider whether it resulted from an innocent mistake or a deliberate
DA PAM 27-9 • 01 January 2010
lie. Taking all these matters into account, you should then consider the probability of each witness's
testimony and the inclination of the witness to tell the truth. The believability of each witness's
testimony should be your guide in evaluating testimony, rather than the number of witnesses called.
Counsel soon will be given an opportunity to ask you questions and exercise challenges. With regard
to challenges, if you know of any matter that you feel might affect your impartiality to sit as a court
member, you must disclose that matter when asked to do so. Bear in mind that any statement you
make should be made in general terms so as not to disqualify other members who hear the statement.
Any matter that might affect your impartiality is a ground for challenge. Some of the grounds for challenge would be ifyou were the accuser in the case, if you have investigated any offense charged, if you have formed or expressed an opinion as to the guilt or innocence of the accused (or as to any enlisted member, that you belong to the same company-sized unit as the accused). To determine if any grounds for challenge exist, counsel for both sides are given an opportunity to question you. These questions are not intended to embarrass you. They are not an attack upon your integrity. They are asked merely to determine whether a basis for challenge exists.
It is no adverse reflection upon a court member to be excused from a particular case. You may be questioned either individually or collectively, but in either event, you should indicate an individual response to the question asked. Unless I indicate otherwise, you are required to answer all questions.
You must keep an open mind throughout the trial. You must impartially hear the evidence, the instructions on the law, and only when you are in your closed-session deliberations may you properly make a determination as to whether the accused is guilty or not guilty or as to an appropriate sentence ifthe accused is found guilty of (any) (this) offense. With regard to sentencing, should that become necessary, you may not have a preconceived idea or formula as to either the type or the amount of punishment that should be imposed if the accused were to be convicted.
Counsel are given an opportunity to question all witnesses. When counsel have finished, if you feel there are substantial questions that should be asked, you will be given an opportunity to do so (at the close of evidence or prior to any witness being permanently excused). The way we handle that is to require you to write out the question and sign legibly at the bottom. This method gives counsel for both sides and me an opportunity to review the questions before they are asked because your questions, like questions of counsel, are subject to objection. (There are forms provided to you for your use if you desire to question any witness.) I will conduct any needed examination. There are a couple of things you need to keep in mind concerning questioning.
DA PAM 27-9·01 January 2010
First, you cannot attempt to help either the government or the defense.
Second, counsel have interviewed the witnesses and know more about the case than we do. Very often they do not ask what may appear to us to be an obvious question because they are aware that this particular witness has no knowledge on the subject.
Rules of evidence control what can be received into evidence. As I indicated, questions of witnesses
are subject to objection. During the trial, when I sustain an objection, disregard the question and
answer. IfI overrule an objection, you may consider both the question and answer.
During any recess or adjournment, you may not discuss the case with anyone, not even among yourselves. You must not listen to or read any account of the trial or consult any source, written or otherwise, as to matters involved in the case. You must hold your discussion of the case until you are all together in your closed-session deliberations so that all of the panel members have the benefit of your discussion. Do not purposely visit the scene of any incident alleged in the specification(s) or involved in the trial. You must also avoid contact with witnesses or potential witnesses in this case. If anyone attempts to discuss the case in your presence during any recess or adjournment, you must immediately tell them to stop and report the occurrence to me at the next session. I may not repeat these matters to you before every break or recess, but keep them in mind throughout the trial.
We will try to estimate the time needed for recesses or hearings out of your presence. Frequently their duration is extended by consideration of new issues arising in such hearings. Your patience and understanding regarding these matters will contribute greatly to an atmosphere consistent with the fair administration of justice.
While you are in your closed-session deliberations, only the members will be present. You must remain together and you may not allow any unauthorized intrusion into your deliberations.
Each of you has an equal voice and vote with the other members in discussing and deciding all issues submitted to you. However, in addition to the duties of the other members, the senior member will act as your presiding officer during your closed-session deliberations and will speak for the court in announcing the results.
This general order of events can be expected at this court-martial: Questioning of court members, challenges and excusals, opening statements by counsel, presentation of evidence, substantive instructions on the law to you, closing argument by counsel, procedural instructions on voting, your
DA PAM 27-9·01 January 2010
deliberations, and announcement of the findings. Ifthe accused is convicted of any offense, there will
also be sentencing proceedings.
The appearance and demeanor of all parties to the trial should reflect the seriousness with which the
trial is viewed. Careful attention to all that occurs during the trial is required of all parties. Ifit
becomes too hot or cold in the courtroom, or if you need a break because of drowsiness or for comfort
reasons, please tell me so that we can attend to your needs and avoid potential problems that might
otherwise arise.
Each of you may take notes if you desire and use them to refresh your memory during deliberations,
but they may not be read or shown to other members. At the time of any recess or adjournment, you
may (take your notes with you for safekeeping until the next session) (leave your notes in the courtroom).
One other administrative matter: Ifduring the course of the trial it is necessary that you make any statement, if you would preface the statement by stating your name, that will make it clear on the record which member is speaking.
Are there any questions? MBRS: (Respond.)

MJ: (Apparently not.) Please take a moment to read the charge(s) on the flyer provided to you and to ensure that your name is correctly reflected on (one of) the convening order(s). Ifit is not, please let me know.
MJ: Trial Counsel, you may announce the general nature ofthe charge(s).
TC: The general nature of the charge(s) in this case is ____ The charge(s) (was) (were) preferred by _____; forwarded with recommendations as to disposition by _____ (and investigated by
---~).
The records ofthis case disclose (no grounds for challenge) (grounds for challenge of_____ for the following reason(s): ).
If any member of the court is aware of any matter which he (or she) believes may be a ground for challenge by either side, such matter should now be stated.
MEMBER(S): (Respond.) or
TC: (Negative response from the court members.)
DA PAM 27-9' 01 January 2010
2-5-1. VOIR DIRE MJ: Before counsel ask you any questions, I will ask some preliminary questions. If any member has an affirmative response to any question, please raise your hand.
1.
Does anyone know the accused? (Negative response.) (Positive response from ______.)

2.
(If appropriate) Does anyone know any person named in (any of the) (The) Specification(s)?

3.
Having seen the accused and having read the charge(s) and specification(s), does anyone believe that you cannot give the accused a fair trial for any reason?

4.
Does anyone have any prior knowledge of the facts or events in this case?

5.
Has anyone or any member of your family ever been charged with an offense similar to any of those charged in this case?

6.
(If appropriate) Has anyone, or any member of your family, or anyone close to you personally ever been the victim of an offense similar to any of those charged in this case?

7.
If so, will that experience influence the performance of your duties as a court member in this case in anyway?


NOTE: IfQuestion 7 is answered in the affirmative, the military judge may want to ask any additional questions concerning this outside the hearing ofthe other members.
8.
How many of you are serving as court members for the first time in a trial by court-martial?

9.
(As to the remainder) Can each of you who has previously served as a court member put aside anything you may have heard in any previous proceeding and decide this case solely on the basis of the evidence and the instructions as to the applicable law?

10.
The accused has pled not guilty to (all charges and specifications) ('-___--') and is presumed to be innocent until (his) (her) guilt is established by legal and competent evidence beyond a reasonable doubt. Does anyone disagree with this rule of law?

11.
Can each ofyou apply this rule oflaw and vote for a finding of not guilty unless you are convinced beyond a reasonable doubt that the accused is gUilty?

12.
You are all basically familiar with the military justice system, and you know that the accused has been charged, (his) (her) charges have been forwarded to the convening authority and referred to trial.


DA PAM 27-9· 01 January 2010
None of this warrants any inference of guilt. Can each of you follow this instruction and not infer that the accused is guilty of anything merely because the charges have been referred to trial?
13.
On the other hand, can each of you vote for a finding of guilty if you are convinced that under the law, the accused's guilt has been proved by legal and competent evidence beyond a reasonable doubt?

14.
Does each member understand that the burden of proof to establish the accused's guilt rests solely upon the prosecution and the burden never shifts to the defense to establish the accused's innocence?

15.
Does each member understand, therefore, that the defense has no obligation to present any evidence or to disprove the elements of the offense(s)?

16.
Has anyone had any legal training or experience other than that generally received by service members of your rank or position?

17.
Has anyone had any specialized law enforcement training or experience, to include duties as a military police officer, off-duty security guard, civilian police officer, or comparable duties other than the general law enforcement duties common to military personnel of your rank and position?

18.
I have previously advised you that it is your duty as court members to weigh the evidence and to resolve controverted questions of fact. In so doing, ifthe evidence is in conflict, you will necessarily be required to give more weight to some evidence than to other evidence. The weight, if any, to be given all of the evidence in this case is solely within your discretion, so it is neither required nor expected that you will give equal weight to all ofthe evidence. However, it is expected that you will use the same standards in weighing and evaluating all of the evidence and the testimony of each witness and that you will not give more or less weight to the testimony of a particular witness merely because of that witness's status, position, or station in life. Will each of you use the same standards in weighing and evaluating the testimony of each witness and not give more or less weight to the testimony of a particular witness solely because of that witness's position or status?

19.
Is any member of the court in the rating chain, supervisory chain, or chain of command of any other member?


NOTE: IfQuestion 19 is answered in the affirmative, the military judge may want to ask questions 20 and 21 out ofthe hearing ofthe other members.
20.
(To junior) Will you feel inhibited or restrained in any way in performing your duties as a court member, including the free expression of your views during deliberation, because another member holds a position of authority over you?

21.
(To senior) Will you be embarrassed or restrained in any way in performing your duties as a court member if a member over whom you hold a position of authority should disagree with you?

22.
Has anyone had any dealings with any of the parties to the trial, to include me and counsel, which might affect your performance of duty as a court member in any way?

23.
Does anyone know of anything of either a personal or professional nature that would cause you to be unable to give your full attention to these proceedings throughout the trial?

24.
It is a ground for challenge that you have an inelastic predisposition toward the imposition of a particular punishment based solely on the nature of the crime or crimes for which the accused is to be sentenced if found guilty. Does any member, having read the charge(s) and specification(s), believe that you would be compelled to vote for any particular punishment, if the accused is found guilty, solely because of the nature of the charge(s)?

25.
Ifsentencing proceedings are required, you will be instructed in detail before you begin your deliberations. I will instruct you on the full range of punishments, from no punishment up to the maximum punishment. You should consider all forms of punishment within that range. "Consider" doesn't necessarily mean that you would vote for that particular punishment. "Consider" means that you think about and make a choice in your mind, one way or the other, as to whether that's an appropriate punishment. Each member must keep an open mind and neither make a choice nor foreclose from consideration any possible sentence until the closed session for deliberations and voting on the sentence. Can each of you follow this instruction?

26.
Can each of you be fair, impartial, and open-minded in your consideration of an appropriate sentence if called upon to do so in this case?

27.
Can each of you reach a decision on sentence if required to do so on an individual basis in this particular case and not solely upon the nature of the offense (or offenses) of which the accused may be convicted?

28.
Is any member aware of any matter that might raise a substantial question concerning your participation in this trial as a court member?


DA PAM 27-9 • 01 January 2010
MJ: Do counsel for either side desire to question the court members?
NOTE: TC and DC will conduct voir dire ifdesired and individual voir dire will be
conducted, ifrequired.

DA PAM 27-9 • 01 January 2010
2-5-2. INDIVIDUAL VOIR DIRE
MJ: Members of the Court, there are some matters that we must now consider outside of your
presence. Please return to the deliberation room. Some of you may be recalled, however, for
individual questioning.
MBRS: (Comply.)
MJ: All the members are absent. All other parties are present. Trial Counsel, do you request
individual voir dire, and if so, state the member and your reason(s).
TC: (Responds.)
MJ: Defense Counsel, do you request individual voir dire, and if so, state the member and your
reason(s).
DC: (Responds.)
2-5-3. CHALLENGES
NOTE: Challenges are to be made outside the presence ofthe court members in an Article 39(a) session. RCM 912 encompasses challenges based upon both actual bias and implied bias. United States v. Clay, 64 MJ 274,276 (CAAF 2007). Military Judges should analyze all challenges for cause under both actual and implied bias theories, even ifthe counsel do not specifically use these terms. The test for actual bias is whether the member's bias will not yield to the evidence presented and the judge's instructions. The existence ofactual
bias is a question offact; accordingly, the military judge is afforded significant latitude in
determining whether it is present in a prospective member. The military judge's physical
presence during voir dire and ability to watch the challenged member's demeanor make the
military judge specially situated in making this determination. United States v. Terry, 64
MJ 295 (CAAF 2007). Implied bias exists when, despite a disclaimer, most people in the
same position as the court member would be prejudiced. United States v. Napolitano, 53
MJ 162 (CAAF 2000). In determining whether implied bias is present, military judges look
to the totality ofthe circumstances. United States v. Strand, 59 MJ 455,459 (CAAF 2004).
Implied bias is viewed objectively, through the eyes ofthe public. Implied bias exists ifan
objective observer would have substantial doubt about thefairness ofthe accused's court­
martial panel. Because ofthe objective nature ofthe inquiry, appellate courts accord less
deference to implied bias determinations ofa military judge. United States v. Armstrong,
54 MJ 51,54 (CAAF 2000). In close cases, military judges are enjoined to liberally grant
defense challengesfor cause. United States v. Clay, 64 MJ 274 (CAAF 2007). This "liberal grant mandate" does not apply to government challenges for cause. United States
v. James, 61 MJ 132 (CAAF 2005). Where a military judge does not indicate on the record that he/she has considered the liberal grant mandate during the evaluation for implied bias ofa defense challenge for cause, the appellate courts will accord that decision less deference during review ofthe ruling. Therefore, when ruling on a defense challengefor cause, the military judge should (1) state that slhe has considered the challenge under both actual and implied bias theories and is aware ofthe duty to liberally grant defense
DA PAM 27-9·01 January 2010
challenges; and (2) place the reasoning on the record. United States v. Townsend. 65 MJ 460, 464 (eAAF 2008). The following is a suggested procedure for an Article 39(a) session.
MJ: Members of the Court, there are some matters that we must now take up outside of your
presence. Please return to the deliberation room.
MBRS: (Comply.)

MJ: All the members are absent. All other parties are present. Trial Counsel, do you have any
challenges for cause?
TC: (Responds.)

(IF A CHALLENGE IS MADE) MJ: Defense Counsel, do you object?
DC: (Responds.)

MJ: (Granted/Denied.)

MJ: Defense Counsel, do you have any challenges for cause?
DC: (Responds.)

(IF A CHALLENGE IS MADE) MJ: Trial Counsel, do you object?
TC: (Responds.)

(IF THE MJ IS GRANTING THE CHALLENGE) MJ: The challenge is granted.

(FOR EACH CHALLENGE THE MJ IS DENYING) MJ: I have considered the challenge for cause
on the basis of both actual and implied bias and the mandate to liberally grant defense challenges.
The challenge is denied because ('-___--J).

MJ: Trial Counsel, do you have a peremptory challenge?
TC: (Responds.)

MJ: Defense Counsel, do you have a peremptory challenge?
DC: (Responds.)

NOTE: The MJ will verify that a quorum remains, and ifenlisted members are detailed, at least one-third are enlisted. Ifany member is excused as a result ofa challenge, the member will be informed that s/he has been excused; the seating for the remaining members will be rearranged according to rank.
MJ: Call the members.
DA PAM 27-9·01 January 2010
2-5-4. ANNOUNCEMENT OF PLEA
TC: All parties are present as before, to now include the court members (with the exception of_____ who (has) (have) been excused).
NOTE: Ifthe accused has pled not guilty to all charges and specifications, or ifthe accused has pled guilty to only some specifications and has specifically requested members be advised ofthose guilty pleas, announce the following:
MJ: Court Members, at an earlier session, the accused pled (not guilty to all charges and
specifications) (not guilty to Charge _, Specification _, but guilty to Charge _, Specification~.
NOTE: Ifthe accused has pled guilty to lesser included offenses and the prosecution is going forward on the greater offense, continue below; ifnot, go to paragraph 2-5-5, TRIAL ON MERITS.
MJ: The accused has pled guilty to the lesser included offense of ('--___----», which constitutes a judicial admission to some of the elements of the offense charged in ( ). These elements have therefore been established by the accused's plea without the necessity of further proof. However, the plea of guilty to this lesser offense provides no basis for a conviction of the offense alleged as there remains in issue the element(s) of: _____
The court is instructed that no inference of guilt of such remaining element(s) arises from any admission involved in the accused's plea, and to permit a conviction ofthe alleged offense, the prosecution must successfully meet its burden of establishing such element(s) beyond a reasonable doubt by legal and competent evidence. Consequently, when you close to deliberate, unless you are satisfied beyond a reasonable doubt that the prosecution has satisfied this burden of proof, you must find the accused not guilty of ('-___----», but the plea of guilty to the lesser included offense of
('--___----» will require a finding of guilty of that lesser offense without further proof.
NOTE: Ifmixed pleas were entered and the accused requests that the members be
informed ofthe accused's guilty pleas, the MJ should continue below; ifnot, go to
paragraph 2-5-5, TRIAL ONMERITS.

MJ: The court is advised that findings by the court members will not be required regarding the charge(s) and specification(s) of which the accused has already been found guilty pursuant to (his) (her) plea. I inquired into the providence ofthe plea(s) of guilty, found (it) (them) to be provident, accepted (it) (them), and entered findings of guilty. Findings will be required, however, as to the charge(s) and specifications(s) to which the accused has pled not gUilty.
DA PAM 27-9' 01 January 2010
2-5-5. TRIAL ON MERITS
MJ: I advise you that opening statements are not evidence; rather they are what counsel expect the
evidence will show in the case. Does the government have an opening statement?
TC: (Responds.)

MJ: Does the defense have an opening statement or do you wish to reserve?
DC: (Responds.)

MJ: Trial Counsel, you may proceed.

NOTE: The TC administers the oath/affirmation to all witnesses. After a witness testifies, the MJ should instruct the witness along the following lines:
MJ: _____, you are excused (temporarily) (permanently). As long as this trial continues, do not discuss your testimony or knowledge of the case with anyone other than counsel and accused. You may step down and (return to the waiting room) (go about your duties) (return to your activities) (be available by telephone to return within _ minutes). TC: The government rests.
NOTE: This is the time that the Defense may make motions for a finding ofnot gUilty. (The motions should be made outside the presence ofthe court members.) The MJ's standardfor ruling on the motion is at RCM 917. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation ofthe credibility ofwitnesses. (If the motion is made before the court members and is denied, give the instruction at paragraph 2-7-13, MOTION FOR FINDING OF NOT GUILTY.)
2-5-6. TRIAL RESUMES WITH DEFENSE CASE, IF ANY MJ: Defense Counsel, you may proceed.
NOTE: Ifthe defense reserved opening statement, the MJ shall ask ifthe DC wishes to make an opening statement at this time.
DC: The defense rests.

2-5-7. REBUTTAL AND SURREBUTTAL, IF ANY
MJ: Trial Counsel, any rebuttal?
TC: (Responds I presents case.)

MJ: Defense Counsel, any surrebuttal?
DC: (Responds I presents case.)

DA PAM 27-9 • 01 January 2010
NOTE: Ifmembers have notpreviously been allowed to ask questions, the MJ should ask:
MJ: Does any court member have questions of any witness? MBRS: (Respond.)
NOTE: Ifthe members have questions, the Bailiffwill collect the written questions, have them marked as appellate exhibits, show them to the TC and the DC, andpresent them to the MJ so that the MJ may ask the witness the questions.
MJ: Court Members, you have now heard all the evidence. At this time, we need to have a hearing outside of your presence to discuss the instructions. You are excused until approximately _____ MBRS: (Comply.)
2-5-8. DISCUSSION OF FINDINGS INSTRUCTIONS MJ: All parties are present with the exception of the court members.
NOTE: Ifthe accused did not testify, the MJ must ask the following question, outside the presence ofthe members:
MJ: _____, you did not testify. Was it your personal decision not to testify?
ACC: (Responds.)]

MJ: Counsel, which exhibits go to the court members?
TCIDC: (Respond.)

MJ: Counsel, do you see any lesser included offenses that are in issue in this case?
TCIDC: (Respond.)

MJ: (IF THE ACCUSED ELECTED NOT TO TESTIFY.) Defense, do you wish for me to instruct on
the fact the accused did not testify?
DC: (Responds.)

MJ: I intend to give the following instructions: _____. Does either side have any objection to
those instructions?
TCIDC: (Respond.)

MJ: What other instructions do the parties request?
TCIDC: (Respond.)

MJ: Trial Counsel, please mark the Findings Worksheet as Appellate Exhibit _, show it to the
defense and present it to me.

DA PAM 27-9' 01 January 2010
TC: (Complies.)
MJ: Defense Counsel, do you have any objections to the Findings Worksheet?
DC: (Responds.)

MJ: Is there anything else that needs to be taken up before the members are called?
TCIDC: (Respond.)

MJ: Call the court members.

2-5-9. PREFATORY INSTRUCTIONS ON FINDINGS
MJ: The court is called to order. All parties are again present to include the court members.

NOTE: RCM 920(b) provides that instructions on findings shall be given before or after arguments by counselor at both times. What follows is the giving ofpreliminary instructions prior to argument with procedural instructions given after argument.
MJ: Members of the Court, when you close to deliberate and vote on the findings, each of you must resolve the ultimate question of whether the accused is guilty or not guilty based upon the evidence presented here in court and upon the instructions that I will give you. My duty is to instruct you on the law. Your duty is to determine the facts, apply the law to the facts, and determine the guilt or innocence ofthe accused. The law presumes the accused to be in~ocent ofthe charge(s) against (him) (her).
During the trial, some of you took notes. You may take your notes with you into the deliberation room. However, your notes are not a substitute for the record of trial.
I will advise you of the elements of each offense alleged.
In (The) Specification U of (The) (Additional) Charge U, the accused is charged with the offense of (specify the offense). To find the accused guilty ofthis offense, you must be convinced by legal and competent evidence beyond a reasonable doubt of the following elements:
NOTE: List the elements ofthe offense using Chapter 3 ofthe Benchbook. ____
NOTE: Iflesser included offenses are in issue, continue; ifno lesser included offenses are in issue, go to paragraph 2-5-11, OTHER APPROPRIATE INSTRUCTIONS.
DA PAM 27-9·01 January 2010
2-5-10. LESSER INCLUDED OFFENSE(S)
NOTE: After instructions on the elements ofan offense alleged, the members ofthe court must be advised ofall lesser included offenses raised by the evidence and within the scope ofthe pleadings. The members should be advised in order ofdiminishing severity ofthe elements ofeach lesser included offense and its differences from the principal offense and other lesser offenses, ifany. The members will not be instructed on lesser offenses that are barred by the statute oflimitations unless the accused waives the bar. These instructions may be stated substantially as follows:
2-5-JOa. LID Introduction
MJ: The offense(s) of ____(is) (are) (a) lesser included offense(s) of the offense set forth in (The) Specification U (of) (The) (Additional) Charge _. When you vote, if you find the accused not guilty of the offense charged, that is, _____, then you should next consider the lesser included offense of_____,' in violation of Article _. To find the accused guilty of this lesser offense, you must be convinced by legal and competent evidence beyond a reasonable doubt of the following elements:
NOTE: List the elements ofthe LIO using Chapter 3 ofthe Benchbook.
2-5-JOb. LID Differences
MJ: The offense charged, _____, and the lesser included offense of_____ differ primarily (in that the offense charged requires as (an) essential element(s) that you be convinced beyond a reasonable doubt that (state the element(s) applicable only to the greater offense), whereas the lesser offense of does not include such (an) element(s) (but it does require that you be satisfied beyond a reasonable doubt that (state any different element(s) applicable only to the lesser offense».
2-5-JOc. Other LID's Within the Same Specification
MJ: Another lesser included offense of the offense alleged in U (The) Specification ____(of) (The) (Additional) Charge _ is the offense of ____, in violation of Article . To find the accused guilty of this lesser offense, you must be convinced beyond a reasonable doubt of the following elements: (list the elements).
This lesser included offense differs from the lesser included offense I discussed with you previously in that this offense does not require as (an) essential element(s) that the accused (state the element(s) applicable only to the greater offense) but it does require that you be satisfied beyond a reasonable doubt that (state any different element(s) applicable only to the lesser offense».
NOTE: Repeat the above as necessary to cover all LID's and then continue.
DA PAM 27-9' 01 January 2010
2-5-11. OTHER APPROPRIATE INSTRUCTIONS
NOTE: For other instructions which may be appropriate in a particular case, ~Chapter
4, CONFESSIONS INSTRUCTIONS; Chapter 5, SPECIAL AND OTHER DEFENSES;
Chapter 6, MENTAL RESPONSIBILITY; Chapter 7,_EVIDENTIARY INSTRUCTIONS.
Generally, instructions on credibility ofwitnesses (~ee Instruction 7-7-1) and circumstantial
evidence (~ee Instruction 7-3) are typical in most cases and should be given prior to
proceeding to the following instructions.
2-5-12. CLOSING SUBSTANTIVE INSTRUCTIONS ON FINDINGS MJ: You are further advised:
First, that the accused is presumed to be innocent until (his) (her) guilt is established by legal and competent evidence beyond a reasonable doubt;
Second, if there is reasonable doubt as to the guilt of the accused, that doubt must be resolved in favor ofthe accused, and (he) (she) must be acquitted; (and)
(Third, if there is a reasonable doubt as to the degree of guilt, that doubt must be resolved in favor of the lower degree of guilt as to which there is no reasonable doubt; and)
Lastly, the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish innocence or to disprove the facts necessary to establish each element of (each) (the) offense.
A "reasonable doubt" is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. "Proof beyond a reasonable doubt" means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element need not be established beyond a reasonable doubt. However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused gUilty.
Bear in mind that only matters properly before the court as a whole should be considered. In weighing and evaluating the evidence, you are expected to use your own common sense and your knowledge of human nature and the ways of the world. In light of all the circumstances in the case, you should consider the inherent probability or improbability of the evidence. Bear in mind you may
DA PAM 27-9' 01 January 2010
properly believe one witness and disbelieve several other witnesses whose testimony conflicts with the
one. The final determination as to the weight or significance of the evidence and the credibility of the
witnesses in this case rests solely upon you.
You must disregard any comment or statement or expression made by me during the course of the trial that might seem to indicate any opinion on my part as to whether the accused is guilty or not guilty since you alone have the responsibility to make that determination. Each of you must impartially decide whether the accused is guilty or not guilty according to the law I have given you, the evidence admitted in court, and your own conscience.
2-5-13. FINDINGS ARGUMENT MJ: At this time you will hear argument by counsel, which is an exposition of the facts by counsel for both sides as they view them. Bear in mind that the arguments of counsel are not evidence. Argument is made by counsel to assist you in understanding and evaluating the evidence, but you must base the determination of the issues in the case on the evidence as you remember it and apply the law as I instruct you. As the government has the burden of proof, Trial Counsel may open and close.
Trial Counsel, you may proceed. TC: (Argument.)
MJ: Defense Counsel, you may present findings argument. DC: (Argument.)
MJ: Trial Counsel, rebuttal argument? TC: (Responds.)
(MJ: Counsel have referred to instructions that I gave you. Ifthere is any inconsistency between what counsel have said about the instructions and the instructions which I gave you, you must accept my statement as being correct.)
2-5-14. PROCEDURAL INSTRUCTIONS ON FINDINGS
MJ: The following procedural rules will apply to your deliberations and must be observed. The influence of superiority in rank will not be employed in any manner in an attempt to control the independence of the members in the exercise of their own personal judgment. Your deliberation
should include a full and free discussion of all the evidence that has been presented. After you have
DA PAM 27-9·01 January 2010
completed your discussion, then voting on your findings must be accomplished by secret, written ballot, and all members of the court are required to vote.
(The order in which the (several) charges and specifications are to be voted on should be determined by the president subject to objection by a majority ofthe members.) You vote on the specification(s) under the charge before you vote on the charge.
Ifyou find the accused guilty of any specification under a charge, the finding as to that charge must be gUilty. The junior member will collect and count the votes. The count will then be checked by the president, who will immediately announce the result of the ballot to the members.
The concurrence of at least two-thirds of the members present when the vote is taken is required for any finding of guilty. Since we have _ members, that means _ members must concur in any finding of guilty.
Table 2-1 Votes Needed for a Finding of Guilty
No. of Members Two-thirds
3 2

4 3

5 4

6 4

7 5

8 6

9 6

10 7

11 8

12 8

Ifyou have at least _ votes of guilty of any offense, then that will result in a finding of guilty for that offense. Iffewer than _ members vote for a finding of guilty, then your ballot resulted in a finding of not guilty (bearing in mind the instructions I just gave you about voting on the lesser included offense(s)).
MJ: You may reconsider any finding prior to its being announced in open court. However, after you vote, if any member expresses a desire to reconsider any finding, open the court and the president should announce only that reconsideration of a finding has been proposed. Do not state:
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(1)
whether the finding proposed to be reconsidered is a finding of guilty or not guilty, or

(2)
which specification (and charge) is involved.


I will then give you specific instructions on the procedure for reconsideration. NOTE: See paragraph 2-7-14, RECONSIDERATIONINSTRUCTION (FINDINGS).
MJ: As soon as the court has reached its findings and I have examined the Findings Worksheet, the findings will be announced by the president in the presence of all parties. As an aid in putting your findings in proper form and making a proper announcement of the findings, you may use Appellate Exhibit _, the Findings Worksheet, which the Bailiff may now hand to the president). BAILIFF: (Complies.)
NOTE: The MJ may explain how the Findings Worksheet should be used. A suggested approach follows:
MJ: (COL) L) , as indicated on Appellate Exhibit _, the first portion will be used ifthe accused is completely acquitted of (the) (all) charge(s) and specifications(s). The second part will be used if the accused is convicted as charged of (the) (all) charge(s) and specification(s); (and the third portion will be used if the accused is convicted of some but not all of the offenses). Once you have finished filling in what is applicable, please line out or cross out everything that is not applicable so that when I check your findings I can ensure that they are in proper form. (The next page of Appellate Exhibit _ would be used ifyou find the accused guilty of the lesser included offense of ____by exceptions (and substitutions). This was (one of) (the) lesser included offense(s) I instructed you on.)
MJ: You will note that the Findings Worksheet(s) (has) (have) been modified to reflect the words that would be deleted, (as well as the words that would be substituted therefore) if you found the accused guilty ofthe lesser included offense(s). (These) (This) modification(s) of the worksheet in no way indicate(s) (an) opinion(s) by me or counsel concerning any degree of guilt ofthis accused. (They are) (This is) merely included to aid you in understanding what findings might be made in the case and for no other purpose whatsoever. The worksheet(s) (is) (are) provided only as an aid in finalizing your decision.
MJ: Any questions about the Findings Worksheet? MBRS: (Respond.)
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MJ: Ifduring your deliberations you have any questions, open the court and I will assist you. The
Uniform Code of Military Justice prohibits me and everyone else from entering your closed-session
deliberations. As I mentioned at the beginning of the trial, you must all remain together in the
deliberation room during deliberations. While in your closed-session deliberations, you may not make
communications to or receive communications from anyone outside the deliberation room, by
telephone or otherwise. Ifyou have need of a recess, if you have a question, or when you have reached
findings, you may notify the Bailiff, who will then notify me that you desire to return to open court to
make your desires or findings known. Further, during your deliberations you may not consult the
Manual for Courts-Martial or any other legal publication unless it has been admitted into evidence.

MJ: Do counsel object to the instructions given or request additional instructions?
TCIDC: (Respond.)

MJ: Does any member ofthe court have any questions concerning these instructions?
MBR: (Respond.)

MJ: Ifit is necessary (and I mention this because there is no latrine immediately adjacent to your
deliberation room), your deliberations may be interrupted by a recess. However, before you may
leave your closed-session deliberations, you must notify us, we must come into the courtroom, formally
convene, and then recess the court; and after the recess, we must reconvene the court and formally
close again for your deliberations. So with that in mind, (COL) L) ,do you desire to
take a brief recess before you begin your deliberations, or would you like to begin immediately?
PRES: (Responds.)

MJ: (Trial Counsel) (Bailiff) please hand to the president of the court Prosecution Exhibits(s) _ and
(Defense Exhibit(s) ~for use during the court's deliberations.)
TC/BAILIFF: (Complies.)

MJ: (COL) L) ,please do not mark on any of the exhibits, except the Findings
Worksheet (and please bring all the exhibits with you when you return to announce your findings).

The court is closed.

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2-5-15. PRESENTENCING SESSION
NOTE: When the members close to deliberate, the MJ may convene an Article
39(a)session to cover presentencing matters or may wait until after findings.

MJ: This Article 39(a) session is called to order. All parties are present, except the court members.
MJ: ('-___---..J), when the members return from their deliberations, if you are acquitted of all
charges and specifications, that will terminate the trial. On the other hand, if you are convicted of any
offense, then the court will determine your sentence. During that part of the trial, you (will) have the
opportunity to present evidence in extenuation and mitigation of the offenses of which you have been
found guilty, that is, matters about the offense(s) or yourself which you want the court to consider in
deciding your sentence. In addition to the testimony of witnesses and the offering of documentary
evidence, you may, yourself, testify under oath as to these matters or you may remain silent, in which
case the court will not draw any adverse inference from your silence. On the other hand, you may
make an unsworn statement. Because the statement is unsworn, you cannot be cross-examined on it.
However, the government may offer evidence to rebut any statement of fact contained in an unsworn
statement. The unsworn statement may be made orally, or in writing, or both. It may be made by
you, or by your counsel on your behalf, or by both. Do you understand these rights that you have?
ACC: (Responds.)

MJ: Counsel, is the personal data on the first page of the charge sheet correct?
TCIDC: (Respond.)

MJ: Defense Counsel, has the accused been punished in any way prior to trial that would constitute
illegal pretrial punishment under Article 13?
DC: (Responds.)

MJ: _____, is that correct? ACC: (Responds.)
MJ: Counsel, based on the information on the charge sheet, the accused is to be credited with _days
of pretrial confinement credit. Is that the correct amount?
TCIDC: (Respond.)

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MJ: Counsel, do you have any documentary evidence on sentencing that could be marked and offered
at this time?
TCIDC: (Comply.)

MJ: Is there anything else by either side?
TCIDC: (Respond.)

MJ: This Article 39(a) session is terminated to await the members' findings.
2-5-16. FINDINGS
MJ: The court is called to order. All parties are again present as before to include the court
members. (COL) L)_____, has the court reached findings?
PRES: (Responds.)

MJ: Are the findings reflected on the Findings Worksheet?
PRES: (Responds.)

MJ: Please fold the worksheet and give it to the Bailiff so that I may examine it.
BAILIFF: (Complies.)

NOTE: Ifa possible error exists on the Findings Worksheet, the MJ must take corrective action. All advice or suggestions to the court from the MJ must occur in open session. In a complex matter, it may be helpful to hold an Article 39(a) session to secure suggestions and agreement on the advice to be given to the court.
Occasionally, corrective action by the court involves reconsideration ofa finding, and in that situation, instructions on the reconsideration procedure are required (~eeparagraph 2­7-14, RECONSIDERATIONINSTRUCTION (FINDINGS)).
Ifthe words "divers occasions" or another specified number ofoccasions have been excepted IA W United States v. Walters. 58 MJ 391 (CAAF 2003), the MJ must ensure there remains no ambiguity in the findings. Normally that is accomplished by the panel substituting (a) relevant daters), or other facts. See paragraph 7-25for a suggested instruction on clarifying an ambiguous verdict.
MJ: I have reviewed the Findings Worksheet and (the findings appear to be in proper form)
('-___-'). Bailiff, please return the Findings Worksheet to the president.
BAILIFF: (Complies.)

DA PAM 27-9·01 January 2010
MJ: Defense Counsel and Accused, please rise. (COL) ~_____, please announce the
findings of the court.
ACC/DC: (Comply.)

PRES: (Complies.)

MJ: Defense Counsel and Accused may be seated. (Trial Counsel) (Bailiff), please retrieve all exhibits from the president.) NOTE: Ifthere are findings ofguilty, go to paragraph 2-5-17, SENTENCING PROCEEDINGS; ifacquitted, continue below.
MJ: Members of the Court, before I excuse you, let me advise you of one matter. Ifyou are asked about your service on this court-martial, I remind you of the oath you took. Essentially, that oath prevents you from discussing your deliberations with anyone, to include stating any member's opinion or vote, unless ordered to do so by a court. You may, of course, discuss your personal observations in the courtroom and the process of how a court-martial functions but not what was discussed during your deliberations. Thank you for your attendance and service. This court-martial is adjourned.
2-5-17. SENTENCING PROCEEDINGS
NOTE: Ifthe MJ has notpreviously advised the accused ofhis allocution rights at the beginning ofSection IV, the MJ must do so at this time outside the presence ofthe court members. Ifthere were findings ofguilty ofwhich the members had not previously been informed, they should be advised ofsuch now. An amended flyer containing the other offenses is appropriate.
MJ: Members of the Court, at this time we will begin the sentencing phase of the trial. (Before doing
so, would the members like to take a recess?)
MBRS: (Respond.)

MJ: Trial Counsel, you may read the personal data concerning the accused as shown on the charge
sheet.
TC: The first page ofthe charge sheet shows the following personal data concerning the accused:

MJ: Members of the Court, I have previously admitted into evidence (Prosecution Exhibit(s) _,which
(is) (are) ___--') (and) (Defense Exhibit(s) _, which (is) (are) ___--'). You will have (this)
(these) exhibit(s) available to you during your deliberations.

Trial Counsel, do you have anything else to present at this time?
TC: (Responds and presents case on sentencing.)

DA PAM 27-9·01 January 2010
TC: The government rests.
MJ: Defense Counsel, you may proceed.
DC: (Responds and presents case on sentencing.)

DC: The defense rests.
2-5-18. REBUTTAL AND SURREBUTTAL, IF ANY
MJ: Trial Counsel, any rebuttal?
TC: (Responds / presents case.)

MJ: Defense Counsel, any surrebuttal? DC: (Responds / presents case.)
MJ: Members of the Court, you have now heard all the evidence in this case. At this time, we need to have a hearing outside of your presence to go over the instructions that I will give you. I expect that you will be required to be present again at _____
2-5-19. DISCUSSION OF SENTENCING INSTRUCTIONS MJ: All parties are present except the court members, who are absent.
NOTE: Ifthe accused did not testify or provide an unsworn statement, the MJ must ask the following question outside the presence ofthe members:
MJ: _____" you did not testify or provide an unsworn statement during the sentencing phase of
the trial. Was it your personal decision not to testify or provide an unsworn statement?
ACC: (Responds.)

MJ: Counsel, what do you calculate the maximum sentence to be based upon the findings of the
court?
TCIDC: (Respond.)

MJ: Do counsel agree that an instruction on a fine is (not) appropriate in this case?
TCIDC: (Respond.)

MJ: Trial Counsel, please mark the Sentence Worksheet as Appellate Exhibit _, show it to the
Defense, and present it to me.
TC: (Complies.)

DA PAM 27-9 • 01 January 2010
NOTE: Listinf! ofounishments. Only those punishments on which an instruction will be given should ordinarily be listed on the Sentence Worksheet; ifall have agreed that a fine is not appropriate, then it ordinarily should not be listed on the worksheet.
MJ: Defense Counsel, do you have any objections to the Sentence Worksheet?
DC: (Responds.)
MJ: Counsel, I intend to give the standard sentencing instructions. Do counsel have any requests for
any special instructions?
TCIDC: (Respond.)
NOTE: Credit (or Article 15 Punishment. Ifevidence ofan Article 15 was admitted at trial which reflects that the accused received nonjudicial punishment for the same offense which the accused was also convicted at the court-martial, ~paragraph 2-7-21,CREDIT FOR ARTICLE 15 PUNISHMENT.
MJ: (IF THE ACCUSED ELECTED NOT TO TESTIFY.) Does the defense wish the instruction
regarding the fact the accused did not testify?
NOTE: Unsworn statement instruction within discretion ofMJ. See United States v.
Breese, 11 MJ 17 (CMA 1981).
MJ: Call the members.
2-5-20. SENTENCING ARGUMENTS
MJ: The court is called to order.
TC: All parties to include the members are present.
MJ: Trial Counsel, you may present argument.
TC: (Argument.)
MJ: Defense Counsel, you may present argument.
DC: (Argument.)
NOTE: Ifthe DC concedes that a punitive discharge is appropriate, the MJ shall conduct an out-of-court hearing to ascertain ifthe accused knowingly and intelligently agrees with counsel's actions with respect to a discharge. Ifthe matter is raised before argument is
made, the MJ should caution the DC to limit the request to a bad-conduct discharge. See
paragraph 2-7-27for procedural instructions on ARGUMENT OR REQUEST FOR A
PUNITIVE DISCHARGE.
DA PAM 27-9' 01 January 2010
2-5-21. SENTENCING INSTRUCTIONS MJ: Members of the Court, you are about to deliberate and vote on the sentence in this case. It is the duty of each member to vote for a proper sentence for the offense(s) of which the accused has been found gUilty. Your determination of the kind and amount of punishment, if any, is a grave responsibility requiring the exercise of wise discretion. Although you must give due consideration to all matters in mitigation and extenuation, (as well as to those in aggravation), you must bear in mind that the accused is to be sentenced only for the offense(s) of which (he) (she) has been found guilty.
(IF OFFENSES ARE ONE FOR SENTENCING PURPOSES) MJ: The offenses charged in _____ and _____ are one offense for sentencing purposes. Therefore, in determining an appropriate sentence in this case, you must consider them as one offense.
MJ: You must not adjudge an excessive sentence in reliance upon possible mitigating action by the convening or higher authority. (A single sentence shall be adjudged for all offenses of which the accused has been found gUilty.) (A separate sentence must be adjudged for each accused.)
NOTE: Confinement for Life without Eligibility for Parole: Whenever an accused is eligible to be sentenced to confinement for lifefor an offense occurring after 19 November 1997, the military judge must instruct that confinement for life without eligibility for parole is also a permissible punishment.
(MAXIMUM PUNISHMENT) MJ: The maximum punishment that may be adjudged in this case is:
a.
Reduction to the grade of ___

b.
Forfeiture of «2/3ds) ( ) pay per month for (12) U months) (all pay and allowances);

c.
Confinement for ; (and)

d.
(A dishonorable discharge) (A bad-conduct discharge) (dismissal from the service.)


MJ: The maximum punishment is a ceiling on your discretion. You are at liberty to arrive at any lesser legal sentence.
MJ: In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe «IF NO MANDATORY MINIMUM SENTENCE:) or you may adjudge no punishment). There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principal reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer
DA PAM 27-9·01 January 2010
and those who know of (his) (her) crime(s) and (his) (her) sentence from committing the same or similar offenses. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion.
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2-5-22. TYPES OF PUNISHMENT
NOTE: The following specific instructions on each type ofpunishment are optional but recommended. The instruction on the maximum punishment and the use by the members ofa legally sufficient Sentence Worksheet listing the full range ofpunishments will suffice. However, the MJ must instruct on the effect ofArticle 58a and b, the nature ofpunitive discharges, andpretrial confinement credit, ifapplicable.
(REPRIMAND:) MJ: This court may adjudge a reprimand, being in the nature of a censure. The court shall not specify the terms or wording of any adjudged reprimand.
(REDUCTION:) MJ: This court may adjudge reduction to the lowest (or any intermediate) enlisted grade, either alone or in connection with any other kind of punishment within the maximum limitation. A reduction carries both the loss of military status and the incidents thereof and results in a corresponding reduction of military pay. You should designate only the pay grade to which the accused is to be reduced, for example, E-_. (An accused may not be reduced laterally, that is, from corporal to specialist.)
(EFFECT OF ARTICLE 58a-U.S. ARMY:) MJ: I also advise you that any sentence of an enlisted service member in a pay grade above E-l which includes either of the following two punishments will automatically reduce that service member to the lowest enlisted pay grade E-l by operation of law. The two punishments are: One, a punitive discharge (meaning in this case a (bad-conduct discharge) (or a dishonorable discharge); or two, confinement in excess of six months, if the sentence is adjudged in months, or 180 days, if the sentence is adjudged in days. Accordingly, ifyour sentence includes either a punitive discharge or confinement in excess of six months or 180 days, the accused will automatically be reduced to E-l. However, notwithstanding these automatic provisions if you wish to sentence the accused to a reduction, you should explicitly state the reduction as a separate element of the sentence.
(RESTRICTION:) MJ: This court may adjudge restriction to limits for a maximum period not exceeding two months. For such a penalty, it is necessary for the court to specify the limits of the restriction and the period it is to run. Restriction to limits will not exempt an accused from any assigned military duty.
(HARD LABOR WITHOUT CONFINEMENT:) MJ: This court may sentence the accused to hard labor without confinement for a maximum period not exceeding three months. Such hard labor would be performed in addition to other military duties which would normally be assigned. In the usual
DA PAM 27-9·01 January 2010
course of business, the immediate commanding officer assigns the amount and character of the hard labor to be performed.
NOTE: Ifthe maximum authorized confinement is one month, the maximum hard labor without confinement that can be adjudged is 45 days.
(CONFINEMENT:) MJ: As I have already indicated, this court may sentence the accused to confinement for ((life without eligibility for parole) (life) (a maximum of_(years) (months». (Unless confinement for life without eligibility for parole or confinement for life is adjudged,) A sentence to confinement should be adjudged in either full days (or) full months (or full years); fractions (such as one-half or one-third) should not be employed. (So, for example, if you do adjudge confinement, confinement for a month and a half should instead be expressed as confinement for 45 days. This example should not be taken as a suggestion, only an illustration of how to properly announce your sentence.)
NOTE: Ifconfinementfor life without eligibility for parole is an available punishment, instruct further as follows:
(You are advised that a sentence to "confinement for life without eligibility for parole" means that the accused will not be eligible for parole by any official, but it does not preclude clemency action which might convert the sentence to one which allows parole. A sentence to "confinement for life" or any lesser confinement term, by comparison, means that the accused will have the possibility of earning parole from confinement under such circumstances as are or may be provided by law or regulations. "Parole" is a form of conditional release of a prisoner from actual incarceration before (his) (her) sentence has been fulfilled on specific conditions and under the possibility of return to incarceration to complete (his) (her) sentence to confinement ifthe conditions of parole are violated. In determining whether to adjudge "confinement for life without eligibility for parole" or "confinement for life" if either, you should bear in mind that you must not adjudge an excessive sentence in reliance upon possible mitigating, clemency, or parole action by the convening authority or any other authority.)
NOTE: Ifa mandatory minimum sentence is required for an offense for which the accused is to be sentenced, use the following instructions (instead ofthe preceding instructions on confinement) :
(CONFINEMENT:) MJ: You are advised that the law imposes a mandatory minimum sentence of confinement for life (with eligibility for parole) for the offense(s) of which the accused has been convicted. Accordingly, the sentence you adjudge must include a term of confinement for life (with eligibility for parole). (You have the discretion to determine whether that confinement will be "with eligibility for parole" or "without eligibility for parole.")
DA PAM 27-9 • 01 January 2010
(A sentence to "confinement for life without eligibility for parole" means that the accused will be confined for the remainder of (his) (her) life and will not be eligible for parole by any official, but it does not preclude clemency action that might convert the sentence to one that allows parole.) A sentence to "confinement for life with eligibility for parole," (by comparison,) means the accused will be confined for the rest of (his) (her) life, but (he) (she) will have the possibility of earning parole from such confinement, under such circumstances as are or may be provided by law or regulations. "Parole" is a form of conditional release of a prisoner from actual incarceration before (his) (her) sentence has been fulfilled, on specific conditions of exemplary behavior and under the possibility of return to incarceration to complete (his) (her) sentence of confinement if the conditions of parole are violated. (In determining whether to adjudge "confinement for life without eligibility for parole" or "confinement for life with eligibility for parole" in the sentence, bear in mind that you must not adjudge an excessive sentence in reliance upon possible mitigating or clemency action by the convening authority or any higher authority, nor in the case of "confinement for life with eligibility for parole" in reliance upon future decisions on parole that might be made by appropriate officials.)
(PRETRIAL CONFINEMENT CREDIT, IF APPLICABLE:) MJ: In determining an appropriate sentence in this case, you should consider that the accused has spent _days in pretrial confinement. If you adjudge confinement as part of your sentence, the days the accused spent in pretrial confinement will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve (his) (her) confinement, and will be given on a day for day basis.
(FORFEITURES-ALL PAY AND ALLOWANCES): MJ: This court may sentence the accused to forfeit all pay and allowances. A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining the amount of forfeiture, ifany, the court should consider the implications to the accused (and (his) (her) family) of such a loss of income. Unless a total forfeiture is adjudged, a sentence to a forfeiture should include an express statement of a whole dollar amount to be forfeited each month and the number of months the forfeiture is to continue. The accused is in pay grade E-_ with over _ years of service, the total basic pay being $_____per month.
NOTE: As an option, the MJ may, instead ofgiving the oral instructions that follow,
present the court members with a pay chart to use during their deliberations.

MJ: Ifreduced to the grade of E-_, the accused's total basic pay would be $_____
Ifreduced to the grade of E-_, the accused's total basic pay would be $_____
DA PAM 27-9 • 01 January 2010
Ifreduced to the grade of E-_, the accused's total basic pay would be $_____
Ifreduced to the grade of E-_, the accused's total basic pay would be $_____
Ifreduced to the grade of E-_, the accused's total basic pay would be $_____
MJ: This court may adjudge any forfeiture up to and including forfeiture of all pay and allowances.
(EFFECT OF ARTICLE 58b IN GCM) MJ: Any sentence which includes (either (1) confinement for
more than six months or (2» any confinement and a (punitive discharge) (Dismissal) will require the
accused, by operation of law, to forfeit all pay and allowances during the period of confinement.
However, if the court wishes to adjudge any forfeitures of pay and/or pay and allowances, the court
should explicitly state the forfeiture as a separate element of the sentence.

(EFFECT OF ARTICLE 58b IN SPCM WHEN BCD AUTHORIZED)
MJ: Any sentence which includes (either (1) confinement for more than six months or (2» any
confinement and a bad-conduct discharge will require the accused, by operation of law, to forfeit two­
thirds of (his) (her) pay during the period of confinement. However, if the court wishes to adjudge any
forfeitures of pay, the court should explicitly state the forfeiture as a separate element of the sentence.

(EFFECT OF ARTICLE 58b IN SPCM-BCD NOT AUTHORIZED)
MJ: Any sentence which includes confinement for more than six months will require the accused, by
operation of law, to forfeit two-thirds of (his) (her) pay during the period of confinement. However, if
the court wishes to adjudge any forfeitures of pay, the court should explicitly state the forfeiture as a
separate element of the sentence.

NOTE: Thefollowing instruction may be given in the discretion ofthe military judge:
(MJ: (The) (trial) (and) (defense) counsel (has) (have) made reference to the availability (or lack thereof) of monetary support for the accused's family member(s). Again, by operation oflaw, if you adjudge:
(FOR GCM) (either (1) confinement for more than six months, or (2» any confinement and a (punitive discharge) (Dismissal), then the accused will forfeit all pay and allowances due (him) (her) during any period of confinement.
(FOR SPCM WHEN BCD AUTHORIZED) (either (1) confinement for more than six months, or (2» any confinement and a bad-conduct discharge, then the accused will forfeit two-thirds of all pay due (him) (her) during any period of confinement.
DA PAM 27-9·01 January 2010
(FOR SPCM-BCD NOT AUTHORIZED) confinement for more than six months, then the accused will forfeit two-thirds of all pay due (him) (her) during any period of confinement.
However, when the accused has dependents, the convening authority may direct that any or all of the forfeiture of pay which the accused otherwise by law would be required to forfeit be paid to the accused's dependents for a period not to exceed six months. This action by the convening authority is purely discretionary. You should not rely upon the convening authority taking this action when considering an appropriate sentence in this case.
(FORFEITURES-2/3DS ONLY:) MJ: This court may sentence the accused to forfeit up to two­thirds pay per month for a period of (12) U months. A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining the amount of forfeiture, if any, the court should consider the implications to the accused (and (his) (her) family) of such a loss of income. A sentence to a forfeiture should include an express statement of a whole dollar amount to be forfeited each month and the number of months the forfeiture is to continue.
The accused is in pay grade E-_ with over _ years of service, the total basic pay being $_____ per month. Ifretained in that grade, the maximum forfeiture would be $ pay per month for (12) U months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $_____pay per month for (12) Umonths.
Ifreduced to the grade of E-_, the maximum forfeiture would be $_____pay per month for (12) Umonths.
Ifreduced to the grade of E-_, the maximum forfeiture would be $_____pay per month for (12) Umonths.
Ifreduced to the grade of E-_, the maximum forfeiture would be $_____pay per month for (12) U months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $_____ pay per month for (12) Umonths.
(FINE-GENERAL COURT-MARTIAL:) MJ: This court may adjudge a fine either in lieu of or in addition to forfeitures. A fine, when ordered executed, makes the accused immediately liable to the United States for the entire amount of money specified in the sentence.
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(In your discretion, you may adjudge a period of confinement to be served in the event the fine is not paid. Such confinement to enforce payment of the fine would be in addition to any other confinement you might adjudge and the fixed period being an equivalent punishment to the fine. The total of all confinement adjudged, however, may not exceed the maximum confinement for the offense(s) in this case.)
(FINE-SPECIAL COURT-MARTIAL:) MJ: This court may adjudge a fine, either in lieu of or in addition to forfeitures. Ifyou should adjudge a fine, the amount of the fine along with any forfeitures that you adjudge may not exceed the total amount of forfeitures which may be adjudged, that is, forfeiture of two-thirds pay per month for (six) U months(s). A fine when ordered executed makes the accused immediately liable to the United States for the entire amount of the fine.
(In your discretion, you may adjudge a period of confinement to be served in the event the fine is not paid. Such confinement to enforce payment of the fine would be in addition to any other confinement you might adjudge and the fixed period being an equivalent punishment to the fine. The total of all confinement adjudged, however, may not exceed _(month(s)) (year).)
NOTE: Punitive discharges. A DD can be adjudged against noncommissioned warrant officers and enlisted persons only. A BCD may be adjudged only against enlisted persons. A dismissal may be adjudged only against commissioned officers, commissioned warrant officers, and cadets.
(PUNITIVE DISCHARGE:) MJ: The stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that (he) (she) has served honorably. A punitive discharge will affect an accused's future with regard to (his) (her) legal rights, economic opportunities, and social acceptability.
NOTE: Effect ofpunitive discharge on retirement benefits. The following instruction must be given ifrequested and the evidence shows any ofthe following circumstances exist: (1) The accused has sufficient time in service to retire and thus receive retirement benefits; (2) In the case ofan enlisted accused, the accused has sufficient time left on his current term ofenlistment to retire without having to reenlist; (3) In the case ofan accused who is a commissioned or warrant officer, it is reasonable that the accused would be permitted to retire butfor a punitive discharge. In other cases, and especially ifthe members inquire, the military judge should consider the views ofcounsel in deciding whether the following instruction, appropriately tailored, should be given or whether the instruction would suggest an improper speculation upon the effect ofadministrative or collateral consequences ofthe sentence. A request for an instruction regarding the effect ofa punitive discharge on retirement benefits should be liberally granted and denied only in cases where there is no evidentiary predicate for the instruction or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence. The military judge should have counsel present evidence at an Article 39(a) session or
DA PAM 27-9 • 01 January 2010
otherwise to determine the probability ofwhether the accused will reach retirement or eligibilityfor early retirement. Any instruction should be appropriately tailored to the facts ofthe case with the assistance ofcounsel and should include the below instruction. Even if the instruction is not required, the military judge nonetheless should consider giving the instruction and allowing the members to consider the matter. See United States v. Boyd, 55 MJ 217 (CAAF 2001); United States v. Luster, 55 MJ 67 (CAAF 2001); United States v. Greaves, 46 MJ 133 (CAAF 1997); United States v. Sumrall, 45 MJ 207 (CAAF 1996). When the below instruction is appropriate, evidence ofthe future value ofretirement pay the accused may lose ifpunitively discharged is generally admissible. United States v. Becker, 46 MJ 141 (CAAF 1997).
(In addition, a punitive discharge terminates the accused's status and the benefits that flow from that
status, including the possibility of becoming a military retiree and receiving retired pay and benefits.)
NOTE: Legal and (actual obstacles to retirement. Ifthe above instruction is appropriate,
evidence ofthe legal andfactual obstacles to retirement faced by the particular accused is
admissible. Ifsuch evidence is presented, the below instruction should be given. United
States v. Boyd, 55 MJ 217 (CAAF 2001).
(On the issue of the possibility of becoming a military retiree and receiving retired pay and benefits,
you should consider the evidence submitted on the legal and factual obstacles to retirement faced by
the accused.)
NOTE: Vested benefits. Before giving the optional instruction concerning vested benefits contained in the below instructions, see United States v. McElroy. 40 MJ 368 (CMA 1994).
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(DISHONORABLE DISCHARGE ALLOWED:) MJ: This court may adjudge either a dishonorable discharge or a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. (However, vested benefits from a prior period of honorable service are not forfeited by receipt of a dishonorable discharge or a bad-conduct discharge that would terminate the accused's current term of service.) A dishonorable discharge should be reserved for those who in the opinion of the court should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. A bad-conduct discharge is a severe punishment, although less severe than a dishonorable discharge, and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature).
(ONLY BAD-CONDUCT DISCHARGE ALLOWED:) MJ: This court may adjudge a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. (However, vested benefits from a prior period of honorable service are not forfeited by receipt of a bad-conduct discharge that would terminate the accused's current term of service). A bad-conduct discharge is a severe punishment and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature.)
(DISMISSAL:) MJ: This court may adjudge a dismissal. You are advised that a sentence to a dismissal of a (commissioned officer) (cadet) is, in general, the equivalent of a dishonorable discharge of a noncoII1:missioned officer, a warrant officer who is not commissioned, or an enlisted service member. A dismissal deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. It should be reserved for those who in the opinion of the court should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. Dismissal, however, is the only type of discharge the court is authorized to adjudge in this case.
(NO PUNISHMENT:) MJ: Finally, ifyou wish, this court may sentence the accused to no punishment.
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2-5-23. OTHER INSTRUCTIONS MJ: In selecting a sentence, you should consider all matters in extenuation and mitigation as well as those in aggravation, (whether introduced before or after your findings). (Thus, all the evidence you
have heard in this case is relevant on the subject of sentencing.)
MJ: You should consider evidence admitted as to the nature of the offense(s) of which the accused stands convicted, plus:
1.
The accused's age.

2.
The accused's good military character.

3.
The accused's (record) (reputation) in the service for (good conduct) (efficiency) (bravery).

4.
The prior honorable discharge(s) ofthe accused.

5.
The combat record of the accused.

6.
The (family) (domestic) difficulties experienced by the accused.

7.
The financial difficulties experienced by the accused.

8.
The accused's (mental condition) (mental impairment) (behavior disorder) (personality disorder).

9.
The accused's (physical disorder) (physical impairment) (addiction).

10.
The duration ofthe accused's pretrial confinement or restriction.

11.
The accused's GT score of

12.
The accused's education which includes:

13.
That the accused is a graduate of the following service schools: _____

14.
That the accused's (OER's) (NCOER's) ('-___-') indicate: ____

15.
That the accused is entitled to wear the following medals and awards:

16.
Lack of previous convictions or Article 15 punishment.

17.
Past performance and conduct in the Army as reflected by _____

18.
Character evidence-testimony of_____


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19.
(Accused's testimony _____.)

20.
(The accused's expression of his desire to remain in the service.)

21.
(That the accused has indicated that (he/she) does not desire a (BCD) (DD) (Dismissal).

22.
(Testimony of ____________.)


(MJ: Further, you should consider:
(Previous convictions) _____
(Prior Article ISs) ____
(Prosecution exhibits, stipulations, etc.)
(Rebuttal testimony of _____
(Nature of the weapon used in the commission of the offense.)
(Nature and extent ofinjuries suffered by the victim.)
(Period of hospitalization and convalescence required for victim.))
(ACCUSED NOT TESTIFYING:) MJ: The court will not draw any adverse inference from the fact that the accused did not elect to testify.
(ACCUSED NOT TESTIFYING UNDER OATH:) MJ: The court will not draw any adverse inference from the fact that the accused has elected to make a statement which is not under oath. An unsworn statement is an authorized means for an accused to bring information to the attention of the court, and must be given appropriate consideration. The accused cannot be cross-examined by the prosecution or interrogated by court members or me upon an unsworn statement, but the prosecution may offer evidence to rebut statements of fact contained in it. The weight and significance to be attached to an unsworn statement rests within the sound discretion of each court member. You may consider that the statement is not under oath, its inherent probability or improbability, whether it is supported or contradicted by evidence in the case, as well as any other matter that may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use your common sense and your knowledge of human nature and the ways of the world.
NOTE: SCOPE OF ACCUSED'S UNSWORN STATEMENT. The scope olan accused's unsworn statement is broad. United States v. Grill. 48 MJ 131 (CAAF 1998); United States v. Jeffrey. 48 MJ 229 (CAAF 1998); United States v. Britt. 48 MJ 233 (CAAF 1998). lithe accused addresses the treatment or sentence olothers, command options, or other matters
DA PAM 27-9 • 01 January 2010
that would be inadmissible but for their being presented in an unsworn statement, the instruction below may be appropriate. In giving the instruction, the military judge must be careful not to suggest that the members should disregard the accused's unsworn statement.
MJ: The accused's unsworn statement included the accused's personal (thoughts) (opinions) (feelings) (statements) about (certain matters) ('-_____). An unsworn statement is a proper means to bring information to your attention, and you must give it appropriate consideration. Your deliberations should focus on an appropriate sentence for the accused for the offense(s) of which the accused stands convicted.
(For example, it is not your duty (to determine relative blameworthiness of) (and whether appropriate disciplinary action has been taken against) others who might have committed an offense, whether involved with this accused or not) (or) (to try to anticipate discretionary actions that may be taken by the accused's chain of command or other authorities) ('-________).)
(Your duty is to adjudge an appropriate sentence for this accused that you regard as fair and just when it is imposed and not one whose fairness depends upon actions that others (have taken) (or) (may or may not take) (in this case) (or) (in other cases).)
(PLEA OF GUILTY:) MJ: A plea of guilty is a matter in mitigation which must be considered along with all other facts and circumstances of the case. Time, effort, and expense to the government (have been) (usually are) saved by a plea of gUilty. Such a plea may be the first step towards rehabilitation.
(MENDACITY:) MJ: The evidence presented (and the sentencing argument of trial counsel) raised the question of whether the accused testified falsely before this court under oath. No person, including the accused, has a right to seek to alter or affect the outcome of a court-martial by false testimony. You are instructed that you may consider this issue only within certain constraints.
First, this factor should play no role whatsoever in your determination of an appropriate sentence unless you conclude that the accused did lie under oath to the court.
Second, such lies must have been, in your view, willful and material, meaning important, before they can be considered in your deliberations.
Finally, you may consider this factor insofar as you conclude that it, along with all the other circumstances in the case, bears upon the likelihood that the accused can be rehabilitated. You may not mete out additional punishment for the false testimony itself.
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(ARGUMENT FOR A SPECIFIC SENTENCE:) MJ: During argument, trial counsel recommended that you consider a specific sentence in this case. You are advised that the arguments of the trial counsel and (her) (his) recommendations are only (her) (his) individual suggestions and may not be considered as the recommendation or opinion of anyone other than such counsel. In contrast, you are advised that the defense counsel is speaking on behalf of the accused.
2-5-24. CONCLUDING SENTENCING INSTRUCTIONS MJ: When you close to deliberate and vote, only the members will be present. I remind you that you all must remain together in the deliberation room during deliberations. I also remind you that you may not allow any unauthorized intrusion into your deliberations. You may not make communications to or receive communications from anyone outside the deliberations room, by telephone or otherwise. Should you need to take a recess or have a question, or when you have reached a decision, you may notify the Bailiff, who will then notify me of your desire to return to open court to make your desires or decision known. Your deliberations should begin with a full and free discussion on the subject of sentencing. The influence of superiority in rank shall not be employed in any manner to control the independence of members in the exercise of their judgment.
When you have completed your discussion, then any member who desires to do so may propose a sentence. You do that by writing out on a slip of paper a complete sentence. «IF MANDATORY MINIMUM SENTENCE:) Once again, I advise you that any proposed sentence must include at least confinement for life with eligibility for parole.) The junior member collects the proposed sentences and submits them to the president, who will arrange them in order of their severity.
You then vote on the proposed sentences by secret written ballot. All must vote; you may not abstain. Vote on each proposed sentence in its entirety, beginning with the lightest, until you arrive at the required concurrence, which is two-thirds or _ members. (A sentence which includes (confinement for life without eligibility for parole, or confinement for life, or) confinement in excess of ten years requires the concurrence of three-fourths or _ members.)
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Table 2-2 Votes Needed for Sentencing
No. of Members Two-thirds Three-fourths
3 2 *

4 3 *

4
5 4
4 5
6
7 5 6

8 6 6

9 6 7

10 7 8

11 8 9

12 8 9

The junior member will collect and count the votes. The count is then checked by the president who shall announce the result of the ballot to the members. If you vote on all of the proposed sentences without arriving at the required concurrence, you may then repeat the process of discussion, proposal of sentences, and voting. But once a proposal has been agreed to by the required concurrence, then that is your sentence.
You may reconsider your sentence at any time prior to its being announced in open court. If after you determine your sentence, any member suggests you reconsider the sentence, open the court and the president should announce that reconsideration has been proposed without reference to whether the proposed reb allot concerns increasing or decreasing the sentence. I will give you specific instructions on the procedure for reconsideration.
NOTE: See paragraph 2-7-19, RECONSIDERATIONINSTRUCTION (SENTENCE). MJ: As an aid in putting the sentence in proper form, the court may use the Sentence Worksheet marked Appellate Exhibit _, which the Bailiff may now hand to the president. BAILIFF: (Complies.)
MJ: Extreme care should be exercised in using this worksheet and in selecting the sentence form which properly reflects the sentence of the court. If you have any questions concerning sentencing matters, you should request further instructions in open court in the presence of all parties to the trial. In this connection, you are again reminded that you may not consult the Manual for Courts-Martial or any other publication or writing not properly admitted or received during this trial. These
DA PAM 27-9' 01 January 2010
instructions must not be interpreted as indicating an opinion as to the sentence that should be
adjudged, for you alone are responsible for determining an appropriate sentence in this case. In
arriving at your determination, you should select the sentence which will best serve the ends of good
order and discipline, the needs of the accused, and the welfare of society. When the court has
determined a sentence, the inapplicable portions of the Sentence Worksheet should be lined through.
When the court returns, I will examine the Sentence Worksheet. The president will then announce the
sentence.

MJ: Do counsel object to the instructions as given or request other instructions?
TC/DC: (Respond.)

MJ: Does any member of the court have any questions?
MBR: (Responds.)

MJ: (COL) ~_____, if you desire a recess during your deliberations, we must first formally
reconvene the court and then recess. Knowing this, do you desire to take a brief recess before you
begin deliberations or would you like to begin immediately?
PRES: (Responds.)

MJ: (Trial Counsel) (Bailiff), please give the president Prosecution Exhibit(s) _ (and Defense
Exhibit(s) -->.
TC/BAILIFF: (Complies.)

MJ: (COL) ~_____, please do not mark on any of the exhibits, except the Sentence
Worksheet and please bring all the exhibits with you when you return to announce the sentence.
TC: (Complies.)

MJ: The court is closed.

2-5-25. ANNOUNCEMENT OF SENTENCE
MJ: The court is called to order.
TC: All parties to include the court members are present.

MJ: ( ), have you reached a sentence?
PRES: (Responds.)

DA PAM 27-9·01 January 2010
NOTE: Ifthe president indicates that the members are unable to agree on a sentence, the MJ should give 2-7-18, "HUNG JURY" INSTRUCTION.
MJ: ('-___--'), is the sentence reflected on the Sentence Worksheet?
PRES: (Respond.)
MJ: (______), please fold the Sentence Worksheet and give it to the Bailiff so that I can examine
it.
BAILIFF: (Complies.)
MJ: I have reviewed the Sentence Worksheet and it appears (to be in proper form) (_____-i).
Bailiff, you may return it to the president.
BAILIFF: (Complies.)

MJ: Defense Counsel and Accused, please rise.
ACCIDC: (Comply.)

MJ: ('-___-'), please announce the sentence.
PRES: (Complies.)

MJ: Please be seated. (Trial Counsel) (Bailiff), please retrieve the exhibit(s) from the president.
TCIBAILIFF: (Complies.)

MJ: Members of the Court, before I excuse you, let me advise you of one matter. Ifyou are asked
about your service on this court-martial, I remind you of the oath you took. Essentially, the oath
prevents you from discussing your deliberations with anyone, to include stating any member's opinion
or vote, unless ordered to do so by a court. You may, of course, discuss your personal observations in
the courtroom and the process of how a court-martial functions, but not what was discussed during
your deliberations. Thank you for your attendance and service. You are excused. Counsel and the
accused will remain.
MBRS: (Comply.)

MJ: The members have withdrawn from the courtroom. All other parties are present.
(PRETRIAL CONFINEMENT CREDIT:) MJ: The accused will be credited with _ days of pretrial confinement against the accused's term of confinement. NOTE: Ifthere was no pretrial agreement, go to paragraph 2-6-14, POST-TRIAL AND APPELLATE RIGHTS ADVICE; ifthere was a pretrial agreement continue:
DA PAM 27-9·01 January 2010
MJ: _____, we are now going to discuss the operation of your pretrial agreement on the
sentence of the court.
MJ: It is my understanding that the effect of the pretrial agreement on the sentence is that the
convening authority may approve _____. Do you agree with that interpretation?
ACC: (Responds.)

MJ: Do counsel also agree with that interpretation?
TC/DC: (Respond.)

2-5-26. POST-TRIAL AND APPELLATE RIGHTS ADVICE
MJ: Defense Counsel, have you advised the accused orally and in writing of (his) (her) post-trial and
appellate rights?
DC: Yes, Your Honor. Appellate Exhibit _ is the written advisement.

MJ: Does the accused have a copy in front of (him) (her)?
DC: (Responds.)

MJ: , is that your signature on Appellate Exhibit _?
ACC: Yes, Your Honor.

MJ: Defense Counsel, is that your signature on Appellate Exhibit _?
DC: Yes, Your Honor.

