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Court martial for drug use

The new law on Knowledge

a) There is no express mention of a mens rea requirement in the text of
Article 112a for the use, possession, or distribution of controlled
substances; the article merely prohibits the “wrongful” use, possession, or
distribution of various controlled substances. See UCMJ art. 112a.
Likewise the MCM does not identify a mens rea in its description of the
elements of these offenses. See MCM, pt. IV, section 37b(2). However, the
Court of Military Appeals (COMA) has long held that the absence of
knowledge as to the presence of the substance in question or its
contraband nature may give rise to a mistake or ignorance of fact defense
to charges of use or possession of controlled substance. E.g., United
States v. Greenwood, 19 C.M.R. 335 (C.M.A. 1955). Later, COMA
explicitly held that court-martial panels must be instructed that an accused
must knowingly possess or use a controlled substance to be criminally
liable for such an act. United States v. Mance, 26 M.J. 244 (C.M.A.
1988).

Source: The Crimes and Defenses Handbook, JA 337, 2009.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Military trial of Canadian soldier in killing of Afghan insurgent begins in January
Posted at Canwest News Service

Published December 21, 2009

OTTAWA — The trial of a Canadian soldier accused in the shooting death of a wounded insurgent in Afghanistan last year will begin in January.

Court martial proceedings against Capt. Robert Semrau will begin on Jan. 25, 2010 in Gatineau, Que., according to a news release Monday from the Department of National Defence.

Capt. Semrau faces charges of second-degree murder, attempt to commit murder, behaving in a disgraceful manner, and negligently performing a military duty.

It’s alleged Capt. Semrau fired two shots into a “severely wounded” unarmed Taliban insurgent on Oct. 19, 2008, in Afghanistan’s Helmand province.

Court heard Capt. Semrau was commanding an operational mentor and liaison team with Afghan soldiers on a 26-kilometre sweep when they were ambushed.

After U.S. Apache attack helicopters were called in and the assault was defeated, Afghan soldiers found a dead Taliban fighter beside another who was severely wounded.

Capt. Semrau is serving with the 3rd Battalion at CFB Petawawa, according to the Canadian Forces. His court martial trial will be heard by military judge Col. Mario Dutil and a panel of five military members.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Military Lawyer | Court Martial Crimes – UCMJ Articles 99 – 102

Art. 99. Misbehavior before the enemy

Any person subject to this chapter who before or in the presence
of the enemy—
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any command,
unit, place, or military property which it is his duty to
defend;
(3) through disobedience, neglect, or intentional misconduct endangers
the safety of any such command, unit, place, or military
property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or place under
control of the armed forces;
(8) willfully fails to do his utmost to encounter, engage, capture,
or destroy any enemy troops, combatants, vessels, aircraft, or any
other thing, which it is his duty so to encounter, engage, capture,
or destroy; or
(9) does not afford all practicable relief and assistance to any
troops, combatants, vessels, or aircraft of the armed forces belonging
to the United States or their allies when engaged in battle;
shall be punished by death or such other punishment as a court martial may direct.

Art. 100. Subordinate compelling surrender

Any person subject to this chapter who compels or attempts to
compel the commander of any place, vessel, aircraft, or other
military property, or of any body of members of the armed forces,
to give it up to an enemy or to abandon it, or who strikes the
colors or flag to any enemy without proper authority, shall be
punished by death or such other punishment as a court-martial
may direct.

Art. 101. Improper use of countersign

Any person subject to this chapter who in time of war discloses
the parole or countersign to any person not entitled to receive it
or who gives to another who is entitled to receive and use the
parole or countersign a different parole or countersign from that
which, to his knowledge, he was authorized and required to give,
shall be punished by death or such other punishment as a court martial
may direct.

Art. 102. Forcing a safeguard
Any person subject to this chapter who forces a safeguard shall
suffer death or such other punishment as a court-martial may
direct.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Camp Zama Japan Court Martial Defense Lawyer | Military Attorney

Rule for Court Martial (RCM) Rule 1111.

Disposition of the record of trial after action

(a) General courts-martial.

(1) Cases forwarded to the Judge Advocate Gen­ eral. A record of trial by general court-martial and the convening authority’s action shall be sent directly to the Judge Advocate General concerned if the approved sentence includes death or if the ac­ cused has not waived review under R.C.M. 1110. Unless otherwise prescribed by regulations of the Secretary concerned, 10 copies of the order promul­ gating the result of trial as to each accused shall be forwarded with the original record of trial. Two ad­ ditional copies of the record of trial shall accompany the original record if the approved sentence includes death or if it includes dismissal of an officer, cadet, or midshipman, dishonorable or bad conduct discharge, or confinement for one year or more and the accused has not waived appellate review.
(2) Cases forwarded to a judge advocate. A re­ cord of trial by general court-martial and the con­ vening authority’s action shall be sent directly to a judge advocate for review under R.C.M. 1112 if the sentence does not include death and if the accused has waived appellate review under R.C.M. 1110. Unless otherwise prescribed by the Secretary concerned, 4 copies of the order promulgating the result of trial shall be forwarded with the original record of trial.