MJ: , did your defense counsel explain your post-trial and appellate rights to you?
ACC: (Responds.)

MJ: Did your defense counsel explain to you what matters you may submit to the convening authority
for his/her consideration under ReM 1105 and ReM 1106?
ACC: (Responds.)

MJ: Did your defense counsel explain to you that under ReM 1105 and ReM 1106 you may submit
any matters to the convening authority to include, but not limited to, a personal letter and documents,
letters and documents from any other person, requests for deferment and waiver of forfeitures, and
any other matter you desire for the convening authority to consider before taking action on your case?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: Do you understand that it is your responsibility to keep in contact with your defense counsel and
let him/her know your desires in this regard?
ACC: (Responds.)

MJ: Do you understand that if your defense counsel cannot locate you it will be difficult for him/her
to know what to submit for you to the convening authority?
ACC: (Responds.)

MJ: Now, if your defense counsel tries to contact you but is unsuccessful, do you authorize him or her
to submit clemency matters on your behalf to the Convening authority as he or she deems
appropriate?
ACC: (Responds.)

MJ: , do you have any questions about your post-trial and appellate rights?
ACC: (Responds.)

(IF MORE THAN ONE DEFENSE COUNSEL:) MJ: Which counsel will be responsible for post-trial
actions in this case and upon whom is the staff judge advocate's post-trial recommendation to be
served?
DC: (Responds.)

MJ: Are there any other matters to take up before this court adjourns?
TC/DC: (Respond.)

MJ: This court is adjourned.
DA PAM 27-9 • 01 January 2010
Section VI
Court Members (Sentencing Only)
MJ: _____, we now enter into the sentencing phase of the trial where you have the right to
present matters in extenuation and mitigation, that is, matters about the offense(s) or yourself, which
you want the court to consider in deciding your sentence. In addition to the testimony of witnesses and
the offering of documentary evidence, you may, yourself, testify under oath as to these matters, or you
may remain silent, in which case the court members may not draw any adverse inference from your
silence. On the other hand, ifyou desire, you may make an unsworn statement. Because the statement
is unsworn, you cannot be cross-examined on it; however, the government may offer evidence to rebut
any statement of fact contained in any unsworn statement. An unsworn statement may be made
orally, in writing, or both. It may be made by you, by your counsel on your behalf, or by both. Do you
understand these rights?
ACC: (Responds.)

MJ: Counsel, is the personal data on the first page of the charge sheet correct?
TCIDC: (Respond.)

MJ: Defense Counsel, has the accused been punished in any way prior to trial that would constitute
illegal pretrial punishment under Article 13?
DC: (Responds.)

MJ: _____, is that correct? ACC: (Responds.)
MJ: Based upon the findings, I calculate the maximum punishment to be ___
TCIDC: (Respond.)

MJ: Do counsel agree that an instruction on a fine is (not) appropriate in this case?
TCIDC: (Respond.)

MJ: Counsel, based on the information on the charge sheet, the accused is to be credited with ___
days of pretrial confinement credit. Is that the correct amount?
TC/DC: (Respond.)

MJ: Trial Counsel, please mark the Sentence Worksheet as Appellate Exhibit _, show it to the
defense, and present it to me.

DA PAM 27-9 • 01 January 2010
TC: (Complies.)
NOTE. ListinJ! ofpunishments. Only those punishments on which an instruction will be given should ordinarily be listed on the Sentence Worksheet; ifall have agreed that a fine is not appropriate, then it ordinarily should not be listed on the worksheet.
MJ: Defense Counsel, do you have any objections to the Sentence Worksheet?
DC: (Responds.)
MJ: Counsel, do you have any documentary evidence on sentencing which could be marked and
offered at this time?
TCIDC: (Respond.)
MJ: Is there anything else by either side before we call the members?
TCIDC: (Respond.)
MJ: Bailiff, call the court members.
NOTE: Whenever the members enter the courtroom, all persons except the MJ and reporter shall rise. The members are seated alternately to the right and left ofthe president according to rank.
MJ: You may be seated. The court is called to order.
TC: The court is convened by Court-Martial Convening Order No. _, Headquarters dated ___ (as amended by ), (a copy) (copies) of which (has) (have) been furnished to each member ofthe court. The accused and the following persons detailed to this court-martial are present: _____, Military Judge; , Trial Counsel; , Defense Counsel; and _____ _____ _____, & , Court Members. The following persons are absent:
NOTE: Members who have been relieved (viced) by orders need not be mentioned.
TC: The prosecution is ready to proceed with trial in the case ofthe United States versus (PVT) ( )
MJ: The members of the court will now be sworn. All persons in the courtroom, please rise.
TC: Do you swear or affirm that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trials by court-martial, the case ofthe accused now before this court; and that you will not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the sentence unless required to do so in the due course of law, so help you God?
MBRS: (Comply.)
MJ: Please be seated. The court is assembled.
DA PAM 27-9' 01 January 2010
2-6-1. PRELIMINARY INSTRUCTIONS MJ: Members of the Court, it is appropriate that I give you some preliminary instructions. My duty as military judge is to ensure this trial is conducted in a fair, orderly, and impartial manner in accordance with the law. I preside over open sessions, rule upon objections, and instruct you on the law applicable to this case. You are required to follow my instructions on the law and may not consult any other source as to the law pertaining to this case unless it is admitted into evidence. This rule applies throughout the trial including closed sessions and periods of recess and adjournment. Any questions you have of me should be asked in open court.
At a session held earlier, the accused pled guilty to the charge(s) and specification(s) which you have before you. I accepted that plea and entered findings of guilty. Therefore, you will not have to determine whether the accused is guilty or not guilty as that has been established by (his) (her) plea. Your duty is to determine an appropriate sentence. That duty is a grave responsibility requiring the exercise of wise discretion. Your determination must be based upon all the evidence presented and the instructions I will give you as to the applicable law. Since you cannot properly reach your determination until all the evidence has been presented and you have been instructed, it is ofvital importance that you keep an open mind until all the evidence and instructions have been presented to you.
Counsel soon will be given an opportunity to ask you questions and exercise challenges. With regard to challenges, if you know of any matter that you feel might affect your impartiality to sit as a court member, you must disclose that matter when asked to do so. Bear in mind that any statement you make should be made in general terms so as not to disqualify other members who hear the statement.
Any matter that may affect your impartiality regarding an appropriate sentence for the accused is a ground for challenge. Some of the grounds for challenge would be if you were the accuser in the case, ifyou have investigated any offense charged, if you have formed a fixed opinion as to what an appropriate punishment would be for this accused (as to any enlisted member, that you belong to the same company sized unit as the accused). To determine ifany grounds for challenge exist, counsel for both sides are given an opportunity to question you. These questions are not intended to embarrass you. They are not an attack upon your integrity. They are asked merely to determine whether a basis for challenge exists.
It is no adverse reflection upon a court member to be excused from a particular case. You may be questioned either individually or collectively, but in either event, you should indicate an individual
DA PAM 27-9' 01 January 2010
response to the question asked. Unless I indicate otherwise, you are required to answer all questions. You must keep an open mind throughout the trial. You must impartially hear the evidence, the instructions on the law, and only when you are in your closed session deliberations may you properly make a determination as to an appropriate sentence, after considering all the alternative punishments of which I will later advise you. You may not have a preconceived idea or formula as to either the type or the amount of punishment which should be imposed, if any.
Counsel are given an opportunity to question all witnesses. When counsel have finished, if you feel there are substantial questions that should be asked, you will be given an opportunity to do so. The way we handle that is to require you to write out the question and sign legibly at the bottom. This
method gives counsel for both sides and me an opportunity to review the questions before they are asked since your questions, like questions of counsel, are subject to objection. (There are forms provided to you for your use ifyou desire to question any witness.) I will conduct any needed examination. There are a couple of things you need to keep in mind with regard to questioning.
First, you cannot attempt to help either the government or the defense.
Second, counsel have interviewed the witnesses and know more about the case than we do. Very often they do not ask what may appear to us to be an obvious question because they are aware this particular witness has no knowledge on the subject.
Rules of evidence control what can be received into evidence. As I indicated, questions of witnesses are subject to objection. During the trial, when I sustain an objection, disregard the question and answer. IfI overrule an objection, you may consider both the question and answer.
During any recess or adjournment, you may not discuss the case with anyone, not even among yourselves. You must not listen to or read any account of the trial or consult any source, written or otherwise, as to matters involved in the case. You must hold your discussion of the case until you are all together in your closed session deliberations so that all of the members have the benefit of your discussion. Do not purposely visit the scene of any incident alleged in the specification(s) or involved in the trial. You must also avoid contact with witnesses or potential witnesses in this case. Ifanyone attempts to discuss the case in your presence during any recess or adjournment, you must immediately tell them to stop and report the occurrence to me at the next session. I may not repeat these matters to you before every break or recess, but keep them in mind throughout the trial.
We will try to estimate the time needed for recesses or hearings out of your presence. Frequently their duration is extended by consideration of new issues arising in such hearings. Your patience and
DA PAM 27-9 • 01 January 2010
understanding regarding these matters will contribute greatly to an atmosphere consistent with the
fair administration ofjustice.
While you are in your closed session deliberations, only the members will be present. You must
remain together and you may not allow any unauthorized intrusion into your deliberations. Each of
you has an equal voice and vote with the other members in discussing and deciding all issues
submitted to you. However, in addition to the duties of the other members, the senior member will act
as your presiding officer during your closed session deliberations, and will speak for the court in
announcing the results.

This general order of events can be expected at this court-martial: Questioning of court members,

challenges and excusals, presentation of evidence, closing argument by counsel, instructions on the
law, your deliberations, and announcement of the sentence.

The appearance and demeanor of all parties to the trial should reflect the seriousness with which the
trial is viewed. Careful attention to all that occurs during the trial is required of all parties. Ifit
becomes too hot or cold in the courtroom, or if you need a break because of drowsiness or for comfort
reasons, please tell me so that we can attend to your needs and avoid potential problems that might
otherwise arise.

Each of you may take notes if you desire and use them to refresh your memory during deliberations,
but they may not be read or shown to other members. At the time of any recess or adjournment, you
should (take your notes with you for safekeeping until the next session) (leave your notes in the
courtroom).

One other administrative matter: if during the course of the trial it is necessary that you make any
statement, if you would preface the statement by stating your name, that will make it clear on the
record which member is speaking.

MJ: Are there any questions?
MBRS: (Respond.)

MJ: (Apparently not.) Please take a moment to read the charges on the flyer provided to you and to
ensure that your name is correctly reflected on (one of) the convening order(s). Ifit is not, please let
me know.
MBRS: (Comply.)

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MJ: Trial Counsel, you may announce the general nature ofthe charge(s).
TC: The general nature ofthe charge(s) in this case is: ____the charge(s) (was) (were) preferred by _____; forwarded with recommendations as to disposition by (and investigated by
---~).
TC: The records of this case disclose (no grounds for challenge) (grounds for challenge of_____ for the following reasons).
TC: If any member ofthe court is aware ofany matter which he ( or she) believes may be a ground for challenge by either side, such matter should now be stated.
MBRS: (Respond.) or
TC: (Negative response from the court members.)
2-6-2. VOIR DIRE MJ: Before counsel ask you any questions, I will ask a few preliminary questions. Ifany member has an affirmative response to any question, please raise your hand.
1.
Does anyone know the accused? (Negative response.) (Positive response from _____.)

2.
Does anyone know any person named in any of the specifications?

3.
Having seen the accused and having read the charge(s) and specification(s), does anyone feel that you cannot give the accused a fair trial for any reason?

4.
Does anyone have any prior knowledge ofthe facts or events in this case?

5.
Has anyone or any member of your family ever been charged with an offense similar to any of those charged in this case?

6.
Has anyone, or any member ofyour family, or anyone close to you personally, ever been the victim of an offense similar to any of those charged in this case?

7.
Ifso, will that experience influence your performance of duty as a court member in this case in any way?


NOTE: IfQuestion 7 is answered in the affirmative, the military judge may want to ask any additional questions concerning this outside the hearing ofthe other members.
8.
How many of you are serving as court members for the first time?

9.
(As to the remainder) Can each of you who has previously served as a court member put aside anything you may have heard in any previous proceeding and decide this case solely on the basis of the evidence and my instructions as to the applicable law?

10.
Has anyone had any specialized law enforcement training or experience, to include duties as a military police officer, off-duty security guard, civilian police officer or comparable duties other than the general law enforcement duties common to military personnel of your rank and position?

11.
Is any member of the court in the rating chain, supervisory chain, or chain of command, of any other member?


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NOTE: Ifquestion 11 is answered in the affirmative, the military judge may want to ask questions 12 and 13 out ofthe hearing ofthe other members.
12.
(To junior) Will you feel inhibited or restrained in any way in performing your duties as a court member, including the free expression of your views during deliberation, because another member holds a position of authority over you?

13.
(To senior) Will you be embarrassed or restrained in any way in the performance of your duties as a court member if a member over whom you hold a position of authority should disagree with you?

14.
Has anyone had any dealings with any of the parties to the trial, to include me and counsel, which might affect your performance of duty as a court member in any way?

15.
Does anyone know of anything of either a personal or professional nature that would cause you to be unable to give your full attention to these proceedings throughout the trial?

16.
It is a ground for challenge that you have an inelastic predisposition toward the imposition of a particular punishment based solely on the nature ofthe crime(s) for which the accused is to be sentenced. Does any member, having read the charge(s) and specification(s), believe that you would be compelled to vote for any particular punishment solely because of the nature of the charge(s)?

17.
You will be instructed in detail before you begin your deliberations. I will instruct you on the full range of punishments (from no punishment) up to the maximum punishment. You should consider all forms of punishment within that range. Consider doesn't necessarily mean that you would vote for that particular punishment. Consider means that you think about and make a choice in your mind, one way or the other, as to whether that's an appropriate punishment. Each member must keep an open mind and not make a choice, nor foreclose from consideration any possible sentence, until the closed session for deliberations and voting on the sentence. Can each of you follow this instruction?

18.
Can each of you be fair, impartial, and open-minded in your consideration of an appropriate sentence in this case?

19.
Can each of you reach a decision on a sentence on an individual basis in this particular case and not solely upon the nature of the offense (or offenses) of which the accused has been convicted?

20.
Is any member aware of any matter that might raise a substantial question concerning your participation in this trial as a court member?


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MJ: Do counsel for either side desire to question the court members?
NOTE: Trial Counsel and Defense Counsel will conduct voir dire ifdesired, and
individual voir dire will be conducted, ifrequired.
2-6-3. INDIVIDUAL VOIR DIRE MJ: Members of the Court, there are some matters that we must now consider outside of your presence. Please return to the deliberation room. Some ofyou may be recalled, however, for individual questioning. MBRS: (Comply.)
MJ: All the members are absent. All other parties are present. Trial Counsel, do you request
individual voir dire and if so, state the member and your reason(s).
TC: (Responds.)
MJ: Defense Counsel, do you request individual voir dire and if so, state the member and your
reason(s).
DC: (Responds.)
2-6-4. CHALLENGES
NOTE: Challenges are to be made outside the presence ofthe court members in an Article 39(a) session. RCM 912 encompasses challenges based upon both actual bias and implied bias. United States v. Clay. 64 MJ 274,276 (CAAF 2007). Military Judges should analyze all challenges for cause under both actual and implied bias theories, even ifthe counsel do not specifically use these terms. The test for actual bias is whether the member's bias will
not yield to the evidence presented and the judge's instructions. The existence ofactual
bias is a question offact; accordingly, the military judge is afforded significant latitude in
determining whether it is present in a prospective member. The military judge's physical
presence during voir dire and ability to watch the challenged member's demeanor make the
military judge specially situated in making this determination. United States v. Terry. 64
MJ 295 (CAAF 2007). Implied bias exists when, despite a disclaimer, most people in the
DA PAM 27-9 • 01 January 2010
same position as the court member would be prejudiced. United States v. Napolitano, 53
MJ 162 (CAAF 2000). In determining whether implied bias is present, military judges look
to the totality ofthe circumstances. United States v. Strand, 59 MJ 455,459 (CAAF
CA2004). Implied bias is viewed objectively, through the eyes ofthe public. Implied bias
exists ifan objective observer would have substantial doubt about the fairness ofthe
accused's court-martial panel. Because ofthe objective nature ofthe inquiry, appellate
courts accord less deference to implied bias determinations ofa military judge. United
States v. Armstrong, 54 MJ 51,54 (CAAF 2000). In close cases, military judges are
enjoined to liberally grant defense challengesfor cause. United States v. Clay, 64 MJ 274
(CAAF 2007). This "liberal grant mandate" does not apply to government challenges for
cause. United States v. James. 61 MJ 132 (CAAF 2005). Where a military judge does not
indicate on the record that s/he has considered the liberal grant mandate during the
evaluation for implied bias ofa defense challenge for cause, the appellate courts will
accord that decision less deference during review ofthe ruling. Therefore, when ruling on
a defense challenge for cause, the military judge should (1) state that he/she has considered
the challenge under both actual and implied bias theories, and is aware ofthe duty to
liberally grant defense challenges; and (2) place the reasoning on the record. United States
v. Townsend, 65 MJ 460, 464 (CAAF 2008). The following is a suggested procedure for an Article 39(a) session.
MJ: Members of the Court, there are some matters that we must now take up outside of your
presence. Please return to the deliberation room.
MBRS: (Comply.)
MJ: All the members are absent. All other parties are present. Trial Counsel, do you have any
challenges for cause?
TC: (Responds.)
(IF A CHALLENGE IS MADE) MJ: Defense Counsel, do you object?
DC: (Responds.)
MJ: (GrantedlDenied.)
MJ: Defense Counsel, do you have any challenges for cause?
DC: (Responds.)
(IF A CHALLENGE IS MADE) MJ: Trial Counsel, do you object?
TC: (Responds.)
(IF THE MJ IS GRANTING THE CHALLENGE) MJ: The challenge is granted.
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(FOR EACH CHALLENGE THE MJ IS DENYING) MJ: I have considered the challenge for cause on the basis of both actual and implied bias and the mandate to liberally grant defense challenges. The challenge is denied because ('-_____).
MJ: Trial Counsel, do you have a peremptory challenge? TC: (Responds.)
MJ: Defense Counsel, do you have a peremptory challenge? DC: (Responds.)
NOTE: The MJ will verify that a quorum remains and, ifenlisted members are detailed, at least one-third are enlisted. Ifany member is excused as a result ofa challenge, the member will be informed that slhe has been excused; the seating for the remaining members will be rearranged according to rank.
MJ: Call the members.
2-6-5. SENTENCING PROCEEDINGS
TC: All parties are present as before, to now include the court members (with the exception of_____ who (has) (have) been excused).
MJ: Court Members, at this time we will begin the sentencing phase of this court-martial. Trial
Counsel, you may read the personal data concerning the accused as shown on the first page of the
charge sheet.
TC: The first page ofthe charge sheet shows the following personal data concerning the accused:

MJ: Members ofthe Court, I have previously admitted into evidence (Prosecution Exhibit(s)_,
which (is) (are) _____) (and) (Defense Exhibit(s) _, which (is) (are) _____). You will

have (this) (these) exhibit(s) available to you during your deliberations. (Trial Counsel, you may read
the stipulation of fact into evidence.) Trial Counsel, do you have anything else to present at this time?
TC: (Responds and presents case on sentencing.)

NOTE: The TC administers the oath/affirmation for all witnesses.
MJ: Does any court member have questions of this witness? MBRS: (Respond.)
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NOTE: Ifthe members have questions, the TC will collect the written questions, have them marked as appellate exhibits, examine them, show them to the DC, andpresent them to the MJ so that the MJ may ask the witness the questions.
MJ: _____, you are excused. You may step down and (return to your duties) (go about your
business).
TC: The government rests.

MJ: Defense Counsel, you may proceed.
DC: (Responds and presents case on sentencing.)

DC: The defense rests.

2-6-6. REBUTTAL AND SURREBUTTAL, IF ANY
MJ: Trial Counsel, any rebuttal?
TC: (Responds / presents case.)

MJ: Defense Counsel, any surrebuttal?
DC: (Responds / presents case.)

MJ: Members of the Court, you have now heard all the evidence. At this time, we need to have a
hearing outside of your presence to go over the instructions that I will give you. I expect that you will
be required to be present again in about ___
MBRS: (Comply.)

2-6-7. DISCUSSION OF SENTENCING INSTRUCTIONS
MJ: All parties are present as before, except the court members who are absent.

NOTE: Ifthe accused did not testify or provide an unsworn statement, the MJ must ask the following question outside the presence ofthe members:
MJ: _____, you did not testify or provide an unsworn statement during the sentencing phase of
the trial. Was it your personal decision not to testify or provide an unsworn statement?
ACC: (Responds.)

MJ: Counsel, I intend to give the standard sentencing instructions. Do counsel have any requests for
any special instructions?
TCIDC: (Respond.)

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NOTE: Credit for Article 15 Punishment. Ifevidence ofan Article 15 was admitted at trial which reflects that the accused received nonjudicial punishment for the same offense which the accused was also convicted at the court-martial, ~paragraph 2-7-21, CREDIT FOR ARTICLE 15 PUNISHMENT.
MJ: (IF THE ACCUSED ELECTED NOT TO TESTIFY.) Does the defense wish the instruction regarding the fact the accused did not testify?
NOTE: Unsworn statement instruction: within discretion ofMJ. See United States v. Breese. 11 MJ 17 (CMA 1981).
MJ: Call the members.

2-6-8. SENTENCING ARGUMENTS
MJ: The court is called to order.
TC: All parties, to include the members, are present.

MJ: Trial Counsel, you may present argument.
TC: (Argument.)

MJ: Defense Counsel, you may present argument.
DC: (Argument.)

NOTE: Ifthe DC concedes that a punitive discharge is appropriate, the MJ shall conduct an out-of-court hearing to ascertain ifthe accused knowingly and intelligently agrees with counsel's actions with respect to a discharge. Ifthe matter is raised before argument is made, the MJ should caution the DC to limit the request to a bad-conduct discharge. See paragraph 2-7-27for the procedural instructions on ARGUMENT OR REQUEST FOR A PUNITIVE DISCHARGE.
2-6-9. SENTENCING INSTRUCTIONS MJ: Members of the Court, you are about to deliberate and vote on the sentence in this case. It is the
duty of each member to vote for a proper sentence for the offense(s) of which the accused has been found gUilty. Your determination of the kind and amount of punishment, ifany, is a grave responsibility requiring the exercise of wise discretion. Although you must give due consideration to
all matters in mitigation and extenuation, (as well as to those in aggravation), you must bear in mind that the accused is to be sentenced only for the offense(s) of which (he) (she) has been found guilty.
(IF OFFENSES ARE ONE FOR SENTENCING PURPOSES:) MJ: The offenses charged in _____ and _____ are one offense for sentencing purposes. Therefore, in determining an appropriate sentence in this case, you must consider them as one offense.
DA PAM 27-9·01 January 2010
MJ: You must not adjudge an excessive sentence in reliance upon possible mitigating action by the convening or higher authority. (A single sentence shall be adjudged for all offenses of which the accused has been found gUilty.) (A separate sentence must be adjudged for each accused.)
NOTE: Confinement for Life without Eligibility for Parole. Whenever an accused is eligible to be sentenced to confinementfor lifefor an offense occurring after 19 November 1997, the military judge must instruct that confinement for life without eligibility for parole is also a permissible punishment.
(MAXIMUM PUNISHMENT:) MJ: The maximum punishment that may be adjudged in this case is:
a.
Reduction to the grade of ___

b.
Forfeiture of «2/3ds) (-> pay per month for (12) (-> months) (all pay and allowances),

c.
Confinement for ___, (and),

d.
(A dishonorable discharge) (A bad-conduct discharge) (dismissal from the service).


The maximum punishment is a ceiling on your discretion. You are at liberty to arrive at any lesser legal sentence.
MJ: In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe «IF NO MANDATORY MINIMUM SENTENCE:) or you may adjudge no punishment). There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principal reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of (his) (her) crime(s) and (his) (her) sentence from committing the same or similar offenses. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion.
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2-6-10. TYPES OF PUNISHMENT
NOTE: Thefollowing specific instructions on each type ofpunishment are optional but recommended. The instruction on the maximum punishment and the use by the members ofa legally sufficient Sentence Worksheet listing the full range ofpunishments will suffice. However, the MJ must instruct on the effect ofArticle 58a and b, the nature ofpunitive discharges, andpretrial confinement credit, ifapplicable.
(REPRIMAND:) MJ: This court may adjudge a reprimand, being in the nature of a censure. The
court shall not specify the terms or wording of any adjudged reprimand.
(REDUCTION:) MJ: This court may adjudge reduction to the lowest (or any intermediate) enlisted
grade, either alone or in connection with any other kind of punishment within the maximum limitation. A reduction carries both the loss of military status and the incidents thereof and results in
a corresponding reduction of military pay. You should designate only the pay grade to which the
accused is to be reduced, for example, E-_. (An accused may not be reduced laterally, that is, from corporal to specialist).
(EFFECT OF ARTICLE 58a-U.S. ARMY:) MJ: I also advise you that any sentence of an enlisted service member in a pay grade above E-l which includes either of the following two punishments will automatically reduce that service member to the lowest enlisted pay grade E-l by operation oflaw. The two punishments are: One, a punitive discharge (meaning in this case, a (bad-conduct discharge) (or a dishonorable discharge); or two, confinement in excess of six months, ifthe sentence is adjudged in months, or 180 days, ifthe sentence is adjudged in days. Accordingly, if your sentence includes either a punitive discharge or confinement in excess of six months or 180 days, the accused will automatically be reduced to E-l. However, notwithstanding these automatic provisions if you wish to sentence the accused to a reduction, you should explicitly state the reduction as a separate element of the sentence.
(RESTRICTION:) MJ: This court may adjudge restriction to limits for a maximum period not exceeding two months. For such a penalty, it is necessary for the court to specify the limits of the restriction and the period it is to run. Restriction to limits will not exempt an accused from any assigned military duty.
(HARD LABOR WITHOUT CONFINEMENT:) MJ: This court may sentence the accused to hard labor without confinement for a maximum period not exceeding three months. Such hard labor would be performed in addition to other military duties which would normally be assigned. In the usual
DA PAM 27-9 • 01 January 2010
course of business, the immediate commanding officer assigns the amount and character of the hard labor to be performed.
NOTE: Ifthe maximum authorized confinement is one month, the maximum hard labor without confinement that can be adjudged is 45 days.
(CONFINEMENT:) MJ: As I have already indicated, this court may sentence the accused to confinement for ((life without eligibility for parole) (life) (a maximum of __(years) (months». (Unless confinement for life without eligibility for parole or confinement for life is adjudged,) A sentence to confinement should be adjudged in either full days (or) full months (or full years); fractions (such as one-half or one-third) should not be employed. (So, for example, if you do adjudge confinement, confinement for a month and a half should instead be expressed as confinement for 45 days. This example should not be taken as a suggestion, only an illustration of how to properly announce your sentence.)
NOTE: Ifconfinementfor life without eligibility for parole is an available punishment, instruct further as follows:
(You are advised that a sentence to "confinement for life without eligibility for parole" means that the accused will not be eligible for parole by any official, but it does not preclude clemency action which might convert the sentence to one which allows parole. A sentence to "confinement for life" or any lesser confinement term, by comparison, means that the accused will have the possibility of earning parole from confinement under such circumstances as are or may be provided by law or regulations. "Parole" is a form of conditional release of a prisoner from actual incarceration before (his) (her) sentence has been fulfilled on specific conditions and under the possibility of return to incarceration to complete (his) (her) sentence to confinement if the conditions of parole are violated. In determining whether to adjudge "confinement for life without eligibility for parole" or "confinement for life" (if either), you should bear in mind that you must not adjudge an excessive sentence in reliance upon possible mitigating, clemency, or parole action by the convening authority or any other authority.)
NOTE: Ifa mandatory minimum sentence is required for an offense for which the accused is to be sentenced, use the following instructions (instead ofthe preceding instructions on confinement):
(CONFINEMENT:) MJ: You are advised that the law imposes a mandatory minimum sentence of confinement for life (with eligibility for parole) for the offense(s) of which the accused has been convicted. Accordingly, the sentence you adjudge must include a term of confinement for life (with eligibility for parole). (You have the discretion to determine whether that confinement will be "with eligibility for parole" or "without eligibility for parole.")
DA PAM 27-9·01 January 2010
(A sentence to "confinement for life without eligibility for parole" means that the accused will be confined for the remainder of (his) (her) life, and will not be eligible for parole by any official, but it does not preclude clemency action that might convert the sentence to one that allows parole.) A sentence to "confinement for life with eligibility for parole," (by comparison,) means the accused will be confined for the rest of (his) (her) life, but (he) (she) will have the possibility of earning parole from such confinement, under such circumstances as are or may be provided by law or regulations. "Parole" is a form of conditional release of a prisoner from actual incarceration before (his) (her) sentence has been fulfilled, on specific conditions of exemplary behavior and under the possibility of return to incarceration to complete (his) (her) sentence of confinement ifthe conditions of parole are violated. (In determining whether to adjudge "confinement for life without eligibility for parole" or "confinement for life with eligibility for parole" in the sentence, bear in mind that you must not adjudge an excessive sentence in reliance upon possible mitigating or clemency action by the convening authority or any higher authority nor, in the case of "confinement for life with eligibility for parole," in reliance upon future decisions on parole that might be made by appropriate officials.)
(PRETRIAL CONFINEMENT CREDIT, IF APPLICABLE:) MJ: In determining an appropriate sentence in this case, you should consider that the accused has spent _ days in pretrial confinement. Ifyou adjudge confinement as part of your sentence, the days the accused spent in pretrial confinement will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve (his) (her) confinement, and will be given on a day for day basis.
(FORFEITURES ALL PAY AND ALLOWANCES:) MJ: This court may sentence the accused to forfeit all pay and allowances. A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining the amount of forfeiture, ifany, the court should consider the implications to the accused (and (his) (her) family) of such a loss ofincome. Unless a total forfeiture is adjudged, a sentence to a forfeiture should include an express statement of a whole dollar amount to be forfeited each month and the number of months the forfeiture is to continue. The accused is in pay grade E-_ with over _ years of service, the total basic pay being $ ___per month.
NOTE: As an option, the MJ may, instead ofgiving the oral instructions that follow,
present the court members with a pay chart to use during their deliberations.

MJ: Ifreduced to the grade ofE-_, the accused's total basic pay would be $ ___
Ifreduced to the grade ofE-_, the accused's total basic pay would be $ ___
DA PAM 27-9·01 January 2010
If reduced to the grade of E-_, the accused's total basic pay would be $ ___
Ifreduced to the grade ofE-_, the accused's total basic pay would be $ ___
Ifreduced to the grade of E-_, the accused's total basic pay would be $ ___
MJ: This court may adjudge any forfeiture up to and including forfeiture of all pay and allowances.

(EFFECT OF ARTICLE 58b IN GCM) MJ: Any sentence which includes (either (1) confinement for
more than six months or (2» any confinement and a (punitive discharge) (Dismissal) will require the
accused, by operation of law, to forfeit all pay and allowances during the period of confinement.
However, ifthe court wishes to adjudge any forfeitures of pay and/or pay and allowances, the court
should explicitly state the forfeiture as a separate element of the sentence.

(EFFECT OF ARTICLE 58b IN SPCM WHEN BCD AUTHORIZED)
MJ: Any sentence which includes (either (1) confinement for more than six months or (2» any
confinement and a bad-conduct discharge will require the accused, by operation of law, to forfeit two­
thirds of (his) (her) pay during the period of confinement. However, if the court wishes to adjudge any
forfeitures of pay, the court should explicitly state the forfeiture as a separate element of the sentence.

(EFFECT OF ARTICLE 58b IN SPCM-BCD NOT AUTHORIZED)
MJ: Any sentence which includes confinement for more than six months will require the accused, by
operation of law, to forfeit two-thirds of (his) (her) pay during the period of confinement. However, if
the court wishes to adjudge any forfeitures of pay, the court should explicitly state the forfeiture as a
separate element of the sentence.

NOTE: The following instruction may be given in the discretion ofthe trial judge:
(MJ: (The) (trial) (and) (defense) counsel (has) (have) made reference to the availability (or lack thereof) of monetary support for the accused's family member(s). Again, by operation oflaw, if you adjudge:
(FOR GCM) (either (1) confinement for more than six months, or (2» any confinement and a (punitive discharge) (Dismissal), then the accused will forfeit all pay and allowances due (him) (her) during any period of confinement.
(FOR SPCM WHEN BCD AUTHORIZED) (either (1) confinement for more than six months, or (2» any confinement and a bad-conduct discharge, then the accused will forfeit two-thirds of all pay due (him) (her) during any period of confinement.
DA PAM 27-9 • 01 January 2010
(FOR SPCM-BCD NOT AUTHORIZED) confinement for more than six months, then the accused will forfeit all pay due (him) (her) during any period of confinement. However, when the accused has dependents, the convening authority may direct that any or all of the forfeiture of pay which the accused otherwise by law would be required to forfeit be paid to the accused's dependents for a period not to exceed six months. This action by the convening authority is purely discretionary. You should not rely upon the convening authority taking this action when considering an appropriate sentence in this case.)
(FORFEITURES 2/3DS ONLY:) MJ: This court may sentence the accused to forfeit up to two-thirds pay per month for a period of (12) (-> months. A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining the amount of forfeiture, ifany, the court should consider the implications to the accused (and (his) (her) family) of such a loss of income. A sentence to a forfeiture should include an express statement of a whole dollar amount to be forfeited each month and the number of months the forfeiture is to continue.
The accused is in pay grade E-_ with over _ years of service, the total basic pay being $ ___ per month. Ifretained in that grade, the maximum forfeiture would be $ pay per month for
(12) (-> months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $___ pay per month for (12) (-> months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $___pay per month for (12) (-> months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $___ pay per month for (12) (-> months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $___pay per month for (12) (-> months.
Ifreduced to the grade of E-_, the maximum forfeiture would be $___ pay per month for (12) (-> months.
(FINE-GENERAL COURT-MARTIAL:) MJ: This court may adjudge a fine either in lieu of, or in addition to, forfeitures. A fine, when ordered executed, makes the accused immediately liable to the United States for the entire amount of money specified in the sentence. (In your discretion, you may adjudge a period of confinement to be served in the event the fine is not paid. Such confinement to
DA PAM 27-9' 01 January 2010
enforce payment of the fine would be in addition to any other confinement you might adjudge and the fixed period being an equivalent punishment to the fine. The total of all confinement adjudged, however, may not exceed the maximum confinement for the offense(s) in this case.)
(FINE-SPECIAL COURT-MARTIAL:) MJ: This court may adjudge a fine, either in lieu of, or in addition to, forfeitures. Ifyou should adjudge a fine, the amount of the fine, along with any forfeitures that you adjudge, may not exceed the total amount of forfeitures which may be adjudged, that is, forfeiture of two-thirds pay per month for (six) L) months(s). A fine, when ordered executed, makes the accused immediately liable to the United States for the entire amount of the fine. (In your discretion, you may adjudge a period of confinement to be served in the event the fine is not paid. Such confinement to enforce payment of the fine would be in addition to any other confinement you might adjudge and the fixed period being an equivalent punishment to the fine. The total of all confinement adjudged, however, may not exceed __(month(s» (year).)
NOTE: Punitive discharges. A DD can be adjudged against noncommissioned warrant officers and enlisted persons only. A BCD may be adjudged only against enlisted persons. A Dismissal may be adjudged only against commissioned officers, commissioned warrant officers, and cadets.
(PUNITIVE DISCHARGE:) MJ: You are advised that the stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that (he) (she) has served honorably. A punitive discharge will affect an accused's future with regard to (his) (her) legal rights, economic opportunities, and social acceptability .
NOTE: Effect ofpunitive discharge on retirement benefits. The following instruction must be given, ifrequested and the evidence shows any ofthe following circumstances exist: (1) The accused has sufficient time in service to retire and thus receive retirement benefits; (2) In the case ofan enlisted accused, the accused has sufficient time left on his current term ofenlistment to retire without having to reenlist; (3) In the case ofan accused who is a commissioned or warrant officer, it is reasonable that the accused would be permitted to retire butfor a punitive discharge. In other cases, and especially ifthe members inquire, the military judge should consider the views ofcounsel in deciding whether the following instruction, appropriately tailored, should be given or whether the instruction would suggest an improper speculation upon the effect ofadministrative or collateral consequences ofthe sentence. A request for an instruction regarding the effect ofa punitive discharge on retirement benefits should be liberally granted and denied only in cases where there is no evidentiary predicate for the instruction or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence. The military judge should have counsel present evidence at an Article 39(a) session or otherwise to determine the probability ofwhether the accused will reach retirement or eligibility for early retirement. Any instruction should be appropriately tailored to the facts
DA PAM 27-9·01 January 2010
ofthe case with the assistance ofcounsel, and should include the below instruction. Even ifthe instruction is not required, the military judge nonetheless should consider giving the instruction and allowing the members to consider the matter. See United States v. Bovd. 55 MJ 217 (CAAF 2001); United States v. Luster, 55 MJ 67 (CAAF 2001); United States v. Greaves. 46 MJ 133 (CAAF 1997); United States v. Sumrall, 45 MJ 207 (CAAF 1996). When the below instruction is appropriate, evidence ofthefuture value ofretirement pay the accused may lose ifpunitively discharged is generally admissible. United States v. Becker, 46 MJ 141 (CAAF 1997).
(In addition, a punitive discharge terminates the accused's status and the benefits that flow from that status, including the possibility of becoming a military retiree and receiving retired pay and benefits.)
NOTE: Legal and factual obstacles to retirement. Ifthe above instruction is appropriate, evidence ofthe legal andfactual obstacles to retirementfaced by the particular accused is admissible. Ifsuch evidence is presented, the below instruction should be given. United States v. Boyd. 55 MJ 217 (CAAF 2001).
(On the issue of the possibility of becoming a military retiree and receiving retired pay and benefits, you should consider the evidence submitted on the legal and factual obstacles to retirement faced by the accused.)
NOTE: Vested benefits. Before giving the optional instruction concerning vested benefits contained in the below instructions, see United States v. McElroy. 40 MJ 368 (CMA 1994).
(DISHONORABLE DISCHARGE ALLOWED:) MJ: This court may adjudge either a dishonorable discharge or a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. (However, vested benefits from a prior period of honorable service are not forfeited by receipt of a dishonorable discharge or a bad-conduct discharge that would terminate the accused's current term of service). A dishonorable discharge should be reserved for those who, in the opinion of the court, should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. A bad-conduct discharge is a severe punishment, although less severe than a dishonorable discharge, and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature.)
(ONLY BAD-CONDUCT DISCHARGE ALLOWED:) MJ: This court may adjudge a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. (However, vested benefits from a prior period of honorable service are not forfeited by receipt of a bad-conduct discharge that would terminate the accused's current term of service.) A bad-conduct discharge is a severe punishment and may be
DA PAM 27-9·01 January 2010
adjudged for one who in the discretion of the court warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature.)
(DISMISSAL:) MJ: This court may adjudge a dismissal. You are advised that a sentence to a dismissal of a (commissioned officer) (cadet) is, in general, the equivalent of a dishonorable discharge of a noncommissioned officer, a warrant officer who is not commissioned, or an enlisted service member. A dismissal deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. It should be reserved for those who, in the opinion of the court, should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. Dismissal, however, is the only type of discharge the court is authorized to adjudge in this case.
(NO PUNISHMENT:) MJ: Finally, if you wish, this court may sentence the accused to no punishment.
In selecting a sentence, you should consider all matters in extenuation and mitigation as well as those in aggravation, (whether introduced before or after your findings). (Thus, all the evidence you have heard in this case is relevant on the subject of sentencing.)
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2-6-11. OTHER INSTRUCTIONS MJ: You should consider evidence admitted as to the nature ofthe offense(s) of which the accused stands convicted, plus:
1.
The accused's age.

2.
The accused's good military character.

3.
The accused's (record) (reputation) in the service for (good conduct) (efficiency) (bravery).

4.
The prior honorable discharge(s) ofthe accused.

5.
The combat record of the accused.

6.
The (family) (domestic) difficulties experienced by the accused.

7.
The financial difficulties experienced by the accused.

8.
The accused's (mental condition) (mental impairment) (behavior disorder) (personality disorder).

9.
The accused's (physical disorder) (physical impairment) (addiction).

10.
The duration of the accused's pretrial confinement or restriction.

11.
The accused's GT score of

12.
The accused's education which includes:

13.
That the accused is a graduate of the following service schools:

14.
That the accused's (OER's) (NCOER's) ('-___-') indicate: ____

15.
That the accused is entitled to wear the following medals and awards: _____

16.
Lack of previous convictions or Article 15 punishment.

17.
Past performance and conduct in the Army as reflected by _____

18.
Character evidence-testimony of_____

19.
(Accused's testimony _____.)

20.
(The accused's expression of his desire to remain in the service.)

21.
(That the accused has indicated that (he/she) does not desire a (BCD) (DD) (Dismissal).)

22.
(Testimony of ____________.)


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MJ: Further you should consider:
(Previous convictions) _____
(Prior Article 1Ss) ____
(Prosecution exhibits, stipulations, etc.)
(Rebuttal testimony of ____
(Nature of the weapon used in the commission of the offense.)
(Nature and extent of injuries suffered by the victim.)
(Period of hospitalization and convalescence required for victim.)
(ACCUSED NOT TESTIFYING:) MJ: The court will not draw any adverse inference from the fact that the accused did not elect to testify.
(ACCUSED NOT TESTIFYING UNDER OATH:) MJ: The court will not draw any adverse inference from the fact that the accused has elected to make a statement which is not under oath. An unsworn statement is an authorized means for an accused to bring information to the attention of the court, and must be given appropriate consideration. The accused cannot be cross-examined by the prosecution or interrogated by court members or me upon an unsworn statement, but the prosecution may offer evidence to rebut statements of fact contained in it. The weight and significance to be attached to an unsworn statement rests within the sound discretion of each court member. You may consider that the statement is not under oath, its inherent probability or improbability, whether it is supported or contradicted by evidence in the case, as well as any other matter that may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use your common sense and your knowledge of human nature and the ways of the world.
NOTE: SCOPE OF ACCUSED'S UNSWORN STATEMENT. The scope ofan accused's unsworn statement is broad. United States v. Grill. 48 MJ 131 (CAAF 1998); United States
v. Jeffery, 48 MJ 229 (CAAF 1998); United States v. Britt. 48 MJ 233 (CAAF 1998). Ifthe accused addresses the treatment or sentence ofothers, command options, or other matters that would be inadmissible but for their being presented in an unsworn statement, the instruction below may be appropriate. In giving the instruction, the military judge must be careful not to suggest that the members should disregard the accused's unsworn statement.
MJ: The accused's unsworn statement included the accused's personal (thoughts) (opinions) (feelings) (statements) about (certain matters) ( ). An unsworn statement is a proper means to bring
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information to your attention, and you must give it appropriate consideration. Your deliberations
should focus on an appropriate sentence for the accused for the offense(s) of which the accused stands
convicted.
(For example, it is not your duty (to determine relative blameworthiness of) (and whether appropriate
disciplinary action has been taken against) others who might have committed an offense, whether involved with this accused or not) (or) (to try to anticipate discretionary actions that may be taken by
the accused's chain of command or other authorities) ('-___----').)
(Your duty is to adjudge an appropriate sentence for this accused that you regard as fair and just when it is imposed and not one whose fairness depends upon actions that others (have taken) (or) (may or may not take) (in this case) (or) (in other cases).)
(PLEA OF GUILTY:) MJ: A plea of guilty is a matter in mitigation which must be considered along with all other facts and circumstances of the case. Time, effort, and expense to the government (have been) (usually are) saved by a plea of gUilty. Such a plea may be the first step towards rehabilitation.
(MENDACITY:) MJ: The evidence presented (and the sentencing argument of trial counsel) raised the question of whether the accused testified falsely before this court under oath. No person, including the accused, has a right to seek to alter or affect the outcome of a court-martial by false testimony. You are instructed that you may consider this issue only within certain constraints. First, this factor should play no role whatsoever in your determination of an appropriate sentence unless you conclude that the accused did lie under oath to the court.
Second, such lies must have been, in your view, willful and material, meaning important, before they can be considered in your deliberations.
Finally, you may consider this factor insofar as you conclude that it, along with all the other circumstances in the case, bears upon the likelihood that the accused can be rehabilitated. You may not mete out additional punishment for the false testimony itself.
(ARGUMENT FOR A SPECIFIC SENTENCE:) MJ: During argument, trial counsel recommended that you consider a specific sentence in this case. You are advised that the arguments of the trial counsel and (her) (his) recommendations are only (her) (his) individual suggestions and may not be considered as the recommendation or opinion of anyone other than such counsel. In contrast, you are advised that the defense counsel is speaking on behalf of the accused.
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2-6-12. CONCLUDING SENTENCING INSTRUCTIONS
MJ: When you close to deliberate and vote, only the members will be present. I remind you that you
all must remain together in the deliberation room during deliberations. I also remind you that you
may not allow any unauthorized intrusion into your deliberations. You may not make
communications to or receive communications from anyone outside the deliberations room, by telephone or otherwise. Should you need to take a recess or have a question, or when you have reached a decision, you may notify the Bailiff, who will then notify me of your desire to return to open
court to make your desires or decision known. Your deliberations should begin with a full and free discussion on the subject of sentencing. The influence of superiority in rank shall not be employed in any manner to control the independence of members in the exercise of their judgment.
When you have completed your discussion, then any member who desires to do so may propose a sentence. You do that by writing out on a slip of paper a complete sentence. ((IF MANDATORY MINIMUM SENTENCE:) Once again, I advise you that any proposed sentence must include at least confinement for life with eligibility for parole.) The junior member collects the proposed sentences and submits them to the president, who will arrange them in order of their severity.
You then vote on the proposed sentences by secret written ballot. All must vote; you may not abstain. Vote on each proposed sentence in its entirety, beginning with the lightest, until you arrive at the required concurrence, which is two-thirds or _ members. (A sentence which includes (confinement for life without eligibility for parole, or confinement for life, or) confinement in excess of ten years requires the concurrence of three-fourths or _ members.)
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Table 2-3 Votes Needed for Sentencing
No. of Members Two-thirds Three-fourths
3 2 *

4 3 *

5 4
4
6 4
5
7 5 6

8 6 6

9 6 7

10 7 8

11 8 9

12 8 9

The junior member will collect and count the votes. The count is then checked by the president who shall announce the result of the ballot to the members. Ifyou vote on all of the proposed sentences without arriving at the required concurrence, you may then repeat the process of discussion, proposal of sentences, and voting. But once a proposal has been agreed to by the required concurrence, then that is your sentence.
You may reconsider your sentence at any time prior to its being announced in open court. Ifafter you determine your sentence, any member suggests you reconsider the sentence, open the court and the president should announce that reconsideration has been proposed without reference to whether the proposed reb allot concerns increasing or decreasing the sentence. I will then give you specific instructions on the procedure for reconsideration.
NOTE: See paragraph 2-7-19, RECONSIDERATIONINSTRUCTION (SENTENCE). MJ: As an aid in putting the sentence in proper form, the court may use the Sentence Worksheet marked Appellate Exhibit _ which the (Trial Counsel) (Bailiff) may now hand to the president. TCIBAILIFF: (Complies.)
MJ: Extreme care should be exercised in using this worksheet and in selecting the sentence form which properly reflects the sentence of the court. Ifyou have any questions concerning sentencing matters, you should request further instructions in open court in the presence of all parties to the trial. In this connection, you are again reminded that you may not consult the Manual for Courts-Martial or any other publication or writing not properly admitted or received during this trial. These
DA PAM 27-9' 01 January 2010
instructions must not be interpreted as indicating an opinion as to the sentence which should be
adjudged, for you alone are responsible for determining an appropriate sentence in this case. In
arriving at your determination, you should select the sentence which will best serve the ends of good
order and discipline, the needs of the accused, and the welfare of society. When the court has
determined a sentence, the inapplicable portions of the Sentence Worksheet should be lined through.
When the court returns, I will examine the Sentence Worksheet. The president will then announce the
sentence.

MJ: Do counsel object to the instructions as given or request other instructions?
TCIDC: (Respond.)

MJ: Does any member of the court have any questions?
MBRS: (Respond.)

MJ: (COL) <-) _____, ifyou desire a recess during your deliberations, we must first formally
reconvene the court and then recess. Knowing this, do you desire to take a brief recess before you
begin deliberations or would you like to begin immediately?
PRES: (Responds.)

MJ: (Trial Counsel) (Bailiff), please give the president Prosecution Exhibit(s) _ (and Defense
Exhibit(s) ->.
TCIBAILIFF: (Complies.)

MJ: (COL) <-) _____, please do not mark on any of the exhibits, except the Sentence
Worksheet, and please bring all the exhibits with you when you return to announce the sentence.

MJ: The court is closed.

2-6-13. ANNOUNCEMENT OF SENTENCE
MJ: The court is called to order.
TC: All parties to include the court members are present as before.

MJ:_____, have you reached a sentence?
PRES: (Responds.)

NOTE: Ifthe president indicates that the members are unable to agree on a sentence, the MJ should give paragraph 2-7-18, the "Hung Jury" instruction.
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MJ: _____,' is the sentence reflected on the Sentence Worksheet?
PRES: (Responds.)
MJ: ____,' please fold the Sentence Worksheet and give it to the (Trial Counsel) (Bailiff) so that
I can examine it.
TC/BAILIFF: (Complies.)

MJ: I have reviewed the Sentence Worksheet and it appears (to be in proper form) (<-___----».
(Trial Counsel) (Bailiff), you may return it to the president. TCIBAILIFF: (Complies.)
MJ: Defense Counsel and accused, please rise. ACCIDC: (Comply.)
MJ: _____, please announce the sentence. PRES: (Complies.)
MJ: Please be seated. (Trial Counsel) (Bailiff), please retrieve the exhibit(s) from the president. TCIBAILIFF: (Complies.)
MJ: Members of the Court, before I excuse you, let me advise you of one matter. Ifyou are asked about your service on this court-martial, I remind you of the oath you took. Essentially, that oath prevents you from discussing your deliberations with anyone, to include stating any member's opinion or vote, unless ordered to do so by a court. You may, of course, discuss your personal observations in the courtroom and the process of how a court-martial functions, but not what was discussed during your deliberations. Thank you for your attendance and service. You are excused. Counsel and the accused will remain.
MJ: The members have withdrawn from the courtroom. All other parties are present.
(PRETRIAL CONFINEMENT CREDIT:) MJ: The accused will be credited with _ days of pretrial confinement against the accused's term of confinement. NOTE: Ifthere was no pretrial agreement, go to paragraph 2-6-14, POST-TRIAL AND APPELLATE RIGHTS ADVICE; ifthere was a pretrial agreement continue:
MJ: _____, we are now going to discuss the operation of your pretrial agreement on the sentence of the court.
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MJ: My understanding of the effect of the pretrial agreement on the sentence is that the convening

authority may approve . Do you agree with that interpretation?
ACC: (Responds.)

MJ: Do counsel also agree with that interpretation?
TCIDC: (Respond.)

2-6-14. POST-TRIAL AND APPELLATE RIGHTS ADVICE
MJ: Defense Counsel, have you advised the accused orally and in writing of (his) (her) post-trial and
appellate rights?
DC: Yes, Your Honor. Appellate Exhibit _ is the written advisement.

MJ: Does the accused have a copy in front of (him) (her)?
DC: (Responds.)

MJ: _____, is that your signature on Appellate Exhibit _?
ACC: Yes, Your Honor.

MJ: Defense Counsel, is that your signature on Appellate Exhibit _?
DC: Yes, Your Honor.

MJ: , did your defense counsel explain your post-trial and appellate rights to you?
ACC: (Responds.)

MJ: Did your defense counsel explain to you what matters you may submit to the convening authority
for his/her consideration under RCM 1105 and RCM 1106?
ACC: (Responds.)

MJ: Did your defense counsel explain to you that under RCM 1105 and RCM 1106 you may submit
any matters to the convening authority to include, but not limited to, a personal letter and documents,
letters and documents from any other person, requests for deferment and waiver of forfeitures, and
any other matter you desire for the convening authority to consider before taking action on your case?
ACC: (Responds.)

MJ: Do you understand that it is your responsibility to keep in contact with your defense counsel and
let him/her know your desires in this regard?

DA PAM 27-9 • 01 January 2010
ACC: (Responds.)
MJ: Do you understand that if your defense counsel cannot locate you it will be difficult for him/her
to know what to submit for you to the convening authority?
ACC: (Responds.)

MJ: Now, ifyour defense counsel tries to contact you but is unsuccessful, do you authorize him or her
to submit clemency matters on your behalf to the Convening authority as he or she deems
appropriate?
ACC: (Responds.)

MJ: , do you have any questions about your post-trial and appellate rights?
ACC: (Responds.)

(IF MORE THAN ONE DEFENSE COUNSEL:) MJ: Which counsel will be responsible for post-trial
actions in this case and upon whom is the staff judge advocate's post-trial recommendation to be
served?
DC: (Responds.)

MJ: Are there other matters to take up before this court adjourns?
TCIDC: (Respond.)

MJ: This court is adjourned.
DA PAM 27-9·01 January 2010
Section VII Miscellaneous Procedural Guides
2-7-1. WAIVER OF STATUTORY WAITING PERIOD
MJ: ____, you have a right to a delay of (three) (five) days between the day charges are served
on you and the day of trial, not counting the day of service and the day of trial. Unless you consent,
you may not be tried on these charges until ____. Do you understand this right?
ACC: (Responds.)

MJ: Have you discussed this with your defense counsel?
ACC: (Responds.)

MJ: Do you consent to the trial proceeding today?
ACC: (Responds.)

MJ: Has anyone forced you to consent to proceeding today?
ACC: (Responds.)

MJ: Trial Counsel, you may proceed.

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2-7-2. PRO SE REPRESENTATION
MJ: _____, you have indicated that you wish to represent yourself at this trial. IfI permit you
to represent yourself, then you will be expected to conduct your defense just as if you were a qualified
lawyer. Do you understand that?
ACC: (Responds.)
MJ: Have you ever studied law or had any legal training?
ACC: (Responds.)
MJ: What education do you have? (Do you understand English?)
ACC: (Responds.)

MJ: Do you suffer from any physical or mental ailments?
ACC: (Responds.)

MJ: Are you presently taking any medication?
ACC: (Responds.)

MJ: Have you ever represented yourself or someone else in a criminal trial?
ACC: (Responds.)

MJ: Do you know with what offenses you are charged?
ACC: (Responds.)

MJ: Are you familiar with the MRE?
ACC: (Responds.)

MJ: Do you realize that the MRE govern what evidence may be introduced and those rules must be
followed even though you are representing yourself?
ACC: (Responds.)

MJ: Let me give you an example of what could occur at trial. Ifthe trial counsel offers some evidence
that normally would not be admissible, a trained lawyer would object to the evidence and the evidence
would be kept out of the trial. Ifyou are acting as your own lawyer and you do not recognize that the
evidence is inadmissible and fail to object, then the evidence will corne in. Do you understand that?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
MJ: Are you familiar with the Rules for Courts-Martial?
ACC: (Responds.)

MJ: Do you realize the Rules for Courts-Martial govern how this case will be tried?
ACC: (Responds.)

MJ: Do you understand that you would be better off with a trained lawyer who would know the
procedures, the rules of evidence, the Rules for Courts-Martial, and the rules of law?
ACC: (Responds.)

MJ: Also, when you represent yourself, you are personally involved in the case and it is very difficult
for you to have an objective view of the proceedings. In fact, sometimes, you may become so involved
that you harm yourself by what you say and do in court. Whereas, a lawyer whose duty is to represent
you can act more objectively, can follow correct procedures, and is less likely to do you harm and is
more likely to do you good. Do you understand this?
ACC: (Responds.)

MJ: As a general rule, acting as your own lawyer is not a good policy. Even if you are legally trained,
it is not a good idea. Ifyou are not legally trained, it is even worse. Do you understand that?
ACC: (Responds.)

MJ: Do you realize that representing yourself is not a matter of merely telling your story? And if you
testify, you cannot just give a statement. You must ask yourself questions and then give answers,
according to the MRE and the Rules for Courts-Martial?
ACC: (Responds.)

MJ: Have you discussed the idea of representing yourself with your detailed defense counsel?
ACC: (Responds.)

MJ: Do you realize that the maximum punishment in this case ifyou are convicted of all charges and
specifications is ?
ACC: (Responds.)

MJ: Have you tried to talk to any other lawyer about your case?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: Would you like to talk to another lawyer about this?
ACC: (Responds.)

MJ: Have you understood everything I have said to you?
ACC: (Responds.)

MJ: Let me advise you further that I think it is unwise for you to represent yourself. I strongly urge
that you not represent yourself. Knowing all that I have told you, do you still want to act as your own
lawyer?
ACC: (Responds.)

NOTE: Ifaccused persists, continue.
MJ: Is this decision made as a result of any threats or force against you? Is it a decision you make of
your own free will?
ACC: (Responds.)

MJ: Even though you desire to represent yourself, I recommend that you have counsel sit with you at
the counsel table and be available to assist you. Do you want counsel to remain at counsel table?
ACC: (Responds.)

NOTE: RCM 506(d) requires that the MJ be satisfied that the accused is mentally competent to make the decision and understand the disadvantages ofself-representation. The MJ should make factual findings regarding the accused's ability to appreciate the nature ofa criminal trial; its possible consequences; and the ability ofthe accused to communicate, to express himselfor herself, and whether the decision is a voluntary one. Once the MJ is satisfied that the accused may proceed pro se, the MJ should inform the accused that:
MJ: I am going to have your detailed counsel stay (either at counsel table, if the accused elected, or in the spectator section) throughout your trial and be available. Counsel may provide you with advice and procedural instructions. Counsel will not do anything without your agreement; however, (she) (he) is available to act as your lawyer or assist you at any time. Ifat any time during the trial, you feel that you could benefit from advice and you want to take a break to talk to counsel about something, let me know, and I will permit it. Do you understand this? ACC: (Responds.)
REFERENCES: United States v. Mix, 35 MJ 283 (CMA 1992).
DA PAM 27-9 • 01 January 2010
2-7-3. WAIVER OF CONFLICT-FREE COUNSEL (DC REPRESENTING
MULTIPLE ACCUSED)
MJ: _____, do you understand that you have a constitutional right to be represented by counsel
who has undivided loyalty to you and your case?
ACC: (Responds.)

MJ: Do you understand that a lawyer ordinarily should not represent more than one client when the
representation involves a matter arising out of the same incident?
ACC: (Responds.)

MJ: For a lawyer to represent more than one client concerning a matter arising out of the same
incident, you have to consent to that representation. Do you understand that?
ACC: (Responds.)

MJ: Have you discussed this matter with your defense counsel?
ACC: (Responds.)

MJ: After discussing this matter with (her) (him), did you decide for yourself that you would like to
have (her) (him) still represent you?
ACC: (Responds.)

MJ: Do you understand that when a defense counsel represents two or more clients regarding a
matter arising out of the same incident, then the lawyer may have divided loyalties, that is, for
example, the defense counsel may be put in a position of arguing that one client is more at fault than
another client?
ACC: (Responds.)

MJ: Understanding that even ifan actual conflict of interest does not presently exist between your
defense counsel representing you and (her) (his) other client(s), but that one could possibly develop, do
you still desire to be represented by _____ ?
ACC: (Responds.)

MJ: Do you understand that you are entitled to be represented by another lawyer where no potential
conflict of interest would ever arise?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
MJ: Knowing this, please tell me why you want to give up your right to conflict-free counsel and be
represented by ____?
ACC: (Responds.)

MJ: Do you have any questions about your right to conflict-free counsel?

ACC: (Responds.)
MJ: I find that the accused has knowingly and voluntarily waived (his/her) right to conflict-free counsel and may be represented by ____ at this court-martial.
REFERENCES: United States v. Smith, 36 MJ 455 (CMA 1993); United States v. Hurtt, 22 MJ 134 (CMA 1986); United States v. Breese, 11 MJ 17 (CMA 1981).
DA PAM 27-9 • 01 January 2010
2-7-4. PRETRIAL AGREEMENT: DISMISSAL OF CHARGE CLAUSE MJ: Your pretrial agreement indicates that the convening authority has directed the trial counsel to move to dismiss (charge(s) _ and (its) (their) specification(s) after I accept your plea of gUilty. In other words, if I accept your plea of guilty, the government will not prosecute the remaining charge(s) provided your plea of guilty remains in effect until the imposition of sentence, at which time I would grant the motion. Do you understand that?
ACC: (Responds.)
MJ: However, if for some reason your plea of guilty at any time becomes unacceptable, the trial
counsel would be free to proceed on (all) (The) (Additional) Charge(s) and (its) (their) specification(s).
Do you understand that?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
2-7-5. PRETRIAL AGREEMENT: TESTIFY IN ANOTHER CASE MJ: In your pretrial agreement, you have offered to testify truthfully as to the facts and circumstances of this case, as you know them, in the trial of United States v. . Uyou are called as a witness in that case and either refuse to testify or testify untruthfully, the convening authority will no longer be bound by the sentence limitations contained in Appellate Exhibit _. Do you understand that?
ACC: (Responds.)
DA PAM 27-9' 01 January 2010
2-7-6. PRETRIAL AGREEMENT: OPERATION OF ARTICLE 58a ON A SUSPENDED SENTENCE MJ: Did you realize at the time you made the agreement, and do you understand now that, under the provisions of Article 58a, UCMJ, if a (dishonorable discharge) (bad-conduct discharge) (confinement for 6 months or 180 days) is adjudged and approved, but suspended by the convening authority as provided in your agreement, you will automatically be reduced to the lowest enlisted pay grade, E-l? ACC: (Responds.)
DA PAM 27-9 • 01 January 2010
2-7-7. PRETRIAL AGREEMENT: SUSPENSION WITHOUT DEFERMENT MJ: Your pretrial agreement provides that the convening authority will suspend for _ (years) (months) any sentence to confinement which is adjudged. However, the agreement makes no reference to deferment. Did you realize at the time you made the agreement, and do you understand now that the effect of this provision is that you will begin serving any sentence to confinement when adjudged and the convening authority will suspend the (unexecuted) (unserved) portion of any confinement when (she) (he) takes action in your case and you will then be released from confinement? ACC: (Responds.)
DA PAM 27-9·01 January 2010
2-7-8. PRETRIAL AGREEMENT: ARTICLE 32 WAIVER
MJ: Your pretrial agreement states that you agreed to waive the Article 32 investigation. Have you
discussed what an Article 32 investigation is with your defense counsel?
ACC: (Responds.)

MJ: Do you understand that no charge against you may be tried at a general court-martial without
first having an Article 32 investigation concerning that charge unless you agree otherwise?
ACC: (Responds.)

MJ: Do you understand that the primary purpose of the Article 32 investigation is to have a fair and
impartial hearing officer inquire into the truth of the matters set forth in the charge(s) and to obtain
information on which to recommend what disposition should be made of the case?
ACC: (Responds.)

MJ: Do you also understand that you have the right to be present at the Article 32 investigation and
to be represented by counsel at the investigation?
ACC: (Responds.)

MJ: Do you understand that you could call witnesses, cross-examine government witnesses, and
present documents for the investigating officer to consider in arriving at his or her recommendations?
ACC: (Responds.)

MJ: Do you understand that you could have provided sworn or unsworn testimony at the Article 32
investigation?
ACC: (Responds.)

MJ: Do you also understand that one possible strategy for you and your counsel at the Article 32
investigation could have been an attempt to have the Article 32 officer recommend a disposition of the
charge(s) other than trial by general court-martial?
ACC: (Responds.)

MJ: Did you know about all these rights that you would have at the Article 32 investigation at the
time you elected to give up the right to have the Article 32 investigation?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010

MJ: Do you freely and willingly agree to proceed to trial by general court-martial without an Article
32 investigation occurring in your case?
ACC: (Responds.)

MJ: Defense Counsel, if the accused's plea of guilty is determined to be improvident will the accused
be afforded an Article 32 investigation or is it permanently waived?
DC: (Responds.)

MJ: Trial Counsel, do you agree?
TC: (Responds.)

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2-7-9. PRETRIAL AGREEMENT: WAIVER OF MEMBERS
MJ: Your pretrial agreement states that you agree to waive, that is give up, trial by members and to
select trial by military judge alone.

ACC: (Responds.)

MJ: Do you understand the difference between trial before members and trial before military judge
alone, as I explained to you earlier?
ACC: (Responds.)

MJ: Did you understand the difference between the various types of trials when you signed your
pretrial agreement?
ACC: (Responds.)

MJ: Did you understand that you were giving up trial with members when you signed your pretrial
agreement?
ACC: (Responds.)

MJ: Was that waiver a free and voluntary act on your part?
ACC: (Responds.)

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2-7-10. PRETRIAL AGREEMENT: WAIVER OF MOTIONS
NOTE 1: Waiver ofmotions in a pretrial agreement. RCM 705 prohibits any term in a pretrial agreement that is not voluntary or deprives the accused ofthe right to due process, the right to challenge the jurisdiction ofthe court-martial, the right to a speedy trial, the right to complete sentencing proceedings, or the complete and effective exercise ofpost-trial and appellate rights. Thus, a term to "waive all motions" is overbroad and cannot be enforced. However, ifthe pretrial agreement includes a term to waive a particular motion notprecluded by RCM 705 or a term to "waive all waiveable motions" or words to that effect, proceed along the lines ofthe instruction below. See paragraph 2-7-11, WAIVER OF MOTION FOR ILLEGAL PRETRIAL PUNISHMENT (ARTICLE 13) SENTENCING CREDIT.
MJ: Defense Counsel, what motions are you not making pursuant to this provision of the pretrial agreement?
DC: (Responds.)
MJ: (To accused) Your pretrial agreement states that you waive, or give up, the right to make a
motion regarding (state the specific motion(s) waived by the pretrial agreement}. I advise you that
certain motions are waived, or given up, ifyour defense counsel does not make the motion prior to
entering your plea. Some motions, however, such as motions to dismiss for a lack ofjurisdiction or
failure to state an offense, for example, can never be given up. Do you understand that this term of
your pretrial agreement means that you give up the right to make (this) (any) motion which by law is
given up when you plead gUilty?
ACC: (Responds.)

MJ: In particular, do you understand that this term of your pretrial agreement precludes this court
or any appellate court from having the opportunity to determine if you are entitled to any relief based
upon (this) (these) motion(s)?
ACC: (Responds.)

MJ: When you elected to give up the right to litigate (this) (these) motion(s), did your defense counsel
explain this term of your pretrial agreement and the consequences to you?
ACC: (Responds.)

MJ: Did anyone force you to enter into this term of your pretrial agreement?
ACC: (Responds.)

MJ: Defense Counsel, which side originated the waiver of motion(s) provision?

DA PAM 27-9 • 01 January 2010
DC: (Responds.)
NOTE 2: Unlawful Command Influence. The government may not require waiver ofan unlawful command influence motion to obtain a pretrial agreement. The accused, however, may offer to waive an unlawful command influence motion ifthe unlawful command influence involves issues occurring only during the accusatory phase ofthe court-martial (i.e .• during preferral, forwarding, and referral ofcharges), as opposed to the adjudicative process (i.e., which includes interference with witnesses,judges, members, and counsel). See United States v. Weasler, 43 MJ 15 (CAAF 1995). Ifa waiver ofan unlawful command influence motion originated with the prosecution, the judge should declare the term void as a matter ofpublic policy. For other motions not falling within the prohibited terms ofReM 705, regardless oftheir origination, andfor unlawful command influence motions originated by the defense which involve issues only during the accusatory phase, continue as set forth below:
MJ: (to accused) (Although the government originated this term of your pretrial agreement,) Did you
freely and voluntarily agree to this term of your pretrial agreement in order to receive what you
believed to be a beneficial pretrial agreement?
ACC: (Responds.)

MJ: Defense Counsel, what do you believe to be the factual basis of any motions covered by this term
of the pretrial agreement?
DC: (Responds.)

MJ: (To the accused) Do you understand that if(this) (these) motion(s) were made and granted by
me, then a possible ruling could have been that (all charges against you would be dismissed) (the
statement you gave to (your command) Qaw enforcement authorities) ('-___-') could not be used as
evidence against you at this court-martial) ('-___--')?
ACC: (Responds.)

MJ: (To the accused) Knowing what your defense counsel and I have told you, do you want to give up
making (this) (these) motion(s) in order to get the benefit of your pretrial agreement?
ACC: (Responds.)

MJ: Do you have any questions about this provision ofyour pretrial agreement?
ACC: (Responds.)

DA PAM 27-9·01 January 2010
2-7-11. PRETRIAL AGREEMENT: WAIVER OF MOTION FOR ILLEGAL
PRETRIAL PUNISHMENT (ARTICLE 13) SENTENCING CREDIT
MJ: Your pretrial agreement indicates that you agree to waive, or give up, your right to make a
motion about whether you have suffered from illegal pretrial punishment. Article 13 of the Uniform
Code of Military Justice essentially prohibits anyone from imposing pretrial punishment upon you
except for the minimum amount of restraint necessary to ensure your presence for trial. In addition,
your chain of command may not publicly humiliate or degrade you as a form of punishment. Do you
understand what I have said?
ACC: (Responds.)

MJ: What was the nature of the pretrial restraint, if any, that you have undergone pending this trial?
ACC: (Responds.)

MJ: (If accused had been in pretrial restraint:) What is it about this pretrial restraint that you believe
may have been illegal?
ACC: (Responds.)

MJ: Tell me about other illegal pretrial punishment, if any, you may have suffered.
ACC: (Responds.)

MJ: (If accused has been in pretrial confinement:) Do you understand that the law requires that I
award you day for day credit against the sentence for any lawfully imposed pretrial confinement
imposed in this case?
ACC: (Responds.)

MJ: Do you also understand that if you convinced me that more likely than not you suffered from
illegal pretrial punishment, then you would be entitled to (additional) credit against any sentence
which you may receive in this case?
ACC: (Responds.)

MJ: Do you understand that, by this term of your pretrial agreement, you are giving up the right for
this court, or any court considering an appeal of your case, to determine if you actually suffered from
illegal pretrial punishment to include a claim for (additional) credit against your sentence for illegal
pretrial punishment?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: Defense Counsel, have you considered the amount of credit you would have asked for if this issue
were to be litigated?
DC: (Responds.)

MJ: (To the accused) Do you understand that the amount of credit for illegal pretrial punishment, if
any, would be subject to my discretion depending on the seriousness of the illegal pretrial punishment?
(If you succeeded on this issue, do you understand that you may have received the credit sought by
your defense counsel, or possibly more or less than that amount?)
ACC: (Responds.)

MJ: Do you understand that by not litigating this issue, you will never know what credit for illegal
pretrial punishment, if any, that you would be entitled to, and that you will receive no credit against
your sentence for illegal pretrial punishment?
ACC: (Responds.)

MJ: When you elected to give up the right to litigate the illegal pretrial punishment issue, did your
defense counsel explain this issue and the consequences to you?
ACC: (Responds.)

MJ: Did anyone force you to enter into this term of your pretrial agreement?
ACC: (Responds.)

MJ: Defense Counsel, which side originated this term of the pretrial agreement?
DC: (Responds.)

MJ: (Although the government originated this term of your pretrial agreement,) Did you freely and
voluntarily decide to agree to this term ofyour pretrial agreement in order to receive what you
believed to be a beneficial pretrial agreement?
ACC: (Responds.)

MJ: Knowing what I have now told you, do you still desire to give up the right to litigate the issue of
illegal pretrial punishment as long as your pretrial agreement continues to exist?
ACC: (Responds.)

MJ: Do you have any questions about this provision of your pretrial agreement?
ACC: (Responds.)

DA PAM 27-9' 01 January 2010
MJ: As I have stated, if I accept your waiver of the Article 13 issue, I will not order any credit to be applied against your sentence for illegal pretrial punishment. You may, however, bring to the court's attention (the conditions of your pretrial restraint) (and) (your perceived pretrial punishment) in the sentencing phase of the trial so that the court can consider such matters in deciding upon an appropriate sentence for you. Do you understand that? ACC: (Responds.)
REFERENCES: United States v. McFadyen, 51 MJ 289 (CAAF 1999).
DA PAM 27-9·01 January 2010
2-7-12. STATUTE OF LIMITATIONS
NOTE: Unless it affirmatively appears in the record that the accused is aware ofhislher right to plead the statute oflimitations when it is obviously applicable, the MJ has a duty to advise the accused ofthe right to assert the statute in bar oftrial. This advice should be given before the accused is allowed to enter a plea except in the unusual case where the applicability ofthe statute first becomes known after evidence is presented or after findings. The advice may be substantially as follows:
MJ: _____, one of the offenses for which you are about to be tried is (specify the offense). This offense is alleged to have been committed more than (five) L) years before the date upon which the sworn charges in this case were received by a summary court-martial convening authority. It therefore appears that the statute of limitations may properly be asserted by you in bar of trial for this offense. In other words, this specification (and charge) must be dismissed upon your request. Take time to consult with your counsel and then advise me whether you wish to assert the statute of limitations in bar of trial for the offense of (specify the offense).
NOTE: An election by the accused to assert the statute should be treated as a motion to dismiss. Where the motion to dismiss because ofthe statute oflimitations raises a question offact, the MJ should defer ruling until all evidence has been presented. When determination ofsuch issue is essential to the question ofguilt or innocence ofan alleged offense, the issue offact must be decided by the court pursuant to appropriate instructions. ReM905 and 907.
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2-7-13. MOTION FOR FINDING OF NOT GUILTY
NOTE: The DC may make any motion for a finding ofnot guilty when the government rests or after the defense has rested, or both. Such a motion should be made at an Article 39(a) session outside the presence ofthe members. Before the motion is ruled upon, the DC may properly be required to indicate specifically wherein the evidence is legally insufficient. Also, the ruling on the motion may be deferred to permit the TC to reopen the casefor the prosecution and produce any available evidence. The MJ rules finally on the motion for findings ofnot guilty. Ifthere is any evidence which, together with all inferences that can properly be drawn therefrom and all applicable presumptions, could reasonably tend to establish every essential element ofan offense charged, the motion will not be granted. If, using the same test, there is insufficient evidence to support the offense charged, but there is sufficient evidence to support a lesser included offense, the military judge may grant the motion as to the greater part and, ifappropriate, the corresponding charge. See RCM 917. Normally, the motion should not be made before the court members. Ifthe motion is mistakenly made before the members and is denied, the MJ should instruct the members as follows:
MJ: You are advised that my ruling( s) on the defense motion for a finding of not guilty must not influence you in any way when you consider whether the accused is guilty or not gUilty. The ruling(s) (was) (were) governed by a different standard than that which will guide you in determining whether the accused is guilty or not gUilty. A finding of guilty may not be reached unless the government has met its burden of establishing the guilt of the accused beyond a reasonable doubt, and whether this standard of proof has been met is a question which must be determined by you without any references to my prior ruling(s) on the motion(s) for a finding of not guilty.
NOTE: Ifthe motion is granted in part, so that the specification is reduced to a lesser offense, the MJ should instruct the members as follows:
MJ: You are advised that I have found the accused not guilty of the part of (The) Specification (--> of (The) (Additional) Charge ___which alleges the offense of_____. However, the accused remains charged in this specification with the lesser offense of_____' My ruling must not influence you in any way when you consider whether the accused is guilty or not guilty of the lesser offense. The ruling was governed by a different standard than that which will guide you in determining whether the accused is guilty or not guilty of the lesser offense. A finding of guilty may not be reached unless the government has met its burden of establishing the guilt of the accused beyond a reasonable doubt, and whether this standard of proof has been met is a question which must be determined by you without reference to my prior ruling on the motion for a finding of not gUilty.
NOTE: Depending upon the complexity ofthe changes resulting from a partial finding of not guilty, the MJ should direct the members to amend their copies ofthe flyer or direct preparation ofa new flyer.
DA PAM 27-9·01 January 2010
2-7-14. RECONSIDERATION INSTRUCTION (FINDINGS)
NOTE: An instruction substantially as follows must be given when any court member proposes reconsideration:
MJ: Reconsideration is a process wherein you are allowed to re-vote on your finding(s) after you have reached a finding of either guilty or not gUilty. The process for reconsideration is different depending on whether the proposal to reconsider relates to a finding of guilty or a finding of not gUilty. After reaching your finding(s) by the required concurrence, any member may propose that (some or all of) the finding(s) be reconsidered. When this is done, the first step is to vote on the issue of whether to reconsider and re-vote on the finding(s). In order for you to reconsider and re-vote on a finding, the following rules apply:
Table 2-4 Votes Needed Reconsideration of Findings
No. of Members Not Guilty Guilty
3 2 2

4 3 2

5 3 2

6 4 3

7 4 3

11 6 4

12 7 5

MJ: Ifthe proposal is to reconsider a not guilty finding, then a majority ofthe members must vote by secret, written ballot in favor of reconsideration. Since we have _ members, that means _ members must vote in favor of reconsidering any finding of not gUilty. Ifthe proposal is to reconsider a guilty finding, then more than one-third of the members must vote by secret, written ballot in favor of reconsideration. Since we have _ members, that means _ members must vote in favor of reconsidering any finding of gUilty. (If the proposal is to reconsider a guilty finding where the death penalty is mandatory for that finding, which means in this case, a guilty finding for the offense(s) of _____, then a proposal by any member for reconsideration regarding (that) (those) offense(s) requires you to reconsider that finding.) Ifyou do not receive the required concurrence in favor of
DA PAM 27-9' 01 January 2010
reconsideration, that ends the issue and you should open the court to announce the findings as originally voted. Ifyou do receive the required concurrence in favor of reconsideration, then you must adhere to all my original instructions for determining whether the accused is guilty or not guilty, to include the procedural rules pertaining to your voting on the findings and (the required two-thirds concurrence for a finding of guilty) (the unanimous vote requirement for a finding of guilty for a capital offense). (COL) ( ), when the findings are announced, do not indicate whether they are the original findings or the result of reconsideration.
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2-7-15. RELATIVE SEVERITY OF SENTENCE
NOTE: The following matters commonly arise pertaining to sentence or during the members' deliberation on sentence. They should be given when counselor a member of the court raises a question or makes a request calling for such instructions or when the needfor such instructions is otherwise apparent. Before answering any question concerning relative severity ofsentences, the views ofcounselfor both sides and the accused should be ascertained. An Article 39(a) session may be required. Thefollowing instruction, as modified to meet the circumstances ofthe particular case, may be given:
MJ: The question as to whether a sentence of is less severe than a sentence of is a question which cannot be resolved with mathematical certainty. However, I remind you of my advice as to the effect of punitive discharges. Either type of punitive discharge and its consequences remain with the accused for the rest of (his) (her) life, whereas the (period of confinement once served) (or) (money once forfeited) does not have the same permanent stigma. In light of these instructions and the facts and circumstances of this case, you should determine which of the proposed sentences is the least severe and vote on it first. In determining the order of severity, any differences among you must be decided by majority vote. After deciding which of the proposed sentences should be voted on first, you should proceed to deliberate and vote on an appropriate sentence in this case.
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2-7-16. CLEMENCY (RECOMMENDATION FOR SUSPENSION) MJ: You have no authority to suspend either a part of or the entire sentence that you adjudge; however, you may recommend such suspension. Such a recommendation is not binding on the
convening or higher authority. Thus, in arriving at a sentence, you must be satisfied that it is appropriate for the offense(s) of which the accused has been convicted, even if the convening or higher authority refuses to adopt your recommendation for suspension.
Iffewer than all members wish to recommend suspension of a part of, or the entire sentence, then the names of those making such a recommendation, or not joining in such a recommendation, whichever is less, should be listed at the bottom of the Sentence Worksheet.
Where such a recommendation is made, then the president, after announcing the sentence, may announce the recommendation, and the number of members joining in that recommendation. Whether to make any recommendation for suspension of a part of or the entire sentence is solely in the discretion of the court.
Your responsibility is to adjudge a sentence that you regard as fair and just at the time it is imposed, and not a sentence that will become fair and just only ifyour recommendation is adopted by the convening or higher authority.
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2-7-17. CLEMENCY (ADDITIONAL INSTRUCTIONS) MJ: It is your independent responsibility to adjudge an appropriate sentence for the offense(s) of which the accused has been convicted. However, if any or all of you wish to recommend clemency, it is within your authority to do so after the sentence is announced. Your responsibility is to adjudge a sentence that you regard as fair and just at the time it is imposed and not a sentence that will become fair and just only if the mitigating action recommended in your clemency recommendation is adopted by the convening or higher authority who is in no way obligated to accept your recommendation.
A recommendation by the court for an administrative discharge or disapproval of a punitive discharge, if based upon the same matters as the sentence, is inconsistent with a sentence to a punitive discharge as a matter of law. You may make the court's recommendation expressly dependent upon such mitigating factors as (the (attitude) (conduct) of) (or) (the restitution by) the accused after the trial and before the convening authority's action.
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2-7-18. "HUNG JURY" INSTRUCTION
NOTE: Whenever any question arises concerning whether the required concurrence of members on a sentence or other matter relating to sentence is mandatory, or the MJ, after discussion with counsel for both sides and the accused, determines the jury has been deliberating for an inordinate length oftime, the court may be advised substantially as follows:
MJ: As the sentence in this case is discretionary with you members, you each have the right to conscientiously disagree. It is not mandatory that the required fraction of members agree on a sentence and therefore you must not sacrifice conscientious opinions for the sake of agreeing upon a sentence. Accordingly, opinions may properly be changed by full and free discussion during your deliberations. You should pay proper respect to each other's opinions, and with an open mind you should conscientiously compare your views with the views of others.
Discussion may follow as well as precede the voting. All members must have a full and fair opportunity to exchange their points of view and to persuade others to join them in their beliefs. It is generally desirable to have the theories for both the prosecution and the defense weighed and debated thoroughly before final judgment. You must not go into the deliberation room with a fixed determination that the sentence shall represent your opinion of the case at the moment, nor should you close your ears to the arguments of the other members who have heard the same evidence, with the same attention, with an equal desire for truth and justice, and under the sanction of the same oath. But you are not to yield your judgment simply because you may be outnumbered or outweighed.
If, after comparing views and repeated voting for a reasonable period in accordance with these instructions, your differences are found to be irreconcilable, you should open the court and the president may then announce, in lieu of a formal sentence, that the required fraction of members are unable to agree upon a sentence.
NOTE: In capital cases, only one vote on the death penalty may be taken.
NOTE: Ifthe President subsequently announces that the court is unable to agree upon a sentence, a mistrial as to sentence should be declared. The court should then be adjourned.
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2-7-19. RECONSIDERATION INSTRUCTION (SENTENCE) MJ: Reconsideration is a process wherein you are allowed to re-vote on a sentence after you have reached a sentence. The process for reconsideration is different depending on whether the proposal to reconsider relates to increasing or decreasing the sentence. After reaching a sentence by the required concurrence, any member may propose that the sentence be reconsidered. When this is done, the first step is to vote on the issue of whether to reconsider and re-vote on the sentence. In order for you to reconsider and re-vote on the sentence, the following rules apply:
Table 2-5 Votes Needed for Reconsideration of Sentence
No. of Members Increase Sentence Decrease Sentence (10 Decrease Sentence yrs or less) (Conf> 10 years)
3 2 2

4 3 2 5 3 2 2
6 4 3 2

7 4 3 2

8 5 3 3
9 5 4 3

10 6 4 3

11 6 4 3
12 7 5 4

Ifthe proposal to reconsider is with a view to increasing the sentence, then a majority of the members must vote by secret, written ballot in favor of reconsideration. Since we have __members, that means at least members must vote in favor of reconsideration with a view to increase the sentence. Ifthe proposal to reconsider is with a view to decrease the sentence, then more than one­third of the members must vote by secret, written ballot in favor of reconsideration. Since we have _ members, then _ members must vote in favor of reconsideration with a view to decrease the sentence. (However, if the sentence you have reached includes confinement in excess often years (or confinement for life) (or confinement for life without eligibility for parole), then only more than one-fourth of the members, or at least ___ members, must vote in favor of reconsideration with a view to decrease the sentence.) (If the sentence you have reached is death, then a proposal by any member for reconsideration requires you to reconsider.) Ifyou do not receive the required concurrence in favor of reconsideration, that ends the issue and you should open the court to announce the sentence as
DA PAM 27-9·01 January 2010
originally voted. Ifyou do receive the required concurrence in favor of reconsideration, then you must adhere to all my original instructions for proposing and determining an appropriate sentence to include the two-thirds (or three-fourths) (or unanimous) concurrence required for a sentence. (COL) ( ), when the sentence is announced, do not indicate whether it is the original sentence or the result of reconsideration.
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2-7-20. COMMENT ON RIGHTS TO SILENCE OR COUNSEL
NOTE: Comment on or question about an accused's exercise ora right to remain silent, to counsel, or both. Except in extraordinary cases, a question concerning, evidence of, or argument about, an accused's right to remain silent or to counsel is improper and inadmissible. Ifsuch information is presented before the fact finder, even absent objection, the military judge should: determine whether or not this evidence is admissible and, if inadmissible, evaluate any potential prejudice, make any appropriate findings, andfashion an appropriate remedy. In trials with members, this should be done in an Article 39(a) session. Cautions to counsel and witnesses are usually appropriate. Ifthe matter was improperly raised before members, the military judge must ordinarily give a curative instruction like the following, unless the defense affirmatively requests one not be given to avoid highlighting the matter. Other remedies, including mistrial, might be necessary. See United States v. Garrett, 24 MJ 413 (CMA 1987), and United States v. Sidwell, 51 MJ 262 (CAAF 1999).
MJ: (You heard) (A question by counsel may have implied) that the accused may have exercised (his) (her) (right to remain silent) (and) (or) (right to request counsel). It is improper for this particular (question) (testimony) (statement) to have been brought before you. Under our military justice system, military personnel have certain constitutional and legal rights that must be honored. When suspected or accused of a criminal offense, a service member has (an absolute right to remain silent) (and) (or) (certain rights to counsel). That the accused may have exercised (his) (her) right(s) in this case must not be held against (him) (her) in any way. You must not draw any inference adverse to the accused because (he) (she) may have exercised such right(s), and the exercise of such right(s) must not enter into your deliberations in any way. You must disregard the (question) (testimony) (statement) that the accused may have invoked his right(s). Will each of you follow this instruction?
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2-7-21. CREDIT FOR ARTICLE 15 PUNISHMENT
NOTE 1: Using this instruction. When an accused has previously received nonjudicial punishmentfor the same offense ofwhich the accused stands convicted at the court­martial, the defense has the option to introduce evidence ofthe prior nonjudicial punishmentfor the sentencing authority to consider. Ifthe defense introduces the Article 15 in mitigation in a trial with members, the judge must instruct as to the specific credit (see NOTE 2) that will be given for the prior nonjudicial punishment unless the defense requests that the judge merely instruct that the members consider the prior punishment (see NOTE 3) when adjudging the sentence. The judge should obtain the defense's election regarding the desired instruction at the Article 39(a) session on sentencing instructions. The defense also has the right to have the judge determine the proper credit to be given by the convening authority without making the members aware ofthe prior Article 15 or the specific credit to be given (~ee NOTE 4). In a judge alone trial, the judge must state on the record the specific credit to be awarded for the prior punishment. See United States v. Gammons. 51 MJ 169 (CAAF 1999).
NOTE 2: Instruction on specific credit. When the judge instructs on specific credit to be
given for a prior Article 15punishment, thejudge must ensure the accused receives "day­
for-day, dollar-for-dollar, stripe-for-stripe" creditfor any prior nonjudicial punishment sufferedfor the same offense(s) on which the accused was convicted at the court-martial. United States v. Pierce. 27 MJ 367 (CMA 1989). Thejudge should address this issue when discussing proposed sentencing instructions with counsel to arrive at a fair and reasonable credit on which to instruct. Because the types ofpunishment administered nonjudicially andjudicially are not always identical, and because no current guidelines exist for equivalent punishments except those contained in RCM1003(b) (6) and (7), which provide an equivalency for restriction and hard labor without confinement to that ofconfinement, the judge is responsible to ensure that the accused receives proper credit for the prior
punishment. (Judges may want to look to the 1969 MCM's Table ofEquivalent
Punishments as a guide. That Table indicated that one day ofconfinement equals one and one-halfdays ofhard labor without confinement, or two days' restriction, or one day's
forfeiture ofpay.) Once the judge determines the appropriate credit (see, fI:&., United States
v. Edwards. 42 MJ 381 (CAAF 1995)), the judge should give an instruction substantially as follows:
When you decide upon a sentence in this case, you must consider that punishment has already been
imposed upon the accused under Article 15, UCMJ, for the offense(s) of_____ of which (he)
(she) has also been convicted at this court-martial. The accused will receive specific credit for the
prior nonjudicial punishment which was imposed and approved. After trial and when the case is
presented to the convening authority for action, the convening authority must credit the accused with
the prior punishment from the Article 15 proceeding against any sentence you may adjudge. The
convening authority, therefore, must [state the specific credit to be given by stating words to the effect
of: (disapprove any adjudged reprimand) (and) (reduce any adjudged forfeiture of pay by $ pay
per month for month(s)) (and) (credit the accused with already being reduced in grade to E-)
DA PAM 27-9 • 01 January 2010
(and) (reduce any adjudged restriction by days, or reduce any adjudged hard labor without
confinement by days, or reduce any adjudged confinement by days)].
NOTE 3: General consideration ofprior Article 15. When the defense desires that the
judge only instruct that consideration, without stating any specific credit, be given to the
prior Article 15punishment, then the judge should instruct as follows (with the caveat that, ifthe defense counsel requests it, the judge must determine and announce the specific credit to be awarded outside the presence ofthe court members; see NOTE 4.):
When you decide upon a sentence in this case, you must consider that punishment has already been
imposed upon the accused under Article 15, UCMJ, for the offense(s) of_____ of which (he)
(she) has also been convicted at this court-martial. This prior punishment is a matter in mitigation
which you must consider.
NOTE 4. When evidence oUhe Article 15 or the amount ofspecific credit tor the Article 15 is not presented to the court members. The defense not only has the election not to make the court members aware ofthe specific credit to be given for the prior Article 15for the same offense ofwhich the accused stands convicted (see NOTE 3), but also can elect not to bring any evidence ofthe prior Article 15 to the attention ofthe members. In either situation, however, the defense has a right, at an Article 39(a) session, to have the judge determine the credit which the convening authority must give to the accused. In this situation, it is suggested that the judge defer determining the actual credit for the convening authority to give until after the sentence has been announced. This procedure will ensure that the judge awards the proper equivalent credit. The judge may adapt the instruction following NOTE 2 to announce what credit the convening authority must apply. The defense also has the option to not raise the credit issue at trial, and can raise it for the
first time before the convening authority after trial.
REFERENCES: United States v. Gammons, 51 MJ 169 (CAAF 1999); United States v. Pierce, 27 MJ 367 (CMA 1989).
Table 2-6 Table of Equivalent Punishments
Confinement at hard Hard labor without Restriction to limits Forfeiture labor confinement
1 day 1 1/2 days 2 days 1 day's pay
DA PAM 27-9 • 01 January 2010
Extra Duties 1 1/2 days*
Correctional Custody 1 day
Forfeiture of pay 1 day's pay 1 day's pay
*The factor designated by asterisk in the table above is 2 instead of 1 112 when the punishment is imposed by a commanding officer below the grade of major or lieutenant commander. The punishment of forfeiture of pay may not be substituted for the other punishments listed in the table, nor may those other punishments be substituted for forfeiture of pay.
DA PAM 27-9 • 01 January 2010
2-7-22. VIEWS AND INSPECTIONS
NOTE 1: Guidance on views and inspections. The military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object. A view or inspection should be permitted only in extraordinary circumstances (See
NOTE 2). A view or inspection shall take place only in the presence ofall parties, the
members (ifany), the military judge, and the reporter. A person familiar with the scene
may be designated by the military judge to escort the court-martial. Such person shall
perform the duties ofescort under oath. The escort shall not testify, but may point out
particular features prescribed by the military judge. Any statement made at the view or
inspection by the escort, a party, the military judge, or any member shall be made a part of
the record. The fact that a view or inspection has been made does not necessarily preclude
the introduction in evidence ofphotographs, diagrams, maps, or sketches ofthe place or
item viewed, ifthese are otherwise admissible. Before conducting the session described
below in the presence ofthe members, the military judge should hold an Article 39(a)
session to determine exactly what place or items will be viewed or inspected and that the
below procedures and instructions are properly tailored to the circumstances.
NOTE 2: Considerations whether to permit a view.
a.
The party requesting a view or inspection has the burden ofproofboth as to relevance and extraordinary circumstances. The military judge must be satisfied that a view or inspection is relevant to gUilt or innocence as opposed to a collateral issue. The relevance must be more than minimal and, even when relevance is established, the proponent must still establish extraordinary circumstances.

b.
Extraordinary circumstances exist only when the military judge determines that other alternative evidence (testimony, sketches, diagrams, maps, photographs, videos, etc.) is inadequate to sufficiently describe the premises, place, article, or object. The military judge should also consider the orderliness ofthe trial, how time consuming a view or inspection would be, the logistics involved, safety concerns, and whether a view or inspection would mislead or confuse members.

c.
A view is not intended as evidence, but simply to aid the trier offact in understanding the evidence.

d.
Counsel and the military judge should be attentive to alterations to, or differences in, the item or location to be viewed or inspected as compared to the time that the place or item is relevant to the proceedings. Differences in time ofday, time ofthe year, lighting, and other factors should also be discussed. The military judge should be prepared, with assistance of counsel, to note these differences to the members.


MJ: The court will be permitted to view (the place in which the offense charged in this case is alleged
to have been committed) ('-____) as requested by (trial) (defense) counsel. Does the (trial) (defense)
counsel desire that an escort accompany the court?
(TC) (DC): Yes, I suggest that serve as the escort. (He has testified as to the (place) ( ) and I believe that it is desirable to have him as escort.)
DA PAM 27-9 • 01 January 2010
MJ: Does (trial) (defense) counsel have any objection to __as escort? (TC) (DC): (No objection) ('-___--1).
MJ: Have come into the courtroom. (The proposed escort enters the courtroom.)
TC: (To escort) State your full name, (grade, organization, station, and armed force) (occupation and city
and state ofresidence).
Escort:

MJ: The court has been authorized to inspect (the place in which the offense charged in this case is
alleged to have been committed) ('-__-') and desires you to act in the capacity of escort. Do you
have any objections to serving as escort?
Escort: No, your Honor.

MJ: Trial Counsel will administer the oath to the escort.
TC: Please raise your right hand. Do you (swear) (or) (affirm) that you will escort the court and will well and truly point out to them (the place in which the offense charged in this case is alleged to have been committed) ( ); and that you will not speak to the court concerning (the alleged offense) ( ), except to describe (the place aforesaid) ( ). So help you God.
Escort: I do.
MJ: This view is being undertaken to assist the court in understanding and applying the evidence admitted in the trial. The view itself is not evidence; it merely enables the court to consider and apply the evidence before it in the light of the knowledge obtained by the inspection. Likewise, nothing said at the inspection is to be considered as evidence. The court will not hear witnesses or take evidence at the view. Counsel and members of the court properly may ask the escort to point out certain features, but they must otherwise refrain from conversation. Counsel, the members, and I will be provided with paper and a writing instrument to write out any questions of the escort and the questions will be marked as an appellate exhibit. The reporter is instructed to record all statements made at the view by counsel, the accused, the escort, the members, or me. Reenactments of the events involved or alleged to have been committed are not authorized. The escort, counsel, the accused, the reporter, and I will be present with the court at all times during the view. The court will now recess and remain in the vicinity of the courtroom to await necessary transportation. When the view has been completed, the court will reassemble and the regular proceedings will be resumed.
MJ: Are there any questions from the members about the procedure we are to follow? MBRS: (Respond.)
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MJ: (Other than at the previous Article 39(a) session held earlier on this matter,) Do counsel have any objections to these instructions or any requests about how the viewing is to be conducted? TC/DC: (Respond.)
NOTE 3: The court should then proceed to the place to be inspected. After the court has assembled at the place to be viewed, the military judge should state in substance as follows:
MJ: It is now _ hours on the _ day of _____ 20_; all parties to the trial who were present when the court recessed are present; and that is also present. NOTE 4: The military judge should then ask questions ofthe escort to identify the physical location ofthe court.
MJ: The members of the court are at liberty to look around. Ifyou have questions to ask of the escort, please write them out so that I can ask them in the presence of all the parties to the trial. Remain together. Please bear in mind that everything said during the course of the view must be recorded by the court reporter. The members may not talk or otherwise communicate among themselves.
NOTE 5: The court should then be allowed sufficient time to inspect the place or item in question.
MJ: Does any member or counsel have any questions to ask the escort? (If so, please write them out on the forms provided.) Ifnot, I we are in recess until __. NOTE 6: Once the view is conducted, the military judge should conduct an Article 39(a) session substantially as follows:
MJ: Does any party have any objections to how the view was conducted or to anything that occurred
during the view?
TCIDC: (Respond.)

NOTE 7: After the court is called to order and all parties to the trial are accounted for, the military judge should make the following announcement:
MJ: During the recess, the members of the court, counsel, the accused, the escort, the military judge, and the reporter viewed (the place in which the offense charged in this case is alleged to have been committed) (which was identified by the escort as ____-')('--___). The transcript of the reporter's Notes taken at the view will be inserted at the proper chronological point in the record of trial. The members are instructed to avoid, and not go to, the location we just visited until the trial has ended.
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REFERENCES:
(1)
Views and inspections generally. RCM 913(c)(3).

(2)
Oath for escort. RCM 807(b).

(3)
Test for whether a view is warranted. United States v. Marvin, 24 MJ 365 (CMA 1987); United States v. Ayala, 22 MJ 777 (ACMR 1986), aff'd 26 MJ 190 (CAAF 1988); and United States v. Huberty, 50 MJ 704 (AFCCA 1999).

(4)
View not evidence. United States v. Ayala, 22 MJ 777 (ACMR 1986), aff'd 26 MJ 190 (CMA 1988).

(5)
Unauthorized view. United States v. Wolfe, 24 CMR 57 (CMA 1955).

(6)
Completeness of record ofa view. United States v. Martin, 19 CMR 646 (AFBR 1955), pet. denied, 19 CMR 413 (CMA 1955).


DA PAM 27-9' 01 January 2010
2-7-23. ABSENT ACCUSED INSTRUCTION: PRELIMINARY FINDINGS
MJ: Under the law applicable to trials by court-martial, various circumstances may exist whereby a
court-martial can proceed to findings and sentence, if appropriate, without the accused being present in the courtroom. I have determined that one or more of these circumstances exist in this case. You are not permitted to speculate as to why the accused is not present in court today and that you must not draw any inference adverse to the accused because (he) (she) is not appearing personally before
you. You may neither impute to the accused any wrongdoing generally, nor impute to (him) (her) any inference of guilt as respects (his) (her) nonappearance here today. Further, should the accused be found guilty of any offense presently before this court, you must not consider the accused's nonappearance before this court in any manner when you close to deliberate upon the sentence to be adjudged.
Will each member follow this instruction?
REFERENCES: See United States v. Minter, 8 MJ 867 (NMCMR 1980); see also United States v. Denney, 28 MJ 521 (ACMR 1989) (indicating that accused's absence may be considered for rehabilitative potential); United States v. Chapman, 20 MJ 717 (NMCMR 1985), aff'd, 23 MJ 226 (CMA 1986) (summary affirmance) .
DA PAM 27-9·01 January 2010
2-7-24. STIPULATIONS OF FACT AND EXPECTED TESTIMONY (NOT lAW A PRETRIAL AGREEMENT)
NOTE: Whenever the prosecution or defense offers a stipulation into evidence, the MJ should conduct an inquiry with the accused outside the presence ofthe court members along the following lines:
MJ: _____, before signing the stipulation, did you read it thoroughly?
ACC: (Responds.)

MJ: Do you understand the contents of the stipulation?
ACC: (Responds.)

MJ: Do you agree with the contents of the stipulation?
ACC: (Responds.)

MJ: Before signing the stipulation, did your defense counsel explain the stipulation to you?
ACC: (Responds.)

MJ: Do you understand that you have an absolute right to refuse to stipulate to the contents of this
document?
ACC: (Responds.)

MJ: You should enter into this stipulation only if you believe it is in your best interest to do so. Do
you understand that?
ACC: (Responds.)

MJ: _____, I want to ensure that you understand how this stipulation is to be used.
(IF STIPULATION OF FACT:) MJ: When counsel for both sides and you agree (to a fact) (the contents of a writing), the parties are bound by the stipulation and the stipulated matters are facts in evidence to be considered along with all the other evidence in the case. Do you understand that? ACC: (Responds.)
(IF STIPULATION OF EXPECTED TESTIMONY:) MJ: When counsel for both sides and you agree to a stipulation of expected testimony, you are agreeing that if_____ were present in court and testifying under oath, (she) (he) would testify substantially as set forth in this stipulation. The stipulation does not admit the truth of the person's testimony. The stipulation can be contradicted,
DA PAM 27-9 • 01 January 2010
attacked, or explained in the same way as if the person was testifying in person. Do you understand
that?
ACC: (Responds.)

MJ: _____, knowing now what I have told you and what your defense counsel earlier told you
about this stipulation, do you still desire to enter into the stipulation?
ACC: (Responds.)

MJ: Do counsel concur in the contents of the stipulation?
TC/DC: (Respond.)

MJ: The stipulation is admitted into evidence as _____
NOTE: Stipulations ofexpected testimony are admitted into evidence, but only read to the court members. They are not to be given to them for use in deliberations.
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2-7-25. CONFESSIONAL STIPULATION OF FACT INQUIRY
NOTE: Thefollowing inquiry is required by United States v. Bertelson. 3 MJ 314 (CMA 1977), whenever a stipulation "practically amounts to a confession" as set forth in the discussion following RCM 811(c).
MJ: Please have the stipulation marked as a Prosecution Exhibit, present it to me, and make sure the
accused has a copy.
TC: (Complies.)

MJ: _____, I have before me Prosecution Exhibit _ for Identification, a stipulation of fact.
Did you sign this stipulation?
ACC: (Responds.)

MJ: Did you read this document thoroughly before you signed it?
ACC: (Responds.)

MJ: Do both counsel agree to the stipulation and that your signatures appear on the document?
TC/DC: (Respond.)

MJ: _____, a stipulation of fact is an agreement among the trial counsel, the defense counsel,
and you that the contents of the stipulation are true, and if entered into evidence are the
uncontradicted facts in this case. No one can be forced to enter into a stipulation, and no stipulation
can be accepted without your consent, so you should enter into it only if you truly want to do so. Do
you understand this?
ACC: (Responds.)

MJ: Are you voluntarily entering into this stipulation because you believe it is in your own best
interest to do so?
ACC: (Responds.)

MJ: _____, the government has the burden of proving beyond a reasonable doubt every element
ofthe offense(s) with which you are charged. By stipulating to the material elements ofthe offense(s),
as you are doing here, you alleviate that burden. That means that based upon the stipulation alone,
and without receiving any other evidence, the court can find you guilty of the offense(s) to which the
stipulation relates. Do you understand that?
ACC: (Responds.)

DA PAM 27-9' 01 January 2010
(IF JUDGE ALONE TRIAL:) MJ: Ifl admit this stipulation into evidence it will be used in two ways.
First, I will use it to determine if you are, in fact, guilty of the offense(s) to which the stipulation
relates. And second, I will use it in determining an appropriate sentence for you.
(IF MEMBERS TRIAL:) MJ: Ifl admit this stipulation into evidence it will be used in two ways.
First, members will use it to determine if you are, in fact, guilty of the offense(s) to which the
stipulation relates. And second, the trial counsel may read it to the court members and they will have
it with them when they decide upon your sentence.

MJ: Do you understand and agree to these uses of the stipulation?
ACC: (Responds.)

MJ: Do both counsel also agree to these uses?
TC/DC: (Respond.)

MJ: _____, a stipulation of fact ordinarily cannot be contradicted. You should, therefore, let me
know now if there is anything whatsoever in the stipulation that you disagree with or feel is untrue.
Do you understand that?
ACC: (Responds.)

MJ: At this time, I want you to read your copy of the stipulation silently to yourself as I read it to
myself.

NOTE: The MJ should read the stipulation and be alert to resolve inconsistencies between what is stated in the stipulation and what the accused will say during the inquiry establishing the factual basis for the stipulation.
MJ: Have you finished reading it? ACC: (Responds.)
MJ: _____, is everything in the stipulation the truth? ACC: (Responds.)
MJ: Is there anything in the stipulation that you do not which to admit that is true? ACC: (Responds.)
MJ: _____, have you consulted fully with your counsel about the stipulation? ACC: (Responds.)
DA PAM 27-9 • 01 January 2010
MJ: After having consulted with your counsel, do you consent to my accepting the stipulation? ACC: (Responds.)
MJ: _____, at this time I want you to tell me what the factual basis is for this stipulation. Tell me what happened.
NOTE: At this point the military judge mustpersonally question the accused to develop information showing what the accused did or did not do and what he/she intended, where intent is pertinent. The aim is to make clear the factual basis for the recitations in the stipulation. The military judge must be alert to the existence ofany inconsistencies between the stipulation and the explanations ofthe accused. Ifany arise they must be discussed thoroughly with the accused, and the military judge must resolve them or reject the stipulation.
MJ: Does either counsel believe that any further inquiry is required into the factual basis for the
stipulation?
TCIDC: (Respond.)

MJ: _____, has anybody made any promises or agreements with you in connection with this
stipulation?
ACC: (Responds.)

MJ: Counsel, are there any written or unwritten agreements between the parties in connection with
the stipulation? .

NOTE: Should this inquiry reveal the existence ofan agreement not to raise defenses or motions, the stipulation will be rejected as inconsistent with Article 45(a).
TCIDC: (Respond.)
MJ: Defense Counsel, do you have any objections to Prosecution Exhibit _ for Identification? DC: (Responds.)
MJ: Prosecution Exhibit for Identification is admitted into evidence.
DA PAM 27-9·01 January 2010
2-7-26. ADVICE ON CONSEQUENCES OF VOLUNTARY ABSENCE
NOTE: The following inquiry is suggested when the accused is arraigned, but trial on the merits is postponed to a later date. See ReM 804(c)(1).
MJ: _____, what has just happened is called an arraignment. An arraignment has certain legal
consequences, one of which I'd like to explain to you now. Under ordinary circumstances, you have
the right to be present at every stage of your trial. However, if you are voluntarily absent on the date
this trial is scheduled to proceed, you may forfeit the right to be present. The trial could go forward
on the date scheduled even if you were not present, up to and including sentencing, if necessary. Do
you understand this?
ACC: (Responds.)

MJ: It is important that you keep your defense counsel and your chain of command apprised of your
whereabouts at all times between now and the trial date. Do you have any questions about what I've
told you?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
2-7-27. ARGUMENT OR REQUEST FOR A PUNITIVE DISCHARGE
NOTE 1: Argument or a request (or a punitive discharge. It is improper for defense counsel to argue for a discharge or dismissal against the client's desires and ifa dishonorable discharge is possible, the defense counsel may only argue for a bad-conduct discharge. United States v. Dresen, 40 MJ 462 (CMA 1994); United States v. McMillan, 42 CMR 601 (ACMR 1970). Ifthe defense or the accused requests, arguesfor, or concedes the appropriateness of, a punitive discharge or dismissal, the military judge should conduct an inquiry with the accused outside ofthe presence ofthe court members. United States v. McNally, 16 MJ 32 (CMA 1983). But see United States v. Lyons, 36 MJ 425 (CMA 1993). The focus ofthe inquiry is to ensure that the accused consents to the argument andfully understands the ramifications ofa punitive discharge or dismissal. Ordinarily, before argument or the accused's making a requestfor a discharge or dismissal, the defense counsel should inform the military judge outside the presence ofthe court members ofthe planned argument or request. This procedure will ensure that the inquiry is done before the members hear the argument or request. Ifthe argument is made before the inquiry below is conducted, the inquiry should be made before the court closes to deliberate on the sentence. Ifthe accused did not wish the argument to be made, the military judge should instruct the members to disregard that portion ofthe defense's argument. The following inquiry may be appropriate:
MJ: ____, do you understand that the only discharge(s) this court can adjudge (is) (are) a bad-
conduct discharge (and a dishonorable discharge) (is a dismissal)?
ACC: (Responds.)

MJ: Do you understand that a (bad-conduct discharge) (dismissal) will forever adversely stigmatize
the character of your military service and it will limit your future employment and schooling
opportunities?
ACC: (Responds.)

MJ: Do you understand that a (bad-conduct discharge) (dismissal) may adversely affect your future
with regard to legal rights, economic opportunities, and social acceptability?
ACC: (Responds.)

MJ: Do you understand that by (receiving a bad-conduct discharge) (being dismissed), you will lose
substantially all benefits from the Department of Veterans Affairs and the Army establishment, as
well as other benefits normally given by other governmental agencies?
ACC: (Responds.)

(IF RETIREMENT ELIGIBLE: MJ: Do you understand that a (bad-conduct discharge) (dismissal)
terminates your military status and will deprive you of any retirement benefits, to include retired pay?
ACC: (Responds.)

DA PAM 27-9 • 01 January 2010
MJ: Have you thoroughly discussed your desires with your defense counsel?
ACC: (Responds.)

MJ: Do you believe you fully understand the ramifications ofa (bad-conduct discharge) (dismissal)?
ACC: (Responds.)

MJ: Are you aware that if you do not receive a punitive discharge from this court-martial, then your
chain of command may very well try to administratively separate you from the service?
ACC: (Responds.)

MJ: Are you also aware that an administrative separation is considered much less severe than a
discharge from a court-martial and will not stigmatize you with the devastating and long term effects
of a discharge from a court-martial?
ACC: (Responds.)

MJ: _____, knowing all that I and your defense counsel have explained to you, is it your express
desire to be (discharged from the service with a bad-conduct discharge) (dismissed from the service)
(if, as you indicate, it will preclude (your going to confinement) (an extended period of confinement)

('-__-J))?
ACC: (Responds.)

MJ: Do you consent to your defense counsel stating an argument that you desire to be (discharged
with a bad-conduct discharge) (dismissed from the service) (if it will preclude (your going to
confinement) (an extended period of confinement) ('-___-'))?
ACC: (Responds.)

NOTE 2: Sentence Appropriateness. The sentencing authority should not adjudge a bad­conduct discharge or a dismissal merely based upon a request for one. The discharge or dismissal must be an appropriate punishmentfor the accused and the offenses ofwhich the accused stands convicted before it can be adjudged. United States v. Strauss. 47 MJ 739 (NMCCA 1997).
NOTE 3: Requesting a Dismissal. Although no case specifically holds that counsel may argue for a dismissal, appellate courts have implicitly recognized such arguments as proper. See United States v. Worrell. 3 MJ 817 (AFCMR 1977) (arguing for a dismissal is not ineffective assistance ofcounsel); United States v. Nunes. 39 MJ 889 (AFCCA 1994) (argument held not to be a requestfor dismissal); United States v. Perry, 48 MJ 197 (CAAF 1998) (argumentfor dismissal implicitly approved; alleged error was failure to instruct on the impact ofa dismissal).
DA PAM 27-9·01 January 2010
NOTE 4: Title 10, United States Code, Section 1161(b) (2) authorizes the President to "drop from the rolls ofany armed force any commissioned officer ...who may be separated under section 1167 ofthis title by reason ofa sentence to confinement adjudged by a court­martial." Section 1167provides that "a member sentenced by a court-martial to a period of confinementfor more than six months may be separatedfrom the member's armedforce at any time after the sentence to confinement has become final ... and the member has served in confinement for a period ofsix months. "
DA PAM 27-9 • 01 January 2010
II

Chapter 3
INSTRUCTIONS ON ELEMENTS
OF OFFENSES

DA PAM 27-9' 01 January 2010
3-1-1. PRINCIPALS-AIDING, ABETTING, COUNSELING, COMMANDING, OR PROCURING (ARTICLE 77)
Q. This paragraph does not contain any instructions, but will assist the military judge in formulating instructions when issues of vicarious liability are raised by the evidence.
h.
Article 77 does not define an offense; it merely makes clear that a person who did not personally perform an act charged may still be criminally responsible for that offense.

c.
See Instruction 7-1-4 for the instructions on the vicarious liability of co-conspirators.

d.
When the evidence shows that the accused is the person who actually committed the offense, the military judge should use that Chapter 3 instruction corresponding to the offense charged.

e.
If the evidence shows that the accused did not actually commit the offense, but may be criminally responsible as one who aided and abetted, commanded, counseled, procured, or caused the commission of the offense, the military judge should follow the guidance in Instruction 7-1. Depending on the evidence, one, two, or all ofInstructions 7-1-1 through 7-1-3 will be given.

f.     
As Instruction 7-1 indicates, when instructing on an offense in which the accused is not the one who actually committed the offense, the military judge should:


(1)
Give the elements ofthe offense charged indicating that the actual perpetrator, and not the accused, is the one who is alleged to have committed the offense.

(2)
After all the elements ofthe charged offense have been given, add the following element: "That (state the name of the accused) ((aided and abetted) (counseled) (commanded) (procured) (caused)) (state the name ofthe actual perpetrator) ((to commit) (in committing)) the offense of (state the alleged offense) by (state the manner alleged)."

(3)
Give the instructions and definitions of the offense charged, remembering that "the accused" as used in those instructions and definitions will refer to the actual perpetrator and not the accused at trial.

(4)
Give Instructions 7-1-1 through 7-1-3 as required by the evidence.


DA PAM 27-9·01 January 2010
3-1-2. JOINT OFFENDERS (ARTICLE 77)
When an accused is charged as ajoint offender, the military judge should consult Instruction 7-1 for assistance in drafting appropriate instructions.
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3-2-1. ACCESSORY AFTER THE FACT (ARTICLE 78)
a. MAXIMUM PUNISHMENT: Maximum authorized for principal offense, but not death, no more than 112 confinement authorized for principal offense, and not more than 10 years.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), knowing that (at/onboard-Iocation), on or about
________had committed an offense punishable by the Uniform Code of Military Justice, to
wit: , did, (at/on board-location) on or about , in order to (hinder) (prevent) the
(apprehension) (trial) (punishment) of the said , (receive) (comfort) (assist) the said ____
by ____
c. ELEMENTS:
(1)
That (state the alleged offense), an offense punishable by the Uniform Code of Military Justice, was committed by (state the name of the principal) at (state the time and place alleged);

(2)
That the accused knew that (state the name of the principal) had committed such offense;

(3)
That the accused thereafter (state the time and place alleged) [(received) (comforted) (assisted)] (state the name of the principal) by (state the manner alleged); and

(4)
That the accused [(received) (comforted) (assisted)] (state the name of the principal) in order to [(hinder) (prevent)] (his) (her) [(apprehension) (trial) (punishment)].


d. DEFINITIONS AND OTHER INSTRUCTIONS:
The accused may be found guilty as an accessory after the fact only if, in addition to all other elements of the offense, you are satisfied beyond a reasonable doubt that:
NOTE 1: Elements of principal's offense. Here, the members must be instructed on the elements of the offense allegedly committed by the principal. The instructions given should be those setting forth the elements of the pertinent offense and should be carefully tailored to include such factors as value, amount, or other essential ingredients which might affect the maximum punishment.
NOTE 2: Principal offense housebreaking or burglary. In cases in which the offense alleged to have been committed by the principal is burglary or housebreaking, the
DA PAM 27-9' 01 January 2010
members should be advised as to the relevant elements ofthe particular offense or offenses which the evidence indicates the principal may have intended to commit inside the house, building, or structure involved.
NOTE 3: Maximum punishment for principal offense affected by value. If the offense committed by the principal is one for which the maximum punishment is graduated according to the value ofthe property, damage, or amount involved, and ifthe allegations and evidence will support a finding as to specific value, damage, or amount, the e/ement(s) ofthe instruction should be phrased so as to set out that value, damage, or amount. For example, if the offense committed by the principal is larceny, element 1 ofthe instruction should state: "That larceny, an offense punishable by the Uniform Code ofMilitary Justice, ofproperty ofa value of(state the value alleged) was committed by (state the name ofthe principal) at (state the time and place alleged)." Offenses other than larceny and wrongful appropriation which require similar modification ofthe instruction include: simple arson (Article 126), fraud against the United States (Article 132), knowingly receiving stolen property (Article 134), and other offenses in violation ofArticles 103, 108, 109, and 123a. When value, damage, or amount is in issue an instruction in accordance with Instruction 7­16, Variance -Value. Damage. or Amount. should be given.
NOTE 4: Conviction ofthe principal not required. Conviction ofthe principal ofthe offense to which the accused is allegedly an accessory after the fact is not a prerequisite to the trial ofthe accused. Furthermore, evidence ofthe acquittal or conviction ofthe principal in a separate trial is not admissible to show that the principal did or did not commit the offense.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
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3-3-1. CONVICTION OF LESSER INCLUDED OFFENSE (ARTICLE 79)
a.
This paragraph does not contain any instructions but will assist the military judge when the evidence raises a lesser included offense.

b.
When the evidence raises a lesser included offense and the requirements of Paragraph 3b, MCM (2008 Edition) are satisfied, the military judge must instruct on the lesser included offense. This is done after instructing upon the charged offense. In the usual case, the order of instructions will be:


(1)
Instructions and definitions of the charged offense.

(2)
Introducing the lesser included offense. See paragraph 2-5-10 and paragraph 8-3-9.

(3)
Elements and definitions of the lesser included offense.

(4)
Comparison between the offense charged and the lesser included offense. See paragraph 2-5-lOb and paragraph 8-3-9b.

(5)
Ifmore than one lesser included offense is raised by the evidence, follow the instructional pattern in subparagraphs (2) through (4) above for each lesser included offense.

c.
When lesser included offenses are raised by the evidence, the military judge must ensure that a properly tailored Findings Worksheet is prepared and the military judge instructs the members on the use ofthat worksheet.

d.
See also Instructions 7-15 and 7-16 with respect to variance and findings by exceptions and substitutions.


DA PAM 27-9·01 January 2010
3-4-1. ATTEMPTS-OTHER THAN MURDER AND VOLUNTARY MANSLAUGHTER (ARTICLE 80)
NOTE 1: Applicability ofthis instruction. The following instruction will ordinarily apply to all attempts under Article 80 except attempted murder and attempted voluntary manslaughter. Also, do not use this instruction in the following cases: assault by attempt (use instructions for appropriate assault offense tailored for attempt), attempted desertion (use Instruction 3-9-4), attempted mutiny (use Instruction 3-18-6), attempting to aid the enemy (use Instruction 3-28-2) and attempted espionage (use Instruction 3-30A-2) and attempting to kill an unborn child (use Instruction 3-44A-3).
a.
MAXIMUMPUNISHMENT: That authorized for commission of the offense attempted, except (1)
mandatory minimum sentences do not apply, and (2) that in no case shall the death penalty or confinement
exceeding 20 years be adjudged.


h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (atlon board-location) on or about ,
attempt to (describe offense with sufficient detail to include expressly or by necessary implication every
element).



c. ELEMENTS:
(1)
That, (state the time and place alleged), the accused did (a) certain act(s), that is: (state the act(s) alleged or raised by the evidence);

(2)
That the act(s) (was) (were) done with specific intent to commit the offense of (state the alleged attempted offense);

(3)
That the act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the commission of the intended offense; and

(4)
That such act(s) apparently tended to bring about the commission of the offense of (state the alleged attempted offense), (that is, the act(s)


apparently would have resulted in the actual commission of the offense
of (state the alleged attempted offense) except for (a circumstance
unknown to the accused) (an unexpected intervening circumstance)
( ) which prevented completion of that offense.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
Preparation consists of devising or arranging the means or measures
necessary for the commission of the attempted offense. To find the
DA PAM 27-9 • 01 January 2010
accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward the commission of the intended offense. A substantial step is one that is strongly corroborative of the accused's criminal intent and is indicative of
(his) (her) resolve to commit the offense.
Proof that the offense of (state the alleged attempted offense) actually occurred or was completed by the accused is not required. However, it must be proved beyond a reasonable doubt that, at the time of the act(s), the accused intended every element of (state the alleged attempted offense).
The elements of the attempted offense are: (state the elements of the offense allegedly intended along with necessary definitions).
NOTE 2: Instructing on the elements of the offense attempted. When instructing on the elements of the attempted offense, the militaryjudge may describe the intended offense in summarized fashion, along with applicable definitions, rather than enumerate each element. For example, where the alleged offense is attempted larceny of an item of a value greater than $500, the militaryjudge may state: "Larceny is the wrongful taking of the property of another of a value greater than $500 with the intent to permanently deprive the owner of the use and benefit of the property or the intent to permanently appropriate the property to the accused's own use or the use of anyone other than the lawful owner. A taking is wrongful only when done without the consent of the owner and with a criminal state of mind." When the offense attempted involves elements of another offense, such as burglary with intent to commit rape, the elements of both offenses (burglary and rape), along with applicable definitions, must be stated.
NOTE 3: Graduated punishment possibilities for the attempted offense. If the offense attempted has maximum punishments graduated according to value, amounts, type of property, or other factors, the elements of the attempted offense should include the value, amount, type ofproperty, or other factor alleged. For example, where the offense attempted is larceny of military property, that the property was military property must be stated as an element and the definition of military property given. The elements for the offense need not be enumerated but may be summarized as in the example in NOTE 2, above.
NOTE 4: Factual impossibility. If the evidence indicates that it was impossible for the accused to have committed the offense attempted for reasons unknown to him or her, the accused may still be found guilty of attempt. A person who purposefully engages in conduct which would constitute an offense ifthe circumstances were as that person believes them to be is guilty of an attempt. For example, ifwith intent to commit robbery, a person by force and against the victim's will reaches into the victim's pocket to steal money, believing money might be there, the person is guilty of attempted robbery even
DA PAM 27-9 • 01 January 2010
though the victim has no money on his person. When factual impossibility is raised, the following may be appropriate:
The evidence has raised the issue that it was impossible for the accused to have committed the offense of because (here state the facts or contention of the counsel). If the facts were as the accused believed them to be, and under those facts the accused's conduct would constitute the offense of ( ), the accused may be found guilty of attempted ( ) even though under the facts as they actually existed it was impossible for the accused to complete the offense of ( ). The burden of proof to establish the accused's guilt beyond a reasonable doubt is upon the government. If you are satisfied beyond a reasonable doubt of all the elements of the offense as I have explained them to you, you may find the accused guilty of attempted (_____) even though under the facts as they actually existed it was impossible for the accused to commit the offense of (_____).
NOTE 5: Offenses requiring an intent to commit murder. When an attempt to commit an offense which requires the intent to commit murder is charged (e.g., burglary with intent to commit murder), the militaryjudge MUST instruct that the requisite intent is to kill; an intent to inflict great bodily harm is not sufficient. See United States v. DeAlva, 34 MJ 1256 (ACMR 1992).
NOTE 6: Other Instructions. Where the evidence raises the issue that the accused may have abandoned his or her criminal purpose, Instruction 5-15, Voluntary Abandonment, may be applicable. Where there is evidence that the accused may not have had the ability to formulate the requisite intent, Instruction 5-17, Evidence Negating Mens Rea, should be given. Instruction 5-17 is required even when evidence of the defense of lack ofmental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); United States v. Berri, 33 MJ 337 (CMA 1991). If voluntary intoxication in relation to the ability to formulate the requisite intent is raised by the evidence, Instruction 5-12, Voluntary Intoxication, should ordinarily be given. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable.
e. REFERENCES: United States v. Jones, 37 MJ 459 (CMA 1993); United States v. Schoof, 37 MJ 96 (CMA 1993); United States v. Byrd, 24 MJ 286 (CMA 1987).
DA PAM 27-9 • 01 January 2010
3-4-2. ATTEMPTS-MURDER, PREMEDITATED AND UNPREMEDITATED (ARTICLE 80)
NOTE 1: Applicabilitv of this instruction. Use this instruction only for attempted premeditated or attempted unpremeditated murder. For attempted voluntary manslaughter as the charged offense, see Instruction 3-4-3; as a lesser included offense, see NOTE 6, below. For other attempts, see Instruction 3-4-1.
a. MAXIMUM PUNISHMENT:
(1)
Attempted murder: DD, TF, life without eligibility for parole, E-l.

(2)
Attempted voluntary manslaughter: DD, TF, 10 years, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
attempt to (describe offense with sufficient detail to include expressly or by necessary implication every
element).



NOTE 2: About this specification. There is no MCM form specification specifical/y for attempted murder or attempted voluntary manslaughter. The specification above is for Article 80 attempts general/y.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did (a) certain act(s), that is: (state the act(s) alleged or raised by the evidence);

(2)
That such act(s) (was) (were) done with the specific intent to kill (state the name of the alleged victim); that is, to kill without justification or excuse;

(3)
That such act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the unlawful killing of (state the name of the alleged victim); (and)

(4)
That such act(s) apparently tended to bring about the commission of the offense of (premeditated murder) (unpremeditated murder); that is, the act(s) apparently would have resulted in the actual commission of the


offense of (premeditated murder) (unpremeditated murder) except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented completion of that offense; [and]
DA PAM 27-9 • 01 January 2010
NOTE 3: Attempted premeditated murder. If the accused is charged with attempted premeditated murder, give element (5).
((5» That at the time the accused committed the act(s) alleged, (he)
(she) had the premeditated design to kill (state the name of the alleged
victim).
d. DEFINITIONSAND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal justification or excuse.
Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward commission of the intended offense. A substantial step is one that is strongly corroborative of the accused's criminal intent and is indicative of (his) (her) resolve to unlawfully kill.
Proof that a person was actually killed is not required. However, it must
be proved beyond a reasonable doubt that the accused specifically
intended to kill (state the name of the alleged victim) without justification
or excuse.
The intent to kill does not have to exist for any measurable or particular
length of time before the act(s) of the accused that constitute(s) the
attempt.
(For attempted premeditated murder, the intent to kill must precede the act(s) that constitute(s) the attempt. "Premeditated design to kill" means the formation of a specific intent to kill and consideration of the act intended to bring about death. The "premeditated design to kill" does not have to exist for any measurable or particular length of time. The only requirement is that it must precede the act(s) that constitute(s) the attempt.)
DA PAM 27-9·01 January 2010
(For (the lesser included offense of) attempted unpremeditated murder, the intent to kill must exist at the time of the act(s) that constitute(s) the attempt.)
The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, you may infer that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.
NOTE 4: Instructions on attempted unpremeditated murder as a lesser included offense­generally. The evidence may indicate that all the elements of attempted premeditated murder have been proven except premeditation. Ifso, give the instruction below. If the militaryjudge will also be instructing on attempted voluntary manslaughter as a lesser included offense, the portion in parentheses of the instruction below should also be given. Ifthe evidence indicates that premeditation is in issue because of the accused's passion or the accused lacked the ability to premeditate, NOTE 5 and the instruction following are normally applicable:
If you find beyond a reasonable doubt all the elements of attempted premeditated murder except the element of premeditation (and you find beyond a reasonable doubt that the attempted killing was not done in the heat of sudden passion caused by adequate provocation, which I will mention in a moment), you may find the accused guilty of the lesser included offense of attempted unpremeditated murder.
NOTE 5: Attempted unpremeditated murder as a lesser included offense-accused's passion and ability to premeditate. Ifthe evidence indicates that the passion ofthe accused may have affected his or her capacity to premeditate, the court may be instructed as below: (See also NOTE 6 below for additional instructions on this issue.)
With respect to the accused's ability to premeditate, an issue has been raised by the evidence as to whether the accused acted in the heat of sudden "passion." "Passion" means a degree of rage, pain, or fear which prevents cool reflection. If sufficient cooling off time passes between the provocation and the time of the attempted killing which would allow a reasonable person to regain self-control and refrain from killing, the
DA PAM 27-9 • 01 January 2010
provocation will not reduce attempted murder to the lesser offense of attempted voluntary manslaughter. However, you may consider evidence of the accused's passion in determining whether (he) (she) possessed sufficient mental capacity to have "the premeditated design to kill." An accused cannot be found guilty of attempted premeditated murder if, at the time of the attempted killing, (his) (her) mind was so confused by (anger) (rage) (pain) (sudden resentment) (fear) (or) ( ) that (he) (she) could not or did not premeditate. On the other hand, the fact that the accused's passion may have continued at the time of the attempted killing does not necessarily demonstrate that (he) (she) was deprived of the ability to premeditate or that (he) (she) did not premeditate. Thus, (if you are convinced beyond a reasonable doubt that sufficient cooling off time had passed between the provocation and the time of the attempted killing which would allow a reasonable person to regain (his) (her) self-control and refrain from attempting to kill), you must decide whether (he) (she) in fact had the premeditated design to kill. If you are not convinced beyond a reasonable doubt that the accused attempted to kill with premeditation you may still find (him) (her) guilty of attempted unpremeditated murder if you are convinced beyond a reasonable doubt that the accused attempted to kill (state the name of the alleged victim) without justification or excuse.
NOTE 6: Attempted voluntary manslaughter as a lesser included offense. When there is
evidence that an attempted killing may have been in the heat ofsudden passion caused by
adequate provocation, the militaryjudge must instruct upon the lesser included offense of
attempted voluntary manslaughter using the instructions below:
The lesser offense of attempted voluntary manslaughter is included in the crime of attempted (premeditated) (and) (unpremeditated) murder.
"Attempted voluntary manslaughter" is the attempted unlawful killing of a human being, done with an intent to kill, in the heat of sudden passion
caused by adequate provocation. The presence of sudden passion
caused by adequate provocation differentiates attempted
unpremeditated murder from attempted voluntary manslaughter.
DA PAM 27-9' 01 January 2010
Acts of the accused which might otherwise amount to attempted (premeditated) (or) (unpremeditated) murder constitute only the lesser
offense of attempted voluntary manslaughter if those acts were done in
the heat of sudden passion caused by adequate provocation. "Passion"
means a degree of anger, rage, pain, or fear which prevents cool
reflection. The law recognizes that a person may be provoked to such
an extent that in the heat of sudden passion caused by adequate
provocation, (he) (she) attempts to strike a fatal blow before (he) (she)
has had time to control (himself) (herself). A person who attempts to kill
because of passion caused by adequate provocation is not guilty of
(either) attempted (premeditated) (or) (unpremeditated) murder.
Provocation is adequate if it would cause uncontrollable passion in the
mind of a reasonable person. The provocation must not be sought or
induced as an excuse for attempting to kill.
If you are not satisfied beyond a reasonable doubt that the accused is guilty of attempted (premeditated) (or) (unpremeditated) murder, but you are satisfied beyond a reasonable doubt that the attempted killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill, you may still find (him) (her) guilty of attempted voluntary manslaughter.
NOTE 7: Factual impossibility. If the evidence indicates that it was impossible for the
accused to have committed the offense for reasons unknown to him/her, the accused may
still be found guilty ofattempt. A person who purposely engages in conduct which would
constitute an offense if the circumstances were as that person believes them to be is guilty
of an attempt. For example, ifa person points a pistol he or she believes is loaded at the
victim and pulls the trigger with intent to kill the victim, the person is guilty ofattempted
murder or attempted voluntary manslaughter even though the pistol is not loaded. In such
cases, the following instruction may be appropriate:
The evidence has raised the issue that it was impossible for the accused
to have committed the offense (or lesser included offense) of
(premeditated murder) (unpremeditated murder) (voluntary
manslaughter) (because (here the military judge may state the facts or
contention of counsel)). If the facts were as the accused believed them
to be, and under those facts the accused's conduct would constitute the
DA PAM 27-9 • 01 January 2010
offense of (premeditated murder) (unpremeditated murder) (voluntary manslaughter), the accused may be found guilty of attempted (premeditated murder) (unpremeditated murder) (voluntary manslaughter), even though under the facts as they actually existed it was impossible for the accused to complete the offense of (premeditated murder) (unpremeditated murder) (voluntary manslaughter). The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the government. If you are satisfied beyond a reasonable doubt of all the elements of the offense(s) as I have explained them to you, you may find the accused guilty of attempted (premeditated murder) (unpremeditated murder) (voluntary manslaughter) even though under the facts as they actually existed it was impossible for the accused to commit the offense attempted.
NOTE 8: Inapplicabilitv of transferred intent instruction. The militaryjudge should not ordinarily give a transferred intent instruction (NOTE 4, Instruction 3-43-2) when the accused is charged with an attempt. If the person intends to kill X and in attempting to consummate that intent, shoots at Ybelieving that Yis in fact X, the evidence establishes the intent to kill Y. In these cases, an exceptions and substitutions or variance instruction (Instruction 7-15) may be applicable. The factual impossibility instruction in NOTE 7 above should not be used for situations posed in the hypothetical in this note because an unlawful killing is not factually impossible.
NOTE 9: Voluntary intoxication as a defense. If the issue of voluntary intoxication with respect to the ability to premeditate is raised by the evidence, Instruction 5-12, Voluntary Intoxication. should ordinarily be given. Voluntary intoxication by itself is not a defense to unpremeditated murder and will not reduce unpremeditated murder to a lesser form of unlawful killing. United States v. Morgan, 37 MJ 407 (CMA 1993). Voluntary intoxication is, however, a defense to the offense ofattempt. Attempts require the specific intent to commit the offense intended and accordingly, voluntary intoxication by itselfmay defeat that specific intent. When this issue is raised by the evidence, Instruction 5-12, Voluntary Intoxication. is ordinarily applicable.
NOTE 10: Other instructions. When there is evidence that the accused may not have had the ability to formulate the requisite intent, Instruction 5-17, Evidence Negating Mens Rea, should be given. Instruction 5-17 is required even when evidence of the defense oflack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); United States v. Berri, 33 MJ 337 (CMA 1991). When an issue ofself-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given. See the instructions in Chapter 5. Ifthe evidence raised the defense that the accused may have abandoned his or her criminal purpose, Instruction 5-15, Voluntary Abandonment, may be applicable. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
e. REFERENCES: United States v. Jones, 37 MJ 459 (CMA 1993); United States v. Schoof, 37 MJ 96, (CMA 1993); United States v. Byrd, 24 MJ 286 (CMA 1987).
DA PAM 27-9·01 January 2010
3-4-3. ATTEMPTS-VOLUNTARY MANSLAUGHTER (ARTICLE 80)
NOTE 1: Applicabilitv of this instruction. Use this instruction only for attempted voluntary manslaughter. For attempted premeditated or attempted unpremeditated murder, see Instruction 3-4-2. For other attempts, see Instruction 3-4-1.
a.
MAXIMUMPUNISHMENT: DD, TF, 15 years, E-1.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
attempt to (describe offense with sufficient detail to include expressly or by necessary implication every
element).



NOTE 2: About this specification. There is no MCM form specification specifically for attempted murder or attempted voluntary manslaughter. The specification above is for Article 80 attempts generally.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did (a) certain act(s), that is, (state the act(s) alleged or raised by the evidence);

(2)
That such act(s) (was) (were) done with the specific intent to unlawfully kill (state the name of the alleged victim); that is, to kill without


justification or excuse;
(3)
That such act(s) amounted to more than mere preparation; that is, (it was) (they were) a substantial step and a direct movement toward the unlawful killing of (state the name of the alleged victim); and

(4)
That such act(s) apparently tended to bring about the commission of the offense of voluntary manslaughter, that is, the act(s) apparently would have resulted in the actual commission of the offense of voluntary manslaughter except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented completion of that offense.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal
justification or excuse.
DA PAM 27-9' 01 January 2010
Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward commission of the intended offense. A substantial step is one that is strongly corroborative of the accused's criminal intent and is indicative of (his) (her) resolve to commit the offense.
Proof that a person was actually killed is not required. However, it must
be proved beyond reasonable doubt that the accused specifically
intended to kill (state the name of the alleged victim) without justification
or excuse.
The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, it may be inferred that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.
The intent to kill does not have to exist for any measurable or particular time before the act(s) of the accused that constitute the attempt. All that is required is that it exist at the time of the act(s) that constitute(s) the attempt.
NOTE 3: Sudden passion/adequate provocation. When attempted voluntary manslaughter is the charged offense, the existence of sudden passion caused by adequate provocation is not an element. The following instruction may be appropriate ifan explanation is necessary:
The offense of attempted voluntary manslaughter is committed when a
person, with intent to kill, unlawfully attempts to kill a human being in the
heat of sudden passion caused by adequate provocation. The term
"passion" means anger, rage, pain, or fear. Proof that the accused was
acting in the heat of passion caused by adequate provocation is not
DA PAM 27-9·01 January 2010
required. It is essential, however, that the four elements I have listed for you be proved beyond reasonable doubt before the accused can be convicted of attempted voluntary manslaughter.
NOTE 4: Factual impossibilitv. If the evidence indicates that it was impossible for the accused to have committed the offense for reasons unknown to him/her, the accused may still be found guilty ofattempt. A person who purposely engages in conduct which would constitute an offense if the circumstances were as that person believes them to be is guilty ofan attempt. For example, ifa person points a pistol he/she believes is loaded at the victim and pulls the trigger with intent to kill the victim, the person is guilty ofattempted murder or attempted voluntary manslaughter even though the pistol is not loaded. In such cases, the following instruction may be appropriate:
The evidence has raised the issue that it was impossible for the accused to have committed the offense of voluntary manslaughter because (here state the facts or contention of counsel). If the facts were as the accused believed them to be, and under those facts the accused's conduct would constitute the offense of voluntary manslaughter, the accused may be found guilty of attempted voluntary manslaughter, even though under the facts as they actually existed it was impossible for the accused to commit the offense of voluntary manslaughter. The burden of proof to establish the accused's guilt beyond reasonable doubt is upon the government. If you are satisfied beyond reasonable doubt of all the elements of the offense as I have explained them to you, you may find the accused guilty of attempted voluntary manslaughter even though under the facts as they actually existed it was impossible for the accused to commit the offense of voluntary manslaughter.
NOTE 5: Inaoolicability oftransferred intent instruction. The militaryjudge should not ordinarily give a transferred intent instruction (NOTE 4, Instruction 3-43-2) when the accused is charged with an attempt. If the person intends to kill X and in attempting to consummate that intent, shoots at Ybelieving that Yis in fact X, the evidence establishes the intent to kill Y. In these cases, an exceptions and substitutions or variance instruction (Instruction 7-15) may be applicable. The Factual Impossibility Instruction in NOTE 4 above should not be used for situations posed in the hypothetical in this note because an unlawful killing is not factually impossible.
NOTE 6: Voluntarv intoxication as defense to attempted voluntary manslaughter. Voluntary intoxication by itself is not a defense to voluntary manslaughter. See United States v. Morgan, 37 MJ 407 (CMA 1993). Voluntary intoxication is a defense to attempted voluntary manslaughter. Attempts require the specific intent to commit the offense intended and
DA PAM 27-9' 01 January 2010
accordingly, voluntary intoxication by itself may defeat that specific intent. When this issue is raised by the evidence, Instruction 5-12, Voluntary Intoxication, is ordinarily applicable.
NOTE 7: Other instructions. When there is evidence that the accused may not have had the ability to formulate the requisite intent to kill, Instruction 5-17, Evidence Negating Mens Rea, should be given. Instruction 5-17 is required even when evidence of the defense of lack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); United States v. Berri, 33 MJ 337 (CMA 1991). When an issue ofself-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given. See the instructions in
Chapter 5. If the evidence raises the defense that the accused may have abandoned his or her criminal purpose, Instruction 5-15, Voluntary Abandonment, may be applicable. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
e. REFERENCES: United States v. Jones, 37 MJ 459 (CMA 1993); United States v. Schoof, 37 MJ 96 (CMA 1993); United States v. Byrd, 24 MJ 286 (CMA 1987).
DA PAM 27-9' 01 January 2010
3-5-1. CONSPIRACY (ARTICLE 81)
a.
MAXIMUM PUNISHMENT: Maximum authorized for the offense which is the object of the
conspiracy, except that in no case shall the death penalty be imposed.


h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (atlon board-location) on or about ,
conspire with (and ) to commit an offense under the Uniform Code of Military
Justice, to wit: (larceny of , of a value of (about) $ , the property of ),
and in order to effect the object ofthe conspiracy the said (and ) did ____



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused entered into an agreement with (state the name(s) of the alleged co-conspirator(s)) to commit (state the name of the offense allegedly conspired), an offense under the Uniform Code of Military Justice; and

(2)
That, while the agreement continued to exist, and while the accused remained a party to the agreement, (state name of accused or co­conspirator who allegedly performed overt act), performed (one or more of) the overt act(s) alleged, that is, (state the alleged overt act(s)), for the purpose of bringing about the object of the agreement.