(b) Special courts-martial.
( 1 ) Cases including an approved bad conduct discharge or confinement for one year. If the ap­ proved sentence of a special court-martial includes a bad-conduct discharge or confinement for one year, the record shall be disposed of as provided in sub­ section (a) of this rule.
(2) Other cases. The record of trial by a special court-martial in which the approved sentence does not include a bad-conduct discharge or confinement for one year shall be forwarded directly to a judge advocate for review under R.C.M. 1112. Four copies of the order promulgating the result of trial shall be forwarded with the record of trial, unless otherwise prescribed by regulations of the Secretary concerned.
(c) Summary courts-martial. The convening author­ ity shall dispose of a record of trial by summary court-martial as provided by R.C.M. 1306.

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Michael Waddington is a Japan court martial lawyer – Korea court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Court Martial Abuse Type Offenses Under the UCMJ (Article 93 – 98)

Art. 93. Cruelty and maltreatment

Any person subject to this chapter who is guilty of cruelty
toward, or oppression or maltreatment of, any person subject to
his orders shall be punished as a court-martial may direct.

Art. 94. Mutiny or sedition

(a) Any person subject to this chapter who—
(1) with intent to usurp or override lawful military authority,
refuses, in concert with any other person, to obey orders or
otherwise do his duty or creates any violence or disturbance is
guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful
civil authority, creates, in concert with any other person, revolt,
violence, or other disturbance against that authority is guilty of
sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or
sedition being committed in his presence, or fails to take all
reasonable means to inform his superior commissioned officer or
commanding officer of a mutiny or sedition which he knows or
has reason to believe is taking place, is guilty of a failure to
suppress or report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny,
sedition, or failure to suppress or report a mutiny or sedition shall
be punished by death or such other punishment as a court-martial
may direct.

Art. 95. Resistance, flight, breach of arrest,
and escape

Any person subject to this chapter who—
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement;
shall be punished as a court-martial may direct.

Art. 96. Releasing prisoner without proper

authority
Any person subject to this chapter who, without proper authority,
releases any prisoner committed to his charge, or who through
neglect or design suffers any such prisoner to escape, shall be
punished as a court-martial may direct, whether or not the prisoner
was committed in strict compliance with law.

Art. 97. Unlawful detention
Any person subject to this chapter who, except as provided by
law, apprehends, arrests, or confines any person shall be punished
as a court-martial may direct.

Art. 98. Noncompliance with procedural
rules

Any person subject to this chapter who—
(1) is responsible for unnecessary delay in the disposition of any
case of a person accused of an offense under this chapter;or
(2) knowingly and intentionally fails to enforce or comply with
any provision of this chapter regulating the proceedings before,
during, or after trial of an accused;
shall be punished as a court-martial may direct.
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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Army Navy Air Force Marine Corps Court martial offenses UCMJ Articles 88 – 92

Art. 88. Contempt toward officials

Any commissioned officer whose contemptuous words against the President, the Vice President, Congress, the Secretary
of Defense, the Secretary of a military department, the Secretary
of Homeland Security, or the Governor or legislature of any State,
Commonwealth, or possession in which he is on duty or present
shall be punished as a court-martial may direct.

Art. 89. Disrespect toward superior commissioned officer

Any person subject to this chapter who behaves with disrespect
toward his superior commissioned officer shall be punished as a
court-martial may direct.

Art. 90. Assaulting or willfully disobeying superior commissioned officer

Any person subject to this chapter who—
(1) strikes his superior commissioned officer or draws or lifts up
any weapon or offers any violence against him while he is in the
execution of his office; or
(2) willfully disobeys a lawful command of his superior commissioned
officer;
shall be punished, if the offense is committed in time of war, by
death or such other punishment as a court-martial may direct, and
if the offense is committed at any other time, by such punishment,
other than death, as a court-martial may direct.

Art. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or
petty officer

Any warrant officer or enlisted member who
(1) strikes or assaults a warrant officer, noncommissioned officer,
or petty officer, while that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned
officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or deportment
toward a warrant officer, noncommissioned officer, or petty
officer while that officer is in the execution of his office;
shall be punished as a court-martial may direct.

Art. 92. Failure to obey order or regulation

Any person subject to this chapter who—
( 1 ) violates of fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a
member of the armed forces, which it is his duty to obey, fails to
obey the order; or
(3) is derelict in the performance of his duties; shall be punished
as a court-martial may direct.
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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Court Martial Lawyer | Court martial offenses UCMJ Articles 85 – 87

UCMJ Art. 85. Desertion

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit,
organization, or place of duty with intent to remain away therefrom
permanently;

(2) quits his unit, organization, or place of duty with intent to
avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed
forces enlists or accepts an appointment in the same or another
one of the armed forces without fully disclosing the fact that he
has not been regularly separated, or enters any foreign armed
service except when authorized by the United States; is guilty of
desertion.