The elements of the offense which the accused is charged with
conspiracy to commit are as follows:
NOTE 1: Elements listed. List the elements here, carefully tailoring them to be relevant to a conspiracy to commit such offense.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Proof that the offense of (state the name of the offense allegedly conspired) actually occurred is not required. However, it must be proved beyond a reasonable doubt that the agreement included every element of the offense of (state the name of the offense allegedly conspired).
(The agreement in a conspiracy does not have to be in any particular form or expressed in formal words. It is sufficient if the minds of the
parties reach a common understanding to accomplish the object of the
DA PAM 27-9 • 01 January 2010
conspiracy, and this may be proved by the conduct of the parties. The agreement does not have to express the manner in which the conspiracy is to be carried out or what part each conspirator is to play.)
(The overt act required for this offense does not have to be a criminal act, but it must be a clear indication that the conspiracy is being carried out.)
(The overt act may be done either at the time of or following the
agreement. )

(The overt act must clearly be independent of the agreement itself; that is, it must be more than merely the act of entering into the agreement or an act necessary to reach the agreement.)
(You are advised that there is no requirement (that all co-conspirators be named in the specification) (or) (that all co-conspirators be subject to military law).)
NOTE 2: More than one overt act al/eged. When more than one overt act is al/eged, the members should also be instructed that with respect to the overt acts al/eged, their findings should specify only the overt act or acts, ifany, of which they are convinced beyond a reasonable doubt. The fol/owing instruction may be appropriate in such a case:
You will note that more than one overt act has been listed in the specification. You may find the accused guilty of conspiracy only if you are convinced beyond a reasonable doubt that at least one of the overt acts described in the specification has been committed. Accordingly, if you find beyond a reasonable doubt that the accused (or a co­conspirator) committed one (or more) of the described overt acts, but not (all) (both) of them, your findings should reflect this by appropriate exceptions.
NOTE 3: Multiple overt acts al/eged; variance. When multiple overt acts are al/eged, the preceding instruction should be fol/owed by the applicable portions ofInstruction 7-15, Variance-Findings by Exceptions and Substitutions.
NOTE 4: Abandonment or withdrawal raised. The fol/owing additional instruction should be given when an issue arises as to whether the accused may have abandoned or withdrawn from the al/eged conspiracy:
DA PAM 27-9' 01 January 2010
There has been some evidence that the accused may have abandoned or withdrawn from the charged conspiracy. (Here the military judge may specify significant evidentiary factors bearing upon the issue and indicate the respective contentions of all counsel.)
An effective (abandonment) (or) (withdrawal) requires some action by the accused which is completely inconsistent with support for the unlawful agreement and which shows that the accused is no longer part of the conspiracy. If, at the time of the overt act, the accused is no longer a part of the conspiracy, the accused cannot be convicted of the offense. In other words if the accused (abandoned) (or) (withdrew from) the agreement before any conspirator committed an overt act, the accused cannot be convicted of conspiracy.
You may find the accused guilty of conspiracy only if you are satisfied beyond a reasonable doubt that the accused did not (abandon) (or) (withdraw from) the conspiracy before the commission of an overt act by
any of the conspirators.
NOTE 5: Maximum punishment affected by value. Ifthe maximum punishment is affected by an essential ingredient, such as value ofproperly, damage, or amount involved, such matter should be included when stating the elements of the allegedly intended offense. Instruction 7-16, Variance -Value, Damage, or Amount, should be given when applicable.
NOTE 6: Burglary or housebreaking as object of conspiracy. Ifburglary or housebreaking is the object of the alleged conspiracy, additional instructions should be given on the relevant elements of the offense allegedly intended to be committed within the structure involved. Terms such as "breaking," "entering," and "dwelling house" should be defined when applicable.
NOTE 7: Vicarious liability in issue. Ifthe accused is charged with criminal responsibility for a consummated offense actually committed by a co-conspirator, see instructions on vicarious liability at Instruction 7-1-4.
DA PAM 27-9·01 January 2010
3-6-1. SOLICITATION OF DESERTION OR MUTINY (ARTICLE 82)
a. MAXIMUM PUNISHMENT:
(1)
Desertion: DD, TF, 3 years, E-l.

(2)
Mutiny: DD, TF, 10 years, E-l.

(3)
In time of war, see Article 82, UCMJ, and paragraph 6, Part IV, MCM, 2008.


b. MODEL SPECIFICATION:
NOTE 1: Offense solicited not attempted or committed. If the offense solicited or advised was not attempted or committed, omit the words contained in brackets.
In that (personal jurisdiction data), did, (at/on board-location), on or about , (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) (and ___-------') to (desert in violation ofArticle 85) (mutiny in violation of Article 94), [and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about , (at/on board-location), attempted) (committed) by (and )].
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (specify the statement, acts or conduct allegedly constituting solicitation or advice, and the name of the person(s) allegedly solicited or advised);

(2)
That the (statement(s) (acts)) (conduct) of the accused amounted to (solicitation) (advice) to (desert in violation of Article 85) (mutiny in violation of Article 94); and

(3)
That the accused specifically intended that (state the name of person allegedly solicited or advised) commit the offense of (desertion) (mutiny).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
NOTE 2: Offense solicited or advised not alleged to have been committed or attempted. If there is no allegation that the offense solicited or advised was committed or attempted, the elements ofthe offense allegedly solicited or advised should be stated, tailored as appropriate to a solicitation, rather than commission or attempt. For example, ifthe offense ofdesertion with intent to remain away permanently was allegedly solicited, the following instruction, to be added after (2), above, would be appropriate:
That is, the accused (solicited) (advised) (state the name of the person(s) allegedly solicited or advised) to absent (himself) (herself)
DA PAM 27-9 • 01 January 2010
without proper authority from ((his) (her)) ((unit) (station) (organization)) with the intent to remain away permanently from that (unit) (station) (organization).
NOTE 3: Mutiny as offense solicited or advised. If the offense allegedly solicited or advised but not attempted or committed was mutiny, the following instruction, instead of that under NOTE 2, would be appropriate:
That is, the accused (solicited) (advised) (state the name of the person(s) allegedly solicited or advised): (To create (violence) (a disturbance)); (To refuse, together with (state the name(s) of the other person(s)), (to obey orders) (to otherwise do (his) (her) duty)); and to do so (in furtherance of a common intent with another) with the intent to override military authority.
NOTE 4: Offense solicited actually committed. When the specification alleges that the solicited offense was committed, the following additional element and instructions must be substituted for the instructions under NOTEs 2 and 3, above:
(4) That, because of the (solicitation) (advice), the offense of (desertion) (mutiny) was committed.
To find the accused guilty of this specification, you must also be satisfied by legal and competent evidence beyond a reasonable doubt: That (state the name(s) of the person(s) allegedly committing the offense) committed (desertion) (mutiny), the elements of which are as follows: (list relevant elements, tailored to cover the particular type of desertion or mutiny raised by the evidence and consistent with the allegations of the specification).
NOTE 5: Offense solicited was allegedly attempted. When the specification alleges that the solicited offense was attempted, the following additional element and instructions must be substituted for those under NOTEs 2, 3, and 4, above:
(3) That, because of the (solicitation) (advice), the offense of (desertion) (mutiny) was attempted.
To find the accused guilty of this specification, you must also be satisfied by legal and competent evidence beyond a reasonable doubt: That (list the elements of an attempt, using Instruction 3-4-1, Attempts, as a guide,
DA PAM 27-9' 01 January 2010
and carefully tailor the instruction as required by the particular mutiny or desertion allegedly attempted).
NOTE 6: Definition of "solicitation" and "advice". The following instruction should be used to explain the terms "solicitation" or "advice," whether or not there is an allegation that the offense solicited or advised was attempted or committed:
("Solicitation") ("Advice") means any statement, oral or written, or any other act or conduct which can reasonably be understood as a serious request or advice to commit the offense named in the specification. (The accused may act through others in soliciting or advising.)
NOTE 7: Other instructions. When applicable, Instruction 7-3, Circumstantial Evidence (Intent), should be given.
DA PAM 27-9 • 01 January 2010
3-6-2. SOLICITATION OF MISBEHAVIOR BEFORE THE ENEMY OR SEDITION (ARTICLE 82)
a. MAXIMUM PUNISHMENT: DD, TF, 10 years, E-l. (In time of war, see Article 82, UCMJ, and paragraph 6e, Part IV, MCM, 2008.)
h. MODEL SPECIFICATION:
NOTE 1: Tailoring specification. If the offense solicited or advised is not committed, omit the words contained in brackets.
In that (personal jurisdiction data), did, (at/on board-location), on or about , (a time ofwar), by (here state the manner and form of solicitation or advice), (solicit) (advise) (and ) to commit (an act of misbehavior before the enemy in violation of Article 99) (sedition in violation of Article 94), [and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about , (at/on board-location), committed by (and ).]
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (specify the conduct allegedly constituting solicitation or advice, and the name(s) of the person(s) allegedly solicited or advised);

(2)
That the (statement(s)) (act(s)) (conduct) of the accused amounted to (solicitation) (advice) to (misbehave before the enemy in violation of Article 99) (to commit sedition in violation of Article 94); and

(3)
That the accused specifically intended that (state the name of person allegedly solicited or advised) commit the offense of (misbehavior before the enemy) (sedition).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: No allegation offense solicited or advised was committed. Ifthere is no allegation that the offense solicited or advised was committed, the following instruction must be added. See Instruction 3-6-1, NOTEs 2 and 3:
The elements of the offense of (misbehavior before the enemy) (sedition) are as follows: (list the elements of the offense allegedly solicited or advised, tailoring them as appropriate to a solicitation rather than a commission).
DA PAM 27-9·01 January 2010
NOTE 3: Solicited offense allegedly committed. When the specification alleges that the solicited offense was committed the following additional element and instructions must be substituted for that following NOTE 2, above:
That, because of the (solicitation) (advice), the offense of (misbehavior before the enemy) (sedition) was committed.
To find the accused guilty of this specification, you must also be satisfied by legal and competent evidence beyond a reasonable doubt: That (state the name(s) of the person(s) allegedly committing the offense)
(misbehaved before the enemy) (committed sedition), the elements of which are as follows: (list the relevant elements, tailored to the evidence and consistent with the allegations of the specification).
NOTE 4: Defining "solicitation" and "advice". The following instruction should be used to explain the terms "solicitation" or "advice," whether or not there is an allegation that the offense solicited was committed:
("Solicitation") ("Advice") means any statement, oral or written, or any other act or conduct which can reasonably be understood as a serious request or advice to commit the offense named in the specification. (The accused may act through others in soliciting or advising.)
NOTE 5: Other instructions. When applicable, Instruction 7-3, Circumstantial Evidence (Intent), should be given.
DA PAM 27-9 • 01 January 2010
3-7-1. FRAUDULENT ENLISTMENT OR APPOINTMENT (ARTICLE 83)
a.
MAXIMUM PUNISHMENT: DD, TF, 2 years, E-l.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data), did, (at/on board-location), on or about , by means of [knowingly false representations that (here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment which were concealed)], procure himselflherself to be (enlisted as a ) (appointed as a ) in the (here state the armed force in which the accused procured the enlistment or appointment), and did thereafter, (at/on board-location), receive (pay) (allowances) (pay and allowances) under the ( enlistment) ( appointment) so procured.


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was (enlisted) (appointed) in the United States (Army) ( ) as described in the specification;

(2)
That the accused (knowingly misrepresented) (deliberately concealed) (a) certain material fact(s) about (his) (her) qualifications, that is, (state the facts allegedly concealed or misrepresented);

(3)
That the accused's (enlistment) (appointment) was obtained or
procured by the (knowingly false representation) (deliberate
concealment); and


(4)
That under this (enlistment) (appointment) the accused received
(pay) (and) (allowances).



d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Enlistment" as used in the specification means a voluntary entry or enrollment for a specific term of service in one of the Armed Forces by any person except a commissioned or warrant officer.)
("Appointment" as used in the specification means any method by which a commissioned or warrant officer enters into the service of an Armed Force.)
"Material" means important.
DA PAM 27-9' 01 January 2010
"Receipt of allowances" includes the acceptance of money, food, clothing, shelter, or transportation from the Government. (However, items furnished to the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment are
not considered allowances.)
NOTE: Other instructions. If the accused's enlistment or appointment was allegedly procured by a knowingly false representation, Instruction 7-3, Circumstantial Evidence (Knowledge), should ordinarily be given. If the accused's enlistment or appointment was procured by a deliberate concealment of material facts, Instruction 7-3, Circumstantial Evidence (Intent), should ordinarily be given. If the receipt ofpayor allowances is established by circumstantial evidence, Instruction 7-3, Circumstantial Evidence, should ordinarily be given.
DA PAM 27-9' 01 January 2010
3-7-2. FRAUDULENT SEPARATION (ARTICLE 83)
a. MAXIMUM PUNISHMENT: DD, TF, 5 years, E-1.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , by means of [(knowingly false representations that (here state the fact or facts material to eligibility for separation which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts concealed which made the accused ineligible for separation)], procure (himself) (herself) to be separated from the (here state the armed force from which the accused procured (his) (her) separation).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was separated from the United States (Army) ( );

(2)
That the accused (knowingly misrepresented) (deliberately concealed) (a) certain material fact(s) about (his) (her) eligibility for separation, as described in the specification; that is, (state the facts allegedly concealed or misrepresented); and

(3)
That the accused's separation was obtained or procured by that (knowingly false representation) (deliberate concealment).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Material" means important.
"Separation" means any method by which a member of an Armed Force is released from the service. "Release from the service" means any severance or disconnection from an active or inactive duty status.
NOTE: Other instructions. If the accused's separation was procured by a knowingly false representation, Instruction 7-3, Circumstantial Evidence (Knowledge), should ordinarily be given. Ifthe accused's separation was procured by a deliberate concealment ofmaterial facts, Instruction 7-3, Circumstantial Evidence (Intent), should ordinarily be given.
DA PAM 27-9 • 01 January 2010
3-8-1. EFFECTING UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION (ARTICLE 84)
a.
MAXIMUM PUNISHMENT: DD, TF, 5 years, E-l.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data), did, (atlon board-location) on or about , effect [(the (enlistment) (appointment) of as a in (here state the armed force in which the person was enlisted or appointed)] [the separation of from (here state the armed force from which the person was separated)], then well knowing that the said was ineligible for such (enlistment) (appointment) (separation) because (here state facts whereby the enlistment, appointment, or separation was prohibited by law, regulation, or order).


c. ELEMENTS:
(1) That (state the time and place alleged), the accused effected the (enlistment) (appointment) (separation) of (state the name of the person allegedly unlawfully enlisted, appointed, or separated) (in) (from) the
United States (Army) ( );
(2)
That (state the name of the person allegedly unlawfully enlisted, appointed, or separated) was ineligible for this (enlistment) (appointment)

(separation) because it was prohibited by (law) (regulation) (order), as described in the specification; and

(3)
That the accused knew of the ineligibility at the time (he) (she) caused or brought about the (enlistment) (appointment) (separation).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Enlistment" means a voluntary entry or enrollment for a specific term of
service in one of the Armed Forces by any person except a
commissioned or warrant officer.)
("Appointment" means any method by which a commissioned or warrant
officer enters into the service of an Armed Force.)
("Separation" means any method by which a member of an Armed Force is released from the service. "Release from the service" includes any severance or disconnection from an active or inactive duty status.)
DA PAM 27-9' 01 January 2010
"Material" means important.
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-9-1. DESERTION WITH INTENT TO REMAIN AWAY PERMANENTLY (ARTICLE 85)
a. MAXIMUM PUNISHMENT:
(1)
In time of war: Death or other lawful punishment.

(2)
Terminated by apprehension: DD, TF, 3 years, E-l.

(3)
Otherwise: DD, TF, 2 years, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, on or about , (a time ofwar), without authority and with intent to remain away therefrom permanently, absent himself/herself from his/her (unit) (organization) (place of duty), to wit: , located at ( ) (APO ), and did remain so absent in desertion until (he/she was apprehended) on or about ____
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused went from or remained absent from (his) (her) (unit) (organization) (place of duty), that is, (state the name of the unit. organization, or place of duty);

(2)
That the accused remained absent until (state the alleged date of termination of absence);

(3)
That the absence was without proper authority from someone who could give the accused leave; (and)

(4)
That the accused, at the time the absence began or at some time during the absence, intended to remain away from (his) (her) (unit) (organization) (place of duty) permanently; [and]


NOTE 1: Aggravating factors al/eged. In the event one or more of the aggravating factors are al/eged, the militaryjudge must advise the court members of the aggravating factors as elements.
((5)) That the accused's absence was in time of war; [and]
((6)) That the accused's absence was terminated by apprehension.
DA PAM 27-9·01 January 2010
d. DEFINITIONSAND OTHER INSTRUCTIONS:
The intent to remain away permanently from the (unit) (organization) (place of duty) may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.
(A prompt repentance and return, while material in extenuation, is no defense, and it is not necessary that the accused be absent entirely from military jurisdiction and control.)
If you are not convinced beyond a reasonable doubt that the accused intended to remain away permanently, you cannot convict (him) (her) of desertion, but you may find the accused guilty of absence without authority in violation of Article 86, if you are satisfied beyond a reasonable doubt that the accused is guilty of this lesser offense.
In determining whether the accused had the intent to remain away
permanently, you should consider the circumstances surrounding the
beginning, length, and termination of the charged absence and how
those circumstances might bear upon the element of intent. No one
factor is controlling and each of them should be considered by you.
NOTE 2: Dropped from the rolls (DFR). If the phrase "DFR" or "dropped from the rolls as a deserter" appears in evidence, the following additional instruction should be given:
The term (OFR) (dropped from the rolls as a deserter), as contained in (Prosecution Exhibit _) (the testimony of ), is purely an administrative term. You cannot consider this term as evidence of an intent on the part of the accused to remain away permanently.
NOTE 3: When desertion terminated by apprehension is alleged. The following instructions are pertinent to the issue of termination by apprehension:
"Apprehension" means that the accused's return to military control was involuntary. It must be shown that neither the accused nor persons acting at the accused's request initiated the accused's return.
DA PAM 27-9 • 01 January 2010
(That the accused was apprehended by civilian authorities, for a civilian
violation, and was thereafter turned over to military control by the civilian
authorities, does not necessarily indicate that the accused's return was
involuntary. Such return may be deemed involuntary if, after the
accused was apprehended, such civilian authorities learned of the
accused's military status from someone other than the accused or
persons acting at the accused's request.)
(In addition, the return may be involuntary if, after being apprehended by civilian authorities, the accused disclosed (his) (her) identity as a result of a desire to avoid trial, prosecution, punishment, or other criminal action at the hands of such civilian authorities. However, if the accused disclosed (his) (her) identity to the civilian authorities because of the accused's desire to return to military control, the accused's return should not be deemed involuntary or by apprehension.)
(The arrest of an accused by civilian authorities does not, in the absence of special circumstances, terminate (his) (her) unauthorized absence by apprehension where the record does not show such apprehension to have been connected with or done on behalf of the military authorities. Thus, in the absence of special circumstances, mere apprehension by civilian authorities does not sustain the government's burden of showing that the return to military control was involuntary.)
NOTE 4: When apprehension is contested. When the question of apprehension is at all controverted, the following instruction must be given. Ifboth apprehension and time of war are alleged, the instruction must be modified to reflect that the accused may be convicted of desertion even ifneither of the aggravating circumstances are alleged:
You will note that of the elements that I have listed, only the last element
concerns apprehension. To convict the accused of desertion terminated
by apprehension, you must be convinced beyond a reasonable doubt of
all the elements, including the element of apprehension. If you are
convinced of all the elements except the element of apprehension, you
may convict the accused of desertion, but not of desertion terminated by
apprehension.
DA PAM 27-9 • 01 January 2010
NOTE 5: Voluntary termination and casual presence. When some evidence has been
presented that raises the issue of voluntary termination of an unauthorized absence prior to
the end date alleged in the specification (see United States v. Rogers, 59 MJ 584 (ACCA
2003)), the following instruction should be given:
There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (aVon board-location) prior to the end date alleged in (The) Specification __ of (The) (Additional) Charge . Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (aVon board-location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or ) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status, and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee's status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee's status.
The prosecution bears the burden of proof to establish beyond a
reasonable doubt that the accused did not voluntarily terminate (his)
(her) absentee status. In order to find the accused guilty of an
unauthorized absence for the entire period alleged in the specification,
you must be convinced beyond a reasonable doubt that the accused did
not voluntarily terminate (his) (her) absentee status prior to the end date
alleged in the specification.
(If you find that the accused went from or remained absent without authority as alleged, but voluntarily terminated (his) (her) absentee status prior to the end date alleged, but later absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), you may find the accused guilty, by exceptions and
DA PAM 27-9' 01 January 2010
substitutions, of two or more separate unauthorized absences under one
specification, provided that each unauthorized absence is included within
the overall period alleged in the specification.)
NOTE 6: Multiple unauthorized absences under single specification. Ifan accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification. See United States v. Francis, 15 MJ 424 (CMA 1983).
NOTE 7: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), and Instruction 7-15, Variance, are ordinarily appropriate. Ifevidence ofprevious convictions or other acts of misconduct have been admitted as bearing on intent, the applicable portion of Instruction 7-13-1, Other Crimes. Wrongs or Acts Evidence, must be given.
DA PAM 27-9' 01 January 2010
3-9-2. DESERTION WITH INTENT TO AVOID HAZARDOUS DUTY OR TO SHIRK IMPORTANT SERVICE (ARTICLE 85)
a. MAXIMUMPUNISHMENT:
(1)
In time of war: Death or other lawful punishment.

(2)
Otherwise: DD, TF, 5 years, E-1.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, on or about ____, (a time of war), with intent to
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused quit (his) (her) (unit) (organization) (place of duty), that is, (state the name of the unit, organization, or place of duty);

(2)
That the accused did so with intent to (avoid a certain duty) (shirk a certain service), that is, _____

(3)
That the duty to be performed was (hazardous) (important);

(4)
That the accused knew that (he) (she) would be required for such duty; and

(5)
That the accused remained so absent until _____


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Quit" means to go from or remain absent from without proper authority.
("Hazardous duty" means a duty that involves danger, risk, or peril to the individual performing the duty. The conditions existing at the time the duty is to be performed determine whether the duty is dangerous, risky, or perilous.)
("Important service" means service that is more significant than the ordinary everyday service of members of the Armed Forces.)
DA PAM 27-9 • 01 January 2010
Whether a (duty is hazardous) (service is important) is a question of fact for you to determine and depends upon the circumstances of the particular case. You should consider all the facts and circumstances of the case, including, but not limited to, the tactical situation, the area, the mission, (and) the nature of the duty and its relationship to the mission, (and) (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
NOTE 1: Offenses separate. The offenses of desertion with intent to avoid hazardous duty and desertion with intent to shirk important service are separate offenses. Neither is included in the other.
NOTE 2: Lesser included offense. The following additional instruction, as well as appropriately tailored Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), and Instruction 7-15, Variance, should be given in all cases in which absence without proper authority in violation ofArticle 86 is raised as a lesser included offense:
To convict the accused of the offense of desertion, you must be convinced beyond a reasonable doubt of all five elements I have listed. However, if you are convinced only that the accused quit (his) (her) (unit) (organization) (place of duty) for the period specified, but have reasonable doubt as to any of the other elements that concern the accused's intent, knowledge, or nature of the duty supposedly avoided, then you may not find the accused guilty of desertion. You may, however, find the accused guilty of absence without proper authority for the period specified in violation of Article 86.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-9-3. DESERTION BEFORE NOTICE OF ACCEPTANCE OF RESIGNATION (ARTICLE 85)
a. MAXIMUMPUNISHMENT:
(1)
If terminated by apprehension: Dismissal, TF, 3 years.

(2)
If terminated otherwise: Dismissal, TF, 2 years.

(3)
In time ofwar: Death or other lawful punishment.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), having tendered (his ) (her) resignation and prior to due notice of the acceptance ofthe same, did, on or about , (a time of war), without leave and with intent to remain away therefrom permanently, quit his/her (post) (proper duties), to wit: , and did remain so absent in desertion until (he/she was apprehended) on or about
c. ELEMENTS:
(1)
That the accused was a commissioned officer of the United States (Army) ( ) and had tendered (his) (her) resignation;

(2)
That (state the time and place alleged) and before (he) (she) received notice of the acceptance of the resignation, the accused quit (his) (her) (post) (proper duties), that is, (state the post or proper duties alleged), without leave;

(3)
That the accused did so with the intent to remain away from (his) (her) (post) (proper duties) permanently, (and)

(4)
That the accused remained so absent until (state the date alleged); [and]


NOTE 1: Ifaoorehension is alleged. If the specification alleges termination by apprehension, the following instruction, treating apprehension as an additional element, must be added:
[(5)] That the accused's absence was terminated by apprehension.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Apprehension alleged. When apprehension is in issue, applicable portions of the instructions on apprehension appearing in Instruction 3-9-1, Desertion with Intent to Remain Away Permanently, should be given.
DA PAM 27-9' 01 January 2010
NOTE 3: Intent. With regard to the element of intent, the fol/owing additional instruction, along with appropriate portions ofInstruction 7-3, Circumstantial Evidence (Intent), should ordinarily be given:
In determining whether the accused had the intent to remain away permanently, you should consider the circumstances surrounding the beginning, length, and termination of the absence and how those circumstances might bear upon the element of intent. No one factor is controlling, and each of them should be considered by you.
NOTE 4: Other misconduct. Ifevidence ofprevious convictions or other acts of misconduct has been admitted as bearing on intent, the applicable portions ofInstruction 7­13, Uncharged Misconduct, must be given.
NOTE 5: Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date al/eged in the specification (see United States v. Rogers, 59 MJ 584 (ACCA 2003)), the fol/owing instruction should be given:
There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board-location) prior to the end date alleged in (The) Specification __of (The) (Additional) Charge . Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board-location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or ) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status, and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee's status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee's status.
The prosecution bears the burden of proof to establish beyond a reasonable doubt that the accused did not voluntarily terminate (his)
DA PAM 27-9' 01 January 2010
(her) absentee status. In order to find the accused guilty of an
unauthorized absence for the entire period alleged in the specification,
you must be convinced beyond a reasonable doubt that the accused did
not voluntarily terminate (his) (her) absentee status prior to the end date
alleged in the specification.
(If you find that the accused went from or remained absent without
authority as alleged, but voluntarily terminated (his) (her) absentee status
prior to the end date alleged, but later absented (himself) (herself) from
(his) (her) (unit) (organization) (place of duty at which (he) (she) was
required to be), you may find the accused guilty, by exceptions and
substitutions, of two or more separate unauthorized absences under one
specification, provided that each unauthorized absence is included within
the overall period alleged in the specification.)
NOTE 6: Multiple unauthorized absences under single specification. Ifan accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized ifthe accused had been found guilty as charged in the specification. See United States v. Francis, 15 MJ 424 (CMA 1983).
DA PAM 27-9 • 01 January 2010
3-9-4. ATTEMPTED DESERTION (ARTICLE 85)
a. MAXIMUM PUNISHMENT:
(1)
With intent to avoid hazardous duty or to shirk important service: DD, TF, 5 years, E-l.

(2)
All others: DD, TF, 2 years, E-l.

(3)
In time ofwar: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , (a
time of war), attempt to [(absent himself/herselffrom his/her (unit) (organization) (place of duty) to wit:
____, without authority and with intent to remain away therefrom permanently)] [(quit his/her (unit)
(organization) (place of duty), to wit: , located at , with intent to (avoid hazardous
duty) (shirk important service) namely ].



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did a certain act, that is, (state the act(s) alleged or raised by the evidence);

(2)
That the act was done with specific intent to (remain away permanently) (avoid hazardous duty) (shirk important service) (before notice of acceptance of resignation) and to commit the other elements of the offense of desertion which I will define later;

(3)
That the act amounted to more than mere preparation; that is, it was a direct movement toward the commission of the intended offense; and

(4)
That the act apparently tended to bring about the commission of the offense of desertion (state the type of desertion alleged attempted) (that is, the act apparently would have resulted in the actual commission of the offense of desertion (state the type of desertion allegedly attempted) except for a (circumstance unknown to the accused) (unexpected intervening circumstance) ( ) which prevented the completion of that offense).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
Proof that the offense of desertion (state the type of desertion allegedly attempted) actually occurred or was completed by the accused is not
DA PAM 27-9 • 01 January 2010
required. However, it must be proved beyond a reasonable doubt that, at the time of the act, the accused intended each element of that offense. These elements are: (list the elements of the particular type of desertion allegedly intended).
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable. When the offense attempted is either desertion with intent to avoid hazardous duty or desertion with intent to shirk important service, the appropriate definitions and instructions on circumstantial evidence in Instruction 3-9-2 should be given. Instruction 7-3, Circumstantial Evidence (Knowledge), will also ordinarily be applicable.
DA PAM 27-9' 01 January 2010
3-10-1. FAILING TO GO TO OR LEAVING PLACE OF DUTY (ARTICLE 86)
a.
MAXIMUM PUNISHMENT: 2/3 x 1 month, 1 month, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did (at/on board-location), on or about ,
without authority, (fail to go at the time prescribed to) (go from) hislher appointed place of duty, to wit:
(here set forth the appointed place of duty).



c. ELEMENTS:
(1)
That (state the certain authority) appointed a certain time and place of duty for the accused, that is, (state the certain time and place of duty);

(2)
That the accused knew that (he) (she) was required to be present at this appointed time and place of duty; and

(3)
That (state the time and place alleged), the accused, without proper authority, (failed to go to the appointed place of duty at the time prescribed) (went from the appointed place of duty after having reported at such place).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
NOTE 1: Applicability ofspecification. This specification applies whether a place of rendezvous for one or many and contemplates a failure to repair for routine duties as prescribed by routine orders, ~kitchen police, etc., but doesn't apply to an ordinary duty situation to be at one's unit or organization.
NOTE 2: "Deliberate avoidance" raised. The following instruction should be given when the issue of "deliberate avoidance," as discussed in United States v. Adams, 63 MJ 223 (CAAF 2006), is raised:
I have instructed you that the accused must have known that (he) (she) was required to be present at the appointed time and place of duty. You may not find the accused guilty of this offense unless you believe beyond reasonable doubt that the accused actually knew that (he) (she) was required to be present at the appointed time and place of duty.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to (his) (her) conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable
DA PAM 27-9 • 01 January 2010
doubt that the accused actually knew that (he) (she) was required to be present at the appointed time and place of duty, but you are nevertheless satisfied beyond a reasonable doubt that:
a.
The accused was aware that there was a high probability that (he) (she) was required to be present at an appointed time and place of duty; and

b.
The accused deliberately and consciously tried to avoid learning that (he) (she) was required to be present at an appointed time and place of duty, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of actual knowledge.


In other words, if you find the accused had (his) (her) suspicions aroused
that (he) (she) was required to be present at a certain place of duty at a
time prescribed, but then deliberately omitted making further inquiries
because he wished to remain in ignorance, you may find the accused
had the required knowledge.
I emphasize, however, that knowledge cannot be established by mere
negligence, foolishness, or even stupidity on the part of the accused.
The burden is on the prosecution to prove every element of this offense
beyond a reasonable doubt, including that the accused actually knew
that (he) (she) was required to be present at the appointed time and
place of duty. Consequently, unless you are satisfied beyond a
reasonable doubt that the accused either had actual knowledge that (he)
(she) was required to be present at the appointed time and place of duty,
or that the accused deliberately avoided that knowledge, as I have
defined that term, then you must find the accused not guilty.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-10-2. ABSENCE FROM UNIT, ORGANIZATION, OR PLACE OF DUTY (ARTICLE 86)
a. MAXIMUM PUNISHMENT:
(1)
Up to 3 days: 2/3 x 1 month, 1 month, E-l.

(2)
Over 3 to 30 days: 2/3 x 6 months, 6 months, E-l.

(3)
Over 30 days: DD, TF, 1 year, E-l.

(4)
Over 30 days and terminated by apprehension: DD, TF, 18 months, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, on or about , without authority, absent himself/herself from his/her (unit) (organization) (place of duty at which (he/she was required to be), to wit: , located at , and did remain so absent until ((he/she was apprehended) on or about
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused went from or remained absent from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), that is, (state name of unit. organization, or place of duty);

(2)
That the absence was without proper authority from someone who could give the accused leave; (and)

(3)
That the accused remained absent until (state the date of alleged termination of absence); [and]


[(4)] That the accused's absence was terminated by apprehension.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 1: Termination by apprehension alleged. If termination by apprehension is alleged, give the following:
"Apprehension" means that the accused's return to military control was involuntary. It must be shown that neither the accused nor persons acting at (his) (her) request initiated the accused's return.
DA PAM 27-9' 01 January 2010
(That the accused was apprehended by civilian authorities, for a civilian violation, and was thereafter turned over to military control by the civilian authorities, does not necessarily indicate that the accused's return was involuntary. Such return may be deemed involuntary if, after the accused was apprehended, such civilian authorities learned of the accused's military status from someone other than the accused or persons acting at (his) (her) request.)
(In addition, the return may be involuntary if, after being apprehended by civilian authorities, the accused disclosed (his) (her) identity as a result of a desire to avoid trial, prosecution, punishment, or other criminal action at the hands of such civilian authorities. However, if the accused disclosed (his) (her) identity to the civilian authorities because of the accused's desire to return to military control, the accused's return should not be deemed involuntary or by apprehension.)
(The arrest of an accused by civilian authorities does not, in the absence
of special circumstances, terminate (his) (her) unauthorized absence by
apprehension where the record does not show such apprehension to
have been conducted with or done on behalf of the military authorities.
Thus, in the absence of special circumstances, mere apprehension by
civilian authorities does not sustain the government's burden of showing
that the return to military control was involuntary.)
NOTE 2: Apprehension controverted. When the question ofapprehension is at all controverted, the following instruction must be given:
You will note that of the four elements that I have listed, only the last element concerns apprehension. To convict the accused of AWOL terminated by apprehension, you must be convinced beyond a reasonable doubt of all four elements, including the element of apprehension. If you are convinced of all the elements except the element of apprehension, you may convict the accused of AWOL, but not of AWOL terminated by apprehension.
NOTE 3: Apprehension by civil authorities. Ifraised by the evidence, the following instructions may be appropriate:
DA PAM 27-9 • 01 January 2010
There has been evidence presented which may indicate that the accused was taken into custody by civil authorities and returned to military control by civil authorities. This evidence, if you believe it, does not by itself prove that the accused's absence was terminated involuntarily. Rather, it is only some evidence to be considered by you along with all the other evidence in this case in deciding whether the accused's absence ended voluntarily or involuntarily.
A return to military control may be involuntary if, after the accused was
apprehended by civil authorities for a civil violation, the civil authorities
learned of the accused's military status in some way other than by a
voluntary disclosure by the accused or by some person acting at the
accused's request.
(In addition) (A return to military control may be involuntary if, after being apprehended by civil authorities for a civil violation, the accused disclosed (his) (her) identity and military status because of a desire to avoid trial, prosecution, punishment, or other criminal action by civil authorities.) (However) (If it appears that, after apprehension by civil authorities for a civil violation, the accused voluntarily disclosed (his) (her) identity and military status to the civil authorities because of a desire to return to military control and not because of a primary desire to avoid criminal action by civil authorities, the accused's return should be considered voluntary and not terminated by apprehension.)
NOTE 4: Voluntary termination and casual presence. When some evidence has been
presented that raises the issue of voluntary termination of an unauthorized absence prior to
the end date al/eged in the specification (see United States v. Rogers, 59 MJ 584 (ACCA
2003)), the following instruction should be given:
There has been some evidence that the accused was present (on a
military (installation) (base) (camp) (post)) (in a military facility) (at/on
board-location) prior to the end date alleged in (The) Specification
__ of (The) (Additional) Charge . Casual presence for
personal reasons (on a military (installation) (base) (camp) (post)) (in a
military facility) (at/on board-location), without more, does not terminate
an unauthorized absence. To voluntarily terminate an unauthorized
DA PAM 27-9' 01 January 2010
absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or ) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status, and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee's status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee's status.
The prosecution bears the burden of proof to establish beyond a
reasonable doubt that the accused did not voluntarily terminate (his)
(her) absentee status. In order to find the accused guilty of an
unauthorized absence for the entire period alleged in the specification,
you must be convinced beyond a reasonable doubt that the accused did
not voluntarily terminate (his) (her) absentee status prior to the end date
alleged in the specification.
(If you find that the accused went from or remained absent without
authority as alleged, but voluntarily terminated (his) (her) absentee status
prior to the end date alleged, but later absented (himself) (herself) from
(his) (her) (unit) (organization) (place of duty at which (he) (she) was
required to be), you may find the accused guilty, by exceptions and
substitutions, of two or more separate unauthorized absences under one
specification, provided that each unauthorized absence is included within
the overall period alleged in the specification.)
NOTE 5: Multiple unauthorized absences under single specification. Ifan accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized ifthe accused had been found guilty as charged in the specification. See United States v. Francis, 15 MJ 424 (CMA 1983).
DA PAM 27-9 • 01 January 2010
3-10-3. ABSENCE FROM UNIT, ORGANIZATION, OR PLACE OF DUTY WITH INTENT TO AVOID MANEUVERS OR FIELD EXERCISES (ARTICLE 86)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-1.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (on/about-location), without authority and with intent to avoid (maneuvers) (field exercises), absent himselflherselffrom his/her (unit) (organization) (place of duty at which (he/she) was required to be), to wit: located at ( ), and did remain so absent until on or about
c. ELEMENTS:)
(1)
That (state the time and place alleged), the accused went from or remained absent from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), that is, (state the name of unit. organization, or place of duty);

(2)
That this absence was without proper authority from someone who could give the accused leave;

(3)
That the accused remained absent until (state the date of alleged termination of absence);

(4)
That the accused knew that the absence would occur during (a part of) a period of (maneuvers) (field exercises) in which (he) (she) was required to participate; and

(5)
That the accused intended by (his) (her) absence to avoid all (or part) of the period of such (maneuvers) (field exercises).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 1: Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date alleged in the specification (see United States v. Rogers, 59 MJ 584 (ACCA 2003)), the following instruction should be given:
There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (aUon board-location) prior to the end date alleged in (The) Specification __of (The) (Additional) Charge . Casual presence for
DA PAM 27-9' 01 January 2010
personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board-location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or ) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status, and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee's status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee's status.
The prosecution bears the burden of proof to establish beyond a
reasonable doubt that the accused did not voluntarily terminate (his)
(her) absentee status. In order to find the accused guilty of an
unauthorized absence for the entire period alleged in the specification,
you must be convinced beyond a reasonable doubt that the accused did
not voluntarily terminate (his) (her) absentee status prior to the end date
alleged in the specification.
(If you find that the accused went from or remained absent without
authority as alleged, but voluntarily terminated (his) (her) absentee status
prior to the end date alleged, but later absented (himself) (herself) from
(his) (her) (unit) (organization) (place of duty at which (he) (she) was
required to be), you may find the accused guilty, by exceptions and
substitutions, of two or more separate unauthorized absences under one
specification, provided that each unauthorized absence is included within
the overall period alleged in the specification.)
NOTE 2: "Deliberate avoidance" raised. The following instruction should be given when
the issue of "deliberate avoidance, " as discussed in United States v. Adams, 63 MJ 223
(CAAF 2006), is raised:
DA PAM 27-9 • 01 January 2010
I have instructed you that the accused must have known that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to (his) (her) conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, but you are nevertheless satisfied beyond a reasonable doubt that:
a.
The accused was aware that there was a high probability that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate; and

b.
The accused deliberately and consciously tried to avoid learning that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of actual knowledge.


In other words, if you find the accused had (his) (her) suspicions aroused that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate but then deliberately omitted making further inquiries because he wished to remain in ignorance, you may find the accused had the required knowledge. I emphasize, however, that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every
DA PAM 27-9 • 01 January 2010
element of this offense beyond a reasonable doubt, including that the accused actually knew that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 3: Multiple unauthorized absences under single specification. Ifan accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized ifthe accused had been found guilty as charged in the specification. See United States v. Francis, 15 MJ 424 (CMA 1983).
NOTE 4: Other Instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge) is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-10-4. ABANDONING WATCH OR GUARD (ARTICLE 86)
a. MAXIMUM PUNISHMENT:
(1)
Unauthorized absence: 2/3 x 3 months, 3 months, E-l.

(2)
With intent to abandon: BCD, TF, 6 months, E-1.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), being a member of the (guard) (watch) (duty section), did, (at/on board-location), on or about , without authority, go from his/her (guard) (watch) (duty section) (with intent to abandon the same).
c. ELEMENTS:
(1)
That the accused was a member of the (guard) (watch) (duty section) at (state the time and place alleged);

(2)
That (state the time and place alleged), the accused went from or remained absent from (his) (her) (guard) (watch) (duty section);

(3)
That this absence was without proper authority; and

(4)
That the accused intended to abandon (his) (her) (guard) (watch) (duty section).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Intended to abandon" means that the accused, at the time the absence began or at some time during the absence, must have intended to completely separate (himself) (herself) from all further responsibility for (his) (her) particular duty as a member of the (guard) (watch) (duty section).
NOTE 1: Definition of "dutv section", The term "duty section" has a specialized meaning, and does not refer to the place where a memberperforms routine duties, Ifabandonment of duty section is alleged, give the following additional instruction:

"Duty section" describes a group of personnel who have been designated to remain within the limits of a military (vessel) (command) during those times, such as liberty hours, when personnel strength is
DA PAM 27-9' 01 January 2010
below normal, in order to accomplish the mission and ensure the safety of the (vessel) (command).
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-11-1. MISSING MOVEMENT (ARTICLE 87)
a. MAXIMUMPUNISHMENT:
(1)
Through design: DD, TF, 2 years, E-l.

(2)
Through neglect: BCD, TF, 1 year, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about ,
c. ELEMENTS:
(1)
That the accused was required in the course of duty to move with (state the ship, aircraft, or unit alleged);

(2)
That the accused knew of the prospective movement of the (aircraft) (unit) (ship);

(3)
That (state the time and place alleged), the accused missed the movement of the (aircraft) (unit) (ship); and

(4)
That the accused missed the movement through (design) (neglect).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Movement" means a major transfer of (a) (an) (aircraft) (unit) (ship) involving a substantial distance and period of time. The word does not include practice marches of short duration and distance, nor minor changes in the location of an aircraft, unit, or ship.
("Movement" may also mean the deployment of one or more individual service members as passengers aboard military or civilian aircraft or watercraft in conjunction with temporary or permanent changes of duty assignments. )
(Failure of a service member to make a routine movement aboard commercial transportation, however, does not violate Article 87 when
DA PAM 27-9' 01 January 2010
such failure is unlikely to cause foreseeable disruption of military
operations. )
To be guilty of this offense, the accused must have actually known of the prospective movement that was missed. (Knowledge of the exact hour or even of the exact date of the scheduled movement is not required. It is sufficient if the accused knew the approximate date as long as there is a causal connection between the conduct of the accused and the missing of the scheduled movement.) Knowledge may be proved by circumstantial evidence.
NOTE 1: If "through design" al/eged. If "through design" is al/eged, give the fol/owing:
"Through design" means on purpose, intentionally, or according to plan and requires specific intent to miss the movement.
NOTE 2: If "through neglect" al/eged. If "through neglect" is al/eged, give the fol/owing:
"Through neglect" means the omission to take such measures as are
appropriate under the circumstances to assure presence with a ship,
aircraft, or unit at the time of a scheduled movement, or doing some act
without giving attention to its probable consequences in connection with
the prospective movement, such as a departure from the vicinity of the
prospective movement to such a distance as would make it likely that
one could not return in time for the movement.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. Ifmissing movement through design al/eged, Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.
e. REFERENCES: United States v. Quezada, 40 MJ 109 (CMA 1994); United States v. Gibson, 17 MJ 143 (CMA 1984); United States v. Graham, 16 MJ 460 (CMA 1983); United States v. Johnson, 11 CMR 174 (CMA 1953).
DA PAM 27-9 • 01 January 2010
3-12-1. CONTEMPT TOWARD OFFICIALS BY COMMISSIONED OFFICER (ARTICLE 88)
a. MAXIMUM PUNISHMENT: Dismissal, TF, 1 year.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about [use
then (on duty) (present)], to wit: " ," or words to that effect.
c. ELEMENTS:
(1)
That the accused was a commissioned officer of the United States Armed Forces:

(2)
That (state the time and place alleged), the accused (used orally and publicly) (caused to be published or circulated writings containing) certain words against the:

(a)
(President) (Vice President) (Congress) (Secretary of ____); or

(b)
(Governor) (legislature) of the (State of ) (Commonwealth of ) (Territory of ) ( a possession of the United States), a (State) (Commonwealth) (possession) in which the accused was then (on duty) (present); and

(3)
That these words were (state the words alleged) or words to that effect;

(4)
That, by an act of the accused, these words came to the knowledge of a person other than the accused; and

(5)
That the words used were contemptuous (in themselves) (or) (by virtue of the circumstances under which they were used).


DA PAM 27-9·01 January 2010
d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Contemptuous" means insulting, rude, and disdainful conduct, or otherwise disrespectfully attributing to another a quality of meanness, disreputableness, or worthlessness.
DA PAM 27-9' 01 January 2010
3-13-1. DISRESPECT TOWARD A SUPERIOR COMMISSIONED OFFICER (ARTICLE 89)
a. MAXIMUM PUNISHMENT: BCD, TF, 1 year, E-l.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , behave himself/herselfwith disrespect toward , hislher superior commissioned officer, then known by the accused to be his/her superior commissioned officer, by (saying to him/her" ," or words to that effect) (contemptuously turning from and leaving him/her while he/she, the accused, was talking to him/her, the said ) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused:

(a)
(did) (omitted doing) (a) certain act(s), namely, (state the behavior alleged) or

(b)
used certain language (state the words alleged);

(2)
That such (behavior) (language) was directed toward (state name and rank);

(3)
That (state name and rank) was the superior commissioned officer of the accused at the time;

(4)
That the accused at the time knew that (state name and rank) was (his) (her) superior commissioned officer; and

(5)
That, under the circumstances, by such (behavior) (language), the accused was disrespectful toward (state name and rank).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Disrespect" is behavior which detracts from the respect which is due to a superior commissioned officer. It may consist of acts or language (and it is not important whether they refer to a superior as an officer or as a private individual provided the behavior is disrespectful).
DA PAM 27-9·01 January 2010
(Disrespect by words may be conveyed by disgraceful names or other contemptuous or denunciatory language in the presence of a superior commissioned officer.)
(Disrespect by acts may be demonstrated by obvious disdain, rudeness, indifference, gross impertinence, undue and excessive familiarity, silent insolence, or other disgraceful, contemptuous, or denunciatory conduct
in the presence of a superior commissioned officer.)
NOTE 1: Disrespect outside the presence of the victim. If the alleged disrespectful behavior did not occur in the presence of the officer-victim, give the following instruction:
It is not essential that the disrespectful behavior be in the presence of the superior, but ordinarily one should not be held accountable under this article for what was said or done in a purely private conversation.
NOTE 2: Victim and accused in the same armed force. When the victim and the accused belong to the same armed force, give the following instruction:
"Superior commissioned officer" includes the commanding officer of the accused, even if that officer is inferior in rank to the accused. "Superior commissioned officer" also includes any commissioned officer in the same armed force as the accused who is superior in rank and not inferior in command to the accused.
NOTE 3: Victim and accused from different armed force. When victim is from a different armed force, use the following:
A commissioned officer of another armed force would not be a superior commissioned officer of the accused just because of higher rank, but the term "superior commissioned officer" does include any commissioned officer of another armed force who is properly placed in the chain of command or in a supervisory position over the accused.
NOTE 4: Divestiture ofstatus raised. When the issue has arisen as to whether the officer
has conducted himselfor herselfin a manner which divested that officer of his or her status
as a superior officer, the following instruction should be given:
The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the offense
DA PAM 27-9' 01 January 2010
of disrespect to a superior commissioned officer in a manner which took away his/her status as a superior commissioned officer to the accused. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer's rank and position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of the offense of (specify the offense(s) alleged) only if you are satisfied beyond a reasonable doubt that (state the name and rank of the officer) by his/her (conduct) (and) (language) did not abandon his/her status as a superior commissioned officer of the accused.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-14-1. ASSAULTING-STRIKING, DRAWING, LIFTING UP A WEAPON AGAINST, OFFERING VIOLENCE TO-SUPERIOR COMMISSIONED OFFICER (ARTICLE 90)
a. MAXIMUMPUNISHMENT: DD, TF, 10 years, E-l. In time of war, death.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , (a time of war) [strike (in) (on) the with (a) (his/her) ] [(draw) (lift up) a weapon, to wit: a , against ] [by , offer violence against ], hislher superior commissioned officer, then known by the accused to be his/her superior commissioned officer, who was then in the execution ofhis/her office.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused

(a)
struck (state the name and rank of the alleged victim) (with (a) (his/ her) ) (by (state the manner alleged); or

(b)
(drew) (lifted up) a weapon, namely, ____, against (state the name and rank of the alleged victim) by (state the manner alleged); or

(c)
offered violence against (state the name and rank of the alleged victim) by (state the violence alleged);

(2)
That (state the name and rank of the alleged victim) was the superior commissioned officer of the accused at the time;

(3)
That the accused at the time knew that (state the name and rank of the alleged victim) was (his) (her) superior commissioned officer; and

(4)
That (state the name and rank of the alleged victim) was in the
execution of his/her office at the time.



d. DEFINITIONS AND OTHER INSTRUCTIONS:
An officer is in the execution of office when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a
DA PAM 27-9·01 January 2010
superior, or military usage. In general, any striking or use of violence against any superior officer by a person over whom it is the duty of that officer to maintain discipline at the time, would be striking or using violence against the officer in the execution of office.
(The commanding officer (on board a ship) (of a unit in the field) is generally considered to be on duty at all times.)
("Struck" means an intentional blow, and includes any offensive touching of the person of an officer, however slight.)
("Drew") ("Lifted up") means to raise in an aggressive manner any
weapon or object by which bodily harm can be inflicted (or) (brandish in
a threatening manner) any weapon or object, by which bodily harm can
be inflicted, in the presence of and at a superior commissioned officer).
("Offered violence" means (any attempt to do bodily harm) (any offer to
do bodily harm) (any doing of bodily harm) to a superior commissioned
officer.)
NOTE 1: Simple assault. Ifsimple assault (f.e., no battery), give the following:
An "assault" is an attempt with unlawful force or violence to do bodily
harm to another. An "attempt to do bodily harm" is an overt act which
amounts to more than mere preparation and is done with apparent
present ability to do bodily harm to another. Physical injury or offensive
touching is not required.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim. (The mere use of threatening words is not an assault.)
NOTE 2: Assault by offer. Ifassault by offer, give the following:
An "assault" is an offer with unlawful force or violence to do bodily harm
to another. An "offer to do bodily harm" is an (intentional) (or) (culpably
negligent) (act) (failure to act) which foreseeably causes another to
reasonably believe that force will immediately be applied to his/her
DA PAM 27-9' 01 January 2010
person. There must be an apparent present ability to bring about bodily
harm. Physical injury or offensive touching is not required.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.
(The mere use of threatening words is not an assault.)
NOTE 3: Battery. Ifa battery, give the following:
An "assault" is an attempt or offer with unlawful force or violence to do
bodily harm to another. An assault in which bodily harm is actually
inflicted, on the other hand, is called "a battery." A "battery" is an
unlawful and (intentional) (or) (culpably negligent) application of force or
violence to another. The act must be done without legal justification or
excuse and without the lawful consent of the victim. "Bodily harm"
means any physical injury to (or offensive touching of) another person,
however slight.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 4: Culpable negligence alleged. Ifculpable negligence is used in the instructions, define as follows:
"Culpable negligence" is a degree of carelessness greater than simple
negligence. "Simple negligence" is the absence of due care. The law
requires everyone at all times to demonstrate the care for the safety of
others that a reasonably careful person would demonstrate under the
same or similar circumstances; that is what "due care" means. Culpable
negligence is a negligent act or failure to act with a gross, reckless,
wanton, or deliberate disregard for the foreseeable result to others,
instead of merely a failure to use due care.
NOTE 5: Victim and accused from same armed force. When the victim and the accused belong to the same armed force, give the following instruction:
"Superior commissioned officer" includes the commanding officer of the accused, even if that officer is inferior in rank to the accused. "Superior
DA PAM 27-9·01 January 2010
commissioned officer" also includes any commissioned officer in the same armed force as the accused who is superior in rank and not inferior in command to the accused.
NOTE 6: Victim and accused from different armed forces. When the victim is from a different armed force, use the following:
A commissioned officer of another armed force would not be a superior
commissioned officer of the accused just because of higher rank, but the
term "superior commissioned officer" does include any commissioned
officer of another armed force who is properly placed in the chain of
command or in a supervisory position over the accused.
NOTE 7: Divestiture ofstatus raised. When the issue has arisen as to whether the officer
has conducted himselfor herselfin a manner which divested that officer of his or her status
as a superior officer, the following instruction should be given:
The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the charged offense in a manner which took away his/her status as a superior commissioned officer of the accused acting in the execution of his/her office. A superior commissioned officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that superior commissioned officer's rank and position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of (specify the offense(s)) only if you are
satisfied beyond a reasonable doubt that (state the name and rank of the
officer alleged) by his/her (conduct) (and) (language) did not abandon
his/her status as a superior commissioned officer of the accused acting
in the execution of his/her office.
DA PAM 27-9 • 01 January 2010
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. For the standard instruction on assault and battery, see Instruction 3­54-2. Those standard instructions may, in the appropriate case, be used to supplement the instructions here.
DA PAM 27-9·01 January 2010
3-14-2. WILLFUL DISOBEDIENCE OF A SUPERIOR COMMISSIONED OFFICER (ARTICLE 90)
a. MAXIMUM PUNISHMENT: DD, TF, 5 years, E-l. In time of war, death.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), having received a lawful command from , his/ her superior commissioned officer, then known by the accused to be his/her superior commissioned officer, to , or words to that effect, did, (at/on board-location), on or about , (a time of war) willfully disobey the same.
c. ELEMENTS:
(1)
That the accused received a certain lawful command to (state the terms of the command allegedly given) from (state the name and rank of the alleged superior commissioned officer);

(2)
That, at the time, (state the name and rank of the alleged superior commissioned officer who allegedly gave the command) was the superior commissioned officer of the accused;

(3)
That the accused at the time knew that (state the name and rank of the alleged superior commissioned officer) was (his) (her) superior commissioned officer; and

(4)
That (state the time and place alleged), the accused willfully
disobeyed the lawful command.



d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Willful disobedience" means an intentional defiance of authority.
NOTE 1: Victim and accused from same armed force. When the al/eged superior commissioned officer is a member of the same armed force, the fol/owing instruction is ordinarily applicable:
"Superior commissioned officer" includes the commanding officer of the
accused, even if that officer is inferior in rank to the accused. "Superior
commissioned officer" also includes any other commissioned officer of
the same armed force as the accused who is superior in rank and not
inferior in command to the accused.
DA PAM 27-9·01 January 2010
NOTE 2: Victim and accused from different armed forces. When the alleged superior commissioned officer is not a member of the same armed force, the following instruction is ordinarily applicable:
A commissioned officer of another armed force would not be a superior commissioned officer of the accused just because of higher rank, but the term "superior commissioned officer" does include any commissioned officer of another armed force who is properly placed in the chain of command or a supervisory position over the accused.
NOTE 3: Lawfulness ofcommand. The lawfulness of the command is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See United States v. New. 55 MJ 95 (CAAF 2001); United States
v. Deisher, 61 MJ 313 (CAAF 2005). To be lawful, the command must relate to specific military duty and be one that the superior commissioned officer was authorized to give the accused. The command must require the accused to do or stop doing a particular thing either at once or at a future time. A command is lawful ifreasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service. (The three preceding sentences may be modified and used by the MJ during a providence inquiry to define "lawfulness" for the accused.) When the MJ determines that, based on the facts, the command was lawful, the MJ should advise the members as follows:
As a matter of law, the command in this case, as described in the
specification, if in fact there was such a command, was a lawful
command.

NOTE 4: Command determined to be unlawful. A command is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it is expected the accused may commit. If the MJ determines that, based on the facts, the command was not lawful, the MJ should dismiss the affected specification, and the members should be so advised.
NOTE 5: Form or method ofcommunication in issue. If the evidence raises an issue as to the form or method of communicating the command, give the following:
As long as the command was understandable, (the form of the command) (and) (the method by which the command was communicated to the accused) (is) (are) not important. The combination, however, must amount to a command from the accused's superior commissioned officer that is directed personally to the accused, and the accused must know it is from (his) (her) superior commissioned officer.
DA PAM 27-9' 01 January 2010
NOTE 6: Time for compliance. Ifthe evidence raises an issue as to when the accused was to comply with the command, the following instruction is appropriate:
When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.
NOTE 7: Divestiture ofstatus raised. When the issue has arisen as to whether the officer's conduct divested him or her of the status of a superior commissioned officer, the following instruction is appropriate:
The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the charged offense in a manner which took away his/her status as a superior of the accused. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer's rank and position under similar circumstances is considered to have abandoned that rank and position.
In determining this issue, you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of (specify the offense(s) alleged) only if you are satisfied beyond a reasonable doubt that (state the name and rank of the officer alleged), by his/her (conduct) (and) (language) did not abandon his/her status as a superior commissioned officer of the
accused.
NOTE 8: Distinction between abandonment of status and office. Note that the above abandonment instruction mentions abandonment of the status as a commissioned officer, but not abandonment of "execution of office." In this regard, it is different than the abandonment instruction in 3-14-1, but similar to the offense in 3-13-1.
DA PAM 27-9·01 January 2010
NOTE 9: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-15-1. ASSAULT ON WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91)
a. MAXIMUM PUNISHMENT:
(1)
Striking or assaulting warrant officer: DD, TF, 5 years, E-l.

(2)
Striking or assaulting superior noncommissioned or petty officer: DD, TF, 3 years, E-l.

(3)
Striking or assaulting other noncommissioned or petty officer: DD, TF, 1 year, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction
data, if required), on or about , (unlawfully) (strike) (assault) , a ____
officer, then known to the accused to be a (superior) officer who was then in the execution of
hislher office, by him/her (in) (on) (the ) with (a) (hislher)



c. ELEMENTS:
(1)
That (state the time alleged), the accused was (an enlisted service member) (a warrant officer);

(2)
That (state the time and place alleged) the accused:

(a)
(attempted to do) (offered to do) (did) bodily harm to (state the name and rank or grade of the person alleged), or

(b)
(struck) (state the name and rank or grade of the person alleged);

(3)
That the accused did so by (state the alleged manner of the striking or assault);

(4)
That, at the time, (state the name and rank or grade of the person alleged) was in the execution of his/her office; (and)

(5)
That the accused knew, at the time, that (state the name and rank or grade of the person alleged) was a (noncommissioned) (warrant) (petty) officer; [and]


NOTE 1: Victim the superior noncommissioned/petty officer of the accused. If the victim was the accused's superior warrant, noncommissioned, or petty officer, the following two elements apply:
DA PAM 27-9' 01 January 2010
[(6)] That (state the name and rank or grade of the person alleged) was
the superior (noncommissioned) (petty) (warrant) officer of the accused; and
[(7)] That the accused then knew that (state the name and rank or grade of the person alleged) was the accused's superior (noncommissioned) (warrant) (petty) officer.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A (noncommissioned) (warrant) (petty) officer is "in the execution of
(his/her) office" when that officer is doing any act or service required or
authorized to be done by statute, regulation, the order of a superior,
custom of the service, or military usage.
NOTE 2: Assault by attempt. Ifan assault by attempt, give the following:
An "assault" is an attempt with unlawful force or violence to do bodily
harm to another. An "attempt to do bodily harm" is an overt act which
amounts to more than mere preparation and is done with apparent
present ability to do bodily harm to another. Physical injury or offensive
touching is not required.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.
(The use of threatening words alone does not constitute an assault.
However, if the threatening words are accompanied by a menacing act
or gesture, there may be an assault since the combination constitutes a
demonstration of violence.)
NOTE 3: Assault by offer. Ifan assault by offer, give the following instruction:
An "assault" is an offer with unlawful force or violence to do bodily harm
to another. An "offer to do bodily harm" is an (intentional) (or) (culpably
negligent) (act) (or) (failure to act) which foreseeably causes another to
reasonably believe that force will immediately be applied to (his/her)
person. There must be an apparent present ability to bring about bodily
DA PAM 27-9·01 January 2010
harm. Physical injury or offensive touching is not required and specific
intent to do bodily harm is not required.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.
The use of threatening words alone does not constitute an assault.
However, if the threatening words are accompanied by a menacing act
or gesture, there may be an assault since the combination constitutes a
demonstration of violence.
NOTE 4: Assault consummated bv a battery. Ifan assault consummated by a battery, give the following:
An "assault" is an attempt or offer with unlawful force or violence to do
bodily harm to another. An assault in which bodily harm is inflicted is
called "a battery." A "battery" is an unlawful and (intentional) (or)
(culpably negligent) application of force or violence to another. The act
must be done without legal justification or excuse and without lawful
consent of the victim. "Bodily harm" means any physical injury to (or
offensive touching of) another person, however slight.
An act of force or violence is unlawful if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 5: Culpable negligence. Ifculpable negligence is mentioned in the preceding instructions, define as follows:
"Culpable negligence" is a degree of carelessness greater than simple
negligence. "Simple negligence" is the absence of due care. The law
requires everyone at all times to demonstrate the care for the safety of
others that a reasonably careful person would demonstrate under the
same or similar circumstances; that is what "due care" means. "Culpable
negligence" is a negligent act or failure to act with a gross, reckless,
wanton, or deliberate disregard for the foreseeable results to others,
instead of merely a failure to use due care.
NOTE 6: Assault on superior charged. Ifcharged with assault upon a superior warrant, noncommissioned, or petty officer, give the following instruction:
DA PAM 27-9' 01 January 2010
"Superior (noncommissioned) (warrant) (petty) officer" includes any (noncommissioned) (warrant) (petty) officer who is superior in rank to the accused, but does not include an acting noncommissioned or petty officer.
NOTE 7: Divestiture ofstatus defense. Ifdivestiture ofstatus is raised, instruct as follows:
The evidence has raised an issue as to whether (state the name and rank of the warrant. noncommissioned, or petty officer) conducted himself/herself prior to the alleged offense in a manner which took away his/her status as a (noncommissioned) (warrant) (petty) officer acting in the execution of his/her office. A (noncommissioned) (petty) (warrant) officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for that individual's rank and position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of the offense of assault on a
(noncommissioned) (warrant) (petty) officer in violation of Article 91 of
the Uniform Code of Military Justice only if you are satisfied beyond a
reasonable doubt that (state the name and rank of the warrant,
noncommissioned, or petty officer) did not abandon his/her status as a
(noncommissioned) (warrant) (petty) officer acting in the execution of
his/her office.
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-15-2. WILLFUL DISOBEDIENCE OF WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91)
a. MAXIMUM PUNISHMENT:
(1)
Willfully disobeying warrant officer: DD, TF, 2 years, E-l.

(2)
Willfully disobeying a noncommissioned or petty officer: BCD, TF, 1 year, E-1.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), having received a lawful order from , a ____officer, then known by the accused to be a officer, to , an order which it was his/her duty to obey, did (at/on board--Iocation), on or about , willfully disobey the same.
c. ELEMENTS:
(1)
That (state the time alleged), the accused was (an enlisted service member) (a warrant officer);

(2)
That the accused received a certain lawful order to (state the terms of the order allegedly given) from (state the name and rank or grade of the person alleged);

(3)
That the accused, at the time, knew that (state the name and rank or grade of the person alleged) was a (warrant) (noncommissioned) (petty) officer;

(4)
That the accused had a duty to obey the order; and

(5)
That (state the time and place alleged), the accused willfully
disobeyed the lawful order.



d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Willful disobedience" means an intentional defiance of authority.
NOTE 1: Lawfulness of order. The lawfulness of the order is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See United States v. New, 55 MJ 95 (CAAF 2001); United States v. Deisher, 61 MJ 313 (CAAF 2005). To be lawful, the order must relate to specific military duty and be one that the noncommissioned/warrant/petty officer was authorized to give the accused. The order must require the accused to do or stop doing a particular thing either at once or at a future time. An order is lawful ifreasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the
DA PAM 27-9 • 01 January 2010
maintenance ofgood order in the services. (The three preceding sentences may be modified and used by the MJ during a providence inquiry to define "lawfulness" for the accused.) When the MJ determines that, based on the facts, the order was lawful, the MJ should advise the members as follows:
As a matter of law, the order in this case, as described in the
specification, if in fact there was such an order, was a lawful order.

NOTE 2: Order determined to be unlawful. An order is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose ofincreasing the punishment for an offense which it is expected the accused may commit. If the MJ determines that, based on the facts, the order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised.
NOTE 3: Form or method ofcommunication in issue. If the evidence raises an issue as to the form or method ofcommunicating the command, give the following:
As long as the order was understandable, (the form of the order) (and) (the method by which the order was communicated to the accused) (is) (are) not important. The communication, however, must amount to an order from a (noncommissioned) (warrant) (petty) officer that is directed personally to the accused, and the accused must know it is from a (noncommissioned) (warrant) (petty) officer.
NOTE 4: Divestiture ofstatus raised. When the issue has arisen whether the officer's conduct divested him or her ofthe status ofa noncommissioned, warrant, orpetty officer, the following instruction is appropriate:
The evidence has raised an issue as to whether (state the name and rank or grade of the person alleged) conducted himself/herself prior to the alleged offense in a manner which took away his/her status as a (noncommissioned) (warrant) (petty) officer. A (noncommissioned) (petty) (warrant) officer whose own (language) (and) (conduct) under all the circumstances depart(s) substantially from the required standards appropriate for that individual's rank and position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances (including, but not limited to (here the military judge may specify the significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
DA PAM 27-9 • 01 January 2010
You may find the accused guilty of (specify the offense(s)) only if you are satisfied beyond a reasonable doubt that (state the name and rank or grade of the person alleged) did not abandon his/her status as a (noncommissioned) (warrant) (petty) officer.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge and Intent), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-15-3. CONTEMPT OR DISRESPECT TOWARD WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91)
a. MAXIMUM PUNISHMENT:
(1)
To a warrant officer: BCD, TF, 9 months, E-L

(2)
To superior noncommissioned or petty officer: BCD, TF, 6 months, E-L

(3)
To other noncommissioned or petty officer: 2/3 x 3 months, 3 months, E-1.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data) (at/on board-location), on or about , [did treat with contempt] [was disrespectful in (language) (deportment) toward] , a officer, then known to the accused to be a (superior) officer, who was then in the execution ofhis/her office, by (saying to him/her, " ," or words to that effect) (spitting at his/her feet) ( ).
c. ELEMENTS:
(1)
That (state the time alleged), the accused was (an enlisted service member) (a warrant officer);

(2)
That (state the time and place alleged), the accused:

(a)
(did) (omitted to do) (a) certain act(s), namely, (state the act(s) or behavior alleged); or

(b)
used certain language, namely, (state the words alleged);

(3)
That the accused's (behavior) (language) was directed toward and within the (sight) (and) (or) (hearing) of (state the name and rank or grade of the person alleged);

(4)
That the accused, at the time, knew that (state the name and rank or grade of the person alleged) was a (noncommissioned) (warrant) (petty) officer;

(5)
That (state the name and rank or grade of the person alleged) was then in the execution of his/her office; (and)


DA PAM 27-9 • 01 January 2010
(6) That, under the circumstances, by such (behavior) (language), the accused (treated with contempt) (was disrespectful toward) (state the name and rank or grade of the person alleged); [and]
NOTE 1: If victim is al/eged to have been the superior of the accused. If the specification al/eges that the victim was the superior noncommissioned officer or petty officer of the accused, the militaryjudge must instruct on the fol/owing two elements:
[(7)] That (state the name and rank or grade of the person alleged) was the superior (noncommissioned) (petty) officer of the accused at the time; and
[(8)] That the accused, at the time, knew that such person was (his) (her) superior (noncommissioned) (petty) officer.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
A (noncommissioned) (warrant) (petty) officer is "in the execution of
his/her office" when that officer is doing any act or service required or
authorized to be done by statute, regulation, the order of a superior, by
custom of the service, or military usage.
("Superior (noncommissioned) (petty) officer" of the accused includes
any (noncommissioned) (petty) officer who is superior in rank to the
accused.)
("Contempt" means insulting, rude, and disdainful conduct, or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.)
("Disrespect" means behavior which detracts from the respect due to a (noncommissioned) (warrant) (petty) officer. It may consist of acts or language (and it is not important whether they refer to a (noncommissioned) (warrant) (petty) officer as an officer or as a private individual, provided the behavior is disrespectful and the (noncommissioned) (warrant) (petty) officer is in the execution of (his/her) office at the time of the commission of the charged offense).)
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(Disrespect by words may be conveyed by disgraceful names or other contemptuous or denunciatory language toward and within the (sight) (or) (hearing) of the (noncommissioned) (warrant) (petty) officer.)
(Disrespect by acts may be demonstrated by an obvious disdain,
rudeness, indifference, gross impertinence, undue and excessive
familiarity, silent insolence or other disgraceful, contemptuous, or
denunciatory conduct toward and within the (sight) (or) (hearing) of the
(noncommissioned) (warrant) (petty) officer.)
NOTE 2: Divestiture ofstatus raised. When the issue has arisen whether the officer's conduct divested that officer ofthe status as a noncommissioned, warrant, or petty officer acting in the execution of office, the following instruction is appropriate:
The evidence has raised an issue as to whether (state the name and
rank or grade of the person alleged) conducted himself/herself prior to
the alleged offense in a manner which took away his/her status as a
(noncommissioned) (warrant) (petty) officer acting in the execution of
his/her office. A (noncommissioned) (petty) (warrant) officer whose own
(language) (and) (conduct) under all the circumstances departs
substantially from the required standards appropriate for that individual's
rank and position under similar circumstances is considered to have
abandoned that rank and position. In determining this issue you must
consider all the relevant facts and circumstances (including but not
limited to (here the military judge may specify significant evidentiary
factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of (specify the offense(s)) only if you are satisfied beyond a reasonable doubt that (state the name and rank or
grade of the person alleged) did not abandon his/her status as a (noncommissioned) (warrant) (petty) officer acting in the execution of his/her office.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-16-1. VIOLATING GENERAL ORDER OR REGULATION (ARTICLE 92)
a. MAXIMUM PUNISHMENT: DD, TF, 2 years, E-l (but see paragraph 16e (Note), Part IV, MCM, 2008).
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , (violate) (fail to obey) a lawful general (order) (regulation), to wit: (paragraph , (Army) (Air Force) Regulation ,dated ,) (Article , U.S. Navy Regulations, dated ____ (General Order No. , U.S. Navy, dated ,) ( ), by (wrongfully) ____
c. ELEMENTS:
(1)
That there was in existence a certain lawful general (order) (regulation) in the following terms: (state the date and specific source of the alleged general order or regulation and quote the order or regulation or the specific portion thereof);

(2)
That the accused had a duty to obey such (order) (regulation); and

(3)
That (state the time and place alleged), the accused (violated) (failed to obey) this lawful general (order) (regulation) by (here the military judge should enumerate the specific acts and any state of mind or intent alleged which must be established by the prosecution in order to constitute the violation of the order or regulation).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
NOTE 1: Proof of existence of order or regulation. The existence of the order or regulation must be proven orjudicial notice taken.
NOTE 2: Lawfulness of order or regulation. The lawfulness of the order or regulation is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See United States v. New, 55 MJ 95 (CAAF 2001); United States v. Deisher, 61 MJ 313 (CAAF 2005). To be lawful, the order or regulation must relate to specific military duty and be one that the noncommissioned/warrant/petty officer was authorized to give the accused. The order or regulation must require the accused to do or stop doing a particular thing either at once or at a future time. An order or regulation is lawful ifreasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance ofgood order in the services. (The three preceding sentences may be modified and used by the MJ during a providence inquiry to define "lawfulness" for the accused.) When the MJ determines that, based on the facts, the order or regulation was lawful, the MJ should advise the members as follows:
DA PAM 27-9 • 01 January 2010
As a matter of law, the (order) (regulation) in this case, as described in the specification, if in fact there was such (an order) (a regulation), was a lawful (order) (regulation).
NOTE 3: Order or regulation determined to be unlawful. An order or regulation is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose ofincreasing the punishment for an offense which it is expected the accused may commit. If the MJ determines that, based on the facts, the order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised.
NOTE 4: Dispute as to whether order was general. If there is a factual dispute whether the order was general, that dispute must be resolved by the members in connection with their determination ofguilt or innocence. The fol/owing instruction may be given:
General (orders) (regulations) are those (orders) (regulations) which are generally applicable to an armed force and which are properly published by (the President) (the Secretary of (Defense) (Homeland Security) (or) (a military department).
General (orders) (regulations) also include those (orders) (regulations) which are generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof and which are issued by (an officer having general court-martial jurisdiction) (or) (a general or flag officer in command) (or) (a commander superior to one of these).
You may find the accused guilty of violating a general (order) (regulation) only if you are satisfied beyond a reasonable doubt that the (order) (regulation) was general.
NOTE 5: Iforder or regulation determined not to be general. If the militaryjudge should determine, as a matter oflaw, that the order or regulation was not general and punishable under Article 92(1), the judge may treat the specification as an al/eged violation ofArticle 92(2), ifknowledge has been al/eged. See Instruction 3-16-2. When knowledge has not been al/eged, the judge should dismiss the affected specification, and the members should be so advised.
NOTE 6: Order issued by previous commander. Ifappropriate, the fol/owing additional instruction may be given:
DA PAM 27-9 • 01 January 2010
A general (order) (regulation) issued by a commander with authority to do so retains its character as a general (order) (regulation) when another officer takes command, until it expires by its own terms or is rescinded by separate action.
NOTE 7: Orders or regulations containing conditions. When an alleged general order or regulation prohibits a certain act or acts "except under certain conditions," (~"except in the course of official duty'?, and the issue is raised by the evidence, the burden is upon the prosecution to prove that the accused is not within the terms of the exception. In such a case, the MJ must inform the members of the specific exceptiones) when listing the elements of the offense. Additionally, under present law an instruction substantially as follows must be provided:
When a general (order) (regulation) prohibits (a) certain act(s), except under certain conditions, then the burden is on the prosecution to establish by legal and competent evidence beyond a reasonable doubt that the accused does not come within the terms of the exception(s).
e. REFERENCES: United States v. Cuffee, 10 MJ 381 (CMA 1981).
DA PAM 27-9' 01 January 2010
3-16-2. VIOLATING OTHER WRITTEN ORDER OR REGULATION (ARTICLE 92)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-l.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data), having knowledge of a lawful order issued by , to
c. ELEMENTS:
(1)
That there was in existence a certain lawful (order) (regulation) in the following terms: (state the date and specific source of the alleged order or regulation and quote the order or regulation or the specific portion thereof);

(2)
That the accused had knowledge of the (order) (regulation);

(3)
That the accused had a duty to obey such (order) (regulation); and

(4)
That (state the time and place alleged), the accused failed to obey this lawful (order) (regulation) by (state the manner alleged).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
NOTE 1: Applicability of this instruction. This instruction (3-16-2) should be given in any case arising under Article 92(2), when the written order or regulation is not "general" in the sense of Article 92(1).
NOTE 2: Lawfulness of order or regulation. The lawfulness of the order or regulation is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See United States v. New, 55 MJ 95 (CAAF 2001); United States v. Deisher, 61 MJ 313 (CAAF 2005). To be lawful, the order or regulation must relate to specific military duty and be one that the noncommissioned/warrant/petty officer was authorized to give the accused. The order or regulation must require the accused to do or stop doing a particular thing either at once or at a future time. An order or regulation is lawful ifreasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members ofa command and is directly connected with the maintenance of good order in the services. (The three preceding sentences may be modified and used by the MJ during a providence inquiry to define "lawfulness" for the accused.) When the MJ determines that, based on the facts, the order or regulation was lawful, the MJ should advise the members as follows:
DA PAM 27-9 • 01 January 2010
As a matter of law, the (order) (regulation) in this case, as described in the specification, if in fact there was such (an order) (a regulation), was a lawful (order) (regulation).
NOTE 3: Order or regulation determined to be unlawful. An order or regulation is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it is expected the accused may commit. If the MJ determines that, based on the facts, the order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised.
NOTE 4: Exceptions to prohibited acts. When an alleged order or regulation prohibits a certain act or acts "except under certain conditions," (!Uh "except in the course of official duty", and the issue is raised by the evidence, the burden is upon the prosecution to prove that the accused is not within the terms of the exception. In such a case, the MJ must inform the members of the specific exceptiones) when listing the elements of the offense. Additionally, an instruction substantially as follows must be given:
When (an order) (a regulation) prohibits (a) certain act(s), except under certain conditions, then the burden is on the prosecution to establish by legal and competent evidence beyond a reasonable doubt that the accused does not come within the terms of the exception(s).
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
e. REFERENCES: United States v. Cuffee, 10 MJ 381 (CMA 1981).
DA PAM 27-9·01 January 2010
3-16-3. FAILURE TO OBEY LAWFUL ORDER (ARTICLE 92)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-I.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data), having knowledge of a lawful order issued by (to
c. ELEMENTS:
(1)
That a member of the armed forces, namely, (state the name and rank or grade of the person alleged), issued a certain lawful order to (state the particular order or the specific portion thereof);

(2)
That the accused had knowledge of the order;

(3)
That the accused had a duty to obey the order; and

(4)
That (state the time and place alleged), the accused failed to obey the order.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 1: Lawfulness oforder. The lawfulness ofthe order is not a separate element ofthe offense. Thus, the issue oflawfulness is determined by the MJ and is not submitted to the members. See United States v. New, 55 MJ 95 (CAAF 2001); United States v. Deisher, 61 MJ 313 (CAAF 2005). To be lawful, the order must relate to specific military duty and be one that the noncommissioned/warrant/petty officer was authorized to give the accused. The order must require the accused to do or stop doing a particular thing either at once or at a future time. An order is lawful ifreasonably necessary to safeguard and protect the morale, discipline, and usefulness ofthe members ofa command and is directly connected with the maintenance ofgood order in the services. (The three preceding sentences may be modified and used by the MJ during a providence inquiry to define "lawfulness" for the accused.) When the MJ determines that, based on the facts, the order was lawful, the MJ should advise the members as follows:
As a matter of law, the order in this case, as described in the specification, if in fact there was such an order, was a lawful order.
NOTE 2: Order determined to be unlawful. An order is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose ofincreasing the punishment for an offense which it is expected the accused may commit. Ifthe MJ determines that, based on
DA PAM 27-9·01 January 2010
the facts, the order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-16-4. DERELICTION OF DUTY (ARTICLE 92)
a. MAXIMUM PUNISHMENT:
(1)
Willful: BCD, TF, 6 months, E-l.

(2)
Neglect or inefficiency: 2/3 x 3 months, 3 months, E-l.


b. MODEL SPECIFICATION:
In that , (personal jurisdiction data), who (knew) (should have known) of his/her duties (at/on board-location), (on or about ) (from about to about ), was derelict in the performance of those duties in that he/she (negligently) (willfully) (by culpable inefficiency) failed ____, as it was his/her duty to do (by ).
c. ELEMENTS:
NOTE 1: Willful and negligent dereliction. Whether the accused is found guilty of willful or negligent dereliction ofduty affects the maximum punishment. For the enhanced punishment of willful dereliction to apply, the government must allege, and prove, that the accused actually knew of the duty. United States v. Ferguson, 40 MJ 823 (NMCMR 1994). The militaryjudge must be mindful of this distinction in selecting the elements and definitions to give the court members.
(1) That the accused had (a) certain prescribed (duty) (duties), that is: (state the nature of the duties alleged);
NOTE 2: Willful dereliction alleged. Ifa willful dereliction is alleged, give element (2a) below:
[(2a)] That the accused actually knew of the assigned (duty) (duties); and
NOTE 3: Neglect or culpable inefficiency. Ifa willful dereliction is not alleged, give element (2b), below:
[(2b)] That the accused knew or reasonably should have known of the assigned (duty) (duties); and
(3) That (state the time and place alleged), the accused was derelict in the performance of (that duty) (those duties), by (state the manner alleged).
DA PAM 27-9' 01 January 2010
d. DEFINITIONSAND OTHER INSTRUCTIONS:
A duty may be imposed by (regulation) (lawful order) (or) (custom of the
service). A person is "derelict" in the performance of duty when (he)
(she) (willfully) ((or) (negligently)) fails to perform them (or when (he)
(she) performs them in a culpably inefficient manner). "Dereliction" is
defined as a failure in duty, a shortcoming, or delinquency.
("Willfully" means intentionally. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable
consequences of the act.)
("Negligently" means an act or failure to act by a person under a duty to
use due care which demonstrates a lack of care (for the property of
others) ( ) which a reasonably prudent person would have
used under the same or similar circumstances.)
("Culpably inefficient" means inefficiency for which there is no reasonable
or just excuse. It means a reckless, gross, or deliberate disregard for the
foreseeable results of a particular (act) (or) (failure to act).)
(That an individual reasonably should have known of duties may be demonstrated by (regulations) (manuals) (customs) (academic literature) (and) (or) (testimony of persons who have held similar or related positions) ( ) or similar evidence.
NOTE 4: Willful dereliction al/eged-exceptions and substitutions. Ifa willful dereliction
was al/eged and the militaryjudge determines the members could find the accused guilty of
a negligent dereliction, Instruction 7-15 and the definitions applicable to a negligent
dereliction should be given. A tailored Findings Worksheet is also appropriate.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), may be applicable ifthe accused is charged with a willful dereliction.
e. REFERENCES:
(1)
Source of duty; violations of self-imposed duties not an offense. United States v. Dallmon, 34 MJ 274 (CMA 1992).

(2)
Noncommissioned officer's failure to report the drug use of others as an offense. United States v. Medley, 33 MJ 75 (CMA 1975).


DA PAM 27-9' 01 January 2010
3-17-1. CRUELTY, OPPRESSION, OR MALTREATMENT OF SUBORDINATES (ARTICLE 93)
a.
MAXIMUM PUNISHMENT: DD, TF, 1 year, E-1.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), (at/on board-location), on or about , [was cruel
toward] [did (oppress) (maltreat)] , a person subject to his/her orders, by (kicking him/her in the
stomach) (confining himlher for twenty-four hours without water] [ ].



c. ELEMENTS:
(1)
That (state the name (and rank) of the alleged victim) was subject to the orders of (state the name of the accused), the accused; and

(2)
That (state the time and place alleged), the accused (was cruel toward) (oppressed) (maltreated) (state the name of the alleged victim)


by (state the manner alleged).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Subject to the orders of' includes persons under the direct or immediate command of the accused and all persons who by reason of some duty are required to obey the lawful orders of the accused, even if those persons are not in the accused's direct chain of command.)
The (cruelty) (oppression) (or) (maltreatment) must be real, although it does not have to be physical. The imposition of necessary or proper duties on a service member and the requirement that those duties be performed does not establish this offense even though the duties are
hard, difficult, or hazardous.
("Cruel") ("oppressed") (and) ("maltreated") refer(s) to treatment, that, when viewed objectively under all the circumstances, is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and that results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering.
((Assault) (Improper punishment) (Sexual harassment) may constitute
this offense.)
DA PAM 27-9 • 01 January 2010
(Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors.) (Sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature.) (For sexual harassment to also constitute maltreatment, the accused's conduct must, under all of the circumstances, constitute ("cruelty") ("oppression") (and) ("maltreatment") as I have defined those terms for you.)
(Along with all other circumstances, you must consider, evidence of the
consent (or acquiescence) of (state the name (and rank) of the alleged
victim}, or lack thereof, to the accused's actions. The fact that (state the
name (and rank) of the alleged victim} may have consented (or
acquiesced), does not alone prove that he/she was not maltreated, but it
is one factor to consider in determining whether the accused maltreated,
oppressed, or acted cruelly toward, (state the name (and rank) of the
alleged victim}.}
e. REFERENCES: United States v. Carson, 57 MJ 410 (CAAF 2002); United States v. Fuller, 54 MJ 107 (CAAF 2001).
DA PAM 27-9·01 January 2010
3-18-1. MUTINY BY REFUSING TO OBEY ORDERS OR TO PERFORM DUTY (ARTICLE 94)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
b. MODEL SPECIFICATION:
In that ,(personal jurisdiction data) with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board-location), on or about , refuse, in concert with ( ) (and) ( ) (others whose names are unknown, to (obey the orders of to ___~) (perform his/her duty as ).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused refused to (obey the orders of to ) (perform (his) (her) duty as
----);
(2)
That the accused in refusing to (obey the order) (perform this duty) acted in concert with (another) (other) person(s), namely, ( ) (and) ( ) (others whose names are unknown); and

(3)
That the accused in pursuance of a common intent with another did so with intent to (usurp) (and) (override) lawful military authority.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
This offense involves collective insubordination and requires some combination of two or more persons acting together in resisting lawful military authority. "In concert with" means together with, in accordance
with a common intent, design, or plan, regardless of whether this intent,
design, or plan was developed at some earlier time. There must be
concerted action with at least one other person who also shares the accused's intent to (usurp) (and) (override) lawful military authority. (It is not necessary that the act of insubordination be active or violent.) It consists of a persistent and joint (refusal) (failure) to (obey orders) (perform duty) with an insubordinate intent, that is, an intent to (usurp) (and) (override) lawful military authority. ("Usurp" means to seize and to hold by force or without right.) ("Override" means to set aside or
supersede.)
DA PAM 27-9' 01 January 2010
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instructions 3-14-2, Willful Disobedience of a Superior Commissioned Officer, 3­15-2, Willful Disobedience of Warrant, Noncommissioned, or Petty Officer, 3-16-1, Violating General Order or Regulation, 3-16-2, Violating Other Written Order or Regulation, and 3-16­3, Failure to Obey Lawful Order, may also be helpful in tailoring appropriate instructions.
e. REFERENCES: United States v. Duggan, 15 CMR 396 (CMA 1954).
DA PAM 27-9' 01 January 2010
3-18-2. MUTINY BY CREATING VIOLENCE OR DISTURBANCE (ARTICLE 94)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board-location), on or about , create (violence) (a disturbance) by (attacking the officers of the said ship) (barricading himself/herself in Barracks T -7, firing hislher rifle at ____, and exhorting other persons to join him/her in defiance of ) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused created
(violence) (a disturbance) by (state the manner alleged); and


(2)
That the accused created this (violence) (disturbance) with intent to (usurp) (and) (override) lawful military authority.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Violence" means the exertion of physical force.) ("Disturbance" means the interruption of or interference with a state of peace or order.) ("Usurp" means to seize and to hold by force or without right.) ("Override" means to set aside or supersede.)
(This offense may be committed by (one person acting alone) (or) (more than one person).)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
e. REFERENCES: United States v. Duggan, 15 CMR 396 (CMA 1954).
DA PAM 27-9' 01 January 2010
3-18-3. SEDITION (ARTICLE 94)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data) with intent to cause the (overthrow) (destruction) (overthrow and destruction) oflawful civil authority, to wit: , did, (at/on board-location), on or about ____, in concert with ( ) (and) ( ) (others whose names are unknown), create (revolt) (violence) (a disturbance) against such authority by (entering the Town Hall of and destroying property and records therein) (marching upon and compelling the surrender of the police of
----)( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused created (revolt) (violence) (a disturbance) against lawful civil authority by (state the manner alleged);

(2)
That the accused acted in concert with (another) (other) person(s), namely, (and ) (and others whose names are unknown); and

(3)
That the accused did so with intent to cause the (overthrow) (destruction) (overthrow and destruction) of lawful civil authority, namely (specify the alleged lawful civil authority).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"In concert with" means together with, in accordance with a common intent, design, or plan, regardless of whether this intent, design, or plan was developed at some earlier time. "Revolt" means a casting off or repudiation of allegiance or an uprising against legitimate authority.) ("Violence" means the exertion of physical force.) ("Disturbance" means the interruption of or interference with a state of peace or order.) ("Overthrow" means overturning or upsetting, causing to fall or fail, subverting, defeating, ruining, or destroying.) ("Destruction" means overthrow, downfall, or causing to fall or fail.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-18-4. FAILURE TO PREVENT AND SUPPRESS A MUTINY OR SEDITION (ARTICLE 94)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that ,(personal jurisdiction data) did, (at/on board-location), on or about ,fail to
do hislher utmost to prevent and suppress a (mutiny) (sedition) among the (soldiers) (sailors) (airmen)
(marines) ( ) of , which (mutiny) (sedition) was being committed in hislher presence,
in that (he/she took no means to compel the dispersal of the assembly) (he/she made no effort to assist



who was attempting to quell the mutiny) ( ).
c. ELEMENTS:
(1) That (state the time and place alleged), an offense of (mutiny) (sedition) was being committed in the presence of the accused by (state the description of those engaged in the mutiny or sedition, as alleged);
and
(2) That the accused failed to do (his) (her) utmost to prevent and
suppress the (mutiny) (sedition) by (state the manner alleged).

d. DEFINITIONS AND OTHER INSTRUCTIONS:
The elements of the offense of (mutiny) (sedition) are as follows:
NOTE: Instructions on elements of mutiny or sedition. The members must be instructed on the elements of Mutiny, Instruction 3-18-1 or 3-18-2, or Sedition, Instruction 3-18-3, as alleged.
"Utmost" means taking those measures to prevent or suppress a (mutiny) (sedition) which may properly be called for by the circumstances of the situation, keeping in mind the (rank and responsibilities) (employment) of the accused. (When extreme measures are necessary under the circumstances, the use of a dangerous weapon or the taking of life may be justified, providing excessive force is not used.)
Proof that the accused actually participated in the (mutiny) (sedition) is not required. However, you must be satisfied by legal and competent evidence beyond a reasonable doubt that (service members) ( ) of ( ) were committing (mutiny) (sedition) in
DA PAM 27-9' 01 January 2010
the presence of the accused and that the accused failed, in the manner charged, to do (his) (her) utmost to prevent and suppress the (mutiny) (sedition).
DA PAM 27-9·01 January 2010
3-18-5. FAILURE TO REPORT A MUTINY OR SEDITION (ARTICLE 94)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
b. MODEL SPECIFICATION:
In that ,(personal jurisdiction data) did, (at/on board-location), on or about ,fail to take all reasonable means to inform hislher superior commissioned officer or hislher commanding officer, of a (mutiny) (sedition) among the (soldiers) (sailors) (airmen) (marines) ( ) of which (mutiny) (sedition) the accused (knew) (had reason to believe) was taking place.
c. ELEMENTS:
(1)
That (state the time and place alleged), an offense of (mutiny) (sedition) among (state the description of those engaged in the mutiny or sedition, as alleged) was taking place;

(2)
That the accused (knew) (or) (had reason to believe) that the offense


was taking place; and
(3) That the accused failed to take all reasonable means to inform (his) (her) superior commissioned officer or (his) (her) commanding officer that the (mutiny) (sedition) was taking place.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The elements of the offense of (mutiny) (sedition) are as follows:
NOTE 1: Instructions on elements of mutiny or sedition. The members must be instructed on the elements of the offense of Mutiny. Instruction 3-18-1 or 3-18-2, or Sedition, Instruction 3-18-3, as alleged.
A failure to take "all reasonable means" to inform a superior includes the failure to take the most expeditious means available. (The accused can be said to have had "reason to believe" that (mutiny) (sedition) was taking place when the circumstances which were known to the accused were such as would have caused a reasonable person in the same or
similar circumstances to believe that a (mutiny) (sedition) was taking place.)
Proof that the accused actually participated in the (mutiny) (sedition) or that the offense was committed in the accused's presence is
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unnecessary. However, you must be satisfied by legal and competent evidence beyond a reasonable doubt that (service members) ( ) of ( ) were committing (mutiny) (sedition), and that the accused (knowing) (or) (having reason to believe) that the offense was taking place, failed to take all reasonable means to inform (state the name and rank of the accused's commanding officer) or any superior commissioned officer of the offense.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), may be applicable.
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3-18-6. ATTEMPTED MUTINY (ARTICLE 94)
a. MAXIMUM PUNISHMENT: DD, TF, 20 years, E-l.
h. MODEL SPECIFICATION:
In that ,(personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board-location), on or about , attempt to create (violence) (a disturbance) by ) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did a certain act; that is, (state the act(s) alleged or raised by the evidence);

(2)
That the act was done with specific intent to commit the offense of mutiny;

(3)
That the act amounted to more than mere preparation; that is, it was a direct movement toward the commission of the offense; and

(4)
That the act apparently tended to effect the commission of the offense of mutiny; that is, the act apparently would have resulted in the actual commission of mutiny except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented completion of that offense.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
Proof that the offense of mutiny actually occurred or was completed by the accused is not required. However, it must be proved beyond reasonable doubt that, at the time of the act charged in the specification, the accused intended every element of the offense of mutiny. These elements are (list the elements of the offense of mutiny).
NOTE 1: Elements of mutiny. See Instruction 3-18-1 or 3-18-2, Mutiny, for the elements of mutiny.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 6-5, Partial Mental Responsibility. Instruction 5-1-7, Evidence Negating Mens Rea, or Instruction 5-12, Voluntary Intoxication, as bearing on the issue of intent to commit mutiny, may be applicable.
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3-19-1. RESISTING APPREHENSION (ARTICLE 95)
a.
MAXIMUM PUNISHMENT: BCD, TF, 1 year, E-l.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board--location), on or about , resist
being apprehended by , (an armed forces policeman) ( ), a person authorized to
apprehend the accused.



c. ELEMENTS:
(1)
That (state the time and place alleged), (state the name and status of the person alleged to be apprehending) attempted to apprehend the accused;

(2)
That (state the name and status of the person alleged to be
apprehending) was authorized to apprehend the accused; (and)


(3)
That the accused actively resisted the apprehension by (state the


manner alleged); [and]
NOTE 1: Accused's beliefin authority of apprehending individual. If there is any evidence from which it mayjustifiably be inferred that the accused may not have believed that the person attempting to apprehend the accused was empowered to do so, give the following additional element to the members:
[(4)] That the accused had reason to believe that the person attempting the apprehension was empowered to do so.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Apprehension" means taking a person into custody; that is, placing a restraint on a person's freedom of movement. The restraint may be physical and forcible, or it may be imposed by clearly informing the person being apprehended that (he) (she) is being taken into custody. An apprehension is attempted, then, by clearly informing a person orally or in writing that (he) (she) is being taken into custody or by attempting to use a degree and kind of force which clearly indicates that (he) (she) is being taken into custody.
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To resist apprehension, a person must actively resist the restraint attempted to be imposed by the person apprehending. (This resistance may be accomplished by assaulting or striking the person attempting to apprehend the accused.) (Mere use of words of protest or of argumentative or abusive language will not amount to the offense of resisting apprehension.)
(An attempt to escape from custody after an apprehension is complete does not amount to the offense of resisting apprehension.)
NOTE 2: Flight. In United States v. Harris, 29 MJ 169 (CMA 1989), the court held that mere flight is insufficient to establish the offense. Note that fleeing apprehension is an offense under Article 95 (See Instruction 3-19-2). Accordingly, the following instruction may be given when appropriate:
(Evidence of flight, if any, may be considered by you, along with all other evidence, in determining whether the accused committed the offense of resisting apprehension. (However, mere flight is insufficient to establish the offense of resisting apprehension.))
NOTE 3: Lawfulness ofapprehension at issue. The militaryjudge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and ordinarily determines whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Resisting a person not authorized to apprehend is not an offense under Article 95, but may violate Article 134. United States v. Rhodes, 47 MJ 790 (ACCA 1998); United States v. Nocifore, 31 MJ 769 (ACMR 1990); United States v. Hutcherson, 29 CMR 770 (AFBR 1960); United States v. Hunt, 18 CMR 498 (AFBR 1954). Specifically, resisting apprehension by non-military affiliated law enforcement officers for non-military offenses is not a violation ofArticle 95. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the UCMJ. Article 7c, UCMJ. MCM, RCM 302(b}. A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the militaryjudge must conclude from the evidence that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:
An accused may not be convicted of this offense unless the person who
(attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.
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As a matter of law, a [military or military affiliated law enforcement
official] [(commissioned) (warrant) (petty) (noncommissioned) officer]
[police officer] [constable] [highway patrolman] [ ] was
authorized to apprehend the accused at the time of the alleged offense.
However, you may find the accused guilty of this offense only if you are
satisfied beyond a reasonable doubt that the person who (attempted to
apprehend) (apprehended) the accused actually was a (military or
military affiliated law enforcement official) ([commissioned]
[warrant][petty] [noncommissioned] officer) ([police officer] [constable]
[highway patrolman] [ 1) at the time of the [attempted]
apprehension.
NOTE 4: Accused's beliefin apprehending individual's authority. The following instruction may be appropriate when element (4) above has been given:
The accused may be said to have reason to believe that (state the name and status of the person alleged to be apprehending) was lawfully empowered to apprehend (him) (her) when the circumstances which were known to the accused would have caused a reasonable person in the same or similar circumstances to believe that (state the name and status of the person alleged to be apprehending) was authorized to apprehend (him) (her).
NOTE 5. Other instructions. Instruction 5-11, Ignorance or Mistake of Fact or Law-General Discussion, may be appropriate concerning element (4).
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3-19-2. FLEEING APPREHENSION (ARTICLE 95)
a. MAXIMUMPUNISHMENT: BCD, TF, 1 year, E-1.
b.
MODEL SPECIFICATION:

c.
ELEMENTS:


(1)
That (state the time and place alleged), (state the name and status of the person alleged to be apprehending) attempted to apprehend the accused;

(2)
That (state the name and status of the person alleged to be apprehending) was authorized to apprehend the accused; (and)

(3)
That the accused fled from the apprehension by (state the manner alleged); [and]


NOTE 1: Accused's beliefin authority of apprehending individual. Ifthere is any evidence from which it mayjustifiably be inferred that the accused may not have believed that the person attempting to apprehend the accused was empowered to do so, give the following additional element to the members:
[(4)] That the accused had reason to believe that the person attempting the apprehension was empowered to do so.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Apprehension" means taking a person into custody; that is, placing a restraint on a person's freedom of movement. The restraint may be physical and forcible, or it may be imposed by clearly informing the person being apprehended that (he) (she) is being taken into custody. An apprehension is attempted, then, by clearly informing a person orally or in writing that (he) (she) is being taken into custody or by attempting to use a degree and kind of force which clearly indicates that (he) (she) is being taken into custody. Flight from apprehension must be active, such as running or driving away from the person attempting to apprehend the
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accused. (Mere use of words of protest or of argumentative or abusive
language will not amount to the offense of fleeing apprehension.)
NOTE 2: Relationship with Resisting Apprehension Onstruction 3-19-1}. Mere flight is insufficient to establish the offense of resisting apprehension. United States v. Harris, 29 MJ 169 (CMA 1989). In 1996, Congress amended the UCMJ to establish fleeing apprehension as an offense under Article 95.
NOTE 3: Lawfulness of apprehension at issue. Ordinarily, the militaryjudge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Resisting a person not authorized to apprehend does not constitute an offense under Article 95, but may violate Article 134. United States v. Rhodes, 47 MJ 790 (ACCA 1998); United States v. Nocifore, 31 MJ 769 (ACMR 1990); United States v. Hutcherson, 29 CMR 770 (AFBR 1960); United States v. Hunt, 18 CMR 498 (AFBR 1954). Specifically, fleeing apprehension by non-military affiliated law enforcement officers for non-military offenses is not a violation of Article 95. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the UCMJ. Article 7c, UCMJ. MCM, RCM 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the militaryjudge must conclude from the evidence that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:
An accused may not be convicted of this offense unless the person who (attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.
As a matter of law, a [military or military affiliated law enforcement
official] [(commissioned) (warrant) (petty) (noncommissioned) officer]
[police officer] [constable] [highway patrolman] [ ] was
authorized to apprehend the accused at the time of the alleged offense.
However, you may find the accused guilty of this offense only if you are
satisfied beyond a reasonable doubt that the person who (attempted to
apprehend) (apprehended) the accused actually was a (military or
military affiliated law enforcement official) ([commissioned]
[warrant][petty] [noncommissioned] officer) ([police officer] [constable]
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[highway patrolman] L-[___------ID at the time of the [attempted]
apprehension.
NOTE 4: Accused's beliefin apprehending individual's authority. The following instruction may be appropriate when element (4) above has been given:
The accused may be said to have reason to believe that (state the name
and status of the person alleged to be apprehending) was lawfully
empowered to apprehend (him) (her) when the circumstances which
were known to the accused would have caused a reasonable person in
the same or similar circumstances to believe that (state the name and
status of the person alleged to be apprehending) was authorized to
apprehend (him) (her).
NOTE 5: Other instructions. Instruction 5-11, Ignorance or Mistake of Fact or Law-General Discussion, may be appropriate concerning element (4).
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3-19-3. BREAKING ARREST (ARTICLE 95)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-1.
h. MODEL SPECIFICATION:
In that ____ (personal jurisdiction data), having been placed in arrest (in quarters) (in his/her company area) ('-______) by a person authorized to order the accused into arrest, did, (at/on board-­location) on or about , break said arrest.
c. ELEMENTS:
(1) That the accused was placed in arrest (in quarters) (in (his) (her) company area) ( ____) by (state the name and status of the
person ordering the accused into arrest);
(2)
That (state the name and status of the person ordering the accused into arrest) was authorized to order the accused into arrest; (and)

(3)
That (state the time and place alleged), the accused went beyond the limits of (his) (her) arrest before being released from that arrest by proper authority; [and]


NOTE 1: Knowledge of arrest status raised. If there is any evidence from which it may justifiably be inferred that the accused may not have known of his/her arrest and its limits, give the element below:
[(4)] That the accused knew of (his) (her) arrest and its limits.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Types ofArrest. There are two types of arrest: pretrial arrest under Article 9, UCMJ, and arrest in quarters under Article 15, UCMJ. If the accused is alleged to have broken pretrial arrest, give the definition below:
Arrest is restraint imposed upon a person by oral or written orders of competent authority, not imposed as punishment for an offense, directing that person to remain within certain specified limits pending disposition of charges. The restraint imposed is binding upon the person arrested because of (his) (her) moral and legal obligation to obey the order of arrest.
NOTE 3: Arrest in Quarters. If the accused is alleged to have broken arrest in quarters, give the definition below:
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An officer undergoing arrest in quarters as nonjudicial punishment is required to remain within that officer's quarters during the period of punishment unless the limits of arrest are otherwise extended by appropriate authority. The quarters of an officer may consist of a military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when government quarters have not been provided.
NOTE 4: Lawfulness of arrest in issue. Ordinarily, the legality of the arrest is a question of law to be decided by the militaryjudge. A commissioned or warrant officer may be ordered into pretrial arrest by a commanding officer with authority over the arrestee. Rules for Courts-MartiaI304(b) (1). An enlisted person may be ordered into pretrial arrest by any commissioned officer, or a warrant, noncommissioned, or petty officer when authorized to do so by a commanding officer with authority over the arrestee. Rules for Courts-Martial 304(b) (2) and (3). An officer may be ordered into arrest in quarters as nonjudicial punishment by an officer exercising general court-martialjurisdiction, a general officer in command, or a principal assistant to an officer exercising general court-martialjurisdiction or a general officer in command. Paragraphs 2c and 5b, Part V, Manual for Courts-Martial. The militaryjudge resolves, as an interlocutory question, whether a certain status would authorize that person to place the accused in arrest and whether the arrest was lawful. The fact finder decides whether the person who placed the accused in arrest actually had such a status. When there is an issue as to whether the person who ordered the accused into arrest actually occupied a position that authorized him to do so, the following instruction may be appropriate. The militaryjudge should tailor the instruction based upon the rank of the accused.
An accused may not be convicted of breaking arrest unless the person who placed the accused in arrest was authorized to order the accused into arrest.
You may find the accused guilty of breaking arrest only if you are
satisfied beyond a reasonable doubt that (state the name of the person who ordered the accused into arrest) held the status of (a commanding officer with authority over the accused) (a commissioned officer) (a [warrant] [noncommissioned] officer authorized to arrest the accused by a commanding officer with authority over the accused) ([an officer exercising general court-martial jurisdiction] [a general officer in command] [a principal assistant to (an officer exercising general court­martial jurisdiction) (a general officer in command)]) at the time that he/she ordered the accused into arrest.
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NOTE 5: Other instructions. If the 4th element is given, Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. Consider whether Instruction 5-11, Ignorance or Mistake of Fact or Law-General Discussion (General Intent), should be given as well.
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3-19-4. ESCAPE FROM CUSTODY (ARTICLE 95)
a. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-l.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board--location), on or about ____, escape from the custody of , a person authorized to apprehend the accused.
c. ELEMENTS:
(1 ) That the accused was apprehended by (state the name and status of the person who apprehended the accused);
(2)
That (state the name and status of the person who apprehended the accused) was authorized to apprehend the accused; (and)

(3)
That (state the time and place alleged), the accused freed (himself) (herself) from the restraint of (his) (her) custody before being released therefrom by proper authority; [and]


NOTE 1: Accused's beliefin authority of apprehending individual. If there is any evidence from which it mayjustifiably be inferred that the accused may not have believed that the person from whose custody he/she allegedly escaped was empowered to hold him/her in custody, give element (4) below:
[(4)] That the accused had reason to believe that (state the name and status of the person from whose custody the accused allegedly escaped) was empowered to hold the accused in his/her custody.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Apprehension" means taking a person into custody; that is, placing a restraint on a person's freedom of movement. The restraint may be physical and forcible. Restraint may also be imposed by clearly informing the person being apprehended, either orally or in writing, that (he) (she) is being taken into custody, if followed by the accused's submission to the apprehending authority. Once a person has submitted to an apprehension or has been forcibly taken into custody, continuing
custody may consist of control exercised in the presence of the prisoner by official acts or orders.
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(The accused may be said to have reason to believe that (state the name of the person alleged) was lawfully empowered to hold (him) (her) in custody when the circumstances which were known to the accused would have caused a reasonable person in the same or similar circumstances to believe that (he) (she) was in lawful custody.)
NOTE 2: Lawfulness of apprehension at issue. Ordinarily, the militaryjudge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Resisting a person not authorized to apprehend is not an offense under Article 95, but may violate Article 134. United States v. Rhodes, 47 MJ 790 (ACCA 1998); United States v. Nocifore, 31 MJ 769 (ACMR 1990); United States v. Hutcherson, 29 CMR 770 (AFBR 1960); United States v. Hunt, 18 CMR 498 (AFBR 1954). Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the Uniform Code of Military Justice. Article 7c, Uniform Code of Military Justice. Manual for Courts-Martial, Rules for Courts-Martial 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, Uniform Code ofMilitary Justice. (In such cases, the militaryjudge must conclude from the evidence that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:
An accused may not be convicted of this offense unless the person who (attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.
As a matter of law, a [military or military affiliated law enforcement official] [(commissioned) (warrant) (petty) (noncommissioned) officer] [police officer] [constable] [highway patrolman] [ ] was authorized to apprehend the accused at the time of the alleged offense.
However, you may find the accused guilty of this offense only if you are satisfied beyond a reasonable doubt that the person who(attempted to apprehend) (apprehended) the accused actually was a (military or military affiliated law enforcement official) ([commissioned] [warrant] [petty] [noncommissioned] officer) ([police officer] [constable] [highway patrolman] [ ]) at the time of the [attempted] apprehension.
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NOTE 3: Escape from confinement and custody distinguished. Though escape from confinement and custody both include throwing offoflawful restraint, the offenses differ in how the restraint was imposed. See United States v. Felty, 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused escapes from a guard while outside the confinement facility for a magistrate hearing); United States v. Ellsey, 37 CMR 75 (CMA 1966) (an accused ordered into confinement, but who escapes before entering the confinement facility is guilty ofescape from custody, not escape from confinement). However, the status ofthe prisoner at the time ofthe escape, rather than the actual physical restraints imposed, may be the more relevant factor. See United States v. McDaniel, 52 MJ 618 (ACCA 1999), pet. denied, 53 MJ 427 (CAAF 2000) (an escape by one lawfully ordered into confinement is an escape from confinement; the nature of the facility in which the prisoner is held is not material); but see United States v. Anderson, 36 MJ 963, 984, n. 33 (AFCMR 1993), aff'd, 39 MJ 431 (CMA 1994), cert. denied, 513 U.S. 819 (1994) (citing a requirement for both a status ofconfinement and a fact ofphysical restraint to prove escape from confinement).
NOTE 4: Other instructions. Ifelement (4) is given, Instruction 5-11, Ignorance or Mistake ofFact or Law-General Discussion, may be appropriate.
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3-19-5. ESCAPE FROM CONFINEMENT-PRETRIAL AND POST-TRIAL CONFINEMENT (ARTICLE 95)
a. MAXIMUM PUNISHMENT:
(1)
Pretrial confinement: DD, TF, 1 year, E-l.

(2)
Post-trial confinement: DD, TF, 5 years, E-l.


b. MODEL SPECIFICATION:
In that (personal jurisdiction data), having been placed in (post-trial) confinement in (place of confinement), by a person authorized to order the accused into confinement did, (atlon board--Iocation), on or about , escape from confinement.
c. ELEMENTS:
(1)
That the accused was placed in confinement in (state the place of confinement) by (state the name and status of the person ordering the accused into confinement);

(2)
That the accused knew of (his) (her) confinement;

(3)
That (state the name and status of the person ordering the accused into confinement) was authorized to order the accused into confinement; (and)

(4)
That (state the time and place alleged), the accused freed (himself) (herself) from the physical restraint of (his) (her) confinement before being released therefrom by proper authority; [and]


NOTE 1: Escape from post-trial confinement al/eged. Ifescape from post-trial confinement is al/eged, add the fol/owing element:
[(5)] That the confinement was the result of a court-martial conviction.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Confinement" is the physical restraint of a person within a confinement facility or under guard or escort after having been placed in a confinement facility. The status of confinement, once created, continues until the confined individual is released by proper authority. Any completed casting off of the physical restraint of the confinement facility
DA PAM 27-9' 01 January 2010
or guard before being set free by proper authority is escape from confinement. An escape is not complete until the prisoner has, at least momentarily, freed (himself) (herself) from the physical restraint of the confinement facility, guard, or escort (so if the prisoner's movement toward an escape is opposed, or if immediate pursuit follows before the escape is actually completed, there will be no escape until the opposition is overcome or the pursuit is shaken off.)
(An escape may be accomplished either with or without force or trickery and either with or without the consent of the prisoner's immediate custodian.)
NOTE 2: Detention cell and other locations as a confinement facility. Ifan issue is raised whether the accused has been delivered to a place that constitutes a confinement facility, the militaryjudge may use the following instruction. In United States v. Jones, 36 MJ 1154 (ACMR 1993), a detention cell was considered to be a confinement facility.
You are advised that, as a matter of law, the (Fort Lewis Regional Correctional facility) (Cumberland County Jail) (Fort Provost Marshal Detention Cell) ( ) is a confinement facility.
NOTE 3: The status of confinement and the fact ofphysical restraint. Although the status of confinement requires physical restraint, it is not necessary that the prisoner actually have physical restraints (in the form of irons or a guard) applied to him. In fact, the status of the prisoner at the time ofthe escape, rather than the actual physical restraints imposed, may be the more relevant factor. See United States v. McDaniel, 52 MJ 618 (ACCA 1999), pet. denied, 53 MJ 427 (CAAF 2000) (an escape by one lawfully ordered into confinement is an escape from confinement; the nature of the facility in which the prisoner is held is not material); but see United States v. Anderson, 36 MJ 963, 984, n. 33 (AFCMR 1993), aff'd, 39 MJ 431 (CMA 1994), cert. denied, 513 U.S. 819 (1994) (citing a requirement for both a status of confinement and a fact ofphysical restraint to prove escape from confinement) and United States v. Ellsey. 37 CMR 75 (CMA 1966) (an accused ordered into confinement, but who escapes before entering the confinement facility is guilty of escape from custody, not escape from confinement). However, a prisoner lawfully placed into confinement is still in a confinement status even iflegitimately away from a confinement facility without irons or an escort or guard. See United States v. Felty. 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused escapes from a guard while outside the confinement facility for a magistrate's review) and United States v. Cornell, 19 MJ 735 (AFCMR 1984) (escape from confinement existed when accused left the base after authorized to leave confinement facility without guard to go to gymnasium) (See NOTEs 4 and 5).
NOTE 4: Moral suasion as confinement. Although physical restraint is required for confinement to exist, a confined prisoner who is allowed to go to a designated location, unescorted, remains confined by moral suasion or moral restraint which serves as a
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substitute for the physical restraint. See United States v. Standifer, 35 MJ 615, 617 (AFCMR 1992) (prisoner's escort allowed accused to visit wife alone); cf. United States v. Maslanich, 13 MJ 611, 614 (AFCMR 1982), pet. denied, 14 MJ 236 (CMA 1982) (accused left defense counsel's office where guard had left him.) Ifan issue of moral suasion or restraint is raised by the evidence, the following instruction may be appropriate:
A prisoner who has been placed into confinement and who is later allowed outside the confinement facility to perform details or visit other locations remains in confinement. This status of confinement continues even if the details were performed or the visit occurred without the supervision of a guard or escort. For example, confinement continues when the prisoner is placed into minimum custody or in a work release program, or is permitted to visit a specific place for a certain period of time, without the presence of a guard or escort. The moral restraint or moral suasion placed upon the prisoner is a substitute for the physical restraint necessary for the continuation of the prisoner's confinement.
NOTE 5: Escape from moral suasion. If there is an issue whether a prisoner has cast off his restraint when there was only a moral restraint or moral suasion, the following instruction may be helpful. See United States v. Standifer, 35 MJ 615, 617 (AFCMR 1992); cf. United States v. Anderson, 36 MJ 963, 984 (AFCMR 1993), aff'd, 39 MJ 431 (CMA 1994), cert. denied, 513 U.S. 819 (1994) (no casting off of restraint where escort left accused, unsupervised, off-post and the escort returned to post alone).
A prisoner who is authorized by confinement officials to go to a certain location under escort, and who then persuades the escort to allow him to go to a different place, with or without the escort, has not escaped from confinement, so long as (he) (she) remains within the area permitted by
the escort.
NOTE 6: Effectiveness of the guard's restraint. The status of confinement does not depend on whether the guard or escort is armed or has the actual ability to restrain the prisoner. See United States v. Jones, 36 MJ 1154 (ACMR 1993) (escape by pushing aside unarmed escort); United States v. Standifer, 35 MJ 615, 617 (AFCMR 1992). Likewise, an ineffective effort by the guard or escort to restrain the accused does not negate the existence of the physical restraint necessary to confinement. See United States v. Felty, 12 MJ 438 (CMA 1982) (escape where accused falsely told escort he had been released by magistrate and then slipped away); United States v. Maslanich, 13 MJ 611, 614 (AFCMR 1982), pet. denied, 14 MJ 236 (CMA 1982). Ifthis issue is raised by the evidence, the following instruction may be helpful:
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The status of confinement while under guard or escort does not depend on whether the guard or escort is armed or has the actual physical prowess to restrain the prisoner. Nor is it necessary that the prisoner be shackled. Once confinement is imposed and the accused knows of (his) (her) confinement, that status continues until it is lifted by an official with the authority to do so.
NOTE 7: Inception ofpost-trial confinement-accused not in pretrial confinement when sentence was adjudged. Ifthere is an issue whether post-trial confinement has begun, and the accused was not in pretrial confinement when the sentence was adjudged, the following instruction may be appropriate. (See NOTE 10 regarding the distinction between escape from custody and from confinement):
As a general rule, post-trial confinement begins when the accused has been ordered into confinement pursuant to the sentence of a court­martial and the accused is delivered to a confinement facility.
NOTE 8: Inception ofpost-trial confinement-accused in pretrial confinement when sentence was adjudged. If there is an issue whether post-trial confinement has begun, and the accused was in pretrial confinement when the sentence was adjudged, the following instruction may be appropriate:
An individual in pretrial confinement at the time a sentence to confinement is adjudged remains in a confinement status. Upon adjournment of the court-martial and an order by competent authority, such as a commanding officer or the trial counsel, the status of pretrial confinement automatically becomes one of post-trial confinement.
NOTE 9: Mistake of fact as to status, release, or limits of confinement. Ifthe evidence raises an issue of whether the accused knew he or she was confined, believed he or she had been released, or knew the limits of confinement, Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily appropriate. Instruction 5-11, Ignorance or Mistake of Fact or Law-General Discussion (Actual Knowledge), may be appropriate.
NOTE 10: Escape from confinement and custody distinguished. Though escape from confinement and custody both include throwing off of lawful restraint, the offenses differ in how the restraint was imposed. See United States v. Felty, 12 MJ 438 (CMA 1982); United States v. Ellsey, 37 CMR 75 (CMA 1966). However, the status of the prisoner at the time of the escape, rather than the actual physical restraints imposed, may be the more relevant factor. See United States v. McDaniel, 52 MJ 618 (ACCA 1999), pet. denied, 53 MJ 427 (CAAF 2000) (an escape by one lawfully ordered into confinement is an escape from confinement; the nature of the facility in which the prisoner is held is not material); but see United States v. Anderson, 36 MJ 963, 984, n. 33 (AFCMR 1993), aff'd, 39 MJ 431 (CMA 1994),
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cert. denied, 513 U.S. 819 (1994) (citing a requirement for both a status of confinement and a fact ofphysical restraint to prove escape from confinement).
NOTE 11: Escape from correctional custody and breaking restriction. These offenses are not listed in the MCM as lesser included offenses. See paragraphs 70 and 102, Part IV, MCM.
NOTE 12: Legality of the confinement. Ordinarily, the legality ofconfinement is a question oflaw to be decided by the militaryjudge.
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3-20-1. RELEASING PRISONER WITHOUT AUTHORITY (ARTICLE 96)
a. MAXIMUM PUNISHMENT: DD, TF, 2 years, E-l.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____ without proper authority release , a prisoner committed to his/her charge.
c. ELEMENTS:
(1)
That (state the name of the prisoner alleged to have been released) was a prisoner committed to the charge of the accused; and

(2)
That (state the time and place alleged), the accused released the prisoner without proper authority.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Prisoner" refers to a person who is physically restrained because of confinement or custody. "Release" refers to an unauthorized removal of restraint by the custodian, rather than by the prisoner, under circumstances which demonstrate to the prisoner that (he) (she) is no longer in legal (confinement) (custody).
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3-20-2. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT (ARTICLE 96)
a.
MAXIMUMPUNISHMENT: BCD, TF, 1 year, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____
through neglect, suffer , a prisoner committed to hislher charge to escape.



c. ELEMENTS:
(1)
That (state the name of the prisoner alleged to have escaped) was a prisoner committed to the charge of the accused;

(2)
That (state the time and place alleged), (state the name of the prisoner alleged) escaped;

(3)
That the accused did not take such care to prevent the escape as a reasonably prudent person, acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; and

(4)
That the escape was the proximate result of the accused's neglect.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Prisoner" refers to a person who is physically restrained because of confinement or custody. A prisoner has escaped only after the prisoner has overcome the opposition that restrained (him) (her) and shaken off any immediate pursuit.
"Proximate result" means a direct result of the accused's neglect, and not the result of an unforeseeable cause not involving the accused.
NOTE: Other definitions. For the definition of "custody," see Instruction 3-19-3; for the definition of "confinement," see Instruction 3-19-4.
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3-20-3. SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN (ARTICLE 96)
a.
MAXIMUM PUNISHMENT: DD, TF, 2 years, E-L

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____
through design, suffer , a prisoner committed to hislher charge, to escape.



c. ELEMENTS:
(1)
That (state the name of the prisoner alleged to have escaped) was a prisoner committed to the charge of the accused;

(2)
That the design of the accused was to suffer the escape of (state the name of the prisoner alleged); and

(3)
That (state the time and place alleged), (state the name of the prisoner alleged) escaped as a result of the carrying out of the design of the accused.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Prisoner" refers to a person who is physically restrained because of confinement or custody. A prisoner has escaped only after the prisoner has overcome the opposition that restrained him/her and shaken off any immediate pursuit.
"Suffer" means to allow or permit. An escape is suffered by design when it was planned or intended by the one who permitted it.
NOTE 1: Other definitions. For the definition of "custody, " see Instruction 3-19-3; for the definition of "confinement," see Instruction 3-19-4.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-21-1. UNLAWFUL DETENTION (ARTICLE 97)
a.
MAXIMUM PUNISHMENT: DD, TF, 3 years, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____
unlawfully (apprehend ) (place in arrest) (confine III ______).



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (apprehended) (arrested) (confined) (state the name of the person allegedly detained); (and)

(2)
That the accused unlawfully exercised (his) (her) authority to do so; [and]


NOTE 1: Belief in lawfulness of confinement in issue. Element (3) must be given if there is any evidence from which it mayjustifiably be inferred that the accused may have had a reasonable belief that the restraint was lawful. See also Instruction 5-11, Ignorance or Mistake of Fact or Law-General Discussion, for additional instructions which may be appropriate when such issue arises.
[(3)] That the accused had no reasonable belief that the (apprehension) (arrest) (confinement) was lawful.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Apprehension" means to take a person into custody; that is, to place a restraint on a person's freedom of movement.) ("Arrest" is the moral restraint imposed upon a person by oral or written orders, directing that person to remain within certain specified limits.) ("Confinement" is the physical restraint of a person within a confinement facility or under guard.) There does not have to be actual force exercised in imposing the (apprehension) (arrest) (confinement), but there must be restraint of another's freedom of movement. The offense can only be committed by a person who is duly authorized to (apprehend) (arrest) (confine) but exercises the authority unlawfully.
NOTE 2: Lawfulness of apprehension in issue. When it is clear as a matter of law that the lawfulness of the alleged apprehension, arrest, or confinement may be resolved as an interlocutory question, the militaryjudge should do so and advise the members
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accordingly. However, if there is a factual dispute as to the lawfulness of the al/eged detention, that dispute must be resolved by the members in connection with their determination ofguilt or innocence.
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3-22-1. UNNECESSARY DELAY IN DISPOSING OF CASE (ARTICLE 98)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-1.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), being charged with the duty of (investigating) (taking immediate steps to determine the proper disposition of) charges preferred against , a person accused of an offense under the Uniform Code of Military Justice) ( ), was, (at/on board-location), on or about , responsible for unnecessary delay in (investigating said charges) (determining the proper disposition of said charges) ( ), in that he/she (did ) (failed to
---~)( ).
c. ELEMENTS:
(1)
That the accused was charged with the duty of (state the duty alleged) in connection with the disposition of the case of (state the name of the person alleged), a person accused under the Uniform Code of Military Justice;

(2)
That the accused knew that (he) (she) was charged with this duty;

(3)
That (state the time and place alleged), delay occurred in the
disposition of the case;


(4)
That the accused was responsible for the delay; and

(5)
That, under the circumstances, the delay was unnecessary and
unreasonable.



d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
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3-22-2. FAILING TO ENFORCE OR COMPLY WITH CODE (ARTICLE 98)
Q. MAXIMUMPUNISHMENT: DD, TF, 5 years, andE-l.
b. MODEL SPECIFICATION:
In that , (personal jurisdiction data), being charged with the duty of did, (at/on board-location), on or about , knowingly and intentionally fail to (enforce) (comply with) Article , Uniform Code of Military Justice, in that (he/she)
c. ELEMENTS:
(1)
That, at (state the time and place alleged), the accused failed to (enforce) (comply with) Article (_) of the Uniform Code of Military Justice regulating a proceeding (before) (during) (after) trial of an accused by (state the manner alleged);

(2)
That the accused had the duty of (enforcing) (complying with) that provision of the Code;

(3)
That the accused knew that (he) (she) was charged with this duty; and

(4)
That the accused's failure to (enforce) (comply with) that provision was intentional.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Intentionally" as used in this specification means that the act was done on purpose, and not merely through carelessness, by accident, or under good faith error of law.
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge and Intent), is ordinarily applicable. ­
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3-23-1. MISBEHAVIOR BEFORE THE ENEMY, RUNNING AWAY (ARTICLE 99)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data) did, (at/on board-location), on or about ____,
(before) (in the presence of) the enemy, run away (from hislher company) (and hide) ( ), (and did
not return until after the engagement had been concluded) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was (before) (in the presence of) the enemy;

(2)
That the accused misbehaved by running away (and _____); and

(3)
That the accused intended to avoid actual or impending combat with the enemy by running away.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Running away" means an unauthorized departure by the accused from (his) (her) (place of duty) ( ). "Running away" does not necessarily mean that the accused actually ran from the enemy or that the accused's departure was motivated by fear or cowardice. The departure by the accused, however, must have been with the intent to avoid actual or impending combat, and must have taken place (before) (in the presence of) the enemy.
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
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"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-23-2. MISBEHAVIOR BEFORE THE ENEMY-ABANDONMENT, SURRENDER, OR DELIVERING UP OF COMMAND (ARTICLE 99)
NOTE: Applicability of offense limited to commanders. This specification concerns primarily commanders chargeable with responsibility for defending a command, unit, place, ship, or military property. Abandonment by a subordinate would ordinarily be chargeable as running away.
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____,
(before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up) , which it
was hislher duty to defend.



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was charged by (orders (specify the orders)) (or) (circumstances (specify the circumstances)) with the duty to defend (a) certain (command) (unit) (place) (ship) (military property), namely, (state what was to be defended);

(2)
That, without justification, the accused shamefully (abandoned) (surrendered) (delivered up) that (command) (unit) (place) (ship) (military property); and

(3)
That this act occurred while the accused was (before) (in the
presence of) the enemy.



d. DEFINITIONSAND OTHER INSTRUCTIONS:
The behavior of the accused was "shameful" if the (command) (unit) (place) (ship) (military property) was (abandoned) (surrendered) (delivered up) except as a result of the utmost necessity or unless directed to do so by competent authority. "Deliver up" means surrender or abandon. Surrender or abandonment, without absolute necessity, is shameful. "Abandon" means to completely separate oneself from all further responsibility to defend that (command) (unit) (place) (ship) (military property). (Stated differently, "abandon" means (relinquishing
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control) (giving Up) (yielding) (leaving) because of threatened dangers or encroachments. )
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing), (such as rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
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3-23-3. MISBEHAVIOR BEFORE THE ENEMY-ENDANGERING SAFETY OF COMMAND (ARTICLE 99)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , (before) (in the presence of) the enemy, endanger the safety of , which it was his/her duty to defend, by (disobeying an order from to engage the enemy) (neglecting hislher duty as a sentinel by engaging in a card game while on his post) (intentional misconduct in that he/she became drunk and fired flares, thus revealing the location of his/her unit) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), it was the duty of the accused to defend (a) certain (command) (unit) (place) (ship) (military property), namely, (state what was to be defended);

(2)
That the accused did (state the act or failure to act alleged);

(3)
That such (act) (failure to act) amounted to (negligence)
(disobedience) (intentional misconduct);


(4)
That thereby the accused endangered the safety of the (command) (unit) (place) (ship) (military property); and

(5)
That this (act) (failure to act) occurred while the accused was (before) (in the presence of) the enemy.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Negligence" is the absence of due care. It is an act or failure to act by a person under a duty to use due care which demonstrates a lack of care for the (safety of others) ( ) which a reasonably careful person would have used under the same or similar circumstances.) ("Intentional misconduct" implies a wrongful intention and not mere negligence.)
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the
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enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), may be applicable.
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3-23-4. MISBEHAVIOR BEFORE THE ENEMY-CASTING AWAY ARMS OR AMMUNITION (ARTICLE 99)
a. MAXIMUMPUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____ (before) (in the presence of) the enemy, cast away his/her (rifle) (ammunition) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was (before) (in the presence of) the enemy; and

(2)
That, at the time specified, the accused cast away (his) (her) (rifle)


(ammunition) ( ).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Cast away" means to intentionally dispose of, throwaway, discard, or
abandon, without proper authority or justification.
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy" you should consider all the circumstances, including the duty assignment of the accused, the mission of his organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
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3-23-5. MISBEHAVIOR BEFORE THE ENEMY-COWARDLY CONDUCT (ARTICLE 99)
a.
MAXIMUMPUNISHMENT: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data) (at/on board-location), on or about , (before)
(in the presence of) the enemy, was guilty of cowardly conduct as a result of fear, in that ____



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did (state the alleged act of cowardice);

(2)
That the accused's conduct was cowardly;

(3)
That this conduct occurred while the accused was (before) (in the presence of) the enemy; and

(4)
That this conduct was the result of fear.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
Conduct is "cowardly" only if it amounts to misbehavior which was motivated by fear. A mere display of apprehension is not sufficient. "Cowardly conduct" is the refusal or abandonment of a performance of duty (before) (in the presence of) the enemy as a result of fear.
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all circumstances, including the duty assignment of the accused, the mission of his organization and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such
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as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
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3-23-6. MISBEHAVIOR BEFORE THE ENEMY-QUITTING PLACE OF DUTY TO PLUNDER OR PILLAGE (ARTICLE 99)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
(before) (in the presence of) the enemy, quit his/her place of duty for the purpose of (plundering) (pillaging)
(plundering and pillaging).

c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was (before) (in the presence of) the enemy;

(2)
That, at the time specified, the accused quit (his) (her) place of duty; and

(3)
That the accused's intention in so quitting was to (plunder) (pillage) (plunder and pillage) public or private property unlawfully.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Plunder" and "pillage" mean to unlawfully seize or appropriate public or private property by force or violence. The word "quit" means that the accused went from or remained absent from (his) (her) place of duty without proper authority. "Place of duty" includes any place of duty whether permanent or temporary, fixed or mobile. Proof that plunder or pillage actually occurred or was committed by the accused is not required.
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of (his) (her) organization, and the tactical relationship of the accused and his
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organization with the enemy. The term "enemy" includes (not only)
organized opposing forces in time of war (but also any other hostile body
that our forces may be opposing) (such as a rebellious mob or a band of
renegades) (and includes civilians as well as members of military
organizations). ("Enemy" is not restricted to the enemy government or its
armed forces. All the citizens of one belligerent are enemies of the
government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-23-7. MISBEHAVIOR BEFORE THE ENEMY-CAUSING FALSE ALARM (ARTICLE 99)
a.
MAXIMUMPUNISHMENT: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
(before) (in the presence of) the enemy, cause a false alarm in (Fort ) (the said ship) (the camp)
( ) by [needlessly and without authority (causing the call to arms to be sounded) (sounding the
general alarm) ( )].



c. ELEMENTS:
(1)
That (state the time and place alleged), an alarm was caused in a certain (command) (unit) (place) under control of the armed forces of the United States, namely, (state the organization or place alleged);

(2)
That the accused caused the alarm by (state the manner alleged);

(3)
That the alarm was caused without any reasonable or sufficient justification or excuse; and

(4)
That this act occurred while the accused was (before) (in the
presence of) the enemy.



d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Alarm" means any excitement, commotion, or apprehension of danger. An "alarm" can be caused by (the spreading of any false or disturbing rumor or report) (the false sounding or giving of any alarm signal established for an alert or notification of approaching danger) (or) (a wrongful and intentional act which falsely creates the wrong impression about the (condition) (movements) (operations) of the enemy or friendly forces).
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the
DA PAM 27-9 • 01 January 2010
presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
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3-23-8. MISBEHAVIOR BEFORE THE ENEMY-FAILURE TO DO UTMOST (ARTICLE 99)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) being (before) (in the presence of) the enemy, did, (at/on
board-location), on or about , by (ordering his/her own troops to halt their advance) ( ), willfully fail to do (his) (her) utmost to (encounter) (engage) (capture) (destroy), as it was his/
her duty to do, (certain enemy troops which were in retreat) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was serving (before) (in the presence of) the enemy;

(2)
That the accused had a duty to (encounter) (engage) (capture)
(destroy) certain enemy (troops) (combatants) (vessels) (aircraft)
( ); and


(3)
That the accused willfully failed to do (his) (her) utmost to perform this duty by (state the manner in which (he) (she) failed to perform).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Willfully failed" means intentionally failed. "Utmost" means taking every reasonable measure called for by the circumstances, keeping in mind such factors as the accused's rank or grade, responsibilities, age, intelligence, training, (and) physical condition (and ).
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
DA PAM 27-9·01 January 2010

"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-23-9. MISBEHAVIOR BEFORE THE ENEMY-FAILURE TO AFFORD RELIEF (ARTICLE 99)
a. MAXIMUMPUNISHMENT: Death or other lawful punishment.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , (before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the U.S.S. ____, which was engaged in battle and had run aground, in that he/she failed to take her in tow) (certain troops ofthe ground forces of , which were engaged in battle and were pinned down by enemy fire, in that he/she failed to furnish air cover) ( ) as he/she properly should have done.
c. ELEMENTS:
(1)
That certain (state the troops. combatants. vessels. or aircraft of the armed forces alleged) belonging to (the United States) (an ally of the United States) were engaged in battle and required relief and assistance;

(2)
That the accused was in a position and able, without jeopardy to (his) (her) mission, to render assistance to these (troops) (combatants) (vessels) (aircraft);

(3)
That (state the time and place alleged), the accused failed to afford all practicable relief and assistance as (he) (she) properly should have

done in that (state what the accused is alleged to have failed to do); and

(4)
That, at the time specified, the accused was (before) (in the presence


of) the enemy.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"All practicable relief and assistance" means all relief and assistance reasonably required which could be provided within the limitations imposed upon the accused by reason of (his) (her) own specific task or
mission.
"(Before) (In the presence of) the enemy" refers to the tactical relationship with the enemy rather than distance. A unit is considered "(before) (in the presence of) the enemy" if it is actually engaged with the enemy in a tactical operation or an engagement with the enemy is
DA PAM 27-9 • 01 January 2010
imminent. To determine whether or not the accused was "(before) (in the presence of) the enemy," you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused's organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.
"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
wells members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Defense. If the task or mission of the accused was so important that it could not be delayed or deviated from, no offense is committed by failing to afford such relief or assistance.
DA PAM 27-9' 01 January 2010
3-24-1. COMPELLING SURRENDER (ARTICLE 100)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that ____(personal jurisdiction data) did, (at/on board-location), on or about ____
compel , the commander of , (to give up to the enemy) (to abandon) said
____, by ____



c. ELEMENTS:
(1)
That (state the name and rank of the person alleged) was the commander of (state the name of the place, vessel, aircraft, military property, or body of members of the armed forces, as alleged);

(2)
That (state the name and place alleged), the accused, by (state the act alleged), did an act which was intended to and did compel that commander to (give up to the enemy) (abandon) the (state the name of the place, vessel, aircraft, military property, body of members of the armed forces, as alleged); and

(3)
That (state the name of the place, vessel, aircraft, military property, or body of members of the armed forces, as alleged) was actually (given up to the enemy) (abandoned).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Abandon" means to completely separate oneself from all further responsibility to defend that (place) (vessel) (aircraft) (military property) (body of members of the armed forces). (Stated differently, "abandon" means (relinquishing control) (giving up) (yielding) (leaving) because of threatened dangers or encroachments.))
("Give up to the enemy" means to surrender.)
("Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to
DA PAM 27-9' 01 January 2010
the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-24-2. COMPELLING SURRENDER-ATTEMPTS (ARTICLE 100)
a.
MAXIMUMPUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
attempt to compel , the commander of , (to give up to the enemy) (to abandon) said
____, by ____



c. ELEMENTS:
(1)
That (state the name and rank of the person alleged) was the commander of (state the name of the place, vessel, aircraft, military property, or body of members of the armed forces, as alleged);

(2)
That (state the time and place alleged), the accused did a certain act that is, (state the act(s) alleged or raised by the evidence);

(3)
That the act was done with the specific intent to compel (state the name and rank of the commander alleged) to (give up to the enemy) (abandon) the (state the name of the place, vessel, aircraft, military property, or body of members of the armed forces, as alleged);

(4)
That the act amounted to more than mere preparation; that is, it was a direct movement toward the commission of the offense of compelling


surrender; and
(5) That the act apparently tended to bring about the offense of compelling (surrender) (abandonment), (that is, the act apparently would have resulted in the actual commission of the offense of compelling (surrender) (abandonment) except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented the completion of that offense).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
While actual abandonment or surrender is not required, there must be some act done with this purpose in mind, even if it falls short of actual accomplishment.
DA PAM 27-9 • 01 January 2010
("Abandon" means to completely separate oneself from all further
responsibility to defend that (place) (vessel) (aircraft) (military property)
(body of members of the armed forces). (Stated differently, "abandon"
means (relinquishing control) (giving up) (yielding) (leaving) because of
threatened dangers or encroachments.)) ("Give up to the enemy" means
surrender.)
("Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.))
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. See Instruction 3-4-1, Attempts, for the standard instruction on this subject.
DA PAM 27-9 • 01 January 2010
3-24-3. STRIKING THE COLORS OR FLAG (ARTICLE 100)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ____,
without proper authority, offer to surrender to the enemy by (striking the (colors) (flag)) ( ).



c. ELEMENTS:
(1)
That (state the time and place alleged), there was an offer to surrender to an enemy;

(2)
That this offer was made by (striking the (colors) (flag) to the enemy) ( );

(3)
That the accused (made) (was responsible for) the offer; and

(4)
That the accused did so without proper authority.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
To "strike the colors or flag" means to haul down the colors or flag in the face of the enemy or to make any other offer of surrender. The offense is committed when a person takes upon (himself) (herself) the authority to surrender a military force or position (except as a result of the utmost necessity or extremity) (unless authorized to do so by competent authority). (An engagement with the enemy does not have to be in progress when the offer to surrender is made, but it is essential that there is sufficient contact with the enemy to give the opportunity for making the offer.) (It is not essential that the enemy receive, accept, or reject the offer. However, the offer must be transmitted in some manner designed to result in receipt by the enemy.)
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to
DA PAM 27-9·01 January 2010
ARTICLE 100

the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
DA PAM 27-9 • 01 January 2010
3-25-1. IMPROPER USE OF COUNTERSIGN-DISCLOSING PAROLE OR COUNTERSIGN (ARTICLE 101)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , a time
ofwar, disclose the (parole) (countersign), to wit: , to , a person who was not
entitled to receive it.



c. ELEMENTS:
(1)
That, in time of war, (state the time and place alleged), the accused disclosed the (parole) (countersign), namely (state the parole or countersign allegedly disclosed) to (state the name or describe the recipient alleged); and

(2)
That (state the name or description of the recipient alleged) was not entitled to receive this (parole) (countersign).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
(A "countersign" is a word, signal, or procedure given from the headquarters of a command to aid guards and sentinels in their scrutiny of persons who seek 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; it is made known only to those who are entitled to inspect guards and to commanders of guards.)
NOTE: Time ofwar in issue. When it is clear as a matter of law that the offense was committed "in time of war," this should be resolved as an interlocutory question, and the members should be so advised. However, if there is a factual dispute involved, it should be resolved by the members in connection with their determination ofguilt or innocence. See ReM 103(19).
DA PAM 27-9·01 January 2010
3-25-2. GIVING DIFFERENT PAROLE OR COUNTERSIGN (ARTICLE 101)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , a time of war, give to , a person entitled to receive and use the (parole) (countersign), a (parole) (countersign), namely: which was different from that which, to his/her knowledge, he/she, as authorized and required to give, to wit:
c. ELEMENTS:
(1)
That, in time of war, the accused knew that (he) (she) was authorized and required to disclose a certain (parole) (countersign), namely: (state the parole or countersign allegedly authorized and required);

(2)
That (state the name of the recipient alleged) was a person entitled to receive and use this (parole) (countersign); and

(3)
That (state the time and place alleged), the accused disclosed to (state the name of the recipient alleged) a (parole) (countersign) namely, (state the parole or countersign actually given), which was different from the (parole) (countersign) which (he) (she) was authorized and required to give.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
(A "countersign" is a word, signal, or procedure given from the headquarters of a command to aid guards and sentinels in their scrutiny of persons who seek 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; it is made known only to those who are entitled to inspect guards and to commanders of guards.)
NOTE 1: Time of war in issue. When it is clear as a matter of law that the offense was committed "in time of war," this should be resolved as an interlocutory question, and the members should be so advised. However, if there is a factual dispute involved, it should be resolved by the members in connection with their determination of guilt or innocence. See ReM 103(19).
DA PAM 27-9 • 01 January 2010
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-26-1. FORCING A SAFEGUARD (ARTICLE 102)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , force
a safeguard [known by him/her to have been placed over the premises occupied by at
____by (overwhelming the guard posted for the protection of the same) ( )]



----].
c. ELEMENTS:
(1)
That a safeguard had been (issued) (posted) for the protection of (state the persons. place. or property allegedly protected);

(2)
That the accused (knew) (should have known) of the safeguard; and

(3)
That (state the time and place alleged), the accused forced the


safeguard by (state the manner alleged).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"A safeguard" is a (detachment, guard, or detail posted by a commander) (written order left by a commander with an enemy subject or posted upon enemy property) for the protection of persons, places, or property of an enemy or neutral.
"Force the safeguard" means to perform (an) act(s) which violate(s) the protection of the safeguard. Any trespass on the protection of the safeguard will constitute an offense under this article, whether the offense was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war.
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), may be applicable. However, proofof actual knowledge is not required; it is sufficient if the accused should have known of the existence of the safeguard.
DA PAM 27-9·01 January 2010
3-27-1. FAILING TO SECURE PUBLIC PROPERTY TAKEN FROM THE ENEMY (ARTICLE 103)
a. MAXIMUM PUNISHMENT:
(1)
$500 or less: BCD, TF, 6 months, E-l.