(b) Any commissioned officer of the armed forces who, after
tender of his resignation and before notice of its acceptance, quits
his post or proper duties without leave and with intent to remain
away therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert
shall be punished, if the offense is committed in time of war, by
death or such other punishment as a court-martial may direct, but
if the desertion or attempt to desert occurs at any other time, by
such punishment, other than death, as a court-martial may direct.

Art. 86. Absence without leave – AWOL
Any member of the armed forces who, without authority—

( 1 ) fails to go to his appointed place of duty at the time prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his unit, organization,
or place of duty at which he is required to be at the time prescribed;
shall be punished as a court-martial may direct.

Art. 87. Missing movement

Any person subject to this chapter who through neglect or
design misses the movement of a ship, aircraft, or unit with which
he is required in the course of duty to move shall be punished as
a court-martial may direct.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Crimes punishable by military court martial | UCMJ Articles 82 – 84

Art. 82. Solicitation

(a) Any person subject to this chapter who solicits or advises
another or others to desert in violation of section 885 of this title
(article 85) or mutiny in violation of section 894 of this title
(article 94) shall, if the offense solicited or advised is attempted
or committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or advised
is not committed or attempted, he shall be punished as a courtmartial
may direct.

(b) Any person subject to this chapter who solicits or advises
another or others to commit an act of misbehavior before the
enemy in violation of section 899 of this title (article 99) or
sedition in violation of section 894 of this title (article 94) shall,
if the offense solicited or advised is committed, be punished with
the punishment provided for the commission of the offense, but,
if the offense solicited or advised is not committed, he shall be
punished as a court-martial may direct.

Art. 83. Fraudulent enlistment, appointment, or separation

Any person who—
(1) procures his own enlistment or appointment in the armed
forces by knowingly false representation or deliberate concealment
as to his qualifications for the enlistment or appointment
and receives pay or allowances thereunder; or
(2) procures his own separation from the armed forces by knowingly
false representation or deliberate concealment as to his
eligibility for that separation; shall be punished as a court-martial
may direct.

Art. 84. Unlawful enlistment, appointment,
or separation

Any person subject to this chapter who effects an enlistment or
appointment in or a separation from the armed forces of any
person who is known to him to be ineligible for that enlistment,
appointment, or separation because it is prohibited by law, regulation,
or order shall be punished as a court-martial may direct.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Offenses Punishable by Court Martial – UCMJ Articles 77 – 81

Art. 77. Principals

Any person punishable under this chapter who
(1) commits an offense punishable by this chapter, or aids, abets,
counsels, commands, or procures its commission; or
(2) causes an act to be done which if directly performed by him
would be punishable by this chapter; is a principal.

Art. 78. Accessory after the fact
Any person subject to this chapter who, knowing that an offense
punishable by this chapter has been committed, receives,
comforts, or assists the offender in order to hinder or prevent his
apprehension, trial, or punishment shall be punished as a courtmartial
may direct.

Art. 79. Conviction of lesser included
offense
An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either
the offense charged or an offense necessarily included therein.

Art. 80. Attempts
(a) An act, done with specific intent to commit an offense under
this chapter, amounting to more than mere preparation and tending,
even though failing, to effect its commission, is an attempt to
commit that offense.
(b) Any person subject to this chapter who attempts to commit
any offense punishable by this chapter shall be punished as a
court-martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this chapter may be convicted of an
attempt to commit an offense although it appears on the trial that
the offense was consummated.

Art. 81. Conspiracy
Any person subject to this chapter who conspires with any
other person to commit an offense under this chapter shall. if one
or more of the conspirators does an act to effect the object of the
conspiracy, be punished as a court-martial may direct.

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Scope of Criminal Liability under the UCMJ

PRINCIPALS. UCMJ ART. 77

Failure to Stop Crime.

Failure to stop a crime does not constitute aiding and abetting unless there is an affirmative duty to interfere (e.g., a security guard). If a person has a duty to interfere, but fails to do so, that person is a party to the crime if such noninterference is intended to and does operate as an aid or encouragement to the perpetrator. MCM, pt. IV, ¶ 1b(2)(b). See United States v. Thompson, 22 M.J. 40 (C.M.A. 1986) (holding no general duty of NCOs to prevent crime absent “identifiable regulation, directive, or custom of the service.”); United States v. Simmons, 63 M.J. 89 (2006) (duty of NCO to prevent crime within unit may arise, but failure to act must be accompanied by shared criminal purpose).

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Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.