(2)
Over $500 or any firearm or explosive: DD, TF, 5 years, E-l.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (atlon board-location), on or about ____, fail to
secure for the service of the United States certain public property taken from the enemy, to wit: ____
(a firearm) (an explosive), ofa value of (about) $ ____



c. ELEMENTS:
(1)
That certain public property, namely, (describe the property allegedly taken), was taken from the enemy;

(2)
That this property was of the value of (state the value alleged) (or of some lesser value, in which case the finding should be in the lesser amount); and

(3)
That (state the time and place alleged), the accused failed to do what was reasonable under the circumstances to secure this property for the service of the United States.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"What was reasonable under the circumstances" means the performance of those responsibilities which a reasonably careful person would have performed to secure the property under the same or similar circumstances.
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.)
DA PAM 27-9 • 01 January 2010
NOTE: Other instructions. Instruction 7-1 6, Variance -Value, Damage, or Amount, is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-27-2. CAPTURED OR ABANDONED PROPERTY-FAILURE TO REPORT AND TURN OVER (ARTICLE 103)
a. MAXIMUM PUNISHMENT:
(1)
$500 or less: BCD, TF, 6 months, E-L

(2)
Over $500 or any firearm or explosive: DD, TF, 5 years, E-L


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , fail to give notice and tum over to proper authority without delay certain (captured) (abandoned) property which had come into his/her (possession) (custody) (control), to wit: , (a firearm) (an explosive), of a value of (about) $____
c. ELEMENTS:
(1)
That certain (captured) (abandoned) (public) (private) property came into the (possession) (custody) (control) of the accused, namely, (describe the property alleged);

(2)
That this property was of the value of (state the value alleged) (or of some lesser value, in which case the finding should be in the lesser amount); and

(3)
That (state the time and place alleged), the accused failed to give notice of its receipt and failed to turn over to proper authority, without delay, the (captured) (abandoned) (public) (private) property.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Abandoned" refers to property which the enemy has relinquished, given up, discarded, or left behind. "Enemy" includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations.) ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.))
DA PAM 27-9·01 January 2010
"Proper authority" means any authority competent to order the disposition of the (captured) (abandoned) property_
NOTE: Other instructions. Instruction 7-16, Variance -Value, Damage, or Amount, is ordinarily applicable.
DA PAM 27-9 -01 January 2010
3-27-3. CAPTURED OR ABANDONED PROPERTY-DEALING IN (ARTICLE 103)
a. MAXIMUM PUNISHMENT:
(1)
$500 or less: BCD, TF, 6 months, E-l.

(2)
Over $500 or any firearm or explosive: DD, TF, 5 years, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (atlon board-location), on or about , (buy)
(sell) (trade) (deal in) (dispose of) ( ) certain (captured) (abandoned) property, to wit: ____
(a firearm) (an explosive), ofa value of (about) $ ,thereby (receiving) (expecting) a (profit)
(benefit) (advantage) to (himselflherself) ( ,hislher accomplice) ( ,hislher brother)
( ).

c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (bought) (sold) (traded) (dealt in) (disposed of) certain (public) (private) (captured) (abandoned) property, namely, (describe the property alleged);

(2)
That this property was of the value of (state the value alleged) (or of some lesser value, in which case the finding should be in the lesser amount); and

(3)
That, by so doing, the accused (received) (expected) some (profit) (benefit) (advantage) to ((himself) (herself)) ((a) certain person(s) connected either directly or indirectly in a certain manner with (himself) (herself)), namely, (state the manner alleged).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Abandoned" refers to property which the enemy has relinquished, given up, discarded, or left behind. "Enemy" includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations.) ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.))
DA PAM 27-9·01 January 2010
NOTE: Other instructions. Instruction 7-16, Variance -Value, Damage, or Amount, is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-27-4. LOOTING OR PILLAGING (ARTICLE 103)
u.
MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-l.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about
engage in (looting) (pillaging) (looting and pillaging) by unlawfully (seizing) (appropriating) ____
[property which had been left behind] [the property of , (an inhabitant of )
( )].



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused engaged in (looting) (and) (pillaging) by unlawfully (seizing) (appropriating) certain property, namely, (describe the property seized or appropriated);

(2)
That this property was:

(a)
located in (enemy) (occupied) territory; or

(b)
on board a (seized) (captured) vessel; and

(3)
That this property was:

(a)
((left behind by) (owned by) (in the custody of)) «the enemy) (an occupied state) (an inhabitant of an occupied state) (a person under the protection of the (enemy) (occupied state)) (or) (a person who, immediately prior to the occupation of the place where the act occurred, was under the protection of the (enemy) (occupied state)); or

(b)
part of the equipment of a (seized) (captured) vessel; or

(c)
(owned by) (in the custody of) the (officers) (crew) (passengers) on board a (seized) (captured) vessel.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Looting") (and) ("pillaging") mean(s) unlawfully seizing or appropriating property which is located in enemy or occupied territory (or on board a seized or captured vessel).
DA PAM 27-9 • 01 January 2010
"Unlawfully (seized) (appropriated)" means to take possession of property in an unauthorized manner or to exercise control over property without proper authorization or justification.
"Property" includes public or private property.
"Enemy" includes (not only) organized opposing forces in time of war
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and all the citizens of the
other.)
NOTE: Definition of vessel. Should there be an issue whether the seizure or appropriation occurred on a "vessel," see RCM 103(20) and 1 USC section 3.
e. REFERENCES: United States v. Mello, 36 MJ 1067 (ACMR 1993); United States v. Manginell, 32 MJ 891 (AFCMR 1991).
DA PAM 27-9·01 January 2010
3-28-1. AIDING THE ENEMY-FURNISHING ARMS OR AMMUNITION (ARTICLE 104)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , aid the
enemy with (arms) (ammunition) (supplies) (money) ( ), by (furnishing and delivering to
____, members of the enemy's armed forces ) ( ).



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused aided (a) certain person(s), namely: (state the name or description of the enemy who purportedly received the aid);

(2)
That the (state the name or description of the enemy who purportedly received the aid) was an enemy; and

(3)
That the accused did so with certain (arms) (ammunition) (supplies) (money) ( ) by (state the manner in which the aid was allegedly supplied).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
To "aid the enemy" means to furnish the enemy with (arms) (ammunition) (supplies) (money) ( ), (whether or not the articles furnished were needed by the enemy) (and) (whether or not the transaction was a sale or a donation).
"Enemy" includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-28-2. AIDING THE ENEMY-ATTEMPTING TO FURNISH ARMS OR AMMUNITION (ARTICLE 104)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , attempt
to aid the enemy with (arms) (ammunition) (supplies) (money) ( ), by (furnishing and delivering
to ,members of the enemy's armed forces ) ( ).



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused did a certain act, namely: (state the manner in which the giving of aid was allegedly attempted);

(2)
That the act was done with reference to certain (arms) (ammunition) (supplies) (money) ( ) which the accused intended to (furnish and deliver) (cause to be furnished and delivered) to (state the name or description of the enemy who purportedly was to receive the aid);

(3)
That the act was done with the specific intent to aid an enemy;

(4)
That the (state the name or description of the enemy who purportedly was to receive the aid) was an enemy;

(5)
That the act amounted to more than mere preparation; that is, it was a direct movement toward the offense of aiding the enemy; and

(6)
That the act apparently tended to bring about the offense of aiding the enemy; that is, the act apparently would have resulted in the actual commission of the offense of aiding the enemy except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented the completion of the offense).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
Proof that the offense of aiding the enemy actually occurred or was
completed is not required.
DA PAM 27-9·01 January 2010
To "aid the enemy" means to furnish it with (arms) (ammunition) (supplies) (money) ( ), (whether or not the articles furnished were needed by the enemy) (and) (whether or not the transaction was a sale or a donation).
"Enemy" includes (not only) organized opposing forces in time of war,
(but also any other hostile body that our forces may be opposing) (such
as a rebellious mob or a band of renegades) (and includes civilians as
well as members of military organizations). ("Enemy" is not restricted to
the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. See Instruction 3-4-1, Attempts, for the standard instruction on the subject.
DA PAM 27-9 • 01 January 2010
3-28-3. AIDING THE ENEMY-HARBORING OR PROTECTING (ARTICLE 104)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
without proper authority, knowingly (harbor) (protect) , an enemy, by (concealing the said
____, in hislher house) ( ).



c. ELEMENTS:
(1) That (state the time and place alleged), the accused, without proper authority, (harbored) (protected) (a) certain person(s), namely: (state the name or description of the enemy alleged to have been harbored or
protected);
(2)
That the accused did so by (state the manner alleged);

(3)
That (state the name or description of the enemy alleged to have been harbored or protected) was an enemy; and

(4)
That the accused knew that (he) (she) was (harboring) (protecting) an


enemy.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
An enemy is "harbored" or "protected" when, without proper authority, that enemy is shielded, either physically or by the use of any trick, aid, or representation, from an injury or mishap which, in the chance of war,
may occur.
"Enemy" includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-28-4. AIDING THE ENEMY-GIVING INTELLIGENCE TO THE ENEMY (ARTICLE 104)
a.
MAXIMUMPUNISHMENT: Death or other lawful punishment.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (atlon board-location), on or about ,
without proper authority, knowingly give intelligence to the enemy (by informing a patrol ofthe enemy's
forces ofthe whereabouts of a military patrol of the United States forces) ( ).



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused, without proper authority, knowingly gave intelligence information to (a) certain person(s), namely: (state the name or description of the enemy alleged to have received the intelligence information);

(2)
That the accused did so by (state the manner alleged);

(3)
That (state the name or description of the enemy alleged to have received the intelligence information) was an enemy; and

(4)
That this intelligence information was true, at least in part.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Intelligence" means any helpful information, given to and received by the enemy, which is true, at least in part.
"Enemy" includes (not only) organized opposing forces in time of war,
(but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
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3-28-5. AIDING THE ENEMY-COMMUNICATING WITH THE ENEMY (ARTICLE 104)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about , without proper authority, knowingly (communicate with) (correspond with) (hold intercourse with) the enemy (by writing and transmitting secretly through lines to one whom he/she, the accused, knew to be (an officer of the enemy's armed forces) ( ) a communication in words and figures
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused without proper authority, (communicated) (corresponded) (held intercourse) with (a) certain person(s), namely: (state the name or description of the enemy alleged to have received the communication, correspondence, etc.);

(2)
That the accused did so by (state the manner alleged);

(3)
That (state the name or description of the enemy alleged to have received the communication, correspondence, etc.) was an enemy; and

(4)
That the accused knew (he) (she) was (communicating) (corresponding) (holding intercourse) with an enemy.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
(Communication) (Correspondence) (Holding intercourse) with the enemy does not necessarily mean a mutual exchange of communication. The law requires absolute non-intercourse, and any unauthorized communication, no matter what its meaning or intent, is prohibited. This prohibition applies to any method of intercourse or communication. The offense is complete the moment the communication leaves the accused, whether or not it reaches its destination.
"Enemy" includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such
DA PAM 27-9 • 01 January 2010
as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one
belligerent are enemies of the government and the citizens of the other.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
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3-29-1. MISCONDUCT AS A PRISONER (ARTICLE 105)
a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-1.
h. MODEL SPECIFICATION:
In that , (personal jurisdiction data) while in the hands of the enemy, did, (at/on board-location), on or about ,a time of war, without proper authority and for the purpose of securing
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused acted without proper authority in a manner contrary to law, custom, or regulation by (state the act(s) alleged and the resulting detriment allegedly suffered).

(2)
That the act was committed while the accused was in the hands of the enemy in time of war;

(3)
That (this) (these) act(s) of the accused (was) (were) done with the intent of securing favorable treatment of the accused by (his) (her) captors; and

(4)
That other prisoners, either military or civilian, held by the enemy suffered some detriment because of the accused's act(s).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.))
"Detriment" means any type of harm, whether physical, psychological, or otherwise.
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The act(s) must be on behalf of, related to, or directed toward the captors, and tend to have the probable result of gaining for the accused some favor with, or advantage from the captors. It is not important that the act(s) resulted in favorable treatment for a group of prisoners, one of whom is the accused, if it results in detriment to other prisoners, no matter how small a minority is affected.
NOTE 1: Time of war in issue. When it is clear as a matter of law that the offense was committed "in time of war, " this should be resolved as an interlocutory question, and the members should be so advised. However, if there is a factual dispute involved, it should be resolved by the members in connection with their determination of guilt or innocence.
NOTE 2: Acting in a manner contrary to custom. law. or regulation. When it is clear as a matter oflaw that the accused acted in a manner contrary to law, custom, or regulation, this should be resolved as an interlocutory question and the members should be so advised. However, ifthere is a factual dispute involved, it should be resolved by the members in connection with their determination of guilt or innocence.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-29-2. MISCONDUCT AS A PRISONER-MALTREATMENT OF PRISONER (ARTICLE 105)
a.
MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (atlon board-location), on or about ,a time
of war, while in the hands ofthe enemy and in a position of authority over , a prisoner at
____, as (officer in charge ofprisoners at ) ( ), maltreat the said ____
by (depriving him/her of ) ( ) without justifiable cause.



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused maltreated a prisoner held by the enemy by (state the manner of maltreatment alleged);

(2)
That the act occurred while the accused was in the hands of the enemy in time of war;

(3)
That the accused held a position of authority over the person
maltreated; and


(4)
That the act was without justifiable cause.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
"Maltreated" means the infliction of real abuse, although not necessarily physical abuse. It must be without justifiable cause. (To assault) (To strike) (To subject to improper punishment) (or) (To deprive of benefits) could constitute maltreatment. (Abuse of an inferior by derogatory words may cause mental anguish and amount to maltreatment.)
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If the accused occupies a position of authority over the prisoner, the source of that authority is not important. The authority may arise (from the military rank of the accused) (through designation by the captor authorities) (from the voluntary selection or election of the accused by other prisoners for their own self-government) (or ).
NOTE: Time of war in issue. When it is clear as a matter oflaw that the offense was committed "in time of war, II this should be resolved as an interlocutory question and the members should be so advised. See ReM 103(19). However, ifthere is a factual dispute involved, it should be resolved by the members in connection with their determination of guilt or innocence.
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3-30-1. SPYING (ARTICLE 106)
a.
MAXIMUM PUNISHMENT: Mandatory punishment. Death.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data), was, (at/on board-location), on or about , a time of war, found (lurking) (acting clandestinely) (acting under false pretenses) (acting) as a spy (in) (about) (in and about) , ((a (fortification) (port) (base) (vessel) (aircraft) ( ) within the (control) (jurisdiction) (control and jurisdiction) of an armed force ofthe United States, to wit: )) ((a (shipyard) (manufacturing plant) (industrial plant) ( ) engaged in work in aid of the prosecution of the war by the United States)) ( ), for the purpose of (collecting) (attempting to


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was found (in) (about) (in and about) ( ):

(a)
((a) (an)) (fortification) (post) (base) (vessel) (aircraft) ( ) within the (control) (and) Uurisdiction) of an armed force of the United States, namely, _____; or

(b)
((a) (an)) (shipyard) (manufacturing plant) (industrial plant) ( ) engaged in work in aid of the prosecution of the war by the United States; or

(c)
(.____);

(2)
That (he) (she) was (lurking) (acting clandestinely) (acting under false pretenses) (acting) as a spy;

(3)
That (he) (she) was (collecting) (attempting to collect) information in regard to the:

(a)
(numbers) (resources) (operations) ( ____) of the armed forces of the United States; or

(b)
(military production) ( ____) of the United States; or

(c)
(___);

(4)
That (he) (she) did so with the intent to provide this information to the enemy; and

(5)
That this was done in time of war.


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d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Clandestinely" means in disguise, secretly, covertly, or under
concealment. )
"Enemy" includes (not only) organized opposing forces in time of war (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
It is not essential that the accused obtain the information sought or that (he) (she) actually communicate it. However, the offense requires some form of clandestine action, lurking about, or deception with the intent to provide the information to the enemy.
NOTE 1: Time ofwar in issue. When it is clear as a matter of law that the offense was committed "in time of war, " this should be resolved as an interlocutory question, and the members should be so advised. See RCM 103(19). However, ifthere is a factual dispute involved, it should be resolved by the members in connection with their determination of guilt or innocence.
NOTE 2: Unanimous verdict required. A conviction ofthis offense requires the death penalty and therefore requires the concurrence of all members present at the time the vote is taken.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-30A-l. ESPIONAGE (ARTICLE l06a)
a.
MAXIMUM PUNISHMENT: Death or other lawful punishment.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data), did, (at/on board-location), on or about , with intent or reason to believe it would be used to the injury of the United States or to the advantage of ____, a foreign nation, (communicate) (deliver) (transmit) (description of item), (a document) (a writing) (a Code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, ((which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warning systems) ( , a means of defense or retaliation against a large scale attack) (war plans) communications intelligence) (cryptographic information) ( , a major weapons system) ( , a major element ofdefense strategy» to , ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country» (indirectly by ).


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (communicated) (delivered) (transmitted) a (document) (writing) (Code book) (signal book) (sketch) (photograph) (photographic negative) (blueprint) (plan) (map) (model) (note) (instrument) (appliance) (information) relating to the national defense;

(2)
That this matter was (communicated) (delivered) (transmitted) to (state the party allegedly communicated with), a (foreign government) or to any (faction or party) or (military or naval force within a foreign country) (representative) (officer) (agent) (employee) (subject) (citizen thereof) (by (state the manner alleged)) (indirectly by (state the manner alleged)); and

(3)
That the accused did so with intent or reason to believe that such matter would be used to the injury of the United States or to the advantage of a foreign nation.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 1: If attempted espionage raised. Use Instruction 3-30A-2 for attempted espionage; do not use the Article 80 attempts instruction.
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"Intent or reason to believe" that the information "is to be used to the injury of the United States or to the advantage of a foreign nation" means that the accused acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.
NOTE 2: Modification of earlier espionage instruction. Earlier versions of this instruction contained the words "or without authority" after the words "bad faith." Instructing as to "without authority" in the alternative to "bad faith" was expressly rejected in United States
v. Richardson. 33 MJ 127 (CMA 1991).
"Instrument, appliance, or information relating to the national defense" includes the full range of modern technology (and matter that may be developed in the future) (including chemical or biological agents) (computer technology) and other matter related to the national defense.
("Foreign country" includes those countries that have and have not been recognized by the United States.)
NOTE 3: Capital sentencing instructions and procedures. See RCM 1004, Article 106a, UCMJ, paragraphs (b) and (c), and Para 30a, MCM. See also Chapter 8.
e. REFERENCES: United States v. Richardson, 33 MJ 127 (CMA 1991).
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3-30A-2. ATTEMPTED ESPIONAGE (ARTICLE l06a)
a.
MAXIMUMPUNISHMENT: DD, TF, life without eligibility for parole, E-1.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data), did, (at/on board-location), on or about , with intent or reason to believe it would be used to the injury ofthe United States or to the advantage of ____, a foreign nation, attempt to (communicate) (deliver) (transmit) ( ) (description of item) (a document) (a writing) (a Code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, ((which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warnings systems) ( , a means ofdefense or retaliation against a large scale attack) (war plans) (communications intelligence) (cryptographic information) ( , a major weapons system) ( , a major element of defense strategy)) to ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country)) (indirectly by ).


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused attempted to (communicate) (deliver) (transmit) a (document) (writing) (Code book) (signal book) (sketch) (photograph) (photographic negative) (blueprint) (plan) (map) (model) (note) (instrument) (appliance) (information) relating to the national defense;

(2)
That the attempted (communication) (delivery) (transmittal) was to (state the party with whom the accused allegedly attempted to communicate), a (foreign government) or to any (faction or party) or (military or naval force within a foreign country,) (representative) (officer) (agent) (employee) (subject) (citizen thereof) (by (state the manner alleged) (indirectly by (state the manner alleged)); and

(3)
That the attempted (communication) (delivery) (transmittal) was with intent or reason to believe that such matter would be used to the injury of the United States or to the advantage of a foreign nation.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
To constitute an attempt, there must be an act which amounts to more than mere preparation; that is, an act which is a substantial step and a direct movement toward the commission of the prohibited
DA PAM 27-9' 01 January 2010
(communication) (delivery) (transmittal). Moreover, the act must apparently tend to bring about the prohibited (communication) (delivery) (transmittal) and be done with the specific intent to bring about the (communication) (delivery) (transmission) of the matter to the (person(s)) (or) (entity) (entities) with the intent, or reason to believe, that the matter would be used to the injury of the United States or to the advantage of a foreign nation. For an act to apparently tend to bring about the commission of an offense means that the actual offense of espionage would have occurred except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented completion of the offense.
"Intent or reason to believe" that the information is "to be used to the
injury of the United States or to the advantage of a foreign nation" means
that the accused acted in bad faith and without lawful authority with
respect to information that is not lawfully accessible to the public.
"Instrument, appliance, or information relating to the national defense"
includes the full range of modern technology (and matter that may be
developed in the future) (including chemical or biological agents)
(computer technology), and other matter related to the national defense.
("Foreign country" includes those countries that have and have not been recognized by the United States.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence, is normally applicable.
e. REFERENCES: United States v. Richardson, 33 MJ 127 (CMA 1991).
DA PAM 27-9·01 January 2010
was (totally false) (false in that ), and was then known by the said to be so false.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused (signed a certain official document) (made to (state the name of the person to whom the statement was allegedly made) a certain official statement), that is: (describe the document or statement as alleged);

(2)
That such (document) (statement) was (totally false) (false in that (state the allegedly false matters);

(3)
That the accused knew it to be false at the time (he) (she) (signed) (made) it; and

(4)
That the false (document) (statement) was made with the intent to deceive.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Intent to deceive" means to purposely mislead, to cheat, to trick another, or to cause another to believe as true that which is false.
NOTE 1: Official nature of document. For a document to be regarded as official, it must concern a governmental function and must be made to a person who in receiving it is discharging the functions of his or herparticular office, or to an office which in receiving the document or statement is discharging its functions. Further, a person conducting an interrogation or an office requesting submission ofa document must, under the circumstances (including the application ofArticle 31, UCMJ), have the authority to require an answer or statement from the accused. Whether a statement or document is official is normally a matter oflaw to be determined as an interlocutory question. However, even though testimony concerning officiality may be uncontroverted, or even stipulated, when such testimony permits conflicting inferences to be drawn, the question should generally be regarded as an issue of fact for the members to resolve.
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NOTE 2: Civilian investigations. There is no absolute rule that statements to civilian law enforcement officials can never be official within the meaning ofArticle 107. See United States v. Teffeau, 58 MJ 62 (CAAF 2003). However, the circumstances leading up to and surrounding the statements should bear a clear and direct relationship to the accused's military duties and reflect a substantial military interest in the investigation.
NOTE 3. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.
e. REFERENCES: "Exculpatory no" doctrine. Brogan v. United States, 522 U.S. 398 (1998); United States v. Solis, 46 MJ 31 (CAAF 1997); United States v. Black, 47 MJ 146 (CAAF 1997); United States v. Prater, 32 MJ 433 (CMA 1991); United States v. Jackson, 26 M.J 377 (CMA 1988).
DA PAM 27-9·01 January 2010
3-32-1. SELLING OR DISPOSING OF MILITARY PROPERTY (ARTICLE 108)
a. MAXIMUM PUNISHMENT:
(1)
$500.00 or less: BCD, TF, 1 year, E-l.

(2)
More than $500.00: DD, TF, 10 years, E-l.

(3)
Any firearm or explosive regardless ofvalue: DD, TF, 10 years, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location) on or about , without proper authority, [sell to ] [dispose ofby 1 , ((a firearm) (an explosive)) ofa value of (about) $ ,military property of the United States.
NOTE 1: Alleging value. Though the model specification above indicates that pleading value is mandatory, value is not an element ifthe item allegedly sold or disposed ofis a firearm or explosive. Ifthe property involved is a firearm or explosive, no value is alleged, and the evidence raises an issue whether the property is of the nature alleged, enhanced punishment provisions for property ofa value of over $500.00 are not available. See NOTE
9.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused:

(a)
(sold to ____), or

(b)
(disposed of by ____) certain property, that is: (state the property alleged);

(2)
That the (sale) (disposition) was without proper authority;

(3)
That the property was military property of the United States; and

(4)
See NOTEs 2 and 3 below.


NOTE 2: Firearm or explosive alleged. Give element (4a) when it is alleged that a firearm or explosive was sold or disposed of. See NOTE 9 below or variance instructions if the nature of the property is in issue.
(4 a) That the (state the property alleged) was (a firearm) (an explosive).
NOTE 3: Item NOT a firearm or explosive. Give element (4b) when the item is not a firearm or explosive.
DA PAM 27-9' 01 January 2010
(4b) That the property was of the value of $ (or some lesser amount, in which case the finding should be in the lesser amount).
d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Military property" is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission.
("Sell to," as used in this specification, means the transfer of possession of property for money or other valuable consideration which the buyer gives, pays or promises to give or pay for the property. The accused does not have to possess the property to sell it, but (he) (she) must transfer any apparent claim of right to possession to a purchaser.)
NOTE 4: Disposition alleged. When disposition is alleged, the first instruction below must be given. The other instruction may be given. See NOTE 5 below when abandonment of the property by the accused is raised by the evidence.
"Dispose of," as used in this specification, means an unauthorized transfer, relinquishment, getting rid of, or abandonment of the use of,
control over, or ostensible title to the property.
(The disposition may be permanent, as in a sale or gift, or temporary, as in a loan or pledging the property as collateral.)
NOTE 5: Abandonment as disposition. An abandonment where the government is deprived of the benefit of the property is a wrongful disposition, such as where an accused leaves a jeep unattended after having wrongfully appropriated and wrecked it. United States v. Faylor, 24 CMR 18 (CMA 1957). When the location and circumstances of the "abandonment" raise the issue that the government never lost control or benefit of the property, the issue becomes more complex. Compare United States v. Schwabauer, 37 MJ 338 (CMA 1993) (unauthorized relinquishing possession ofindividual weapon in full view of NCOs in combat zone) with United States v. Holland, 25 MJ 127 (CMA 1987) (accused stored stolen engines in government warehouse and the government never totally lost or gave up control over the engines).
NOTE 6: Firearm and explosive defined. If the property is alleged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12). See also 18 USC sections 232(5) and 844lj) as to "explosives." The following definitions will usually be sufficient. In complex cases, the militaryjudge should consult the rules and statutes cited in this NOTE and NOTE 7.
DA PAM 27-9 • 01 January 2010
"Firearm" means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. "Explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device.
NOTE 7: Other definitions ofexplosive. The above definition of explosive is taken from RCM 103(11). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j). Title 18 USC section 232(5) includes the following definitions of explosive not included in NOTE 8 above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable ofigniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. 18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, orpacking that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
NOTE 8: Explosive or firearm-variances. Ifthe property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instructions in the first three paragraphs below. Give the instruction in the fourth paragraph ifa value in excess of$500.00 was alleged. If the value of the property was not alleged to have been greater than $500.00, the instruction in the fourth paragraph should NOT be given and enhanced punishment for property ofa value in excess of$500.00 is unavailable.
The government has charged that the property (sold) (disposed of) was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property was of the nature alleged.
If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged you may still convict the accused. In this event, you must make appropriate findings by excepting the words "(a firearm) (an explosive}."
You must also announce in your findings the value of the item or that it
was of some value.
(If the value was more than $500.00, that must also be announced.)
DA PAM 27-9 • 01 January 2010
NOTE 9: "Some" value. If there is an issue whether the item had value, the fol/owing may be appropriate:
When property is alleged to have a value of $500.00 or less, the prosecution is required to prove only that the property has some value. (When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.)
NOTE 10: Other instructions. Instruction 7-3, Circumstantial Evidence, may be applicable. Instruction 7-15, Variance, may be applicable. An appropriately tailored "abandoned property" instruction (See NOTE 6, Instruction 3-46-1) may be applicable ifan issue is raised that the property was abandoned by the government before the accused sold or disposed of it.
e. REFERENCES:
(1)
Military property: United States v. Schelin, 15 MJ 218 (CMA 1983) and United States v. Simonds, 20 MJ 279 (CMA 1985).

(2)
Disposition: United States v. Joyce, 22 MJ 942 (AFCMR 1986).


DA PAM 27-9 • 01 January 2010
3-32-2. DAMAGING, DESTROYING, OR LOSING MILITARY PROPERTY (ARTICLE 108)
a. MAXIMUM PUNISHMENT:
(1)
Willful damage, destruction or loss:

(a)
$500 or less: BCD, TF, 1 year, E-1.

(b)
More than $500: DD, TF, 10 years E-1.

(c)
Any firearm or explosive regardless ofvalue: DD, TF, 10 years, E-1.

(2)
Through neglect damaging, destroying, or losing:

(a)
$500 or less: 2/3 x 6 months, 6 months, E-l.

(b)
More than $500: BCD, TF, 1 year, E-1.


NOTE 1: MCM elements. form specification. and maximum punishment in cases of willfullv damaging. losing. or destroying a firearm or explosive. The elements in Para 32b(2), MCM, Part IV and the form specification in paragraph 32f(2), MCM, Part IV, make no provision for alleging that the item involved is an explosive or firearm. However, the maximum punishment in Para 32e(3) (b) provides for enhanced punishment when an explosive or firearm is willfully damaged, destroyed, or lost. Optional instructions have been included for use when an item is specifically alleged to be a firearm or explosive.
b. MODEL SPECIFICATION (MCM MODIFIED):
In that (personal jurisdiction data), did, (at/on board-location), on or about ____ without proper authority, [(willfully) (through neglect)] [(damage by ,) (destroy by ) (lose)] , (of a value of ( about) $ ), military property of the United States, [the amount of said damage being in the sum of (about) $ ].
NOTE 2: Willfully damaged. lost. or destroyed firearm or explosive. See NOTE 1 above. The MCM form specification set out above must be modified to plead the enhanced punishment provision ofa willfully lost, damaged, or destroyed firearm or explosive.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused, without proper authority:

(a)
damaged by ____, or

(b)
destroyed by ____, or

(c)
lost certain property, that is: (state the property alleged);


DA PAM 27-9 • 01 January 2010
(2)
That the property was military property of the United States;

(3)
That the (damage) (destruction) (loss) was (willfully caused by the accused) (the result of neglect on the part of the accused); and

(4)
See NOTEs 3 and 4 below.


NOTE 3: Firearm or explosive alleged to have been willfully lost. damaged or destroyed. Give element (4a) when it is alleged that a firearm or explosive has been willfully lost, damaged or destroyed. See NOTEs 11 and 13 below for variance instructions if the nature of the property and/or willfulness of the act is in issue.
(4a) That the (state the property alleged) was (a firearm) (an explosive).
NOTE 4: Item NOT a firearm or explosive. or firearm/explosive alleged to be lost. damaged or destroyed through neglect. Give element (4b) when the item is not a firearm or explosive; or ifa firearm or explosive, that the item was lost, damaged, or destroyed through neglect.
(4b) That the (property was of the value of $____) (damage amounted to $ ) (or some lesser amount, in which case the finding should be in the lesser amount).
d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Military property" is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission.
NOTE 5: Damage alleged. When damage is alleged, the instruction below should be given. See United States v. Ortiz, 24 MJ 164 (CMA 1987) (CMA adopted definition ofdamage in Article 109 that encompasses physical injury to the property. Physical injury, in turn, encompasses rendering military property useless, even temporarily, for its intended purpose by means of disassembly, reprogramming, or removal of a component. Disconnecting a sensor in otherwise operational aircraft that prevented the aircraft from being flown until the sensor was reconnected was "damage. '? and United States v. Peacock, 24 MJ 410 (CMA 1987) (Actual, physical damage is required. Placing foreign objects in aircraft fuel tanks that temporarily disabled the tanks was "damage. '?
Property may be considered "damaged" if there is actual physical injury to it. ("Damage" also includes any change in the condition of the property which impairs, temporarily or permanently, its operational readiness, that is, the purpose for which it was intended.) ("Damage"
DA PAM 27-9' 01 January 2010
may include disassembly, reprogramming, or removing a component so long as that act, temporarily or permanently, renders the property useless for the purpose intended.)
NOTE 6: Destruction al/eged. When destruction is al/eged, the fol/owing instruction should be given:
Property may be considered "destroyed" if it has been sufficiently injured to be useless for the purpose for which it was intended, even if it has not been completely destroyed.
NOTE 7: Willfulness al/eged. If the accused's act or omission is al/eged to have been willful, the fol/owing instruction should be given. See also NOTE 13 to this instruction when willfulness has been charged and the evidence raises that causation may have only been negligent.
"Willfully" means intentionally or on purpose.
NOTE 8: Neglect al/eged. If the accused's act or omission is al/eged to have been negligent, the fol/owing instruction should be given. Ifneglect is raised as a lesser included offense, use the instruction fol/owing NOTE 13.
(Damage) (Destruction) (A loss) is the result of neglect when it is caused by the absence of due care, that is, (an act) (or) (a failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.
NOTE 9: Firearm and explosive defined. If the properly is al/eged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12). See also 18 USC sections 232(5) and 844lj) as to "explosives." The fol/owing definitions will usual/y be sufficient. In complex cases, the militaryjudge should consult the rules and statutes cited in this NOTE and NOTE 10.
"Firearm" means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. "Explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device.
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NOTE 10: Other definitions of explosive. The above definition of explosive is taken from RCM 103(11). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 8440}. Title 18 USC section 232(5) includes the fol/owing definitions ofexplosive not included in NOTE 9 above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. Title 18 USC section 844(j) also includes the fol/owing: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
NOTE 11: Explosive or firearm-variances. If the property is al/eged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instructions in the first three paragraphs below. Give the instruction in the fourth paragraph ifa value in excess of $500.00 was al/eged. Ifthe value of the property was not al/eged to have been greater than $500.00, the instruction in the fourth paragraph below should NOT be given and an enhanced punishment for property ofa value in excess of$500.00 is unavailable. If there is an issue whether the loss, damage or destruction was willful, the instructions fol/owing NOTE 13, should also be given.
The government has charged that the property was willfully (damaged) (lost) (destroyed) and was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property was willfully (damaged) (lost) (destroyed) and is of the nature alleged.
If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged you may still convict the accused. In this event you must make appropriate findings by excepting the words "(a firearm) (an explosive)."
You must also announce in your findings (the value of the item or that it was of some value) (the amount of the damage in a dollar amount or that there was damage in some amount).
(If the (value) (damage) was more than $500.00, that must be also be announced.)
NOTE 12: "Some" value. If there is an issue whether the item had value, the fol/owing may be appropriate:
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When property is alleged to have a value of $500.00 or less, the prosecution is required to prove only that the property has some value. (When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.)
NOTE 13: Lesser included offense. Damage, destruction or loss through neglect is a lesser included offense of willful damage, destruction or loss. When this lesser included offense is raised by the evidence, the following instructions should be given:
(Damage) (Destruction) (A loss) through neglect is a lesser included offense of willful (damage) (destruction) (loss). (Acts) (Omissions) of the accused, without proper authority, which result in (damage) (destruction) (loss), which are not willful, might constitute the lesser offense of (damage ) (destruction) (loss) through neglect. (Damage) (Destruction) (A loss) is the result of neglect when it is caused by the absence of due care, that is, (an act) (or) (a failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.
If you are not satisfied beyond a reasonable doubt that the accused is guilty of willful (damage ) (destruction) (loss) but you are satisfied beyond a reasonable doubt of all the other elements of the offense and that the (damage) (destruction) (loss) was caused by the accused, without proper authority, through neglect, you may find (him) (her) guilty of the lesser offense of (damage) (destruction) (loss) through neglect.
NOTE 14: Causation in issue. If the evidence raises an issue whether the accused's neglect caused the loss, damage, destruction, sale, or disposition, use Instruction 5-19, Lack of Causation. Intervening Cause. or Contributory Negligence.
NOTE 15: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable when willfulness is alleged. Instruction 7-16, Variance -Value. Damage. or Amount. may be applicable. Instruction 7-15, Variance. may be applicable. Instruction 5-17, Evidence Negating Mens Rea. may be applicable ifthere is evidence the accused had a mental state that may have affected his ability to act willfully. Instruction 5-12, Voluntary Intoxication. may be applicable ifthere is evidence the accused's intoxication may have affected his ability to act willfully. An appropriately tailored "abandoned property"
DA PAM 27-9 • 01 January 2010
instruction (See NOTE 6, Instruction 3-46-1) may be applicable if an issue is raised that the properly was abandoned by the government.
e. REFERENCES: Military property: United States v. Schelin, 15 MJ 218 (CMA 1983); United States v. Simonds, 20 MJ 279 (CMA 1985).
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3-32-3. SUFFERING MILITARY PROPERTY TO BE LOST, DAMAGED, SOLD, OR WRONGFULLY DISPOSED OF (ARTICLE 108)
a. MAXIMUM PUNISHMENT:
(1)
Willfully suffering property to be damaged, lost, destroyed, sold, or wrongfully disposed of:

(a)
$500 or less: BCD, TF, 1 year, E-l.

(b)
More than $500: DD, TF, 10 years, E-l.

(c)
Any firearm or explosive regardless of value or amount of damage: DD, TF, 10 years, E-l.

(2)
Through neglect suffering property to be damaged, lost, destroyed, sold, or wrongfully disposed of:

(a)
$500 or less: 2/3 x 6 months, 6 months, E-l.

(b)
More than $500: BCD, TF, 1 year, E-l.


b. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , without proper authority, [willfully] [through neglect] suffer ,(a firearm) (an explosive) (ofa value of (about) $ ) military property of the United States, to be (lost) (damaged by ) (destroyed by ) (sold to ) (wrongfully disposed of by ) (the amount of said damage being in the sum of (about) $ ).
NOTE 1: MCM elements and "omission". The MCM specifies only an "omission" of duty, and not an "act or omission," in the third and fourth elements. Comparing the Article 108(1) and (2) offenses with Article 108(3), the use of only the word "omission" is significant because the prosecution must prove a duty and the failure to do the duty. In this regard, the militaryjudge may have to tailor instructions when the accused performed an act that constituted an omission of duty. But see United States v. Fuller, 25 MJ 514 (ACMR 1987) (negligence in Article 108(3) may be an act or omission). This language in Fuller is probably dicta.
c. ELEMENTS:
(1)
That (state the time and place alleged), certain property, that is: (state the property alleged) was:

(a)
damaged by ____; or

(b)
destroyed by ____; or

(c)
lost; or

(d)
sold to ____; or

(e)
wrongfully disposed of by ____

(2)
That the property was military property of the United States;

(3)
That the (damage) (destruction) (loss) (sale) (wrongful disposition) was suffered by the accused, without proper authority, through an omission of duty on the accused's part;

(4)
That this omission was (willful) (negligent); and

(5)
See NOTEs 2 and 3 below.


DA PAM 27-9·01 January 2010
NOTE 2: Firearm or explosive. and willful suffering alleged. Give element (5a) when it is alleged that a firearm or explosive was willfully suffered to have been lost, damaged, destroyed, sold, or wrongfully disposed of. See NOTEs 12 and 14 below for variance instructions if the nature of the property and/or willfulness is in issue.
(5a) That the (.____) was (a firearm) (an explosive).
NOTE 3: Item NOT a firearm or explosive. or firearm/explosive and suffering through neglect alleged. Give element (5b) when the item is not a firearm or explosive, or ifa firearm or explosive, that the accused suffered the item to be lost, damaged, sold, destroyed, or wrongfully disposed of through neglect.
(5b) That the (property was of the value of $____) (damage
amounted to $ ) (or some lesser amount, in which case the finding should be in the lesser amount).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Military property" is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission.
"Suffered" means to allow or permit. (Suffering includes deliberate violation or intentional disregard of some specific law, regulation, order, duty or customary practice of the service; reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person,
DA PAM 27-9' 01 January 2010
known to be irresponsible, by whom it is damaged, lost, destroyed, or wrongfully disposed of.)
("Sold to," as used in this specification, means the transfer of possession of property for money or other valuable consideration which the buyer gives, pays, or promises to give or pay for the property. The accused does not have to possess the property to sell it, but (he) (she) must transfer any apparent claim of right to possession to a purchaser.)
NOTE 4: Wrongful disposition alleged. When wrongful disposition is alleged, the first instruction below must be given. The other instruction may be given. See NOTE 5 below when abandonment of the property by the accused is raised by the evidence.
"Wrongfully disposed of," as used in this specification, means an unauthorized transfer, relinquishment, getting rid of, or abandonment of the use of, control over, or ostensible title to the property.
(The disposition may be permanent, as in a sale or gift, or temporary, as in a loan or pledging the property as collateral.)
NOTE 5: Abandonment as wrongful disposition. An abandonment where the government is deprived of the benefit ofthe property may be a wrongful disposition such as where an accused leaves a jeep unattended after having wrongfully appropriated and wrecked it. United States v. Favlor. 24 CMR 18 (CMA 1957). When the location and circumstances of the "abandonment" raises the issue that the government never lost control or benefit ofthe property, the issue becomes more complex. Compare United States v. Schwa bauer. 37 MJ 338 (CMA 1993) (unauthorized relinquishing possession of individual weapon in full view of NCOs in combat zone) with United States v. Holland. 25 MJ 127 (CMA 1987) (accused stored stolen engines in government warehouse and the government never totally lost or gave up control over the engines). Faylor. Schwabauer. and Holland. all supra. involved intentional disposition and not suffering property to be wrongfully disposed of.
NOTE 6: Damage alleged. When damage is alleged, the instruction below should be given. See United States v. Ortiz. 24 MJ 164 (CMA 1987) (CMA adopted definition ofdamage in Article 109 that encompasses physical injury to the property. Physical injury, in turn, encompasses rendering military property useless, even temporarily, for its intended purpose by means of disassembly, reprogramming, or removal ofa component. Disconnecting a sensor in otherwise operational aircraft that prevented the aircraft from being flown until the sensor was reconnected was "damage. '? and United States v. Peacock. 24 MJ 410 (CMA 1987) (Actual, physical damage is required. Placing foreign objects in aircraft fuel tanks that temporarily disabled the tanks was "damage. '?
Property may be considered "damaged" if there is actual physical injury
to it. ("Damage" also includes any change in the condition of the
DA PAM 27-9 • 01 January 2010
property which impairs, temporarily or permanently, its operational readiness, that is, the purpose for which it was intended.) ("Damage" may include disassembly, reprogramming, or removing a component so long as that act, temporarily or permanently, renders the property useless for the purpose intended.)
NOTE 7: Destruction alleged. When destruction is alleged, the following instruction should be given:
Property may be considered "destroyed" if it has been sufficiently injured to be useless for the purpose for which it was intended, even if it has not been completely destroyed.
NOTE 8: Willfulness alleged. If the accused's omission is alleged to have been willful, the following instruction should be given. See also NOTE 14 to this instruction when willfulness has been charged and the evidence raises that causation may have only been negligent.
"Willfully" means intentionally or on purpose.
NOTE 9: Neglect alleged. If the accused's omission is alleged to have been negligent, the following instruction should be given. Ifneglect is raised as a lesser included offense to willfulness, use the instruction following NOTE 14.
An omission is the result of neglect when it is caused by the absence of due care, that is, a failure to act by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.
NOTE 10: Firearm and explosive defined. Ifthe properly is alleged to be a firearm or explosive, definitions may be appropriate. See ReM 103 (11) & (12). See also 18 USC sections 232(5) and 844(j) as to "explosives." The following definitions will usually be sufficient. In complex cases, the militaryjudge should consult the rules and statutes cited in this NOTE and NOTE 11.
"Firearm" means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.
"Explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit
breakers), detonators, and other detonating agents, smokeless powders,
DA PAM 27-9' 01 January 2010
any explosive bomb, grenade, missile, or similar device, and any
incendiary bomb or grenade, fire bomb, or similar device.

NOTE 11: Other definitions ofexplosive. The above definition of explosive is taken from RCM 103(11). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j). Title 18 USC section 232(5) includes the following definitions of explosive not included in NOTE 10 above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. Title 18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
NOTE 12: Explosive or firearm-variance. If the property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instruction in the first three paragraphs below. Give the instruction in the fourth paragraph ifa value in excess of$500.00 was alleged. If the value of the property was not alleged to have been greater than $500.00, the instruction in the fourth paragraph should NOT be given, and an enhanced punishment for property in excess of$500.00 is unavailable. If there is an issue whether suffering the loss, damage, destruction, sale or wrongful disposition was willful, the instructions following NOTE 14 should also be given.
The government has charged that the accused willfully suffered the property to be (damaged) (lost) (destroyed) (sold) (wrongfully disposed of) and that the property was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused's omission was willful and that the property is of the nature alleged.
If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged you may still convict the accused. In this event you must make appropriate
findings by excepting the words "(a firearm) (an explosive)."
You must also announce in your findings (the value of the item or that it was of some value) (the amount of the damage in a dollar amount or that there was damage in some amount).
DA PAM 27-9 • 01 January 2010
(If the (value) (damage) was more than $500.00, that must also be
announced.)
NOTE 13: "Some" value. If there is an issue whether the item had value, the following may be appropriate:
When property is alleged to have a value of $500.00 or less, the
prosecution is required to prove only that the property has some value.
(When, as here (you have evidence of the nature of the property) (the
property has been admitted in evidence as an exhibit and can be
examined by the members), you may infer that it has some value. The
drawing of this inference is not required.)
NOTE 14: Lesser included offense. Suffering damage, destruction, loss, sale, or wrongful disposition through neglect is a lesser included offense of willfully suffering damage, destruction, loss, sale, or wrongful disposition. When this lesser included offense is raised by the evidence, the following instructions should be given:
Suffering property to be (damaged) (destroyed) (lost) (sold) (wrongfully
disposed of) through neglect is a lesser included offense of willfully
suffering the property to be (damaged) (destroyed) (lost) (sold)
(wrongfully disposed of). An omission of duty by the accused, without
proper authority, which results in the accused's suffering the property to
be (damaged) (destroyed) (lost) (sold) (or wrongfully disposed of), which
is not willful, might constitute the lesser offense of suffering property to
be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) through
neglect. Suffering property to be (damaged) (destroyed) (lost) (sold)
(wrongfully disposed of) is the result of neglect when it is caused by the
absence of due care, that is, a failure to act by a person who is under a
duty to use due care which demonstrates a lack of care for the property
of others which a reasonably prudent person would have used under the
same or similar circumstances.
If you are not satisfied beyond a reasonable doubt that the accused is
guilty of willfully suffering the property to be (damaged) (destroyed) (lost)
(sold) (wrongfully disposed of), but you are satisfied beyond a
reasonable doubt of all the other elements of the offense and that the (damage) (destruction) (loss) (sale) (wrongful disposition) was caused by
DA PAM 27-9 • 01 January 2010
the accused's sufferance, without proper authority, through neglect, you may find (him) (her) guilty of the lesser offense of suffering the property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) through neglect.
NOTE 15: Causation in issue. If the evidence raises an issue whether the accused's neglect caused the loss, damage, destruction, sale, or disposition, give Instruction 5-19, Lack of Causation, Intervening Cause, or Contributory Negligence.
NOTE 16: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable when willfulness is alleged. Instruction 7-16, Damage and Amount, may be applicable. Instruction 7-15, Variance, may be applicable. Instruction 5-17, Evidence Negating Mens Rea, may be applicable if there is evidence the accused had a mental state that may have affected his ability to act willfully. Instruction 5-12, Voluntary Intoxication, may be applicable if there is evidence the accused's intoxication may have affected his ability to act willfully. An appropriately tailored ltabandoned properly" instruction (See NOTE 6, Instruction 3-46-1), may be applicable ifan issue is raised that the properly was abandoned by the government.
e. REFERENCES:
(1)
Military property: United States v. Schelin, 15 MJ 218 (CMA 1983) and United States v. Simonds, 20 MJ 279 (CMA 1985).

(2)
Disposition: United States v. Joyce, 22 MJ 942 (AFCMR 1986).


DA PAM 27-9 • 01 January 2010
3-33-1. NONMILITARY PROPERTY-REAL PROPERTY-WASTING OR SPOILING (ARTICLE 109)
a. MAXIMUM PUNISHMENT:
(1)
$500.00 or less: BCD, TF, 1 year, E-1.

(2)
More than $500.00: DD, TF, 5 years, E-1.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused:

(a)
(willfully) (recklessly) wasted, or

(b)
(willfully) (recklessly) spoiled, certain real property, namely: (describe the property alleged) by (state the manner alleged);

(2)
That the property (wasted) (spoiled) was the property of (state the name of the owner alleged); and

(3)
That the property was of a value of (about) (state the value alleged) (or some lesser amount, in which case the finding should be in the lesser amount).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Waste") ("Spoil") means to wrongfully destroy or permanently damage real property (such as (buildings) (structures) (fences) (or) (trees)).
NOTE 1: If willfulness is al/eged. Ifthe act was al/eged as willful, the fol/owing is ordinarily applicable:
"Willfully" means intentionally or on purpose.
NOTE 2: Ifrecklessness is al/eged. Ifrecklessness is al/eged, the fol/owing instruction should be given:
DA PAM 27-9 • 01 January 2010
"Recklessly" as used in this specification means a degree of carelessness greater than simple negligence. Negligence is the absence of due care, that is, (an act) (failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances. Recklessness, on the other hand, is a negligent (act) (failure to act) with a gross, deliberate, or wanton disregard for the foreseeable results to the property of others.
NOTE 3: Lesser included offense. Recklessly wasting or spoiling is a lesser included offense of willfully wasting and spoiling.
NOTE 4: Other instructions. Instruction 7-16, Variance -Value, Damage, or Amount, is ordinarily applicable. Also, Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-33-2. NONMILITARY PROPERTY-PERSONAL PROPERTY-DESTROYING OR DAMAGING (ARTICLE 109)
a. MAXIMUM PUNISHMENT:
(1)
$500.00 or less: BCD, TF, 1 year, E-l.

(2)
More than $500.00: DD, TF, 5 years, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about ____
willfully and wrongfully (destroy) (damage) by , , [ofa value of (about)
$ 1[the amount of said damage being in the sum of (about) $ ], the property of



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused willfully and wrongfully (damaged) (destroyed) certain personal property, that is (describe the property alleged) by (state the manner alleged);

(2)
That the accused specifically intended to (destroy) (damage)
(describe the property alleged);


(3)
That the property (destroyed) (damaged) was the property of (state the name of the owner alleged); and

(4)
[That the property was of the value of $____(or of some lesser value, in which case the finding should be in the lesser amount)] [That the damage was in the amount of $ (or of some lesser amount, in which case the finding should be in the lesser amount)].


d. DEFINITIONSAND OTHER INSTRUCTIONS:
An act is done "willfully" if it is done intentionally or on purpose.
NOTE 1: Destruction alleged. Ifdestruction is alleged, define it as follows:
Property may be considered destroyed if it has been sufficiently injured to be useless for the purpose for which it was intended, even if it has not been completely destroyed.
NOTE 2: Damage alleged. Ifdamage is alleged, give the following definition:
DA PAM 27-9·01 January 2010
Property may be considered "damaged" if it has been physically injured in any way.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), and Instruction 7-16, Variance -Value, Damage, or Amount, are ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-34-1. HAZARDING OF VESSEL-WILLFUL (ARTICLE 110)
a. MAXIMUM PUNISHMENT: Death or other lawful punishment.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, on or about , while serving as ____ aboard the in the vicinity of , willfully and wrongfully (hazard the said vessel) (suffer the said vessel to be hazarded) by (causing the said vessel to collide with ) (allowing the said vessel to run aground) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the (state the name of the vessel), a vessel of the armed forces, was hazarded by (state the manner of hazarding alleged); and

(2)
That the accused by (his) (her) (act) (or failure to act) willfully and wrongfully (caused) (suffered) the vessel to be hazarded.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Hazard" means to put a vessel in danger of damage or loss. Loss or damage to the vessel is not required. All that is required is that the vessel be put in danger of loss or damage.
"Willfully" means intentionally or on purpose.
("Suffered" means allowed or permitted.)
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), should be used when appropriate.
DA PAM 27-9' 01 January 2010
3-34-2. HAZARDING OF VESSEL-THROUGH NEGLECT (ARTICLE 110)
a. MAXIMUM PUNISHMENT: DD, TF, 2 years, E-l.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), on , while serving in command of the ____, making entrance to (Boston Harbor), did negligently hazard the said vessel by failing and neglecting to maintain or cause to be maintained an accurate running plot of the true position of said vessel while making said approach, as a result of which neglect the said , at or about ____ hours on the day aforesaid, became stranded in the vicinity of (Channel Buoy Number Three).
NOTE 1: Other form specifications. Paragraph 34, Part ,V, MCM includes three other examples ofproper specifications based on different fact patterns.
c. ELEMENTS:
(1)
That (state the time and place alleged), the (state the name of the vessel), a vessel of the armed forces, was hazarded by (state the manner of hazarding); and

(2)
That the accused by (his) (her) (act) (or failure to act) negligently


(caused) (suffered) the vessel to be hazarded.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Hazard" means to put the vessel in danger of damage or loss. Loss or damage to the vessel is not required. All that is required is that the
vessel be put in danger of loss or damage.
Negligence is the absence of due care, that is, (an act) (or failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.
NOTE 2: "Suffered" alleged. If the term "suffered" is alleged, the following instruction is ordinarily applicable:
"Suffered" means allowed or permitted.
DA PAM 27-9 • 01 January 2010
3-35-1. DRUNKEN OR RECKLESS OPERATION OF A VEHICLE, AIRCRAFT, OR VESSEL (ARTICLE 111)
a. MAXIMUM PUNISHMENT:
(1)
Ifresulting in personal injury: DD, TF, 18 months, E-l.

(2)
No personal injury alleged: BCD, TF, 6 months, E-l.


h. MODEL SPECIFICATION:
NOTE 1: The "model specification" provided below differs from the one found in the MCM, in that it adds certain words ofcriminality (f.e., "operates" and "is in actual physical control'? found in the statute, but not in the MCM model specification.
In that (personal jurisdiction data), (at/on board--Iocation), on or about , (in the motor pool area) (near the Officer's Club) (at the intersection of and ) ( ) (while in the Gulf of Mexico ) (while in flight over N orth America) (did operate) (did physically control) (was in actual physical control of) [a vehicle, to wit: (a truck) (a passenger car) ( )] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) ( )] [a vessel, to wit: (the aircraft carrier USS ) (the Coast Guard Cutter ____) ( )], [while drunk] [while impaired by ] [while the alcohol concentration in hislher (blood) (breath) was, as shown by chemical analysis, equal to or exceeded (0.10) ~grams of alcohol per (100 milliliters of blood) (210 liters ofbreath), which is the limit under (cite applicable State law) (cite applicable statute or regulation)] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (by ordering that the aircraft be flown below the authorized altitude) ( )] [and did thereby cause said (vehicle) (aircraft) (vessel) to injure )].
c. ELEMENTS:
(1) That (state the time and place alleged), the accused was (operating) (physically controlling) (in actual physical control of) a (vehicle) (aircraft) (vessel), to wit: ; (and)
(2)
See NOTEs 2-5 below. More than one means ofincapacity may be al/eged. An accused may be charged with both drunken and reckless operation ofa vehicle, and drunkenness may be al/eged as a violation of the alcohol level, as weI/ as otherwise.

(3)
See NOTE 6 below.


NOTE 2: Reckless or wanton manner. Ifreckless or wanton manner is alleged, give the following element:
DA PAM 27-9 • 01 January 2010
(2a) That the accused was (operating) (physically controlling) the said (vehicle) (aircraft) (vessel) in a (reckless) (or) (wanton) manner by (state the manner of operation or control alleged);
NOTE 3: While drunk. Ifoperation or actual physical control while drunk is alleged, give the following element:
(2b) That the accused was (operating) (in actual physical control of) the said (vehicle) (aircraft) (vessel) while drunk;
NOTE 4: While impaired. If operation or physical control while impaired by a controlled substance is alleged, give the following element:
(2c) That the accused was (operating) (physically controlling) the said (vehicle) (aircraft) (vessel) while impaired by ; [and]
NOTE 5: Prohibited alcohol level. Ifoperation or actual physical control while equal to or in excess ofan applicable alcohol concentration level is alleged, give the following element. In the United States, such level is the blood alcohol concentration prohibited under the law ofthe State in which the conduct occurred. However, if the conduct occurred on a military installation that is in more than one State, and ifthose States have different levels for defining their prohibited blood alcohol concentrations under their respective State laws, the Secretary concerned for the installation may select one such level to apply uniformly on that installation. Outside the United States, the level ofalcohol concentration prohibited is
0.10 grams or more ofalcohol per 100 milliliters ofblood or 210 liters ofbreath, unless the Secretary ofDefense has prescribed a lower level. Judicial notice ofthe State law or Secretary prescribed level may be appropriate. See MRE 201 A.
(2d) That the accused was (operating) (in actual physical control of) the said (vehicle) (aircraft) (vessel) when the alcohol concentration in (his) (her) (blood) (breath) was equal to or greater than (the applicable level prohibited under the law of the State in which the conduct occurred) (the level prescribed by the Secretary of ) (0.10 grams or more of alcohol per (100 milliliters of blood) (210 liters of breath)), as shown by chemical analysis;
NOTE 6: Injury alleged. Ifan injury is alleged, give the following element:
[(3)] That the accused thereby caused the (vehicle) (aircraft) (vessel) to (strike a light pole) (veer into oncoming traffic and collide with another vehicle) ( ) causing injury to (state the name of the alleged victim).
DA PAM 27-9' 01 January 2010
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 7: Vehicle, aircraft, and vessel defined. The following definitions should be given as applicable. See RCM 103. See also 1 USC section 4 as to "vehicle," 18 USC section 2311 and 49 USC section 1301 as to "aircraft," and 1 USC section 3 as to "vessel." The following definitions will usually be sufficient, but in complex cases, the militaryjudge should consult the rules and statutes cited in this NOTE:
("Vehicle" includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.)
("Aircraft" means any contrivance used or designed for transportation in the air.)
("Vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)
NOTE 8: Operating. Ifthe accused is charged with operating a vessel, aircraft, or vehicle, give the first instruction below. The second instruction may be helpful.
"Operating" includes not only driving or guiding a (vehicle) (aircraft)
(vessel) while in motion, either in person or through the agency of
another, but also the setting of its motive power in action or the
manipulation of its controls so as to cause the particular (vehicle)
(aircraft) (vessel) to move.

(Thus, one may operate a (vehicle) (aircraft) (vessel) by pushing it, setting its motive power in action by starting the engine or otherwise, or releasing the parking brake of a vehicle on a hill so the vehicle rolls downhill.)
NOTE 9: Controlling. If the specification alleges "control" of the vehicle, aircraft, or vessel, the instruction that follows should be given. The militaryjudge should be alert to situations where the ability to control, although present, is so remote that extending criminal culpability to such conduct is outside the intent ofthe statute. The literal language of the instruction that follows is so broad that it seems to cover a person with the authority and practical means to direct the steering or movements of a vessel, vehicle, or aircraft, even where no attempt at control was made and no causal connection existed between the person's consumption of alcohol or drugs and the operation of the vessel, vehicle, or aircraft. For example, a ship's captain drunk in his cabin who made no effort to direct the
DA PAM 27-9' 01 January 2010
ship's course, despite his authority and capability (via intercom) to do so, seems to be covered by the "control" definition taken from the Manual. In such a situation, tailoring the example (taken directly from the MCM) may be necessary.
("Physically controlling") ("in actual physical control") mean(s) that the
accused had the present capability and power to dominate, direct, or
regulate the (vehicle) (aircraft) (vessel), (in person) (or) (through the
agency of another) (regardless of whether such (vehicle) (aircraft)
(vessel) was operated.
(For example, an intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition, but with the engine not turned on could be deemed in actual physical control of that vehicle. (However, a person asleep in the back seat with the keys in (his) (her) pocket would not be deemed in actual, physical controL))
NOTE 10: Reckless or wanton. Ifit is alleged that the accused operated orphysically
controlled the vehicle, aircraft, or vessel in a wanton or reckless manner, give the first
instruction below. The second instruction may be helpful.
("Reckless") ("Wanton") means a degree of carelessness greater than
simple negligence. "Simple negligence" is the absence of due care, that
is, (an act) (or failure to act) by a person who is under a duty to use due
care which demonstrates a lack of care for the safety of others which a
reasonably careful person would have used under the same or similar
circumstances. ("Recklessness") ("Wantonness"), on the other hand, is
a negligent (act) (failure to act) combined with a gross or deliberate
disregard for the foreseeable results to others. "Reckless" means that
the accused's manner of operation or control of the (vehicle) (aircraft)
(vessel) was, under all the circumstances, of such a heedless nature that
made it actually or imminently dangerous to the occupant(s) or to the rights or safety of (others) (another).
(Wantonness also includes willful conduct.)
(In deciding whether the accused (operated) (physically controlled) the (vehicle) (aircraft) (vessel) in a (reckless) (wanton) manner, you must consider all the relevant evidence, (including, but not limited to: the
DA PAM 27-9 • 01 January 2010
(condition of the surface on which the vehicle was operated) (time of day or night) (traffic conditions) (condition of the (vehicle) (aircraft) (vessel) as known by the accused) (the degree that the (vehicle) (aircraft) (vessel) had or had not been maintained as known by the accused) (weather conditions) (speed) (the accused's physical condition) (and) ( )).)
NOTE 11: Drunkenness or impairment. Ifdrunkenness or impairment is alleged, give the instruction below. Ifimpairment by a controlled substance is alleged, the militaryjudge should examine paragraph 37, Part IV, MCM to ensure that the substance alleged is one prohibited. See NOTE 12 below.
("Drunk") ("Impaired") means any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties. ("Drunk" relates to intoxication by alcohol.) ("Impaired" relates to intoxication by a controlled substance.)
NOTE 12: Nature of the substance causing impairment. Article 112a(b) specifically prohibits certain controlled substances. It also incorporates the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971. The list of controlled substances in Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR 1308 et seg. Whether the substance alleged was among those covered by Article 112a is an interlocutory question for the militaryjudge. To determine that issue, the militaryjudge may take judicial notice that the alleged substance is a scheduled controlled substance. See United States v. Gould, 536 F.2d 216 (8th Cir. 1976). Whether the substance is the one alleged or that it caused an impairment are questions of fact.
NOTE 13: Regulatory defects in handling ofblood, breath or urine samples. When the evidence reflects "technical" deviations from governing regulations that establish procedures for collecting, transmitting, or analyzing samples, the following instruction may be appropriate. See United States v. Pollard, 27 MJ 376 (CMA 1989). Blood, breath, or urinalysis test results should be excluded ifthere has been a substantial violation of regulations intended to assure reliability of the testing procedures. See United States v. Strozier, 31 MJ 283 (CMA 1990).
There is evidence raising the issue whether the government strictly complied with all aspects of (state rule, regulation, or policy) governing how (blood) (breath) (urine) samples are to be (collected) (transmitted)
(and) (analyzed). In order to convict the accused, the evidence must establish the (blood) (breath) (urine) sample originated from the accused and (tested positive for the presence of (heroin) (cocaine) ( ))
DA PAM 27-9 • 01 January 2010
(contained the alcohol concentration alleged) without adulteration by any intervening agent or cause. You may consider deviations from governing regulations, or any other discrepancy in the processing or handling of the accused's (blood) (breath) (urine) sample, in determining if the evidence is sufficiently reliable to support a vote for conviction.
NOTE 14: Sufficiency of evidence when blood or breath alcohol levels alleged. When
Article 111(2), blood or breath alcohol concentration, is alleged, the following instruction
may be given:
If you are convinced beyond a reasonable doubt that the accused was
(operating) (in actual physical control of) the (vehicle) (aircraft) (vessel)
when the alcohol concentration in (his) (her) (blood) (breath) was equal
to or greater than (the applicable level prohibited under the law of the
State in which the conduct occurred) (the level prescribed by the
Secretary of ) (0.10 grams or more of alcohol per (100
milliliters of blood) (210 liters of breath)), as shown by chemical analysis,
no proof of drunkenness or impairment is required.
NOTE 15: Injury and proximate and intervening cause. If "causing injury" is alleged, an
instruction that the accused's conduct was a proximate cause of the injury may be
necessary. See United States v. Lingenfelter, 30 MJ 302 (CMA 1990). Both the first and
third portions of the instruction below should be given whenever causation is in issue. The
second portion of the instruction should also be given when the issue of intervening cause
is raised. See United States v. Klatil, 28 CMR 582 (ABR 1959.)
To find the accused guilty of causing injury with the (vehicle) (aircraft)
(vessel), you must be convinced beyond a reasonable doubt that the
accused's conduct of (operating) (physically controlling) (being in actual
physical control of) the (vehicle) (aircraft) (vessel) (while (impaired)
(drunk)) (in a (reckless) (wanton) manner) (when the alcohol
concentration in the accused's (blood) (breath) met or exceeded the level
I previously mentioned) was a proximate cause of the injury. This means
that the injury to (state the name of person allegedly injured) must have
been the natural and probable result of the accused's conduct. A
proximate cause does not have to be the only cause of the injury, nor
must it be the immediate cause. However, it must be a direct or
contributing cause that plays a material role, meaning an important role,
DA PAM 27-9 • 01 January 2010
in bringing about the injury. If some other unforeseeable, independent, intervening event that did not involve the accused was the only cause that played any important part in bringing about the injury, then the accused's conduct was not the proximate cause of the alleged injury. In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to, (here the military judge may specify significant evidentiary factors bearing on the issues and indicate the respective contentions of counsel for both sides).)
(It is possible for the acts or omissions of two or more persons to
contribute, each as a proximate cause, to the injury of another. If the
accused's conduct was a proximate cause of the victim's injury, the
accused will not be relieved of criminal responsibility because some
other person's acts or omissions were also a proximate cause of the
injury. (The burden is on the prosecution to establish beyond a
reasonable doubt that there was no independent intervening cause.))
Unless you are satisfied beyond a reasonable doubt that the accused's
conduct was the proximate cause of the injury, you may not find the
accused guilty of the offense alleged. However, if you are satisfied
beyond a reasonable doubt of all the elements except that of causing
injury, then you may find the accused guilty of the offense by excepting
the element of causing injury. I will provide you a Findings Worksheet
later that contains language you may use to state such a finding.
NOTE 16: Contributory negligence. If the specification al/eges injury to another and the victim's contributory negligence is raised by the evidence, the fol/owing instruction should be given:
There is evidence raising the issue of whether (state the name(s) of person(s) allegedly injured) failed to use reasonable care and caution for
his/her/their own safety. If the accused's conduct as I earlier described it
was a proximate cause of the injury, the accused is not relieved of
criminal responsibility because the negligence of (state the name(s) of
person(s) allegedly injured) may have contributed to his/her/their own
injury. The conduct of the injured person(s) should be considered in
DA PAM 27-9·01 January 2010
determining whether the accused's conduct was a proximate cause of the injury. Conduct is a proximate cause of injury, even if it is not the only cause, as long as it is a direct or contributing cause that plays a material role, meaning an important role, in bringing about the injury. Conduct is not a proximate cause of the injury if some other unforeseeable, independent, intervening event, which did not involve the accused's conduct, was the only cause that played any important part in bringing about the injury. The burden is upon the prosecution to prove beyond a reasonable doubt there was no independent, intervening cause.
DA PAM 27-9·01 January 2010
3-36-1. DRUNK ON DUTY (ARTICLE 112)
a. MAXIMUM PUNISHMENT: BCD, TF, 9 months, E-L
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), was, (at/on board-location), on or about ____
found drunk while on duty as ____

c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was on duty as (state the nature of the military duty); and

(2)
That (he) (she) was found drunk while on this duty.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
"Drunk" means any intoxication which is sufficient to impair the rational
and full exercise of the mental or physical faculties.
NOTE: Iffurther clarification is needed and ifappropriate, add the following:
A person is "drunk" who is under the influence of an intoxicant so that the use of (his) (her) faculties is impaired. Such impairment did not exist unless the accused's conduct due to intoxicating (liquors) (drugs) was such as to create the impression within the minds of observers that (he) (she) was unable to act like a normal, rational person.
("Liquor" includes any alcoholic beverage.)
"On duty" means routine duties or details in garrison, at a station, or in the field. It does not mean those times when the accused is "off duty."
(In an area of active hostilities, the circumstances may be such that all members of a command may properly be considered as being continuously on duty within the meaning of this Article.)
(An officer of the day and members of the guard are on duty during their entire tour within the meaning of this Article.)
DA PAM 27-9·01 January 2010
(Commanders are constantly on duty when in the actual exercise of command.)
DA PAM 27-9·01 January 2010
3-37-1. DRUGS-WRONGFUL POSSESSION-WITH INTENT TO DISTRIBUTE (ARTICLE 112a)
a. MAXIMUM PUNISHMENT:
(1)
Wrongful possession:

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-L

(b)
Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-L

(2)
With intent to distribute:

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-1.

(b)
Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-L

(3)
When aggravating circumstances are alleged: Increase the maximum confinement by 5 years.

h.
MODEL SPECIFICATION: In that (personal jurisdiction data) did, (at/on board-location), on or about wrongfully possess (grams) (ounces) (pounds) ( ) of (a Schedule ( ) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vesseVaircraft) (in or at a missile launch facility) used by the armed forces or under the control ofthe armed forces, to wit: ) (while receiving special pay under 37 USC Section 310) (during time ofwar).


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused possessed ____ (grams ) (ounces) (pounds) ( ), more or less, of (____) (a Schedule _ controlled substance);

(2)
That the accused actually knew (he) (she) possessed the substance;

(3)
That the accused actually knew that the substance (he) (she)
possessed was ( ) (or of a contraband nature); (and)


(4)
That the possession by the accused was wrongful; [and]


NOTE 1: Intent to distribute alleged. Give the 5th element below ifintent to distribute was alleged:
DA PAM 27-9·01 January 2010
NOTE 3: Knowledge of presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance, the fol/owing instruction is appropriate:
The accused must be aware of the presence of the substance at the time of possession. A person who possesses a (package) (suitcase) (container) (item of clothing) ( ) without knowing that it actually contains ( ) (a controlled substance) is not guilty of wrongful possession of (_____) (a controlled substance).
NOTE 4: Knowledge of the nature ofthe substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the fol/owing instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused knew the substance was prohibited. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) ( ), when in fact it is (heroin) ( ), the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to possess.)
However, a person who possesses (cocaine) ( ), but actually believes it to be (sugar) ( ), is not guilty of wrongful possession of (cocaine) ( ).
NOTE 5: Missile launch facility. Ifit is al/eged that the substance was possessed at a "missile launch facility," the fol/owing instruction should be given:
A "missile launch facility" includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled 'after launch.
NOTE 6: Intent to distribute al/eged. Ifintent to distribute is al/eged, give the fol/owing instruction concerning distribution:
"Distribute" means to deliver to the possession of another. "Deliver" means the actual, constructive, or attempted transfer of an item. While a transfer of a controlled substance may have been intended or made or
DA PAM 27-9 • 01 January 2010
attempted in exchange for money or other property or a promise of payment, proof that a commercial transaction was intended is not required.
An intent to distribute may be inferred from circumstantial evidence. Examples of evidence which may tend to support an inference of intent to distribute are: (possession of a quantity of substance in excess of that which one would be likely to have for personal use) (market value of the substance) (the manner in which the substance is packaged) (or) (that the accused is not a user of the substance). On the other hand, evidence that the accused is (addicted to) (or) (a heavy user of) the substance may tend to negate an inference of intent to distribute. The drawing of any inference is not required.
NOTE 7: "Deliberate avoidance" raised. The following instruction should be given when the issue of "deliberate avoidance" as discussed in United States v. Newman. 14 MJ 474 (CMA 1983) is raised:
I have instructed you that the accused must have known that the substance (he) (she) possessed was ( ) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew (he) (she) possessed ( ) or a sUbstance of a contraband nature, and that the accused actually knew of the substance's presence.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) possessed was ( ) or of a contraband nature, or if you have a reasonable doubt that the accused actually knew that ( ) or a substance of a contraband nature was in (his) (her) (vehicle) ( ), but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused did not know for sure that the substance was not (_____) or of a contraband nature and that the accused did not
DA PAM 27-9·01 January 2010
know for sure that the substance was not located in (his) (her) (vehicle)
( );
b.
The accused was aware that there was a high probability that the substance was ( ) or of a contraband nature and that it was located in (his/her) (vehicle) ( ); and

c.
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was ( ) or of a contraband nature and that it was located in (his) (her) (vehicle) ( ), then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.


In other words, you may find that the accused had the required knowledge if you find either (1) that the accused actually knew the substance (he) (she) possessed was _____) or of a contraband nature and the accused knew of its presence, or (2) deliberately avoided that knowledge as I have defined that term for you.
I emphasize that knowledge cannot be established by mere negligence,
foolishness, or even stupidity on the part of the accused. The burden is
on the prosecution to prove every element of this offense, including that
the accused actually knew that the substance (he) (she) possessed was
( ) or of a contraband nature and that the substance was
present. Consequently, unless you are satisfied beyond a reasonable
doubt that the accused either (1) had actual knowledge that the
substance was ( ) or of a contraband nature and that it was
present, or (2) deliberately avoided that knowledge, as I have defined
that term, then you must find the accused not guilty.
NOTE 8: Exceptions to wrongfulness. The burden ofgoing forward with evidence with
respect to any exception is upon the person claiming its benefit. If the evidence presented
raises such an issue, then the burden ofproofis upon the United States to establish
beyond a reasonable doubt that the possession was wrongful. See United States v. Cuffee,
10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the
following terms should be given:
DA PAM 27-9·01 January 2010
Evidence has been introduced raising an issue of whether the accused's possession of (heroin) (cocaine) (marijuana) ( ) was wrongful in light of the fact that (the substance had been duly prescribed for the accused by a physician and the prescription had not been obtained by fraud) (the accused possessed it in the performance of (his) (her) duty) ( ). In determining this issue, you must consider all relevant facts and circumstances, including, (but, not limited to ). The burden is upon the prosecution to establish the accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's possession of the substance was not (as a result of a properly obtained prescription duly prescribed for (him) (her) by a physician) (in the performance of (his) (her) duties) ( ), you may not find the accused guilty.
NOTE 9: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201 A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws ofthe United States is taken (See United States v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(_____) is a controlled substance under the laws of the United States.
NOTE 10: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801 et seq., containing the original Schedules I through V is updated and republished annually in the Code ofFederal Regulations. See 21 CFR section 1308 et seq.
NOTE 11: Quantitv in issue. Ifan issue arises concerning the amount of the controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused possessed the amount of _____ described in the specification, but you are satisfied beyond
a reasonable doubt that the accused possessed some lesser amount of _____, you may, nevertheless, reach a finding of guilty. However,
you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate
DA PAM 27-9' 01 January 2010
the quantity referred to in the specification and substitute for it the word "some" or any lesser quantity.
NOTE 12: Aaaravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 11 above should be given. See United States v. Pitt, 35 MJ 478 (CMA 1992) when intent to distribute while on duty as a sentinel is alleged.
NOTE 1 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. The circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged. If an issue of innocent possession on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-11, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given.
e.
REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 April 2000) (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Newman, 14 MJ 474 (CMA 1983); United States

v.
Ratleff, 34 MJ 80 (CMA 1992); United States v. Mance, 26 MJ 244 (CMA 1988), cert. denied, 488 U.S. 942 (1988); United States v. Pitt, 35 MJ 478 (CMA 1992).


DA PAM 27-9 ·01 January 2010
3-37-2. DRUGS-WRONGFUL USE (ARTICLE 112a)
a. MAXIMUM PUNISHMENT:
(1)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-l.

(2)
Marijuana, phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-l.

(3)
When aggravating circumstances are alleged: Increase maximum confinement by 5 years.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , wrongfully use , (a schedule ) (controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control ofthe armed forces, to wit: ) (while receiving special pay under 37 V.S.c. Section 31 0) (during time of war).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused used
_____ (a Schedule _ controlled substance);


(2)
That the accused actually knew (he) (she) used the substance;

(3)
That the accused actually knew that the substance (he) (she) used was (.____) (or of a contraband nature); (and)

(4)
That the use by the accused was wrongful; [and]


NOTE 1: Aggravating circumstance al/eged. Ifone of the aggravating factors in Article 112a is pled, the militaryjudge must also instruct on that aggravating factor as an element:
[(5)] That at the time the accused used the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or
under the control of the armed forces) (receiving special pay under 37
U.S. Code section 310).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Use" means the administration, ingestion, or physical assimilation of a drug into one's body or system. "Use" includes such acts as smoking,
DA PAM 27-9 • 01 January 2010
sniffing, eating, drinking, or injecting. To be punishable under Article 112a, use of a controlled substance must be wrongful. Use of a controlled substance is wrongful if it is without legal justification or authorization. (Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); (or) (b) done by authorized personnel in the performance of medical duties or experiments.) Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances (including but not limited to ). (You may infer from the presence of ( _____) in the accused's urine that the
accused knew (he) (she) used ( ).) However, the drawing of any inference is not required.
NOTE 2: Knowledge of the presence of the substance in issue. When the evidence raises
the issue whether the accused knew of the presence of the substance allegedly used, the
following instruction is appropriate:
The accused may not be convicted of the use of a controlled substance if the accused did not know (he) (she) was actually using the substance. The accused's use of the controlled substance must be knowing and conscious. For example, if a person places a controlled substance into the accused's (drink) (food) (cigarette) ( ) without the accused's becoming aware of the substance's presence, then the accused's use was not knowing and conscious.
NOTE 3: Knowledge ofthe nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of
the contraband substance. The knowledge requirement is satisfied if the
accused knew the substance was prohibited. Similarly, if the accused
DA PAM 27-9 • 01 January 2010
believes the substance to be a contraband substance, such as (cocaine) ( ), when in fact it is (heroin) ( ), the accused had
sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to use.)
However, a person who uses (cocaine) ( ), but actually
believes it to be (sugar) ( ), is not guilty of wrongful use of
(cocaine) ( ).
NOTE 4: Missile launch facilitv. Ifit is alleged that the substance was used at a "missile launch facility," the following instruction should be given:
A "missile launch facility" includes the place from which missiles are fired
and launch control facilities from which the launch of a missile is initiated
or controlled after launch.
NOTE 5: "Deliberate avoidance" raised. The following instruction should be given when the
issue of "deliberate avoidance" as discussed in United States v. Newman, 14 MJ 474 (CMA
1983) is raised:
I have instructed you that the accused must have known that the
substance (he) (she) used was ( ) or of a contraband nature.
You may not find the accused guilty of this offense unless you believe
beyond a reasonable doubt that the accused actually knew that (he)
(she) used ( ) or a substance of a contraband nature.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) used was ( ) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
a.
The accused did not know for sure that the substance was not
(_____) or of a contraband nature;


b.
The accused was aware that there was a high probability that the substance was ( _____) or of a contraband nature; and

c.
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was ( ) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of


DA PAM 27-9·01 January 2010
knowledge.
In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) used was ( ) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term
for you.
I emphasize that knowledge cannot be established by mere negligence,
foolishness, or even stupidity on the part of the accused. The burden is
on the prosecution to prove every element of this offense, including that
the accused actually knew that the substance (he) (she) used was
( ) or of a contraband nature. Consequently, unless you are
satisfied beyond a reasonable doubt that the accused either had actual
knowledge that the substance was ( ) or of a contraband
nature, or that the accused deliberately avoided that knowledge, as I
have defined that term, then you must find the accused not guilty.
NOTE 6: Exceptions to wrongfulness. The burden ofgoing forward with evidence with
respect to any exception is upon the person claiming its benefit. If the evidence presented
raises such an issue, then the burden ofproofis upon the United States to establish
beyond a reasonable doubt that the use was wrongful. See United States v. Cuffee, 10 MJ
381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following
terms should be given:
Evidence has been introduced raising an issue of whether the accused's use of (heroin) (cocaine) (marijuana) ( ) was wrongful in light of the fact that (the accused used it in the performance of (his/her) duty) (the substance had been duly prescribed by a physician and the prescription had not been obtained by fraud ( _____). This raises
the issue of innocent use. In determining this issue, you must consider
all relevant facts and circumstances, (including, but not limited to
_____). The burden is on the prosecution to establish the
DA PAM 27-9' 01 January 2010
accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's use of the substance was not (in the performance of (his) (her) duties) (as a result of a properly obtained prescription duly prescribed for the accused by a physician) ( ), you may not find the accused guilty.
NOTE 7: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws ofthe United States is taken (See United States v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(_____) is a controlled substance under the laws of the United
States.
NOTE 8: Regulatory defects in collection ofurinalysis samples. When the evidence reflects "technical" deviations from governing regulations which establish procedures for collecting, transmitting, or testing urine samples, the following instruction may be appropriate. United States v. Pollard, 27 MJ 376 (CMA 1989). Military Judges, however, should exclude drug test results if there has been a substantial violation of regulations intended to assure reliability of the testing procedures. See United States v. Strozier, 31 MJ 283 (CMA 1990).
Evidence has been introduced that the government did not strictly comply with all aspects of (Army Regulation 600-85) ( ) governing how urine samples are to be (collected) (transmitted) (and) (tested). In order to convict the accused, the evidence must establish the urine sample originated from the accused and tested positive for the presence of (_____) without adulteration by any intervening agent
or cause. Deviations from governing regulations, or any other discrepancy in the processing or handling of the accused's urine sample, may be considered by you in determining if the evidence is sufficiently reliable to support a vote for conviction.
NOTE 9: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308.
DA PAM 27-9' 01 January 2010
NOTE 10: Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, a tailored exceptions and sUbstitutions instruction similar to the one contained in NOTE 11 for the offense of Wrongful Possession (Instruction 3-37-1) should be given.
NOTE 11: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue of innocent use on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-11-4, Ignorance or Mistake of Fact -Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 April 2000) (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Harper, 22 MJ 157, 161 (CMA 1986); compare United States v. Murphy, 23 MJ 310,312 (CMA 1987) (distinguishing Harper) with United States v. Mance, 26 MJ 244 (CMA 1988), cert. denied 488 U.S. 942 (1988); United States v. Newman, 14 MJ 474 (CMA 1983); United States v. Pollard, 27 MJ 376 (CMA 1989); United States v. Strozier, 31 MJ 283 (CMA 1990).
DA PAM 27-9·01 January 2010
3-37-3. DRUGS, WRONGFUL DISTRIBUTION (ARTICLE ll2a)
a. MAXIMUM PUNISHMENT:
(1)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-1.

(2)
Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-1.

(3)
When aggravating circumstances are alleged: Increase maximum confinement by 5 years.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/ on board-location), on or about , wrongfully distribute (grams) (ounces) (pounds) ( ) of (a schedule ( ) controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessell aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: ) (while receiving special pay under 37 USC Section 310) (during time of war).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused distributed ____ (grams) (ounces) (pounds) ( ), more or less of
( ) (a Schedule _ controlled substance);
(2)
That the accused actually knew (he) (she) distributed the substance;

(3)
That the accused actually knew that the substance (he) (she)
distributed was ( ) (or of a contraband nature); (and)


(4)
That the distribution by the accused was wrongful; [and]


NOTE 1: Aggravating circumstance al/eged. If one of the aggravating factors in Article 112a is pled, the militaryjudge must also instruct on that aggravating factor as an element:
[(5)] That at the time the accused distributed the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37
U.S. Code section 310)).
DA PAM 27-9' 01 January 2010
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Distribute" means to deliver to the possession of another. " "Deliver" means the actual, constructive, or attempted transfer of an item. While a transfer of ( ) (a controlled substance) may have been made or attempted in exchange for money or other property or a promise of payment, proof of a commercial transaction is not required.
To be punishable under Article 112a, distribution of a controlled
substance must be wrongful. Distribution of a controlled substance is
wrongful if it is without legal justification or authorization. (Distribution of
a controlled substance is not wrongful if such act or acts are: (a) done
pursuant to legitimate law enforcement activities (for example, an
informant who delivers drugs as part of an undercover operation is not
guilty of wrongful distribution); (or) (b) done by authorized personnel in
the performance of medical duties.) Distribution of a controlled
substance may be inferred to be wrongful in the absence of evidence to
the contrary. However, the drawing of this inference is not required.
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances including, but not limited to _____. However, the
drawing of any inference is not required.
NOTE 2: Know/edge ofthe presence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance alleged/y distributed, the following instruction is appropriate:
The accused must be aware of the presence of the substance at the time
of the distribution. A person who delivers a (package) (suitcase)
(container) (item of clothing) ( ) without knowing that it
actually contains ( ) (a controlled substance) is not guilty of
wrongful distribution of (_____) (a controlled substance).
NOTE 3: Know/edge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:
DA PAM 27-9' 01 January 2010

It is not necessary that the accused was aware of the exact identity of
the contraband substance. The knowledge requirement is satisfied if the accused knew the substance was prohibited. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) ( ), when in fact it is (heroin) ( ), the accused had
sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to distribute.)
However, a person who distributes (cocaine) ( ), but actually
believes it to be (sugar) ( ), is not guilty of wrongful
distribution of (cocaine) ( ).
NOTE 4: Missile launch facilitv. Ifit is al/eged that the substance was distributed at a llmissile launch facility, " the fol/owing instruction should be given:
A "missile launch facility" includes the place from which missiles are fired
and launch control facilities from which the launch of a missile is initiated
or controlled after launch.
NOTE 5: tlDeliberate avoidance" raised. The fol/owing instruction should be given when the issue of tldeliberate avoidance" as discussed in United States v. Newman, 14 MJ 474 (CMA 1983) is raised:
I have instructed you that the accused must have known that the
substance (he) (she) distributed was ( ) or of a contraband
nature. You may not find the accused guilty of this offense unless you
believe beyond a reasonable doubt that the accused actually knew that
(he) (she) distributed ( ) or a substance of a contraband
nature.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) distributed was ( ) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
DA PAM 27-9 • 01 January 2010
a.
The accused did not know for sure that the substance was not
( ) or of a contraband nature;


b.
The accused was aware that there was a high probability that the substance was ( _____) or of a contraband nature; and

c.
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was ( _____) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.


In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) distributed was ( ) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.
I emphasize that knowledge cannot be established by mere negligence,
foolishness, or even stupidity on the part of the accused. The burden is
on the prosecution to prove every element of this offense, including that
the accused actually knew that the substance (he) (she) distributed was
( ) or of a contraband nature. Consequently, unless you are
satisfied beyond a reasonable doubt that the accused either had actual
knowledge that the substance was ( ) or of a contraband
nature, or that the accused deliberately avoided that knowledge, as I
have defined that term, then you must find the accused not guilty.
NOTE 6: Exceptions to wrongfulness. The burden ofgoing forward with evidence with
respect to any exception is upon the person claiming its benefit. If the evidence presented
raises such an issue, then the burden ofproofis upon the United States to establish
beyond a reasonable doubt that the distribution was wrongful. See United States v. Cuffee,
10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the
following terms should be given:
Evidence has been introduced raising an issue of whether the accused's distribution of (heroin) (cocaine) (marijuana) ( ) was wrongful in light of the fact that (the accused distributed it in the performance of
DA PAM 27-9' 01 January 2010
(his) (her) duty) ( ____). In determining this issue, you must
consider all relevant facts and circumstances, including, but not limited to ( ). The burden is on the prosecution to establish the accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's distribution of the substance was not (in the performance of (his) (her) duties) ( ), you may not find the accused guilty.
NOTE 7: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201 A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See United States v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(_____) is a controlled substance under the laws of the United
States.
NOTE 8: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (28 Sep 06).
NOTE 9: Quantity in issue. Ifan issue arises concerning the amount of the controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused distributed the amount of _____ described in the specification, but you are satisfied beyond
a reasonable doubt that the accused distributed some lesser amount of _____, you may, nevertheless, reach a finding of guilty. However,
you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word "some" or any lesser quantity.
NOTE 10: Aaaravating circumstances. Ifone of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 9 above should be given.
DA PAM 27-9 • 01 January 2010
NOTE 11: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. If an issue ofinnocent distribution on the grounds ofignorance or mistake offact concerning the presence or nature ofthe substance is raised, Instruction 5­11-4, Ignorance or Mistake ofFact -Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 Apri12000). (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Mance, 26 MJ 244 (CMA 1988), cert. denied 488 U.S. 942 (1988); United States v. Crumley, 31 MJ 21 (CMA 1990); United States v. Newman, 14 MJ 474 (CMA 1983); United States v. Ratleff, 34 MJ 80 (CMA 1992).
DA PAM 27-9·01 January 2010
3-37-4. DRUGS-WRONGFUL INTRODUCTION-WITH INTENT TO DISTRIBUTE (ARTICLE 112a)
a. MAXIMUM PUNISHMENT:
(1)
Wrongful introduction.

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-l.

(b)
Phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-l.

(2)
Wrongful introduction with intent to distribute.

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-l.

(b)
Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-l.

(3)
When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location) on or about ,
wrongfully introduce (grams) (ounces) (pounds) ( ) of (a schedule
( ) controlled substance) onto a vessel, aircraft, vehicle, or installation used by the armed forces
or under control of the armed forces, to wit: (with the intent to distribute the said controlled
substance) (while on duty as a sentinel or lookout) (while receiving special pay under 37 USC Section 310)
(during a time of war).



NOTE 1: Completeness of MCM form specification. The maximum punishment for this offense is set out in Para 37e, Part IV, MCM. The form specification in the MCM provides for neither a ""missile launch facility" nor "on board a vessel or aircraft" as an aggravating factor. Notwithstanding these omissions in the MCM form specification, when any Para 37e aggravating factor is pled, the militaryjudge should instruct upon it. Appropriate instructions are contained elsewhere in this instruction. See NOTEs 3 and 5 infra and the instructions following those NOTEs.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused introduced ____ (grams ) (ounces) (pounds) ( ), more or less, of ( ) (a Schedule _ controlled substance) onto (an aircraft) (a

vessel) (a vehicle) (an installation) (used by) (or) (under the control of) the armed forces, to wit:

(2)
That the accused actually knew (he) (she) introduced the substance;

(3)
That the accused actually knew that the substance (he) (she)
introduced was (,_____) (or of a contraband nature); (and)


(4)
That the introduction by the accused was wrongful; [and]


DA PAM 27-9' 01 January 2010
NOTE 2: Intent to distribute al/eged. Give the 5th element below ifintent to distribute was al/eged:
[(5)] That the introduction was with the intent to distribute; [and]
NOTE 3: Aggravating circumstance al/eged. If one of the aggravating factors in Article 112a is pled, the militaryjudge must also instruct on that aggravating factor as an element.
[(5) or (6)] That at the time the accused introduced the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37
U.S. Code section 310)).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Introduction" means to bring into or onto a military (unit) (base) (station) (post) (installation) (vessel) (vehicle) (aircraft).
To be punishable under Article 112a, introduction of a controlled
substance must be wrongful. Introduction of a controlled substance is
wrongful if it is without legal justification or authorization. (Introduction of
a controlled substance is not wrongful if such act or acts are: (a) done
pursuant to legitimate law enforcement activities (for example, when an
informant introduces drugs as part of an undercover operation, that
introduction is not wrongful) (or) (b) done by authorized personnel in the
performance of medical duties.) Introduction of a controlled substance
may be inferred to be wrongful in the absence of evidence to the
contrary. However, the drawing of this inference is not required.
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding
DA PAM 27-9 • 01 January 2010
circumstances including, but not limited to _____. However, you are not required to draw these inferences.
NOTE 4: Knowledge of the presence of the substance in issue. When the evidence raises the issue whether the accused knew of the introduction of the substance, the fol/owing instruction is appropriate:
The accused must be aware of the presence of the substance at the time of the introduction. A person who delivers a (package) (suitcase) (container) (item of clothing) ( ) onto ((an aircraft) (a vessel) (an installation)) ((used by) (or) (under the control of)) the armed forces
NOTE 5: Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the following instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused knew the substance was prohibited. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) ( ), when in fact it is (heroin) ( ), the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to introduce.)
However, a person who introduces (cocaine) ( ), but actually believes it to be (sugar) ( ), is not guilty of wrongful introduction of (cocaine) ( ).
NOTE 6: Missile launch facility. Ifit is al/eged that the offense occurred at a "missile launch facility," the fol/owing instruction should be given:
A "missile launch facility" includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.
DA PAM 27-9' 01 January 2010
NOTE 7: Intent to distribute al/eged. Ifintent to distribute is al/eged, give the fol/owing instruction concerning distribution:
"Distribute" means to deliver to the possession of another. "Deliver" means the actual, constructive, or attempted transfer of an item. While a transfer of a controlled substance may have been intended or made or attempted in exchange for money or other property or a promise of payment, proof that a commercial transaction was intended is not required.
An intent to distribute may be inferred from circumstantial evidence.
Examples of evidence which may tend to support an inference of intent
to distribute are: (introduction of a quantity of substance in excess of
that which one would be likely to have for personal use) (market value of
the substance) (the manner in which the substance is packaged) (or)
(that the accused is not a user of the substance.) On the other hand,
evidence that the accused is (addicted to) (or) (a heavy user of the
substance) may tend to negate an inference of intent to distribute. The
drawing of any inference is not required.
NOTE 8: "Deliberate avoidance" raised. The fol/owing instruction should be given when the
issue of "deliberate avoidance" as discussed in United States v. Newman, 14 MJ 474 (CMA
1983) is raised:
I have instructed you that the accused must have known that the
substance (he) (she) introduced was ( ) or of a contraband
nature. You may not find the accused guilty of this offense unless you
believe beyond a reasonable doubt that the accused actually knew that
(he) (she) introduced ( ) or a substance of a contraband
nature.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) introduced was ( ) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
DA PAM 27-9 • 01 January 2010
a.
The accused did not know for sure that the substance was not
(._____) or of a contraband nature;


b.
The accused was aware that there was a high probability that the substance was (._____) or of a contraband nature; and

c.
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was (._____) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.


In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) introduced was ( ) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.
I emphasize that knowledge cannot be established by mere negligence,
foolishness, or even stupidity on the part of the accused. The burden is
on the prosecution to prove every element of this offense, including that
the accused actually knew that the substance (he) (she) introduced was
( ) or of a contraband nature. Consequently, unless you are
satisfied beyond a reasonable doubt that the accused either had actual
knowledge that the substance was ( ) or of a contraband
nature, or that the accused deliberately avoided that knowledge, as I
have defined that term, then you must find the accused not guilty.
NOTE 9: Exceptions to wrongfulness. The burden of going forward with evidence with
respect to any exception is upon the person claiming its benefit. Ifthe evidence presented
raises such an issue, then the burden ofproofis upon the United States to establish
beyond a reasonable doubt that the introduction was wrongful. See United States v. Cuffee,
10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the
following terms should be given:
Evidence has been introduced raising an issue of whether the accused's introduction of (heroin) (cocaine) (marijuana) ( ) was wrongful in light of the fact that (the substance had been duly prescribed for the
DA PAM 27-9·01 January 2010
accused by a physician and the prescription had not been obtained by fraud) (the accused introduced it in the performance of (his) (her) duty) ( ). In determining this issue, you must consider all relevant facts and circumstances, (including, but not limited to ). The burden is upon the prosecution to establish the accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's introduction of the substance was not (as a result of a properly obtained prescription duly prescribed for (him) (her) by a physician) (in the performance of (his) (her) duties) ( ), you may not find the accused guilty.
NOTE 10: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See United States v. Gould. 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(,_____) is a controlled substance under the laws of the United States.
NOTE 11: Other Scheduled drugs: Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (1 April 2000).
NOTE 12: Quantitv in issue. Ifan issue arises concerning the amount of the controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused introduced the amount of _____ described in the specification, but you are satisfied beyond
a reasonable doubt that the accused introduced some lesser amount of _____, you may, nevertheless, reach a finding of guilty. However,
you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word "some" or any lesser quantity.
DA PAM 27-9 • 01 January 2010
NOTE 13: Aaaravatina circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 12 above should be given.
NOTE 14: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. A tailored circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged. If there is evidence the accused may have been ignorant of or mistaken about his/her presence on a military installation, or an issue of ignorance or mistake offact concerning the presence or nature of the substance is raised, Instruction 5-11-4, Ignorance or Mistake-Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 April 2000). (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Mance, 26 MJ 244 (CMA 1988), cert. denied, 488 U.S. 942 (1988); United States v. Ratleff, 34 MJ 80 (CMA 1992); United States v. Pitt, 35 MJ 478 (CMA 1992); United States v. Newman, 14 MJ 474 (CMA 1983); United States v. Thomas, 65 MJ 132 (CAAF 2007) (in order to be convicted of introduction of drugs onto a military installation under Article 112a, the accused must have actual knowledge that he/she was entering onto the installation).
DA PAM 27-9' 01 January 2010
3-37-5. DRUGS-WRONGFUL MANUFACTURE-WITH INTENT TO DISTRIBUTE (ARTICLE 112a)
a. MAXIMUM PUNISHMENT:
(1)
Wrongful manufacture.

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 5 years, E-l.

(b)
Phenobarbital, and Schedule IV and V controlled substances: DD, TF, 2 years, E-l.

(2)
With intent to distribute.

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-l.

(b)
Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-l.

(3)
When aggravating circumstances are alleged. Increase maximum punishment by 5 years.

b.
MODEL SPECIFICATION: In that (personal jurisdiction data) did, (atlon board-location), on or about , wrongfully manufacture (grams) (ounces) (pounds) ( ) of (a schedule ( ) controlled substance), (with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control ofthe armed forces, to wit: ) (while receiving special pay under 37 USC Section 310) (during time of war).


c. ELEMENTS:
(1)
That (state the time and place alleged), the accused manufactured ____ (grams) (ounces) (pounds) ( ), more or less of ( ) (a Schedule controlled substance);

(2)
That the accused actually knew (he) (she) manufactured the
substance;


(3)
That the accused actually knew that the substance (he) (she)
manufactured was ( ) (or of a contraband nature); (and)


(4)
That the manufacture by the accused was wrongful; [and]


NOTE 1: Intent to distribute al/eged. Give the 5th element below ifintent to distribute was al/eged:
DA PAM 27-9·01 January 2010
[(5)] That the manufacture was with the intent to distribute.
NOTE 2: Aggravating circumstance alleged. If one of the aggravating factors in Article 112a is pled, the militaryjudge must also instruct on that aggravating factor as an element:
[(5) or (6)] That at the time the accused manufactured the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37
U.S. Code section 310)).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Manufacture" means the production, preparation, propagation,
compounding, or processing of a drug or other substance, either directly
or indirectly or by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a combination of
extraction and chemical synthesis, and includes any packaging or
repackaging of such substance, or labeling or relabeling of its container.
The term "production," as used above, includes the planting, cultivating,
growing, or harvesting of a drug or other substance.
To be punishable under Article 112a, manufacture of a controlled
substance must be wrongful. Manufacture of a controlled substance is
wrongful if it is without legal justification or authorization. (Manufacture
of a controlled substance is not wrongful if such act or acts are: (a) done
pursuant to legitimate law enforcement activities (or) (b) done by
authorized personnel in the performance of medical duties.)
Manufacture of a controlled substance may be inferred to be wrongful in
the absence of evidence to the contrary. However, the drawing of this
inference is not required.
Knowledge by the accused of the manufacture of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances (including, but not limited to ). However, the drawing of this inference is not required.
DA PAM 27-9·01 January 2010
NOTE 3: Knowledge ofpresence of the substance in issue. When the evidence raises the issue whether the accused knew of the presence of the substance al/egedly manufactured, the fol/owing instruction is appropriate:
The accused may not be convicted of the manufacture of a controlled substance if (he) (she) did not know (he) (she) was manufacturing the substance. The accused's manufacture must be knowing and conscious. For example, if a person ((produces) (prepares) (processes) (propagates) (compounds)) ((a controlled substance) ( )) without actually becoming aware of the substance's presence, then the manufacture is not knowing and conscious.
NOTE 4: Knowledge of the nature of the substance in issue. When the evidence raises the issue whether the accused knew the exact nature of the substance, the fol/owing instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused knew the substance was prohibited. Similarly, if the accused believes the substance to be a contraband substance, such as (cocaine) ( ), when in fact it is (heroin) ( ), the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to manufacture.)
However, a person who manufactures (cocaine) ( ), but actually believes it to be (sugar) ( ), is not guilty of wrongful manufacture of (cocaine) ( _____).
NOTE 5: Missile launch facility. Ifit is al/eged that the substance was manufactured at a tlmissile launch facility," the fol/owing instruction should be given:
A "missile launch facility" includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.
NOTE 6: Intent to distribute al/eged. Ifintent to distribute is al/eged, give the fol/owing instructions concerning distribution:
DA PAM 27-9· 01 January 2010
"Distribute" means to deliver to the possession of another. "Deliver" means the actual, constructive, or attempted transfer of an item. While a transfer of a controlled substance may have been intended or made or attempted in exchange for money or other property or a promise of payment, proof that a commercial transaction was intended is not required.
An intent to distribute may be inferred from circumstantial evidence.
Examples of evidence which may tend to support an inference of intent
to distribute are: (manufacture of a quantity of substance in excess of
that which one would be likely to have for personal use) (market value of
the substance) (the manner in which the substance is packaged) (or)
(that the accused is not a user of the substance.) On the other hand,
evidence that the accused is (addicted to) (or) (a heavy user of) the
substance may tend to negate an inference of intent to distribute. The
drawing of any inference is not required.
NOTE 7: "Deliberate avoidance" raised. The following instruction should be given when the
issue of "deliberate avoidance" as discussed in United States v. Newman, 14 MJ 474 (CMA
1983) is raised:
I have instructed you that the accused must have known that the
substance (he) (she) manufactured was ( ) or of a
contraband nature. You may not find the accused guilty of this offense
unless you believe beyond a reasonable doubt that the accused actually
knew that (he) (she) manufactured ( ) or a substance of a
contraband nature.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) manufactured was ( ) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused did not know for sure that the sUbstance was not
(_____) or of a contraband nature;

DA PAM 27-9 • 01 January 2010
b.
The accused was aware that there was a high probability that the substance was (._____) or of a contraband nature; and

c.
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was ( _____) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge. In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) manufactured was ( ) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.


I emphasize that knowledge cannot be established by mere negligence,
foolishness, or even stupidity on the part of the accused. The burden is
on the prosecution to prove every element of this offense, including that
the accused actually knew that the substance (he) (she) manufactured
was ( ) or of a contraband nature. Consequently, unless you
are satisfied beyond a reasonable doubt that the accused either had
actual knowledge that the substance was ( ) or of a
contraband nature, or that the accused deliberately avoided that
knowledge, as I have defined that term, then you must find the accused
not guilty.
NOTE 8: Exceptions to wrongfulness. The burden ofgoing forward with evidence with
respect to any exception is upon the person claiming its benefit. If the evidence presented
raises such an issue, then the burden ofproofis upon the United States to establish
beyond a reasonable doubt that the manufacture was wrongful. See United States v.
Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the
following terms should be given:
Evidence has been introduced raising an issue of whether the accused's
manufacture of (heroin) (cocaine) (marijuana) ( ) was
wrongful in light of the fact that (the accused manufactured it in the
performance of (his) (her) duty) ( ). In determining this issue,
you must consider all relevant facts and circumstances, including, but not
limited to ( ). The burden is on the prosecution to establish
DA PAM 27-9 • 01 January 2010
the accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's manufacture of the substance was not (in the performance of (his) (her) duties) ( ), you may not find the accused guilty.
NOTE 9: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See United States v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(_____) is a controlled substance under the laws of the United
States.
NOTE 10: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR section 1308 (1 April 2000).
NOTE 11: Quantity in issue. If an issue arises concerning the amount ofthe controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused manufactured the amount of _____ described in the specification, but you are satisfied beyond
a reasonable doubt that the accused manufactured some lesser amount of , you may, nevertheless, reach a finding of guilty. However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word "some" or any lesser quantity.
NOTE 12: Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 11 above should be given.
NOTE 13: Other instructions. Ifan issue of innocent manufacture on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-11-4, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. A tailored
DA PAM 27-9' 01 January 2010
circumstantial evidence instruction on intent is normally applicable if intent to distribute is alleged.
e.
REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 April 2000). (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Newman, 14 MJ 474 (CMA 1983); United States

v.
Mance, 26 MJ 244 (CMA 1983), cert. denied, 488 U.S. (1988); United States v. Pitt, 35 MJ 478 (CMA 1992).


DA PAM 27-9·01 January 2010
3-37-6. DRUGS-WRONGFUL IMPORTATION OR EXPORTATION (ARTICLE 112a)
a. MAXIMUM PUNISHMENT:
(1)
Wrongful importation or exportation.

(a)
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: DD, TF, 15 years, E-l.

(b)
Phenobarbital and Schedule IV and V controlled substances: DD, TF, 10 years, E-l.

(2)
When aggravating circumstances are alleged: Increase maximum confinement by 5 years.


b. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location) on or about , wrongfully (import) (export) (grams) (ounces) (pounds) ( ) of (a schedule ( ) controlled substance) (into the customs territory of) (from) the United States (while on board a vessel/aircraft used by the armed forces or under the control of the armed forces, to wit: ___~)(during time ofwar).
NOTE 1: Completeness of MCM form specification. The maximum punishment for this offense is set out in Para 37e, Part IV, MCM. The MCM form specification provides for neither a "missile launch facility" nor "receiving special pay" as an aggravating factor. Notwithstanding these omissions in the MCM form specification, when any Para 37e aggravating factor is pled, the militaryjudge should instruct upon it. Appropriate instructions are contained elsewhere in this instruction. See NOTEs 2 and 4 infra and the instructions following those NOTEs.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (imported into the customs territory of) (exported from) the United States _____ (grams) (ounces) (pounds) ( ), more or less, of (____)
(a Schedule _ controlled substance);
(2) That the accused actually knew (he) (she) (imported) (exported) the
substance;
(3) That the accused actually knew that the substance (he) (she)
(imported) (exported) was ( ), (or a substance of a

contraband nature); (and)
(4) That the (importation) (exportation) by the accused was wrongful;
[and]
DA PAM 27-9·01 January 2010
NOTE 2: Aggravating circumstance al/eged. Ifone of the aggravating factors in Article 112a is pled, the militaryjudge must also instruct on that aggravating factor as an element.
[(5)] That at the time the accused (imported) (exported) the substance as alleged, (it was a time of war) (the accused was (on duty as a sentinel or lookout) (on board a vessel or aircraft used by or under the control of the armed forces) (in or at a missile launch facility used by the armed forces or under the control of the armed forces) (receiving special pay under 37
U.S. Code section 310)).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
("Customs territory of the United States" includes only the States, the
District of Columbia, and Puerto Rico.) To be punishable under Article
112a, (importation) (exportation) of a controlled substance must be
wrongful. (Importation) (Exportation) of a controlled substance is
wrongful if it is without legal justification or authorization. (Importation)
(Exportation) of a controlled substance is not wrongful if such act or acts
are: (a) done pursuant to legitimate law enforcement activities (for
example, an informant who (imports ) (exports) drugs as part of an
undercover operation is not guilty of wrongful distribution); (or) (b) done
by authorized personnel in the performance of medical duties.)
(Importation) (Exportation) of a controlled substance may be inferred to
be wrongful in the absence of evidence to the contrary. However, the
drawing of this inference is not required.
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances (including, but not limited to ). However, the drawing of this inference is not required.
NOTE 3: Knowledge of the substance in issue. When evidence raises the issue whether
the accused knew of the importation or exportation of the substance, the fol/owing
instruction is appropriate:
The accused must be aware of the presence of the substance at the time of the (importation) (exportation). A person who ((imports) (exports)) ((a package) (a suitcase) (a container) (an item of clothing) ( ))
DA PAM 27-9 • 01 January 2010
without knowing that it actually contains (,_____) (a controlled substance) is not guilty of wrongful (importation) (exportation) of ( ) (a controlled substance).
NOTE 4: Knowledge ofthe nature ofthe substance in issue. When the evidence raises the issue whether the accused knew the exact nature ofthe substance, the following instructions are appropriate:
It is not necessary that the accused was aware of the exact identity of the contraband substance. The knowledge requirement is satisfied if the accused knew the substance was prohibited. Similarly, if the accused believes the substance to be a contraband substance such as (cocaine) ( ) when in fact it is (heroin) ( ) the accused had sufficient knowledge to satisfy that element of the offense.
(A contraband substance is one that is illegal to (import) (export.))
However, a person who (imports) (exports) (cocaine) (,____), but actually believes it to be (sugar) ('-____), is not guilty of wrongful (importation) (exportation) of (cocaine) ( ).
NOTE 5: Missile launch facility. Ifit is alleged that the offense occurred at a "missile launch facility," the following instruction should be given:
A "missile launch facility" includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch.
NOTE 6: "Deliberate avoidance" raised. The following instruction should be given when the issue of "deliberate avoidance" as discussed in United States v. Newman. 14 MJ 474 (CMA 1983) is raised:
I have instructed you that the accused must have known that the substance (he) (she) (imported) (exported) was ( ) or of a contraband nature. You may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually
knew that (he) (she) (imported) (exported) ( ) or a substance of a contraband nature.
DA PAM 27-9 • 01 January 2010
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to the accused's conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that the substance (he) (she) (imported) (exported) was ( ) or of a contraband nature, but you are nevertheless satisfied beyond a reasonable doubt that:
(a)
The accused did not know for sure that the substance was not ( ) or of a contraband nature;

(b)
The accused was aware that there was a high probability that the substance was ( _____) or of a contraband nature; and

(c)
The accused deliberately and consciously tried to avoid learning that, in fact, the substance was ( _____) or of a contraband nature, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.


In other words, you may find that the accused had the required knowledge if you find either that the accused actually knew the substance (he) (she) (imported) (exported) was ( ) or of a contraband nature, or deliberately avoided that knowledge as I have just defined that term for you.
I emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense, including that the accused actually knew that the substance (he) (she) (imported) (exported) was ( ) or of a contraband nature. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the substance was ( ) or of a contraband nature, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
DA PAM 27-9 • 01 January 2010
NOTE 7: Exceptions to wrongfulness. The burden ofgoing forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden ofproofis upon the United States to establish beyond a reasonable doubt that the importation or exportation was wrongful. See United States v. Cuffee, 10 MJ 381 (CMA 1981). Therefore, a carefully tailored instruction substantially in the following terms should be given:
Evidence has been introduced raising an issue of whether the accused's (importation) (exportation) of (heroin) (cocaine) (marijuana) ( ) was wrongful in light of the fact that (the accused (imported) (exported) it in the performance of (his) (her) duty) ( ). In determining this issue, you must consider all relevant
facts and circumstances, including, but not limited to ( ). The burden is upon the prosecution to establish the accused's guilt beyond a reasonable doubt. Unless you are satisfied beyond a reasonable doubt that the accused's (importation) (exportation) of the substance was not (in the performance of (his) (her) duties) ( ), you may not find the accused guilty.
NOTE 8: Judicial notice as to nature of the substance. When the alleged controlled substance is one not listed in Article 112a, the militaryjudge should take judicial notice of the relevant statute or regulation which makes the substance a controlled substance. MRE 201 and 201 A set out the requirements for taking judicial notice. When judicial notice that the alleged substance is a scheduled controlled substance under the laws of the United States is taken (See United States v. Gould, 536 F.2d 216 (8th Cir. 1976)), an instruction substantially as follows should be given:
(_____) is a controlled substance under the laws of the United
States.
NOTE 9: Other scheduled drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971, containing the original Schedules I through V is updated and republished annually in the Code ofFederal Regulations. See 21 CFR section 1308 (1 April 2000).
NOTE 10: Quantity in issue. Ifan issue arises concerning the amount of the controlled substance, the following instruction is applicable:
If all the other elements are proved beyond a reasonable doubt, but you are not convinced that the accused (imported) (exported) the amount of _____ described in the specification, but you are satisfied beyond a reasonable doubt that the accused (imported) (exported) some lesser
DA PAM 27-9 • 01 January 2010
amount of _____, you may, nevertheless, reach a finding of guilty.
However, you are required to modify the specification by exceptions and substitutions, so that it properly reflects your finding. You may eliminate the quantity referred to in the specification and substitute for it the word "some" or any lesser quantity.
NOTE 11: Aggravating circumstances. If one of the aggravating factors is pled and there is an issue concerning the location or the conditions of the aggravating factor, an exceptions and substitutions instruction like the one in NOTE 10 above should be given.
NOTE 12: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is normally applicable. Ifan issue of innocent importation or exportation on the grounds of ignorance or mistake of fact concerning the presence or nature of the substance is raised, Instruction 5-11-4, Ignorance or Mistake of Fact or Law in Drug Offenses, should be given.
e. REFERENCES: 21 USC section 801-971; 21 CFR section 1308 (1 April 2000). (Caution: This CFR changes frequently.); MRE 201 and 201A; United States v. Mance, 26 MJ 244 (CMA 1988), cert. denied, 488 U.S. 942 (1988); United States v. Newman, 14 MJ 474 (CMA 1983).
DA PAM 27-9·01 January 2010
3-38-1. MISBEHAVIOR OF SENTINEL OR LOOKOUT (ARTICLE 113)
a. MAXIMUM PUNISHMENT:
(1)
In time ofwar: Death or other lawful punishment.

(2)
While receiving special pay under 37 USC Section 310: DD, TF, 10 years, E-l.

(3)
In all other circumstances: DD, TF, 1 year, E-l.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), on or about (a time of war) (at/on board-location), (while receiving special pay under 37 USC Section 310), being (posted) (on post) as a (sentinel) (lookout) (at warehouse no. 7) (on post no. 11) (for radar observation) ( ) [was found (drunk) (sleeping) upon hislher post] [did leave hislher post before he/she was regularly relieved].
c. ELEMENTS:
(1)
That the accused was (posted) (on post) as a (sentinel) (lookout) (at) (on) (state the post alleged); (and)

(2)
That (state the time and place alleged), (he) (she):

(a)
(was found (drunk) (sleeping) while on (his) (her) post); or

(b)
(left (his) (her) post before being regularly relieved), [and]


NOTE 1: Aggravating condition al/eged. Add element (3) only ifit is al/eged that the accused was receiving special pay under 37 USC section 310:
[(3)] That the accused was receiving special pay under 37 USC section 310 at the time of alleged offense.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
NOTE 2: Drunkenness al/eged. Ifdrunkenness is al/eged, the fol/owing instruction is ordinarily applicable:
"Drunkenness" means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.
A person is drunk who is under the influence of an intoxicant so that the use of (his) (her) faculties is impaired. Such impairment did not exist unless the accused's conduct due to intoxicating (liquors) (drugs) was
DA PAM 27-9·01 January 2010
such as to create the impression within the minds of observers that (he) (she) was unable to act like a normal, rational person.
NOTE 3: Sleeping on post al/eged. Ifsleeping on post is al/eged, the fol/owing instruction is ordinarily applicable:
Proof that the accused was in a deep sleep is not required. However, there must have been a condition of unconsciousness which is sufficient sensibly to impair the full exercise of the accused's mental and physical faculties. You must be convinced that the accused was actually asleep. Sleep is defined as a period of rest for the body and mind during which volition and consciousness are in partial or complete suspension and the bodily functions are partially allowed or suspended.
NOTE 4: Leaving post before relief al/eged. The applicable portion ofthe fol/owing instruction may be given when the specification al/eges that the accused left his or her post before being relieved, and when otherwise appropriate:
A (sentinel) (lookout) is posted if (he) (she) has taken (his) (her) post in
accordance with proper instructions (whether or not formally given). A
post is not limited by an imaginary line, but includes surrounding areas
that may be necessary for the proper performance of the duties for which
the accused was posted. (Not every absence from the prescribed area
of the post establishes that a (sentinel) (lookout) is off post. The
circumstances may show that, although outside the physical limits of the
post, the accused was still so close to its designated limits that (he) (she)
was still fully capable of performing (his) (her) duties and, therefore,
regarded as being on post.)
NOTE 5: Other instructions. Instruction 5-9-1, Phvsicallmpossibility. may be applicable.
DA PAM 27-9 • 01 January 2010
3-39-1. DUELING (ARTICLE 114)
a. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-l.
h. MODEL SPECIFICATION:
___(personal jurisdiction data), (and ) did, (at/onboard-Iocation), on or about ____, fight a duel (with ), using as weapons therefor (pistols) (swords) ( ).
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused fought (state the name of the person alleged) with deadly weapons, that is: (state the weapons alleged);

(2)
That the combat was for private reasons; and

(3)
That the combat was by prior agreement.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
A "deadly weapon" is one which is used in a manner likely to produce death or grievous bodily harm. A weapon is "likely" to produce death or grievous bodily harm when the probable results of its use would be death or serious bodily injury (although this may not be the use to which the instrument is ordinarily put). It is not necessary that death or serious bodily harm actually occur.
DA PAM 27-9 • 01 January 2010
3-39-2. PROMOTING A DUEL (ARTICLE 114)
a. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-l.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data) did, (at/on board-location), on or about ,
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused promoted a duel between (state the names of the alleged duelers); and

(2)
That the accused did so by (state the manner alleged).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Duel" means combat between two persons for private reasons fought with deadly weapons by prior agreement. A "deadly weapon" is one which is "likely" to produce death or grievous bodily harm when the probable results of its use would be death or serious bodily injury (although this may not be the use to which the instrument is ordinarily put). It is not necessary that death or serious bodily injury actually occur. "Promote" means to further or actively contribute to the fighting of a duel.
DA PAM 27-9 • 01 January 2010
3-39-3. CONNIVING AT FIGHTING A DUEL (ARTICLE 114)
Q. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-l.
h. MODEL SPECIFICATION: In that (personal jurisdiction data), (being officer ofthe (day) (check)) (at/on board-location) ( ) (and) having knowledge that and intended and were about to engage in a duel (near ), did (at/on board-location), on or about , connive at the fighting of said duel by (knowingly permitting , one of the parties to said proposed duel, to leave ____ and go toward the place appointed for said duel at the time which helshe, , knew had been appointed therefor) (failing to take reasonable preventive action) ( ).
c. ELEMENTS:
(1)
That (state the names of the alleged duelers) intended to and were about to engage in a duel at or near (state the place alleged);

(2)
That the accused had knowledge of the planned duel; and

(3)
That (state the time and place alleged), the accused connived at the fighting of the duel by (state the manner alleged).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
Anyone who knows that steps are being or have been taken toward arranging or fighting a duel and who fails to notify appropriate authorities and to take other reasonable preventive action has committed this offense.
"Duel" means combat between two persons for private reasons fought with deadly weapons by prior agreement. A "deadly weapon" is one which is used in a manner likely to produce death or grievous bodily harm. A weapon is "likely" to produce death or grievous bodily harm when the probable results of its use would be death or serious bodily injury (although this may not be the use to which the instrument is ordinarily put). It is not necessary that death or serious bodily injury actually occur.
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9·01 January 2010
3-39-4. FAILURE TO REPORT A DUEL (ARTICLE 114)
a. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-I.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), having knowledge that a challenge to fight a duel (had been sent) (was about to be sent) by to , did , (at/on board-location) on or about , fail to report that fact promptly to the proper authority.
c. ELEMENTS:
(1)
That a challenge to fight a duel (had been sent) (was about to be sent) by to ____

(2)
That the accused had knowledge of this challenge; and

(3)
That (state the time and place alleged), the accused failed to report this fact promptly to the proper authority.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Challenge," as used in this specification, means an invitation, summons, or request to fight a duel. "Duel" means combat between two persons for private reasons with deadly weapons by prior agreement.
A "deadly weapon" is one which is used in a manner likely to produce death or grievous bodily harm. A weapon is "likely" to produce death or grievous bodily harm when the probable results of its use would be death or serious bodily injury (although this may not be the use to which the instrument is ordinarily put). It is not necessary that death or serious bodily injury actually occur.
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-40-1. MALINGERING, SELF-INFLICTED INJURY (ARTICLE 115)
a. MAXIMUM PUNISHMENT:
(1)
Feigning: DD, TF, 1 year, E-1.

(2)
Feigning in a hostile fire pay zone or in time of war: DD, TF, 3 years, E-l.

(3)
Intentional injury: DD, TF, 5 years, E-1.

(4)
Intentional injury in a hostile fire pay zone or in time ofwar: DD, TF, 10 years, E-1.


h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location) (in a hostile fire pay zone) [on or about 1[from about to about ], (a time of war) for the purpose of avoiding (hislher duty as officer of the day) (hislher duty as aircraft mechanic) (work in the mess hall) (service as an enlisted person) ( ) [feign (a headache) (a sore back) (illness) (mental lapse) (mental derangement) ( )] [intentionally injure himselflherselfby ].
c. ELEMENTS:
(1)
That the accused had knowledge of (his) (her) (assignment to) (prospective assignment to) (availability for) the performance of (work) (duty) (service), that is: (state the type of work, duty, or service alleged);

(2)
That (state the time and place alleged), the accused

(a)
feigned (illness) (physical disablement) (mental lapse) (mental derangement), or

(b)
intentionally inflicted injury upon (himself) (herself) by (state the manner alleged); (and)

(3)
That the accused's purpose or intent in doing so was to avoid the (work) (duty) (service) alleged; [and]


NOTE 1: In time of war or hostile fire zone. If the offense was committed in time of war or in a hostile fire pay zone, add the following element:
[(4)] That the offense was committed in (time of war) (in a hostile fire pay zone).
DA PAM 27-9' 01 January 2010
d. DEFINITIONSAND OTHER INSTRUCTIONS:
("Feign" means to misrepresent by a false appearance or statement, to pretend, to simulate, or to falsify.)
("Inflict" means to cause, allow, or impose. The injury may be inflicted by nonviolent as well as violent means and may be accomplished by any act or omission that produces, prolongs, or aggravates a sickness or disability. (Thus voluntary starvation that results in a disability is a self­inflicted injury.) (Similarly, the injury may be inflicted by another at the accused's request.))
("Intentionally" means the act was done willfully or on purpose.)
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge and Intent), are ordinarily applicable.
DA PAM 27-9' 01 January 2010
3-41-1. RIOT (ARTICLE 116)
a.
MAXIMUM PUNISHMENT: DD, TF, 10 years, E-l.

b.
MODEL SPECIFICATION:
In that ( ) (personal jurisdiction data), did, (atlon board-location), on or about ( ),
(cause) (participate in) a riot by unlawfully assembling with ( and ) (and others to
the number of about whose names are unknown) for the purpose of (resisting the police of
___~) (assaulting passers-by) ( ), and in furtherance of said purpose did (fight with said
police) (assault certain persons, to wit: ), to the terror and disturbance of ____



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was a member of a group of three or more persons, that is: (state the group alleged);

(2)
That the accused and at least two other members of this group mutually intended to assist one another against anyone who might oppose them in doing an act for some private purpose, that is: (state the purpose alleged);

(3)
That the group or some of its members, in furtherance of such purpose, unlawfully committed a tumultuous disturbance of the peace in a violent or turbulent manner by (state the act(s) alleged); and

(4)
That these acts terrorized the public in general in that they caused or were designed to cause public alarm or terror.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
The gist of the offense of riot is the terror it creates. A brief disturbance, even if violent, is not a riot without terrorization of the public in general. Additionally, there must be a mutual intent on the part of the accused and at least two other participants to assist one another in their common design or plan against anyone who might oppose them.
"Tumultuous" means a noisy, boisterous, or violent disturbance of the
public peace.
("Public" includes a military organization, post, camp, ship, aircraft, or station.)
DA PAM 27-9 • 01 January 2010
NOTE: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
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3-41-2. BREACH OF THE PEACE (ARTICLE 116)
a. MAXIMUM PUNISHMENT: 2/3 x 6 months, 6 months, E-1.
b. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , (cause) (participate in) a breach of the peace by [wrongfully engaging in a fist fight in the dayroom with ___--'1 [using the following (provoking) (profane) (indecent) language (toward ), to wit: "____, "or words to that effect] [wrongfully shouting and singing in a public place, to wit:
-----'][ ].
c. ELEMENTS:
(1)
That (state the time and place alleged, the accused (caused) (participated in) an act of a violent or turbulent nature by (state the manner alleged); and

(2)
That the peace was thereby unlawfully disturbed.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
A breach of the peace is any unlawful disturbance of the peace caused by observable acts of a violent or turbulent nature. It consists of acts or conduct that disturb the public tranquility or adversely affect the peace and good order to which the community is entitled. The word "community" includes within its meaning a (military organization) (post) (camp) (ship) (station) ( ).
"Turbulent" means noisy, boisterous, or violent disturbances.
NOTE: Self-defense raised. Self-defense would constitute a defense to a charge of breach of the peace when the sole basis of the charge consists of an assault.
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3-42-1. PROVOKING SPEECHES OR GESTURES (ARTICLE 117)
a. MAXIMUM PUNISHMENT: 2/3 x 6 months, 6 months, E-l.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about ____
wrongfully use (provoking) (reproachful) (words, to wit: " "or words to that effect) (and)
(gestures, to wit: ) towards (Sergeant , U.S. Air Force) ( ).

c. ELEMENTS:
(1)
That (state the time and place alleged), the accused wrongfully used certain (words) (and) (gestures) that is: (state the words or gestures allegedly used) toward (state the name of the person alleged);

(2)
That the (words) (and) (gestures) used were provoking or
reproachful; and


(3)
That the person toward whom the (words) (and) (gestures) were used was a person subject to the Uniform Code of Military Justice.


d. DEFINITIONSAND OTHER INSTRUCTIONS:
It is not necessary that the accused have knowledge that the person toward whom the words are directed is a person subject to the Uniform Code of Military Justice.
"Provoking" and "Reproachful" describes only those (words) (and) (gestures) which are used in the presence of the person to whom they are directed and which, by their very (utterance) (use) have the tendency to cause that person to respond with acts of violence or turbulence. (These words are sometimes referred to as "fighting words.")
The test to apply is whether, under the facts and circumstances of this case, the (words) (and) (gestures) described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation. Proof that a retaliatory act actually occurred is not required. (Provoking or reproachful words or gestures do not include reprimands, censures, or criticism which are properly
DA PAM 27-9 • 01 January 2010
administered in the furtherance of training, efficiency, or discipline in the
armed forces.)
NOTE: Declarations made in jest. A declaration is not wrongful ifmade in jest in a manner which would not provoke a reasonable person. A gesture made for an innocent or legitimate purpose is not provoking or reproachful. Consequently, ifthe evidence indicates any such defense, the militaryjudge must, sua sponte. instruct carefully and comprehensively on the issue.
DA PAM 27-9' 01 January 2010
3-43-1. PREMEDITATED MURDER (ARTICLE 118)
a.
MAXIMUM PUNISHMENT: Death or mandatory minimum of confinement for life with eligibility for
parole.


b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , with
premeditation, murder by means of (shooting him/her with a rifle) ( ).



c. ELEMENTS:
(1)
That (state the name of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4)
That, at the time of the killing, the accused had a premeditated design to kill (state the name or description of the alleged victim).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal
justification or excuse. "Premeditated design to kill" means the formation of a specific intent to kill and consideration of the act intended to bring about death. The "premeditated design to kill" does not have to exist for any measurable or particular length of time. The only requirement is that it must precede the killing.
NOTE 1: Premeditation and lesser included offenses. If the evidence raises an issue as to the accused's capacity to premeditate, Instruction 6-5, Partial Mental Responsibility, Instruction 5-17, Evidence Negating Mens Rea, and/or Instruction 5-12, Voluntary Intoxication, may be applicable. Ifso, instruct on the elements of unpremeditated murder and any other lesser included offenses that may be raised by the evidence.
NOTE 2: Lesser included offenses otherwise raised. When the accused denies premeditated design to kill, or other evidence in the case tends to negate such design, an instruction on unpremeditated murder (Instruction 3-43-2) will ordinarily be necessary. If the denial extends to any intent to kill or inflict great bodily harm, or other evidence tends to
DA PAM 27-9 • 01 January 2010
negate such intent, an instruction on involuntary manslaughter (Instruction 3-44-2) must ordinarily be given.
NOTE 3: Causation. Ifan issue is raised at trial regarding whether the death resulted from
the act of the accused, it may be necessary to instruct on lesser included offenses that do
not include the death of the victim.
NOTE 4: Transferred intent. When an issue of transferred intent is raised by the evidence, the court may be instructed substantially as follows:
When a person with a premeditated design to kill attempts unlawfully to kill a certain person, but by mistake or inadvertence, kills another person, the individual is still criminally responsible for a premeditated killing, because the premeditated design to kill is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that his/her death resulted from the unlawful (act) (failure to act) of the accused in (state the act or failure to act alleged) with the premeditated design to kill (state the name or description of the individual other than the alleged victim), you may still find the accused guilty of the premeditated killing of (state the name or description of the alleged victim).
NOTE 5: Passion and ability to premeditate. When the evidence indicates that the passion of the accused may have affected his or her capacity to premeditate, as in the case where there was a lapse of time between adequate provocation and the act, but the passion of the accused persists, the court may be instructed substantially as follows:
An issue has been raised by the evidence as to whether the accused
acted in the heat of sudden "passion." "Passion" means a degree of
rage, pain, or fear which prevents cool reflection. If sufficient cooling off
time passes between the provocation and the time of the killing which
would allow a reasonable person to regain self-control and refrain from
killing, the provocation will not reduce murder to the lesser offense of
voluntary manslaughter. However, you may consider evidence of the
accused's passion in determining whether (he) (she) possessed
sufficient mental capacity to have "the premeditated design to kill." An
accused cannot be found guilty of premeditated murder if, at the time of
the killing, (his) (her) mind was so confused by (anger) (rage) (pain)
DA PAM 27-9' 01 January 2010
(sudden resentment) (fear) (or) (.____) that (he) (she) could not or
did not premeditate. On the other hand, the fact that the accused's passion may have continued at the time of the killing does not necessarily demonstrate that (he) (she) was deprived of the ability to premeditate or that (he) (she) did not premeditate. Thus, (if you are convinced beyond a reasonable doubt that sufficient cooling off time had passed between the provocation and the time of the killing which would allow a reasonable person to regain (his/her) self-control and refrain from killing), you must decide whether the accused in fact had the premeditated design to kill. If you are not convinced beyond a reasonable doubt that the accused killed with premeditation, you may still find (him) (her) guilty of unpremeditated murder, if you are convinced beyond a reasonable doubt that the death of (state the name of the alleged victim) was caused, without justification or excuse, by an (act) (failure to act) of the accused and (the accused intended to kill or inflict great bodily harm on the victim) (the act of the accused was inherently dangerous to others and showed a wanton disregard for human life).
NOTE 6: Issue ofsudden passion caused bv adequate provocation raised. When killing in the heat ofsudden passion caused by adequate provocation is placed in issue, the military judge should instruct on the lesser included offense of voluntary manslaughter as well as unpremeditated murder.
NOTE 7: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See United States v. Gomez. 15 MJ 954 (ACMR 1983); United States v. Jefferson. 22 MJ 315 (CMA 1986); and United States v. Tavlor. 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death. may be adapted for this circumstance.
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable.
DA PAM 27-9·01 January 2010
3-43-2. UNPREMEDITATED MURDER (ARTICLE 118)
a.
MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-l.


h.
MODEL SPECIFICATION:
In that ____ (personaljurisdiction data), did, (at/on board-location), on or about ____
murder by means of (shooting him/her with a rifle) ( ).



c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4)
That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon (state the name or description of the alleged victim).


d. DEFINITIONSAND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal justification or excuse.
The intent to kill or inflict great bodily harm may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death or great bodily harm, it may be inferred that (he) (she) intended to inflict death or great bodily harm. The drawing of this inference is not required.
"Great bodily harm" means serious bodily injury. "Great bodily harm" does not mean minor injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep cuts, torn parts of the
DA PAM 27-9·01 January 2010
body, serious damage to internal organs, and other serious bodily
injuries.
NOTE 1: Intent to kill or inflict great bodily harm in issue. When the accused denies the intent to kill or inflict great bodily harm, an instruction on involuntary manslaughter must ordinarily be given.
NOTE 2: Sudden passion caused by adequate provocation in issue. When killing in the heat of sudden passion caused by adequate provocation is placed in issue, the military judge must instruct substantially as below. Do not use Instruction 3-44-1 to instruct on the lesser included offense of voluntary manslaughter; use the instruction below:
The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder. "Voluntary manslaughter" is the unlawful killing of a human being, with an intent to kill or inflict great bodily harm, done in the heat of sudden passion caused by adequate provocation. Acts of the accused which might otherwise amount to murder constitute only the lesser offense of voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation. "Passion" means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, (he) (she) strikes a fatal blow before (he) (she) has had time to control (himself) (herself). A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing harm.
If you are not satisfied beyond a reasonable doubt that the accused is
guilty of murder, but you are satisfied beyond a reasonable doubt that
the killing, although done in the heat of sudden passion caused by
adequate provocation, was done with the intent to kill or inflict great
bodily harm, you may still find (him) (her) guilty of voluntary
manslaughter.
NOTE 3: Defenses. When an issue ofself-defense, accident, or other legaljustification or excuse is raised, tailored instructions must be given.
DA PAM 27-9' 01 January 2010
NOTE 4: Transferred intent. When the issue of transferred intent is raised by the evidence, the militaryjudge should instruct substantially as follows:
When a person with intent to kill or inflict great bodily harm attempts unlawfully to kill or inflict great bodily harm upon a certain person, but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for a killing with intent to kill or inflict great bodily harm because the intent to kill or inflict great bodily harm is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that his/her death resulted from the unlawful (act) (failure to act) of the accused in (state the act or failure to act alleged) with intent to kill or inflict great bodily harm upon (state the name or description of the individual other than the alleged victim), you may still find the accused guilty of the unpremeditated murder of (state the name of the alleged victim).
NOTE 5: Timing of the formulation of intent. Ifan issue is raised with respect to the time of the formulation of the intent to kill or inflict great bodily harm, the militaryjudge may instruct as follows:
The intent to kill or inflict great bodily harm does not have to exist for any measurable or particular time before the (act) (failure to act) which causes the death. All that is required is that it exist at the time of the (act) (failure to act) which caused the death.
NOTE 6: Voluntary intoxication raised. Ifthere is some evidence of voluntary intoxication, but no issue of insanity, the following instruction may be appropriate, provided there were no other factors that may have combined with the accused's alcohol consumption to affect his/her mental capacity to form the requisite intent:
Although the accused must have had the intent to kill or inflict great bodily harm, voluntary intoxication, by itself, is not a defense to unpremeditated murder. Voluntary intoxication, standing alone, will not reduce unpremeditated murder to a lesser degree of unlawful killing.
NOTE 7: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of brain function. See United States v.
DA PAM 27-9 • 01 January 2010
Gomez, 15 MJ 954 (ACMR 1983) and United States v. Jefferson, 22 MJ 315 (CMA 1986). Instruction 7-24, Brain Death, may be adapted for this circumstance.
DA PAM 27-9' 01 January 2010
3-43-3. MURDER WHILE ENGAGING IN AN ACT INHERENTLY DANGEROUS TO ANOTHER (ARTICLE 118)
a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-I.
h. MODEL SPECIFICATION:
In that ____(personal jurisdiction data), did, (at/on board-location), on or about ____ murder by means of (shooting him/her with a rifle) ( ).
c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the act of the accused in (state the act alleged), at (state the time and place alleged);

(3)
That this act was inherently dangerous to another, that is, one or more persons, and evinced a wanton disregard for human life;

(4)
That the accused knew that death or great bodily harm was a
probable consequence of the act; and


(5)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal
justification or excuse.
The act must be intentional, but death or great bodily harm does not
have to be the intended result.
(The act may even be accompanied by a wish that death will not be
caused.)
An act evinces a wanton disregard for human life when it is characterized by heedlessness of the probable consequences of the act and indifference to the likelihood of death or great bodily harm, and demonstrates a total disregard for the known probable results of death or great bodily harm. "Evince" means to "clearly demonstrate."
DA PAM 27-9' 01 January 2010
NOTE 1: Voluntarv intoxication. If there is some evidence of voluntary intoxication, but no issue ofinsanity, the fol/owing instruction may be appropriate, provided there were no other factors which may have combined with the accused's alcohol consumption to affect the accused's mental capacity to intend the act and know its probable consequences:
Although the accused must have intended the act and known its probable results, voluntary intoxication, by itself, is not a defense to this offense. Furthermore, voluntary intoxication, standing alone, will not reduce this offense to a lesser degree of unlawful killing.
NOTE 2: Findings Worksheet and announcement of findings when Article 118(3) is a lesser included offense. When a violation ofArticle 118(3) is a lesser included offense or in issue as an alternate theory to murder under Article 118 (1) or (2), the Findings Worksheet should clearly indicate this theory ofculpability.
NOTE 3: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation ofspontaneous respiration and circulatory functions, or (2) irreversible cessation of aI/ functions of the brain, including the brain stem. See United States v. Gomez, 15 MJ 954 (ACMR 1983); United States v. Jefferson, 22 MJ 315 (CMA 1986); and United States v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 4: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is usual/yappropriate. Instruction 5-11-1, Ignorance or Mistake -Where Specific Intent or Actual Knowledge is an Issue, may be applicable to the accused's knowledge of the conditions under which he/she acted.
e. REFERENCES: United States v. Stokes, 19 CMR 191(CMA 1955), United States v. Berg, 31 MJ 38 (CMA 1990); United States v. McMonagle, 34 MJ 852 (ACMR 1992), rev'd in part, 38 MJ 53 (CMA 1993).
DA PAM 27-9 • 01 January 2010
3-43-4. FELONY MURDER (ARTICLE 118)
a.
MAXIMUM PUNISHMENT: Death or mandatory minimum of confinement for life with eligibility for
parole.


h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location), on or about , while
(perpetrating) (attempting to perpetrate) , murder by means of (shooting him/her
with a rifle) ( ).



c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4)
That, at the time o(the killing, the accused was participating in the (attempted) commission of (burglary) (sodomy) (rape) (rape of a child) (aggravated sexual assault) (aggravated sexual assault of a child) (aggravated sexual contact) (aggravated sexual abuse of a child) (aggravated sexual contact with a child) (robbery) (aggravated arson).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal
justification or excuse.

To find that the accused was participating in the (attempted) commission of the offense of (burglary) (sodomy) (rape) (rape of a child) (aggravated sexual assault) (aggravated sexual assault of a child) (aggravated sexual contact) (aggravated sexual abuse of a child) (aggravated sexual contact with a child) (robbery) (aggravated arson), you must be satisfied beyond
a reasonable doubt:
NOTE 1: Elements of the felonv offense. The militaryjudge should state here the elements of the offense al/eged to have been perpetrated or attempted. This statement should be
DA PAM 27-9·01 January 2010
based upon the pertinent instruction that lists the elements ofthat offense, but should be tailored to serve the purpose for which the statement is intended. When the offense committed is an attempted perpetration ofthe above stated crimes, the militaryjudge should refer to Instruction 3-4-1, Attempts -Other than Murder and Voluntary Manslaughter, which will prove helpful in drafting necessary instructions.
NOTE 2: Causation. Should an issue arise with regard to the lack ofa relationship between the felony and the death, use the following:
In order to find that the killing, if any, was committed while the accused was participating in the (attempted) commission of (burglary) (sodomy) (rape) (rape of a child) (aggravated sexual assault) (aggravated sexual assault of a child) (aggravated sexual contact) (aggravated sexual abuse of a child) (aggravated sexual contact with a child) (robbery) (aggravated arson), you must find beyond a reasonable doubt that an act of the accused which caused the victim's death and the (attempted) (burglary) (sodomy) (rape) (rape of a child) (aggravated sexual assault) (aggravated sexual assault of a child) (aggravated sexual contact) (aggravated sexual abuse of a child) (aggravated sexual contact with a child) (robbery) (aggravated arson) occurred at substantially the same time and place. Additionally, you must find a causal connection between the commission of the (attempted) (burglary) (sodomy) (rape) (rape of a child) (aggravated sexual assault) (aggravated sexual assault of a child) (aggravated sexual contact) (aggravated sexual abuse of a child) (aggravated sexual contact with a child) (robbery) (aggravated arson) and the act which caused the victim's death.
NOTE 3: Lesser included offenses. Unpremeditated murder and involuntary manslaughter may be lesser included offenses offelony murder.
NOTE 4: Specific intent as an element ofthe felony offense. While felony murder, as such, does not involve premeditation or specific intent, the crimes ofburglary, attempted burglary, attempted robbery, sodomy, rape, rape ofa child, aggravated sexual assault, aggravated sexual assault ofa child, aggravated sexual contact, aggravated sexual abuse ofa child, aggravated sexual contact with a child and aggravated arson do involve a specific intent. Also, the crime ofaggravated arson involves an element ofknowledge. Thus, when appropriate, you should consult Instruction 6-5, Partial Mental Responsibility, Instruction 5-17, Evidence Negating Mens Rea, or Instruction 5-12, Voluntary Intoxication, for instructions bearing on specific intent or knowledge.
NOTE 5: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation ofspontaneous
DA PAM 27-9 • 01 January 2010
respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See United States v. Gomez, 15 MJ 954 (ACMR 1983); United States v. Jefferson, 22 MJ 315 (CMA 1986); and United States v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24 Brain Death, may be adapted for this circumstance.
NOTE 6: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), may also be applicable.
DA PAM 27-9' 01 January 2010
3-44-1. VOLUNTARY MANSLAUGHTER (ARTICLE 119)
NOTE 1: About this instruction. The following instruction should not be given when instructing on voluntary manslaughter as a lesser included offense. For the proper instruction in that case, see NOTE 2 in Instruction 3-43-2.
a. MAXIMUMPUNISHMENT:
(1)
When committed upon a child under 16 years of age: DD, TF, 20 yrs, E-l.

(2)
All other cases: DD, TF, 15 years, E-l.


c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; (and)

(4)
That, at the time of the killing, the accused had an intent to kill or inflict great bodily harm upon (state the name or description of the alleged victim); [and].


[(5)] That (state the name or description of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Killing a human being is unlawful when done without legal justification or excuse.
NOTE 2: Sudden passion not an element. When voluntary manslaughter is the charged offense, the existence ofsudden passion caused by adequate provocation is not an element. The following instruction may be appropriate:
DA PAM 27-9' 01 January 2010
The offense of voluntary manslaughter is committed when a person, with intent to kill or inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion caused by adequate provocation.
"Passion" means anger, rage, pain, or fear. Proof that the accused was acting in the heat of passion caused by adequate provocation is not required. It is essential, however, that the four elements I have listed for you be proved beyond a reasonable doubt before the accused can be convicted of voluntary manslaughter.
NOTE 3: Capacity to form the specific intent. Instruction 6-5, Partial Mental Responsibility, Instruction 5-17, Evidence Negating Mens Rea, and Instruction 5-12, Voluntary Intoxication, may be applicable as bearing upon the capacity of the accused to formulate the specific intent required for voluntary manslaughter. Ifsuch capacity is in issue, instructions must be given on involuntary manslaughter and other lesser included offenses that may be raised by the entire evidence in the case.
NOTE 4: Transferred intent. When the issue of transferred intent is raised by the evidence, the following instruction should be given:
When an individual with intent to kill or inflict great bodily harm attempts
unlawfully to kill or to inflict great bodily harm upon a person (while in the
heat of sudden passion caused by adequate provocation), but, by
mistake or inadvertence, kills another person, the individual is still
criminally responsible for the killing with the intent to kill or inflict great
bodily harm because the intent is transferred from the intended victim of
(his) (her) action to the actual victim. If you are satisfied beyond a
reasonable doubt that the victim is dead and that his/her death resulted
from the unlawful (act) (failure to act) of the accused in (state the act or
failure to act alleged) with intent to kill or inflict great bodily harm upon
(state the name or description of the individual other than the victim) you
may still find the accused guilty of the voluntary manslaughter of (state
the name or description of the alleged victim).
NOTE 5: Accused's knowledge of child's age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that (state the name or description of the alleged victim) was under the age of 16 years is not an element of the offense.
DA PAM 27-9' 01 January 2010
Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to voluntary manslaughter upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.
NOTE 6: Causation. Ifan issue is raised regarding whether the act or failure to act on the part of the accused caused the death of the victim, it would be necessary to instruct on lesser included offenses not involving death of the victim, !Mb aggravated assault.
NOTE 7: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation ofspontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions ofthe brain, including the brain stem. See United States v. Gomez, 15 MJ 954 (ACMR 1983); United States v. Jefferson, 22 MJ 315 (CMA 1986); and United States v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
DA PAM 27-9 • 01 January 2010
3-44-2. INVOLUNTARY MANSLAUGHTER-CULPABLE NEGLIGENCE (ARTICLE 119)
a. MAXIMUM PUNISHMENT:
(1)
When committed upon a child under 16 years of age: DD, TF, 15 yrs, E-l.

(2)
All other cases: DD, TF, 10 years, E-l.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board--location), on or about ____, by
culpable negligence, unlawfully kill (a child under 16 years of age) by him/her (in)
(on) the with a ____



c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That this (act) (failure to act) amounted to culpable negligence; (and)

(4)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; [and]


[(5)] That (state the name or description of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
Killing a human being is unlawful when done without legal justification or
excuse.
"Culpable negligence" is a degree of carelessness greater than simple negligence. 'Simple negligence" is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; this is what "due care" means. "Culpable negligence" is a negligent act or failure to act accompanied by a gross,
DA PAM 27-9·01 January 2010
reckless, wanton, or deliberate disregard for the foreseeable results to others.
You may find the accused guilty of involuntary manslaughter, only if you are satisfied beyond a reasonable doubt that the (act) (failure to act) of the accused which caused the death amounted to "culpable negligence."
NOTE 1: Proximate cause in issue. In an appropriate case, the following instruction relating to proximate cause should be given:
The (act) (failure to act) must not only amount to culpable negligence, but must also be a proximate cause of death. "Proximate cause" means that the death must have been the natural and probable result of the accused's culpably negligent (act) (failure to act). The proximate cause does not have to be the only cause, but it must be a contributory cause which plays an important part in bringing about the death. (It is possible for the conduct of two or more persons to contribute each as a proximate cause to the death of another. If the accused's conduct was the proximate cause of the victim's death, the accused will not be relieved of criminal responsibility just because some other person's conduct was also a proximate cause of the death.) (If the death occurred only because of some unforeseeable, independent, intervening cause which did not involve the accused, then the accused may not be convicted of involuntary manslaughter.) The burden is on the prosecution to prove beyond a reasonable doubt (that there was no independent, intervening cause) (and) (that the accused's culpable negligence was a proximate cause of the victim's death).
NOTE 2: Contributory negligence of victim. In an appropriate case, the following instruction on contributory negligence of the victim should be given:
There is evidence in this case raising the issue of whether the deceased failed to use reasonable care and caution for his/her own safety. If the accused's culpable negligence was a proximate cause of the death, the
accused is not relieved of criminal responsibility just because the
negligence of the deceased may also have contributed to his/her death.
The conduct of the deceased is, however, important on the issue of
DA PAM 27-9' 01 January 2010
whether the accused's culpable negligence, if any, was a proximate cause of death. Accordingly, a certain (act) (failure to act) may be a proximate cause of death even if it is not the only cause, as long as it is a direct or contributing cause and plays an important role in causing the death. An (act) (failure to act) is not a proximate cause of the death if some other force independent of the accused's (act) (failure to act) intervened as a cause of death.
NOTE 3: Accused's knowledge of child's age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that (state the name or description of the alleged victim) was under the age of 16 years is not an element of the offense.
Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to involuntary manslaughter upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.
NOTE 4: Lesser included offense commonly raised. When an issue is raised regarding the degree ofnegligence, an instruction on negligent homicide must normally be given. See Instruction 3-85-1.
NOTE 5: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation ofspontaneous respiration and circulatory functions, or (2) irreversible cessation ofall functions of the brain, including the brain stem. See United States v. Gomez, 15 MJ 954 (ACMR 1983); United States v. Jefferson, 22 MJ 315 (CMA 1986); and United States v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
DA PAM 27-9' 01 January 2010
3-44-3. INVOLUNTARY MANSLAUGHTER-WHILE PERPETRATING OR ATTEMPTING TO PERPETRATE CERTAIN OFFENSES (ARTICLE 119)
a. MAXIMUM PUNISHMENT:
(1)
When committed upon a child under 16 years of age: DD, TF, 15 yrs, E-l.

(2)
All other cases: DD, TF, 10 years, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board--location), on or about , while
(perpetrating) (attempting to perpetrate) an offense directly affecting the person of , to wit:
(maiming) (a battery) ( ) unlawfully kill (a child under 16 years of age) by
____him/her (in) (on) the with a ____



c. ELEMENTS:
(1)
That (state the name or description of the alleged victim) is dead;

(2)
That his/her death resulted from the (act) (failure to act) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3)
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; (and)

(4)
That, at the time of the killing, the accused was participating in the (attempted) commission of the offense of (assault) (battery) (false imprisonment) (maiming) (._____) directly affecting the person of


(state the name or description of the alleged victim); [and].
[(5)] That (state the name or description of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONSAND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal
justification or excuse.
To find that the accused was participating in the (attempted) commission of the offense of (assault) (battery) (false imprisonment) (maiming)
DA PAM 27-9' 01 January 2010
(-----), you must be satisfied by legal and competent evidence beyond a reasonable doubt:
NOTE 1: Elements of offense directly affecting the person. The militaryjudge should list the elements of the offense alleged to have been perpetrated or attempted. The statement should be based upon the pertinent instruction that lists the elements of the offense, but should be tailored to serve the purpose for which the statement is intended. When the offense committed is an attempted perpetration, the militaryjudge should refer to Instruction 3-4-1, Attempts, which will prove helpful in drafting the instructions at hand. Note that the phrase "directly affecting the person" does not include burglary, sodomy, rape, rape ofa child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson.
NOTE 2: Causation. If an issue arises as to the lack of a relationship between the offense directly affecting the person and the death, the members may be instructed substantially as follows:
To find whether the killing, if any, was committed while the accused (was participating in) (attempted) (state the offense directly affecting the victim), you must find beyond a reasonable doubt that an act of the accused which caused the victim's death and the (state the offense alleged to have been perpetrated or attempted) occurred at substantially the same time and place. Additionally, you must find a causal connection between the commission of the (attempted) offense of (state the offense alleged to have been perpetrated or attempted) and the act which caused the victim's death.
NOTE 3: Accused's knowledge ofchild's age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that (state the name or description of the alleged victim) was under the age of 16 years is not an element of the offense.
Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to involuntary manslaughter upon a child
DA PAM 27-9·01 January 2010
even if the accused reasonably believed that (state the name of the
alleged victim) was at least 16 years old.
NOTE 4: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See United States v. Gomez. 15 MJ 954 (ACMR 1983); United States v. Jefferson. 22 MJ 315 (CMA 1986); and United States v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death. may be adapted for this circumstance.
DA PAM 27-9' 01 January 2010
3-44A-1. INJURING AN UNBORN CHILD (ARTICLE 119a)
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, E-l.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did (atlon board--Iocation), (subject matter jurisdiction data, ifrequired), on or about 20_, cause bodily injury to the unborn child of (state the name ofthe alleged pregnant woman), a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault), of (state the name of the alleged pregnant woman)] [arson of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belong to) (state the name of the alleged pregnant woman)];

(2)
That (state the name of the alleged pregnant woman) was then a pregnant woman; and

(3)
That the accused thereby caused bodily injury to the unborn child of (state the name of the alleged pregnant woman).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
A "pregnant woman" is a female of any age who is carrying within her body an unborn child.
The term 'unborn child' means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.
For the purpose of this offense, the term "bodily injury" to the unborn child is a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.
DA PAM 27-9 • 01 January 2010
NOTE 1: The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, which was the proximate cause of the bodily injury to the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.
The accused may be found guilty of injuring an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).
Proof that the accused had an intent to injure the unborn child, or even had actual knowledge that (state the name of the alleged pregnant woman) was, at the time pregnant when the offense was committed, is not required.
(The government has charged that the accused injured the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused injured the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s),,(state the offense alleged)"and substituting the word(s),,(state the lesser included enumerated offense).")
NOTE 2: Causation. When the issue of causation between the alleged enumerated offense and the bodily injury to the unborn child is an issue, give the following general instruction, followed by Instruction 5-19, tailored as appropriate.
DA PAM 27-9 • 01 January 2010
The specification in this case alleges that the bodily injury to the unborn child occurred as a result of the accused committing the offense of (state the offense alleged). You may find the accused guilty of injuring the unborn child only if you find that the acts of the accused while engaging in that offense (or any lesser included offense as I have described for you) were the proximate cause of the injury to the unborn child.
NOTE 3: Special defense. A special defense of consent to an abortion, or death/injury occurring in the course ofmedical treatment, may reasonably be raised. Ifapplicable, the following instruction should be given.
(An accused may not be convicted of this offense for (his) (her) conduct
relating to an abortion for which the consent of (state the name of the
alleged pregnant woman), or a person authorized by law to act on her
behalf, had been obtained or for which the law implies such consent.)
((Likewise,) An accused may not be convicted of this offense for (his)
(her) conduct relating to any medical treatment of (state the name of the
alleged pregnant woman) or her unborn child.) (You have heard
evidence that (here the military judge may summarize evidence related
to an abortion of the unborn child allegedly consented to by the pregnant
woman or other authorized person acting on her behalf. or evidence
related to medical treatment for the pregnant woman or the unborn
child.)) Unless you are convinced beyond a reasonable doubt that the
injury to the unborn child (did not result from an abortion consented to by
(state the name of the pregnant woman) or by someone legally
authorized to act on her behalf,) ((and) did not result from the accused's
conduct in the course of any medical treatment of (state the name of the
alleged pregnant woman) (or) (the unborn child), you may not convict the
accused of this offense.)
DA PAM 27-9' 01 January 2010
3-44A-2. KILLING AN UNBORN CHILD (ARTICLE 119a)
a.
MAXIMUM PUNISHMENT: DD, TF, 3 years, E-l.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did (at/on board--location), (subject matter jurisdiction data,
ifrequired), on or about 20_, cause the death ofthe unborn child of (state the name ofthe
alleged pregnant woman), a pregnant woman, by engaging in the [(murder) (voluntary manslaughter)
(involuntary manslaughter) (rape) (robbery) (maiming) (assault) of (state the name of the alleged pregnant
woman)] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be
occupied by) (belong to))] that woman.



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault), of (state name of the alleged pregnant woman)] [arson of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belong to) (state the name of the alleged pregnant woman)];

(2)
That (state the name of the alleged pregnant woman) was then a pregnant woman; and

(3)
That the accused thereby caused the death of the unborn child of (state the name of the alleged pregnant woman).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
A "pregnant woman" is a female of any age who is carrying within her body an unborn child.
The term "unborn child" means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.
NOTE 1: The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (j.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, which was the proximate cause of the death of the unborn child. Ifthe evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised
DA PAM 27-9 • 01 January 2010
accordingly (using the optional instruction below) and the Findings Worksheet must permit
findings by exceptions and substitutions.
The accused may be found guilty of killing an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).
Proof that the accused had an intent to injure or kill the unborn child, or
even had actual knowledge that (state the name of the alleged pregnant
woman) was, at the time pregnant when the offense was committed, is
not required.
(The government has charged that the accused killed the unborn child of
(state the name of the alleged pregnant woman) while engaged in the
offense of (state the offense alleged). If you are convinced beyond a
reasonable doubt of all the elements of the charged offense, except that
the accused was engaged in the offense of (state the offense alleged),
you may still find the accused guilty, if you are convinced beyond a
reasonable doubt that the accused killed the unborn child while engaged
in the offense of (state the lesser included offense raised that is also an
enumerated offense) a lesser included offense of (state the offense
alleged). (State the lesser included enumerated offense raised) has the
following elements: (state here the elements of the lesser included
enumerated offense). In this event you must make appropriate findings
by excepting the word(s) "(state the offense alleged)" and substituting the
word(s) "(state the lesser included enumerated offense).")
NOTE 2: Causation. When the issue of causation between the alleged enumerated offense
and death of the unborn child is an issue, give the following general instruction, followed by
Instruction 5-19, tailored as appropriate.
The specification in this case alleges that the death of the unborn child occurred as a result of the accused committing the offense of (state the offense alleged). You may find the accused guilty of killing the unborn child only if you find that the acts of the accused while engaging in that
DA PAM 27-9 • 01 January 2010
offense (or any lesser included offense as I have described for you) were the proximate cause of the death of the unborn child.
NOTE 3: Special defense. A special defense of consent to an abortion, or death/injury occurring in the course ofmedical treatment, may reasonably be raised. Ifapplicable, the following instruction should be given.
(An accused may not be convicted of this offense for (his) (her) conduct
relating to an abortion for which the consent of (state the name of the
alleged pregnant woman), or a person authorized by law to act on her
behalf, had been obtained or for which the law implies such consent.)
((Likewise,) An accused may not be convicted of this offense for (his)
(her) conduct relating to any medical treatment of (state the name of the
alleged pregnant woman) or her unborn child.) (You have heard
evidence that (here the military judge may summarize evidence related
to an abortion of the unborn child allegedly consented to by the pregnant
woman or other authorized person acting on her behalf, or evidence
related to medical treatment for the pregnant woman or the unborn
child.)) Unless you are convinced beyond a reasonable doubt that the
death of the unborn child (did not result from a lawful abortion consented
to by (state the name of the alleged pregnant woman) or by someone
legally authorized to act on her behalf, ((and) did not result from the
accused's conduct in the course of any medical treatment of (state the
name of the alleged pregnant woman) (or) (the unborn child), you may
not convict the accused of this offense.)
DA PAM 27-9' 01 January 2010
3-44A-3. ATTEMPTED KILLING OF AN UNBORN CHILD (ARTICLE 119a)
a.
MAXIMUM PUNISHMENT: DD, TF, 15 years, E-l.

b.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did (at/on board--Iocation), (subject matter jurisdiction data,
ifrequired), on or about 20_, attempt to kill the unborn child of (state the name of the alleged
pregnant woman), a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary
manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by)
(a structure or property known to (be occupied by) (belong to)] that woman.



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of (state the name of the alleged pregnant woman)] [arson of (a dwelling inhabited by) (a structure or property) known to (be occupied by) (belong to) (state the name of the alleged pregnant woman)];

(2)
That (state the name of the alleged pregnant woman) was then a

pregnant woman;

(3)
That the accused thereby attempted to kill the unborn child of (state the name of the alleged pregnant woman);

(4)
That such act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the unlawful killing of the unborn child;

(5)
That such act(s) apparently tended to bring about the intentional killing of the unborn child; that is, the act(s) apparently would have resulted in the intended death of the unborn child except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) ( ) which prevented the killing of the unborn child; and

(6)
That at the time the accused committed the act(s) alleged, the
accused had the intent to kill the unborn child.



DA PAM 27-9·01 January 2010
d. DEFINITIONSAND OTHER INSTRUCTIONS:
The killing of an unborn child is unlawful when done without legal justification or excuse.
"Pregnant woman" is a female of any age who is carrying within her body an unborn child.
The term "unborn child" means a child in utero (or a member of the
species Homo Sapiens who is carried in the womb), at any stage of
development, from conception to birth.
Preparation consists of devising or arranging the means or measures necessary for the killing of the unborn child. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward killing the unborn child. A substantial step is one that is strongly corroborative of the accused's criminal intent and is indicative of (his) (her) resolve to unlawfully kill the unborn child.
Proof that the unborn child was actually killed is not required. However, it must be proved beyond a reasonable doubt that the accused specifically intended to kill the unborn child of (state the name of the alleged pregnant woman) without legal justification or excuse.
The intent to kill does not have to exist for any measurable or particular length of time before the act(s) of the accused that constitute(s) the attempt. However, the intent to kill must exist at the time of the act(s) that constitute(s) the attempt.
The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in
DA PAM 27-9 • 01 January 2010
death, it may be inferred that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.
NOTE 1: The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, thereby attempting to kill the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.
The accused may be found guilty of attempting to kill an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).
(The government has charged that the accused attempted to kill the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused attempted to kill the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s) "(state the offense alleged)" and substituting the word(s) "(state the lesser included enumerated offense). ")
NOTE 2: Special defense. A special defense of consent to an abortion, or death/injury occurring in the course of medical treatment, may reasonably be raised. Ifapplicable, the following instruction should be given.
(An accused may not be convicted of this offense for (his) (her) conduct
relating to an abortion for which the consent of (state the name of the
DA PAM 27-9' 01 January 2010
alleged pregnant woman), or a person authorized by law to act on her
behalf, had been obtained or for which such consent is implied by law.)
«Likewise,) An accused may not be convicted of this offense for (his)
(her) conduct relating to any medical treatment of (state the name of the
alleged pregnant woman) or her unborn child.) (You have heard
evidence that (here the military judge may summarize evidence related
to an abortion of the unborn child allegedly consented to by the pregnant
woman or other authorized person acting on her behalf, or evidence
related to medical treatment for the pregnant woman or the unborn
child.)) Unless you are convinced beyond a reasonable doubt that the
attempted killing of the unborn child (did not result from an abortion
consented to by (state the name of the alleged pregnant woman) or by
someone legally authorized to act on her behalf,) «and) did not result
from the accused's conduct in the course of any medical treatment of
(state the name of the alleged pregnant woman) (or) the unborn child),
you may not convict the accused of this offense.)
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.
DA PAM 27-9 • 01 January 2010
3-44A-4. INTENTIONALLY KILLING AN UNBORN CHILD (ARTICLE 119a)
a. MAXIMUM PUNISHMENT: DD, TF, 15 years, E-l.
h. MODEL SPECIFICATION:
In that (personal jurisdiction data), did (at/on board--Iocation), (subject matter jurisdiction data, if required), on or about 20_, intentionally kill the unborn child of (state the name ofthe alleged pregnant woman), a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
c. ELEMENTS:
(1)
That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of (state the name of the alleged pregnant woman)] [arson of (a dwelling inhabited by (state the name of the alleged pregnant woman) (a structure or property known to (be occupied by) (belong to) (state the name of the alleged pregnant woman)];

(2)
That (state the name of the alleged pregnant woman) was then a

pregnant woman; and

(3)
That the accused thereby intentionally killed the unborn child of (state the name of the alleged pregnant woman).


d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of an unborn child is unlawful when done without legal
justification or excuse.
"Pregnant woman" is a female of any age who is carrying within her body
an unborn child.
The term "unborn child" means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of
development, from conception to birth.
An "intentional" killing means the accused specifically intended the death of the unborn child. The intent to kill may be proved by circumstantial
evidence, that is, by facts or circumstances from which you may
DA PAM 27-9·01 January 2010
reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act
which is likely to result in death, it may be inferred that (he) (she) intended to inflict death. The drawing of this inference, however, is not
required.
NOTE 1: The members must be instructed on the elements of the alleged enumerated
offense listed in Article 119a(b) (f.e., murder, voluntary manslaughter, involuntary
manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in,
which was the proximate cause of the death of the unborn child. If the evidence of the
alleged enumerated offense also raises a lesser included enumerated offense, the panel
must also be advised accordingly (using the optional instruction below) and the Findings
Worksheet must permit findings by exceptions and substitutions.
The accused may be found guilty of killing an unborn child if, in addition
to all the other elements of the offense, you are convinced beyond a
reasonable doubt that the accused engaged in the alleged offense of
(state the offense alleged), which has the following elements: (state the
elements of the enumerated offense alleged).
(The government has charged that the accused intentionally killed the
unborn child of (state the name of the alleged pregnant woman) while
engaged in the offense of (state the offense alleged). If you are
convinced beyond a reasonable doubt of all the elements of the charged
offense, except that the accused was engaged in the offense of (state
the offense alleged), you may still find the accused guilty, if you are
convinced beyond a reasonable doubt that the accused intentionally
killed the unborn child while engaged in the offense of (state the lesser
included offense raised that is also an enumerated offense) a lesser
included offense of (state the offense alleged). (State the lesser included
enumerated offense raised) has the following elements: (state here the
elements of the lesser included enumerated offense). In this event you
must make appropriate findings by excepting the word(s) "(state the
offense alleged)" and substituting the word(s) "(state the lesser included
enumerated offense).")
DA PAM 27-9 • 01 January 2010
NOTE 2: Special defense. A special defense of consent to an abortion, or death/injury occurring in the course of medical treatment, may reasonably be raised. If applicable, the following instruction should be given.
(An accused may not be convicted of this offense for (his) (her) conduct
relating to an abortion for which the consent of (state the name of the
alleged pregnant woman), or a person authorized by law to act on her
behalf, had been obtained or for which such consent is implied by law.)
((Likewise,) An accused may not be convicted of this offense for (his)
(her) conduct relating to any medical treatment of (state the name of the
alleged pregnant woman) or her unborn child.) (You have heard
evidence that (here the military judge may summarize evidence related
to an abortion of the unborn child allegedly consented to by the pregnant
woman or other authorized person acting on her behalf. or evidence
related to medical treatment for the pregnant woman or the unborn
child.)) Unless you are convinced beyond a reasonable doubt that the
death of the unborn child (did not result from an abortion consented to by
(state the name of the alleged pregnant woman) or by someone legally
authorized to act on her behalf,) ((and) did not result from the accused's
conduct in the course of any medical treatment of (state the name of the
alleged pregnant woman) (or) the unborn child), you may not convict the
accused of this offense.)
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.
DA PAM 27-9 • 01 January 2010
3-45. PREFACE TO ARTICLE 120 INSTRUCTIONS
The National Defense Authorization Act for Fiscal Year 2006 (109 Pub. L. No. 109-163, § 552,119 Stat.
3136 (2006» enacted sweeping changes to the Uniform Code of Military Justice regarding sexual
misconduct occurring on and after 1 October 2007. Article 120 now encompasses what previously were
offenses under a number of different UCMJ provisions, including Article 134. This preface seeks to
conceptualize these changes to make them easier to understand.
Article 120 now uses several common definitions, which are not the same as those which applied to the
offenses the new Article 120 replaces. Understanding these definitions is crucial to understanding how Article 120 is now constructed.
"Sexual act" means:
(A)
contact between the penis and the vulva, and for purposes ofthis subparagraph contact involving the penis occurs upon penetration, however slight; or

(B)
the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire ofany person.


"Sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.
"Grievous bodily harm" means serious bodily injury. It does not include minor injuries such as a black eye or a bloody nose, but it does include fractured or dislocated bones, deep cuts, tom members ofthe body, serious damage to internal organs, and other severe bodily injuries. It is the same level of injury as in Article
128, UCMJ, and a lesser degree ofbodily injury than that involving a substantial risk ofdeath, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment ofthe function ofa bodily member, organ, or mental faculty.
"Force" means action to compel submission of another or to overcome or prevent another's resistance by:
(A)
the use or display of a dangerous weapon or object;

(B)
the suggestion ofpossession ofa dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or

(C)
physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.


"Dangerous weapon or object" means:
(A)
any firearm, loaded or not, and whether operable or not;

(B)
any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable ofproducing death or grievous bodily harm; or

(C)
any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable ofproducing death or grievous bodily harm.


DA PAM 27-9·01 January 2010
"Threatening or placing that other person in fear" (for rape and aggravated sexual contact) means a
communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance
will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.
"Threatening or placing that other person in fear" (for aggravated sexual assault and abusive sexual
contact) means a communication or action that is of sufficient consequence to cause a reasonable fear that
non-compliance will result in the victim or another person being subjected to a lesser degree ofharm than
death, grievous bodily harm, or kidnapping. Such lesser degree ofharm includes:
(A)
physical injury to another person or to another person's property; or

(B)
a threat:

(i)
to accuse any person of a crime;

(ii)
to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or


(iii) through the use or abuse ofmilitary position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.
"Bodily harm" means any offensive touching of another, however slight.

Article 120 defines some offenses by whether the accused engaged in a "sexual act" or "sexual contact," and then the means by which the accused accomplished the sexual act or sexual contact. The chart below graphically represents the definitions ofcertain new Article 120 offenses. For example, "rape" is a "sexual act" committed by certain means or in a certain manner. "Sexual contact" committed by the same means/in the same manner as the sexual act in rape would be" aggravated sexual contact." Likewise, "aggravated sexual assault" is a "sexual act" committed by different means/in a different manner than rape. "Sexual contact" committed by the same meanslin the same manner as aggravated sexual assault would be "abusive sexual contact."
Neither this explanation, nor the chart below, should be relied upon for the elements of any offense. They do not cover all Article 120 offenses. Careful review ofthe elements of each offense in the instructions that follow this preface is recommended. Until additional clarification is available, it is the responsibility of each trial judge to understand and correctly implement the new provisions.
Sexual Act I!!.!!!~!'.. .... ~ !f' 1Sexual Contact
1 ~ ~":':;:'~I~~~'l:':~ l

By:
-Force
-Causing GBH
-Threat/fear of death,

GBH or kidnapping -Rendering unconscious -Drugging
{'
I
I
Aggravated Sexual
Contact

By:
-CausingBH
-Threat/fear < death,

GBH or kidnapping -Incapacitation
Abusive Sexual
Contact

Aggravated Sexual
Assault

DA PAM 27-9 • 01 January 2010
3-45-1. RAPE (ARTICLE 120)
a. MAXIMUMPUNISHMENT:
(1)
Rape: Death or other lawful punishment.

(2)
Carnal knowledge with a child 12 or older and under 16: DD, TF, 20 years, E-l.

(3)
Carnal knowledge with a child under 12: DD, TF, life without eligibility for parole, E-l.


NOTE 1: Death sentence. The militaryjudge should always ascertain on the record whether a rape charge was referred as capital when Section V of the charge sheet does not address the matter. The plurality opinion in Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed. RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities. RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.
b. MODEL SPECIFICATION:
In that ____(personal jurisdiction data), did, (at/on board-location), on or about ____, rape
____, (a person who had not attained the age of (12) (16) years).

c. ELEMENTS:
(1)
That (state the time and place alleged), the accused committed an act of sexual intercourse with (state the name of the alleged victim); and

(2)
That the act of sexual intercourse was done by force and without the consent of (state the name of the alleged victim);


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Sexual intercourse" is any penetration, however slight, of the female sex
organ by the penis. An ejaculation is not required.
NOTE 2: Lack ofpenetration in issue. Iflack ofpenetration is in issue, the militaryjudr;e should further define what is meant by the female sex organ. The instruction below may be helpful. See also United States v. Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CAAF 1988) and United States v. Tu, 30 MJ 587 (ACMR 1990):
The "female sex organ" includes not only the vagina. which is the canal that connects the uterus to the external opening of the genital canal, but
DA PAM 27-9' 01 January 2010
also the external genital organs including the labia majora and the labia minora. "Labia" is the Latin and medically correct term for "lips."
NOTE 3: Using this instruction. NOTEs 4 through 11 and the instructions that follow address common scenarios involving potential force and consent issues. The military judge must identify those issues raised by the evidence and select the appropriate instruction. Although the Code permits the prosecution of a female for this offense, the gender choices in these instructions assume a female victim, as that is the most common case. Many of the instructions following a note contain identical language found in instructions following other NOTEs. This repetitiveness is necessary to ensure all issues addressed by the note are instructed upon and in the correct order. Below is a guide to the instructions. Where multiple issues of constructive force or ability to consent are raised (sleeping child-victim, for example), the militaryjudge may have to combine the instructions. In such cases, the militaryjudge should give the common portions of the instructions only once; the order of the instructions must be preserved.
a.
Actual, physical force (and none of the issues listed below are raised): NOTE 4.

b.
Constructive force by intimidation and threats: NOTE 5.

c.
Constructive force -abuse of military power: NOTE 6.

d.
Constructive force (parental or analogous compulsion) and consent of a child of tender years NOT in issue: NOTE 7.

e.
Victim incapable ofgiving consent (children of tender years) and parental or
analogous compulsion NOT in issue: NOTE 8.


f.
BOTH constructive force (parental or analogous compulsion) AND consent of a child of tender years in issue: NOTE 9.

g.
Victim incapable ofgiving consent due to mental infirmity: NOTE 10.

h.
Victim incapable ofgiving consent due to sleep, unconsciousness, or intoxication: NOTE 11.


NOTE 4: Actual. physical force. Where the force involved is actual, physical force and constructive force and special situations involving lack of consent are not raised, give the following instructions:
Both force and lack of consent are necessary to the offense. "Force" is physical violence or power applied by the accused to the victim. An act of sexual intercourse occurs "by force" when the accused uses physical violence or power to compel the victim to submit against her will.
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of
DA PAM 27-9' 01 January 2010
acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
NOTE 5: Constructive force by intimidation or threats. Where the evidence raises the issue of constructive force by threat or intimidation, give the following instructions:
Both force and lack of consent are necessary to the offense. In the law
of rape, various types of conduct are sufficient to constitute force. The
most obvious type is actual physical force, that is, the application of
physical violence or power, which is used to overcome or prevent active
resistance. Actual physical force, however, is not the only way force can
be established. Where intimidation or threats of death or physical injury
make resistance futile, it is said that "constructive force" has been
applied, thus satisfying the requirement of force. Hence, when the
accused's (actions and words) (conduct), coupled with the surrounding
circumstances, create a reasonable belief in the victim's mind that death
or physical injury would be inflicted on her and that (further) resistance
would be futile, the act of sexual intercourse has been accomplished by
force.
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of
DA PAM 27-9·01 January 2010
acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances or where resistance is overcome by a reasonable fear of 'death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
NOTE 6: Constructive force-abuse of military power. When there is some evidence the accused employed constructive force based upon his military position, rank, or authority, give the following instructions:
Both force and lack of consent are necessary to the offense. In the law
of rape, various types of conduct are sufficient to constitute force. The
most obvious type is actual physical force, that is, the application of
physical violence or power, which is used to overcome or prevent active
resistance. Actual physical force, however, is not the only way force can
be established. Where intimidation or threats of death or physical injury
make resistance futile, it is said that "constructive force" has been
applied, thus satisfying the requirement of force. Hence, when the
accused's (actions and words) (conduct), coupled with the surrounding
circumstances, create a reasonable belief in the victim's mind that death
or physical injury would be inflicted on her and that (further) resistance
would be futile, the act of sexual intercourse has been accomplished by
force.
DA PAM 27-9' 01 January 2010
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
There is evidence which, if believed, indicates that the accused (used)
(abused) his (military) ( ) (position) (and) (or) (rank) (and) (or)
(authority) ( ) in order to (coerce) (and) (or) (force) (state the
name of the alleged victim) to have sexual intercourse. Specifically, I
draw your attention to (summarize the evidence concerning the
accused's possible use or abuse of his position, rank, or authority). You
may consider this evidence in deciding whether (state the name of the
alleged victim) had a reasonable belief that death or great bodily harm
would be inflicted on her and that (further) resistance would be futile.
This evidence is also part of the surrounding circumstances you may
consider in deciding whether (state the name of the alleged victim)
consented to the act of sexual intercourse.
NOTE 7: Constructive force-parental. or analogous compulsion. When the evidence raises the issue of constructive force based upon a child's acquiescence because of duress or a coercive atmosphere created by a parent or one acting in loco parentis, give the following instructions. Ifparental, or analogous compulsion AND consent issues involving
DA PAM 27-9 • 01 January 2010
a child of tender years are also involved, give the instructions following NOTE 9 instead of the instructions below:
Both force and lack of consent are necessary to the offense. In the law
of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury
make resistance futile, it is said that "constructive force" has been
applied, thus satisfying the requirement of force. Hence, when the
accused's (actions and words) (conduct), coupled with the surrounding
circumstances, create a reasonable belief in the victim's mind that death
or physical injury would be inflicted on her and that (further) resistance
would be futile, the act of sexual intercourse has been accomplished by
force.
If the alleged victim consents to the act of sexual intercourse, it is not
rape. The lack of consent required, however, is more than mere lack of
acquiescence. If a person, who is in possession of her mental and
physical faculties, fails to make her lack of consent reasonably manifest
by taking such measures of resistance as are called for by the
circumstances, the inference may be drawn that she consented.
Consent, however, may not be inferred if resistance would have been
futile under the totality of the circumstances, or where resistance is
overcome by a reasonable fear of death or great bodily harm, or where
she is unable to resist because of the lack of mental or physical faculties.
You must consider all the surrounding circumstances in deciding whether
(state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
DA PAM 27-9·01 January 2010
Sexual activity between a (parent) (stepparent) ( ____) and a
minor child is not comparable to sexual activity between two adults. The
youth and vulnerability of children, when coupled with a (parent's) (step
parent's) ( ) position of authority, may create a situation in
which explicit threats and displays of force are not necessary to
overcome the child's resistance. On the other hand, not all children
invariably accede to (parental) ( ) will. In deciding whether
the victim (did not resist) (or) (ceased resistance) because of
constructive force in the form of (parental) ( ) (duress)
(compulsion) ( ), you must consider all of the facts and
circumstances, including but not limited to (the age of the child when the
alleged abuse started) (the child's ability to fully comprehend the nature
of the acts involved) (the child's knowledge of the accused's parental
power) (any implicit or explicit threats of punishment or physical harm if
the child does not obey the accused's commands) (state any other
evidence surrounding the parent-child. or similar. relationship from which
constructive force could reasonably be inferred). If (state the name of
the alleged victim) (did not reSist) (or) (ceased resistance) due to the
(compulsion) (or) (duress) of (parental) ( ) command,
constructive force has been established and the act of sexual intercourse
was done by force and without consent.
NOTE 8: Victims incapable of giving consent-children of tender years. Ifparental, or analogous, compulsion is not in issue, but the victim is of tender years and may not have, as a matter of fact, the requisite mental maturity to consent, give the following instructions:
Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that "constructive force" has been applied, thus satisfying the requirement of force. Hence, when the accused's (actions and words) (conduct), coupled with the surrounding
DA PAM 27-9 • 01 January 2010
circumstances, create a reasonable belief in a child's mind that death or physical injury would be inflicted on her and that (further) resistance
would be futile, an act of sexual intercourse has been accomplished by
force.
When a victim is incapable of consenting because she lacks the mental
capacity to understand the nature of the act, no greater force is required
than that necessary to achieve penetration.
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual
intercourse (because resistance would have been futile under the totality
of the circumstances) (because of a reasonable fear of death or great
bodily harm) (because she was unable to resist due to mental or physical
inability) ( ), sexual intercourse was done without consent. If
(state the name of the alleged victim) was incapable, due to her (tender
age) (and) (lack of) mental development, of giving consent, then the act
was done by force and without consent. A child (of tender years) is not
capable of consenting to an act of sexual intercourse until she
understands the act, its motive, and its possible consequences. In
deciding whether (state the name of the alleged victim) had, at the time
of the sexual intercourse, the requisite knowledge and mental
(development) (capacity) (ability) to consent you should consider all the
DA PAM 27-9 • 01 January 2010
evidence in the case, including but not limited to: (state any lay or expert testimony relevant to the child's development) (state any other information about the alleged victim. such as the level and extent of education. and prior sex education and experiences. if any).
If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.
NOTE 9: Constructive force (parental. or analogous compulsion) AND consent issues involving children of tender years. When the evidence raises the issue of constructive force based upon a child's acquiescence because of duress or a coercive atmosphere created by a parent or one acting in loco parentis. AND also the issue of consent by children of tender years, give the following instructions:
Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that "constructive force" has been applied, thus satisfying the requirement of force. Hence, when the accused's (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim's mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.
Sexual activity between a (parent) (stepparent) (.____) and a
minor child is not comparable to sexual activity between two adults. The
youth and vulnerability of children, when coupled with a (parent's)
(stepparent's) ( ) position of authority, may create a situation
in which explicit threats and displays of force are not necessary to
overcome the child's resistance. On the other hand, not all children
invariably accede to (parental) ( ) will. In deciding whether
DA PAM 27-9·01 January 2010
the victim (did not resist) (or) (ceased resistance) because of constructive force in the form of (parental) ( ) (duress) (compulsion) ( ), you must consider all of the facts and circumstances, including but not limited to (the age of the child when the alleged abuse started) (the child's ability to fully comprehend the nature of the acts involved) (the child's knowledge of the accused's parental power) (any implicit or explicit threats of punishment or physical harm if the child does not obey the accused's commands) (state any other evidence surrounding the parent-child, or similar relationship, from which constructive force could reasonably be inferred). If (state the name of the alleged victim) (did not resist) (or) (ceased resistance) due to the (compulsion) (or) (duress) of (parental) ( ) command, constructive force has been established and the act of sexual intercourse was done by force and without consent.
When a victim is incapable of consenting because she lacks the mental capacity to understand the nature of the act, no greater force is required than that necessary to achieve penetration.
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great
DA PAM 27-9 • 01 January 2010
bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
If (state the name of the alleged victim) was incapable, due to her (tender age) (and) (lack of) mental development, of giving consent, then the act was done by force and without consent. A child (of tender years) is not capable of consenting to an act of sexual intercourse until she understands the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sexual intercourse, the requisite knowledge and mental (development) (capacity) (ability) to consent you should consider all the evidence in the case, including but not limited to: (state any lay or expert testimony relevant to the child's development) (state any other information about the alleged victim, such as the level and extent of education, and prior sex education and experiences, if any).
If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.
NOTE 10: Victims incapable ofgiving consent-due to mental infirmity. Where there is some evidence that the victim may be incapable ofgiving consent because ofa mental handicap or disease, give the following instructions:
Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can
be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that "constructive force" has been
applied, thus the requirement of force is satisfied. Hence, when the accused's (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim's mind that death
or physical injury would be inflicted on her and that (further) resistance
DA PAM 27-9' 01 January 2010
would be futile, the act of sexual intercourse has been accomplished by force.
When a victim is incapable of consenting because she lacks the mental
capacity to consent, no greater force is required than that necessary to
achieve penetration.
If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
If (state the name of the alleged victim) was incapable, due to mental infirmity, of giving consent, then the act was done by force and without her consent. A person is capable of consenting to an act of sexual intercourse unless her mental infirmity is so severe that she is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sexual intercourse, the requisite mental capacity to consent you should consider all the evidence in the case, including but not limited to: (state any expert testimony relevant to the alleged victim's mental
DA PAM 27-9·01 January 2010
infirmity) (state any other information about the alleged victim, such as the level and extent of education; ability, or inability. to hold a job or manage finances; and prior sex education and experiences, if any). You may also consider her demeanor in court and her general intelligence as indicated by her answers to questions propounded to her in court.
If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.
NOTE 11: Victims incapable of giving consent-due to sleep. unconsciousness, or intoxication. Where there is some evidence that the victim may have been asleep, unconscious, or intoxicated and, therefore, incapable of giving consent at the time of the intercourse, give the following instructions:
Both force and lack of consent are necessary to the offense. "Force" is physical violence or power applied by the accused to the victim. An act of sexual intercourse occurs "by force" when the accused uses physical violence or power to compel the victim to submit against her will.
When a victim is incapable of consenting, because she is asleep,
unconscious, or intoxicated to the extent that she lacks the mental
capacity to consent, no greater force is required than that necessary to
achieve penetration.
If the alleged victim consents to the act of sexual intercourse, it is not
rape. The lack of consent required, however, is more than mere lack of
acquiescence. If a person, who is in possession of her mental and
physical faculties, fails to make her lack of consent reasonably manifest
by taking such measures of resistance as are called for by the
circumstances, the inference may be drawn that she consented.
Consent, however, may not be inferred if resistance would have been
futile under the totality of the circumstances, or where resistance is
overcome by a reasonable fear of death or great bodily harm, or where
she is unable to resist because of the lack of mental or physical faculties.
DA PAM 27-9 • 01 January 2010
You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.
If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) ( ), sexual intercourse was done without consent.
If (state the name of the alleged victim) was incapable, due to lack of mental or physical faculties, of giving consent, then the act was done by force and without consent. A person is capable of consenting to an act of sexual intercourse unless she is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had consented to the sexual intercourse you should consider all the evidence in the case, including but not limited to: ((the degree of the alleged victim's) (intoxication, if any,) (and) (or) (consciousness or unconsciousness) (and) (or) (mental alertness)); ((the ability or inability of the alleged victim) (to walk) (and) (or) (to
communicate coherently)); ((whether the alleged victim may have
consented to the act of sexual intercourse prior) (to lapsing into
unconsciousness) (and) (or) (falling asleep)); (and) (or) (state any other
evidence tending to show the alleged victim may have been acquiescing
to the intercourse rather than actually being asleep. unconscious. or
otherwise unable to consent).
If (state the name of the alleged victim) was incapable of giving consent,
and if the accused knew or had reasonable cause to know that (state the
name of the alleged victim) was incapable of giving consent because she
was (asleep) (unconscious) (intoxicated), the act of sexual intercourse
was done by force and without consent.
NOTE 12: Mistake of fact to consent-completed rapes. An honest and reasonable mistake of fact as to the victim's consent is a defense to rape. United States v. Carr. 18 MJ 297 (CMA 1984), United States v. Tavlor. 26 MJ 127 (CMA 1988), and United States v. Peel. 29 MJ 235 (CMA 1989), cert denied, 493 U.S. 1025 (1990). Ifmistake of fact is in issue, give the following instructions. Ifmistake of fact as to consent is raised in relation to attempts and
DA PAM 27-9·01 January 2010
other offenses requiring the specific intent to commit rape, use the instructions following NOTE 14 instead of the instructions be/ow.
The evidence has raised the issue of mistake on the part of the accused
concerning whether (state the name of the alleged victim) consented to
sexual intercourse in relation to the offense of rape.
If the accused had an honest and mistaken belief that (state the name of
the alleged victim) consented to the act of sexual intercourse, he is not
guilty of rape if the accused's belief was reasonable.
To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was consenting to the sexual intercourse. In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) consented, you should consider the probability or improbability of the evidence presented on the matter.
You should also consider the accused's (age) (education) (experience) (prior contact with (state the name of the alleged victim)) (the nature of any conversations between the accused and (state the name of the alleged victim)) ( ) along with the other evidence on this issue (including but not limited to (here the military judge may summarize other evidence that may bear on the accused's mistake of fact)).
The burden is on the prosecution to establish the accused's guilt. If you
are convinced beyond a reasonable doubt that, at the time of the
charged rape, the accused was not under the mistaken belief that (state
the name of the alleged victim) consented to the sexual intercourse, the
defense of mistake does not exist. Even if you conclude that the
accused was under the honest and mistaken belief that (state the name
of the alleged victim) consented to the sexual intercourse, if you are
convinced beyond a reasonable doubt that, at the time of the charged
offense, the accused's mistake was unreasonable, the defense of
mistake does not exist.
DA PAM 27-9' 01 January 2010
NOTE 13: Voluntary intoxication and mistake of fact as to consent. If there is evidence the accused may have been under the influence of an intoxicant and the evidence raises mistake of fact as to consent to a completed rape, give the following instruction:
There is evidence in this case that indicates that at the time of the
alleged rape, the accused may have been under the influence of
(alcohol) (drugs).

The accused's voluntary intoxication may not be considered in deciding
whether the accused reasonably believed that (state the name of the alleged victim) consented to sexual intercourse. A reasonable belief is one that an ordinary, prudent, sober adult would have under the
circumstances of this case. Voluntary intoxication does not permit what
would be an unreasonable belief in the mind of a sober person to be
considered reasonable because the person is intoxicated.
NOTE 14: Mistake of fact to consent-attempts and other offenses requiring intent to
commit rape. To be a defense, mistake of fact as to consent in attempted rape, or offenses
where rape is the intended offense (assault. burglary. conspiracy etc.), need only be honest.
United States v. Langley. 33 MJ 278 (CMA 1991). When mistake of fact to consent is in
issue with respect to these offenses, give the following instruction:
The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name of the alleged victim) ((consented) (would consent)) to sexual intercourse in relation to the offense of (state the alleged offense).
I advised you earlier that to find the accused guilty of the offense of (attempted rape) (assault with intent to commit rape) (burglary with intent
to commit rape) (conspiracy to commit rape) ('-----), you must find beyond a reasonable doubt that the accused had the specific intent to commit rape, that is, sexual intercourse by force and without consent.
If the accused at the time of the offense was under the honest and
mistaken belief that (state the name of the alleged victim) ((would
consent) (consented)) to sexual intercourse, then he cannot be found
guilty of the offense of (attempted rape) (assault with intent to commit
rape) (burglary with intent to commit rape ) (conspiracy to commit rape)
( ).
DA PAM 27-9 • 01 January 2010
The mistake, no matter how unreasonable it might have been, is a defense. In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) ((would consent) (consented)), you should consider the probability or improbability of the evidence presented on the matter. You should also consider the accused's (age) (education) (experience) (prior contact with (state the name of the alleged victim)) (the nature of any conversations between the accused and (state the name of the alleged victim)) ( ) along with the other evidence on this issue (including, but not limited to (here the military judge may summarize other evidence that may bear on the accused's mistake of fact)).
The burden is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that at the time of the alleged offense the accused was not under the mistaken belief that (state the name of the alleged victim) ((would consent) (consented)) to sexual intercourse, then the defense of mistake does not exist.
NOTE 15: Compound offenses and mistake offact. Ifthe accused is charged with an offense that requires the intent to commit rape and the evidence raises the possibility that the accused was under the mistaken belief the victim would or did consent, the military judge should determine whether a lesser included offense has been raised. For example, if the accused is charged with burglary with intent to commit rape and the members might find the accused had a mistaken belief the intended victim would consent, the evidence may raise the lesser included offense of unlawful entry.
NOTE 16: Consent obtained by fraud. Consent obtained by fraud in the inducement (fML., a promise to pay money, misrepresentation as to marital status, or to "respect" the partner in the morning) is valid consent. Consent obtained by fraud in factum (~a misrepresentation as to the nature of the act performed) is not valid consent and is not a defense to rape. United States v. Booker. 25 MJ 114 (CMA 1987).
NOTE 17: MRE 412 ("Rape shield"). Notwithstanding the general proscriptions in MRE 412 concerning the admissibility ofa sexual assault victim's past sexual behavior, such evidence may be admissible ifit is probative of a victim's motive to fabricate or to show that the accused was mistaken about the victim's consent. United States v. Williams. 37 MJ 352 (CMA 1993) (extra-marital affair as to victim's motive to lie) and United States v. Kelley. 33 MJ 878 (ACMR 1991) (victim's public and aggressive sexual behavior to show accused's mistaken beliefas to consent.)
NOTE 18: Carnal knowledge as lesser included offense. Ifcarnal knowledge is a lesser included offense, give the following instructions:
DA PAM 27-9·01 January 2010
Carnal knowledge is a lesser included offense of rape. If you have a reasonable doubt about either the element of force or lack of consent, but you do find beyond a reasonable doubt:
(1)
That (state the time and place alleged), the accused committed an act of sexual intercourse with a female, namely: (state the name of the alleged victim);

(2)
That (state the name of the alleged victim) was not the accused's (husband) (wife); and

(3)
That at the time of the act of sexual intercourse (state the name of the alleged victim) was under (16) (12) years of age, you may find the accused guilty of the lesser included offense of carnal knowledge.


Neither force nor lack of consent are required for this lesser included offense. (Stated conversely, neither lack of force nor consent are defenses.) (It is no defense that the alleged victim was of unchaste character.) (Unless you find that the accused honestly and reasonably believed that (state the name of the alleged victim) was over 16 years of age), it is no defense that the accused was ignorant or misinformed as to the true age of the alleged victim.)
NOTE 19: Prior unchaste character and mistake as to age in sentencing. While the victim's unchaste character is not relevant on findings, and the accused's ignorance of the victim's age may be relevant, depending on the circumstances (See NOTE 20, below, on the mistake of fact defense), they may be considered on sentencing. See Part IV, Paragraph 45(c)(2), MeM.
NOTE 20: Mistake offact as to victim's age. The Military Justice Act of 1996 established a mistake of fact defense to carnal knowledge. The defense applies when the victim is at least 12 years of age, and some evidence is introduced which shows the accused may have honestly and reasonably believed the victim was 16. Note that this defense is unusual in that the burden is on the defense to establish, by a preponderance of the evidence, that the belief was honest and reasonable. When the defense is raised by the evidence, the fol/owing instruction is suggested. If the parties have stipulated that the al/eged victim was at least 12, the portion in parentheses in the second paragraph need not be given.
The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of carnal knowledge, as alleged in (The) Specification(s) ( ) of (The) (Additional) Charge
DA PAM 27-9 • 01 January 2010
( ). Specifically, the mistake concerns the accused's belief
as to the age of (state the name of the alleged victim) when the alleged
act(s) of sexual intercourse occurred.
For mistake of fact to be a defense, the burden is on the defense to
convince you by a preponderance of evidence that the mistake exists. A
preponderance of the evidence merely means that it is more likely than
not that a fact exists. In this case, if you are convinced that, at the time of the alleged act(s), it is more likely than not that (the person with whom (he) (she) had sexual intercourse was at least 12 years old; and) the accused honestly and reasonably believed that the person with whom (he) (she) had sexual intercourse was at least 16 years old, then this mistake on the part of the accused is a complete defense to the offense of carnal knowledge.
To be reasonable, the accused's belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old at the time of the alleged offense(s).
In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) was at least 16 years old, you should consider the probability or improbability of the evidence presented on the matter. You should consider all the evidence presented on this issue, (including but not limited to the accused's (age) (education) (experience) (prior contact or prior conversations with (state the name of the alleged victim)) (prior contact or prior conversations with (state the name of the alleged victim)'s family member(s))) (the location where the accused met (state the name of the alleged victim)) ( ), as well as (state the name of the alleged victim)'s (appearance) (level of maturity) (demeanor) (actions) (statements made to the accused concerning (state the name of the alleged victim)'s age) ( _____) (here the military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
DA PAM 27-9 • 01 January 2010
NOTE 21: Voluntary intoxication and mistake of fact. If there is evidence of the accused's voluntary intoxication, the following instruction is appropriate:
There is evidence in this case that indicates that, at the time of the alleged carnal knowledge offense(s), the accused may have been under the influence of (alcohol) (drugs). The accused's voluntary intoxication may not be considered in deciding whether the accused honestly and reasonably believed that (state the name of the alleged victim) was at least 16 years old. A reasonable belief is one that an ordinary prudent sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.
NOTE 22: Concluding instructions on mistake of fact. Give the following concluding instructions in each case in which mistake of fact is raised. Ifthe parties have stipulated that the child is at least 12, the portion in parentheses need not be given.
If you are not convinced by a preponderance of the evidence (that (state the name of the alleged victim) was at least 12 years old, or) that the accused's belief that (state the name of the alleged victim) was at least 16 years old was honest and reasonable, then this defense of mistake
does not exist.
Even if the defense fails to convince you that this defense of mistake exists, the burden remains on the prosecution to prove the accused's guilt beyond a reasonable doubt, to include each and every element of the offense of carnal knowledge.
NOTE 23: Evidentiary concerns. When the accused is charged with rape of a child, the defense may wish to introduce evidence that is arguably relevant on a mistake of fact defense as to carnal knowledge, but may not be relevant as to the charged offense. When the militaryjudge rules that evidence is relevant for the lesser included offense, but not relevant as to the charged offense, a limiting instruction, given at the time the evidence is introduced and/or during findings instructions, may be appropriate. The following is suggested:
The accused is charged with the offense of rape. The offense of carnal knowledge is a lesser included offense of rape. These two offenses differ primarily in that rape is a non-consensual sexual offense, while in
DA PAM 27-9' 01 January 2010
carnal knowledge, consent is not relevant. The focus of the offense of carnal knowledge is sexual intercourse with a child. In some circumstances, about which I will provide more detailed instructions later in the trial, the accused's reasonable mistake of fact as to the child's age may be a defense. You have just (heard testimony) (reviewed evidence) which has been admitted for the limited purpose of its tendency, if any, to establish the accused's honest and reasonable belief that (state the name of the alleged victim) was over the age of 16 at the time the alleged act of sexual intercourse occurred. You may not consider this evidence for any other purpose in this trial.
NOTE 24: Age of victim-variance. For a conviction of the lesser included offense of carnal knowledge, the government must show the victim to be under the age of 16. However, as an aggravating factor, the government may plead and prove that the victim was under the age of 12. When the government pleads that the victim was under the age of 12, but the evidence is in conflict as to the victim's exact age, Instruction 7-15, Variance, may be appropriate. The court members should be clearly instructed that, in spite of the pled age, they may still find the accused guilty if they find beyond a reasonable doubt that the victim was not 16 at the time of the al/eged sexual intercourse.
e. REFERENCES:
(1)
Force: Black's Law Dictionary (6th ed. 1990) (West Law, 1993).

(2)
Constructive force-Coker v. Georgia, 433 U.S. 584 (1977); United States v. Hicks, 24 MJ 3 (CMA 1987), cert. denied, 484 U.S. 827 (1987); United States v. Bradley, 28 MJ 197 (CMA 1989); United States v. Palmer, 33 MJ 7 (CMA 1991).

(3)
Constructive force-abuse of military authority: United States v. Hicks, supra; United States v. Bradley, supra; United States v. Clark, 35 MJ 432 (CMA 1992), cert. denied, 507 U.S. 1052 (1993).

(4)
Constructive force-parental compulsion and children oftender years: United States v. Palmer, supra; United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Torres, 27 MJ 867 (AFCMR 1989), opinion set aside, 29 MJ 299 (CMA 1989), unpublished opinion clarifying prior opinion (AFCMR November 15, 1989),pet. denied, 30 MJ 226 (CMA 1990), original opinion cited with approval in Palmer, supra, 33 MJ at 10; United States v. Dejonge, 16 MJ 974 (AFCMR 1983),pet. denied, 18 MJ 92 (CMA 1986); North Carolina v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

(5)
Victim incapable of giving consent-mental infirmity: United States v. Henderson, 15 CMR 268 (CMA 1954); United States v. Lyons, 33 MJ 543 (ACMR 1991), aff'd, 36 MJ 183 (CMA 1992); 75 C.J.S. Rape section 14(b) n. 10.

(6)
Victim incapable ofgiving consent-sleep, intoxication, or unconsciousness: Part IV, Para 45c(1 )(b), MCM; United States v. Mathi, 34 MJ 33 (CMA 1992); United States v. Robertson, 33 CMR 828 (AFBR 1963), rev'd on other grounds, 34 CMR 108 (CMA 1963).

(7)
Carnal knowledge as lesser included offense to rape when age not pled-Compare United States v. Smith, 7 MJ 842 (ACMR 1979) with Part IV, paragraph 45d(1 ) (e), MCM.


DA PAM 27-9·01 January 2010
3-45-2. CARNAL KNOWLEDGE (ARTICLE 120)
NOTE 1: Using this instruction. Use this instruction ifcarnal knowledge is separately charged. Ifinstructing on carnal knowledge as a lesser included offense of rape, use the instructions following NOTE 18, Instruction 3-45-1 (Rape).
a. MAXIMUM PUNISHMENT:
(1)
Child 12 or over and under 16: DD, TF, 20 years, E-1.

(2)
Child under 12: DD, TF, life without eligibility for parole, E-1.

h.
MODEL SPECIFICATION:
In that (personal jurisdiction data), did, (at/on board-location) on or about ____
commit the offense of carnal knowledge with , (a child under 12).



c. ELEMENTS:
(1)
That (state the time and place alleged), the accused committed an act of sexual intercourse with (state the name of the alleged victim);

(2)
That (state the name of the alleged victim) was not the accused's (husband) (wife); and

(3)
That at the time of the act of sexual intercourse (state the name of the alleged victim) was under (16) (12) years of age.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Sexual intercourse" is any penetration, however slight, of the female sex organ by the penis. An ejaculation is not required.
Neither force nor lack of consent are required for this offense. (Stated conversely, neither lack of force nor consent are defenses.) (It is no defense that the alleged victim was of unchaste character.) (Unless you find that the accused honestly and reasonably believed that (state the name of the alleged victim) was over 16 years of age), it is no defense that the accused was ignorant or misinformed as to the true age of the alleged victim.)
NOTE 2: Lack ofpenetration in issue. Iflack ofpenetration is in issue, the militaryjudge should further define what is meant by the female sex organ. The instruction below may be
DA PAM 27-9' 01 January 2010
helpful. See also United States v. Williams, 25 MJ 854 (AFCMR 1988), pet. denied, 27 MJ 166 (CMA 1988) and United States v. Tu, 30 MJ 87 (ACMR 1990):
The "female sex organ" includes not only the vagina which is the canal that connects the uterus to the external opening of the genital canal, but also the external genital organs including the labia majora and the labia minora. "Labia" is the Latin and medically correct term for "lips."
NOTE 3: Mistake of fact as to victim's age. The Military Justice Act of 1996 established a mistake of fact defense to carnal knowledge. The defense applies when the victim is at least 12 years of age, and some evidence is introduced which shows the accused may have honestly and reasonably believed the victim was 16. Note that this defense is unusual in that the burden is on the defense to establish, by a preponderance of the evidence, that the belief was honest and reasonable. When the defense is raised by the evidence, the following instruction is suggested. Ifthe parties have stipulated that the alleged victim was at least 12, the portion in parentheses in the second paragraph need not be given.
The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of carnal knowledge, as alleged in (The) Specification(s) ( ) of (The) (Additional) Charge ( ). Specifically, the mistake concerns the accused's belief as to the age of (state the name of the alleged victim) when the alleged act(s) of sexual intercourse occurred.
For mistake of fact to be a defense, the burden is on the defense to convince you by a preponderance of the evidence that the mistake exists. "A preponderance of the evidence" merely means that it is more likely than not that a fact exists. In this case, if you are convinced that, at the time of the alleged act(s), it is more likely than not that (the person with whom (he) (she) had sexual intercourse was at least 12 years old; and) the accused honestly and reasonably believed that the person with whom (he) (she) had sexual intercourse was at least 16 years old, then this mistake on the part of the accused is a complete defense to the offense of carnal knowledge.
To be reasonable, the accused's belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old at
the time of the alleged offense(s).
DA PAM 27-9·01 January 2010
In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) was at least 16 years old, you should consider the probability or improbability of the evidence presented on the matter. You should consider all the evidence presented on this issue, (including but not limited to the accused's (age) (education) (experience) (prior contact or prior conversations with (state the name of the alleged victim) (prior contact or prior conversations with (state the name of the alleged victim)'s family member(s)) (the location where the accused met (state the name of the alleged victim) ( ), as well as (state the name of the alleged victim)'s (appearance) (level of maturity) (demeanor) (actions) (statements made to the accused concerning (state the name of the alleged victim)'s age) ( _____) (here the military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
NOTE 4: Voluntary intoxication and mistake of fact. If there is evidence of the accused's voluntary intoxication, the following instruction is appropriate:
There is evidence in this case that indicates that, at the time of the alleged carnal knowledge offense(s), the accused may have been under the influence of (alcohol) (drugs). The accused's voluntary intoxication may not be considered in deciding whether the accused honestly and reasonably believed that (state the name of the alleged victim) was at least 16 years old. A reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.
NOTE 5: Concluding instructions on mistake of fact. Give the following concluding
instructions in each case in which mistake of fact is raised. Ifthe parties have stipulated
that the child is at least 12, the portion in parentheses need not be given.
If you are not convinced by a preponderance of the evidence (that (state
the name of the alleged victim) was at least 12 years old, or) that the
accused's belief that (state the name of the alleged victim) was at least
DA PAM 27-9' 01 January 2010
16 years old was honest and reasonable, then this defense of mistake does not exist.
Even if the defense fails to convince you that this defense of mistake exists, the burden remains on the prosecution to prove the accused's guilt beyond a reasonable doubt, to include each and every element of the offense of carnal knowledge.
NOTE 6: Prior unchaste character and ignorance of victim's age in sentencing. Evidence of the victim's prior unchaste character and ignorance ofher true age may be relevant in sentencing. Part ,V, Paragraph 45(c)(2), MeM.
DA PAM 27-9·01 January 2010
3-45-3. RAPE (ARTICLE 120)
NOTE 1: Applicability of this instruction. Use this instruction for offenses occurring on and after 1 October 2007.
a. MAXIMUM PUNISHMENT:
(1)
Rape: Death or other lawful punishment.

(2)
Rape of a child: Death or other lawful punishment.


NOTE 2: Death sentence. The plurality opinion in Coker v. Georgia. 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed. RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities. RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.
h. MODEL SPECIFICATION:
Rape:
In that (personal jurisdiction data), did, (at/on board-location), on or about , cause
____to engage in (a) sexual act(s), to wit: , by [if force alleged, state the force used]
[causing grievous bodily harm to (himlher) ( ), to wit (broken leg) (deep cut) (fractured skull)
( )] [(threatening) (placing himlher in fear) that (he/she) ( ) would be subjected to
(death) (grievous bodily harm) (kidnapping)] [rendering him/her unconscious] [administering to him/her a
(drug) (intoxicant) ( ) [by (force) (threat of force)] [without hislher (knowledge) (permission)],
thereby substantially impairing his/her ability to (appraise) (control) his/her conduct].

Rape of a Child:
In that (personal jurisdiction data), did, (at/on board-location), on or about ,
engage in (a) sexual act(s), to wit: , with , a child who had [not attained the age of
12 years] [attained the age of 12 years, but had not attained the age of 16 years, by [if force alleged, state the
force used] [causing grievous bodily harm to (him/her) ( ), to wit (broken leg) (deep cut)
(fractured skull) ( )] [(threatening) (placing him/her in fear) that (he/she) ( ) would be
subjected to (death) (grievous bodily harm) (kidnapping)] [rendering himlher unconscious] [administering to
himlher a (drug) (intoxicant) ( ) [by (force) (threat of force)] [without hislher (knowledge)
(permission)], thereby substantially impairing his/her ability to (appraise) (control) hislher conduct]].

c. ELEMENTS:
Rape:
(1) That (state the time and place alleged), the accused caused (state name of the alleged victim) to engage in (a) sexual act(s), to wit: (state the act(s) alleged); and
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(2)
That the accused did so by

(a)
using force against (state the name of the alleged victim), to wit: (state the force alleged).

(b)
causing grievous bodily harm to (state the name of the person alleged), to wit: (state the injuries allegedly inflicted).

(c)
threatening (state the name of the alleged victim) that (state the name of the person alleged) would be subjected to (death) (grievous bodily harm) (kidnapping).

(d)
placing (state the name of the alleged victim) in fear that (state the name of the person alleged) would be subjected to (death) (grievous bodily harm) (kidnapping).

(e)
rendering (state the name of the alleged victim) unconscious.

(f)
administering to (state the name of the alleged victim) a (drug) (intoxicant) ( ) [by (force) (threat of force)] [without the (knowledge) (permission) of (state the name of the alleged victim)], thereby substantially impairing the ability of (state the name of the alleged victim) to (appraise) (control) his/her conduct.


Rape of a child:
(1) That (state the time and place alleged), the accused engaged in (a) sexual act(s), to wit: (state the act(s) alleged), with (state the name of the alleged victim); (and)
NOTE 3: Child under the age of 12 al/eged. Ifit is al/eged that the victim was under the age of 12, give the fol/owing element:
[(2)] That at the time, (state the name of the alleged victim) had not
attained the age of 12 years.

NOTE 4: Child who had attained the age of 12. but had not attained the age of 16 al/eged. If it is al/eged that the victim had attained the age of 12, but had not attained the age of 16, give the fol/owing elements as applicable:
DA PAM 27-9·01 January 2010
[(2)] That the accused did so by
(a)
using force against (state the name of the alleged victim), to wit: (state the force alleged);

(b)
causing grievous bodily harm to (state the name of the person alleged), to wit: (state the injuries allegedly inflicted);

(c)
threatening (state the name of the alleged victim) that (state the name of the person alleged) would be subjected to (death) (grievous bodily harm) (kidnapping);

(d)
placing (state the name of the alleged victim) in fear that (state the name of the person alleged) would be subjected to (death) (grievous bodily harm) (kidnapping);

(e)
rendering (state the name of the alleged victim) unconscious;

(f)
administering to (state the name of the alleged victim) a (drug) (intoxicant) ( ) [by (force) (threat of force)] [without the (knowledge) (permission) of (state the name of the alleged victim)], thereby substantially impairing the ability of (state the name of the alleged victim) to (appraise) (control) his/her conduct;

(3)
That at the time, (state the name of the alleged victim) had not attained the age of 16 years.


d. DEFINITIONS AND OTHER INSTRUCTIONS:
"Sexual act" means the penetration, however slight, (of the vulva by the penis) (of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person).
("Substantially impaired" means that level of mental impairment that rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to decline participation in the sexual conduct at
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issue, or unable to physically communicate unwillingness to engage in the sexual conduct at issue.)
("Unconscious" means incapable of responding to sensory stimuli and of having subjective experiences. An unconscious person is incapable of creating memories for later recall. Lack of memory may be evidence of unconsciousness, but the mere inability to recall, sometimes associated
with excessive alcohol consumption, is insufficient to prove beyond a
reasonable doubt the person was unconscious.)
NOTE 5: Lack ofpenetration in issue. Iflack ofpenetration is in issue, the militaryjudge should further define what is meant by the "vulva" or "genital opening." The instruction below may be helpful. See also United States v Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CMA 1988) and United States v. Tu, 30 MJ 587 (ACMR 1990).
(The "vulva" is the external genital organs of the female, including the
entrance of the vagina and the labia majora and labia minora. "Labia" is
the Latin and medically correct term for "lips.")
(The "genital opening" is the entrance to the vagina, which is the canal that connects the genital opening to the uterus.)
NOTE 6: By force. When the sexual act is al/eged by force, include the fol/owing instruction:
"Force" means action to compel submission of another or to overcome or prevent another's resistance by (the use or display of a dangerous weapon or object) (the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object) (physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual act).
("Dangerous weapon or object" means (any firearm, loaded or not, and
whether operable or not) (any weapon, device, instrument, material, or
substance, whether animate or inanimate, that in the manner it is used,
or is intended to be used, is known to be capable of producing death or
grievous bodily harm) (any object fashioned or utilized in such a manner
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as to lead the victim