NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) In time of war: Death (Criteria)
(2) All other times: DD, TF, 10 years, E-1. (Category 2)
b. SAMPLE SPECIFICATIONS:
Striking superior commissioned officer:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) strike __________, (his) (her) superior commissioned officer (in command) (in rank), then known by the said ________ to be (his) (her) superior commissioned officer (in command) (in rank), who was then in the execution of (his) (her) office, (in) (on) the ________ with (a) ((his) (her)) ________.
Drawing or lifting up a weapon against superior commissioned officer:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) (draw) (lift up) a weapon, to wit: a ________, against ________, (his) (her) superior commissioned officer (in command) (in rank), then known by the said ________ to be (his) (her) superior commissioned officer (in command) (in rank), who was then in the execution of (his) (her) office.
Offering violence to superior commissioned officer:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) offer violence against ________, against ________, his/her superior commissioned officer (in command) (in rank), then known by the said ________ to be (his) (her) superior commissioned officer (in command) (in rank), who was then in the execution of (his) (her) office, by ________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused
(a) struck (state the name and rank of the alleged victim) (in) (on) ________ with ________;
(b) (drew) (lifted up) a weapon against (state the name and rank of the alleged victim), to wit: (state the weapon alleged);
(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;
(3) That the accused then 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 then in the execution of his/her office; [and]
NOTE 2: Aggravating factor alleged. In the event the aggravating factor is alleged, the military judge must advise the court members of the aggravating factor as an element.
((5)) That the offense was committed in time of war.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Superior commissioned officer” means a commissioned officer superior in rank or command.
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 superior, or military usage. In general, any striking or use of violence against any superior commissioned 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 contact and includes any offensive touching of the person of an officer, however slight.)
(The phrase “(drew) (lifted up) a weapon against” includes the drawing of any weapon in an aggressive manner or the raising or brandishing of the same in a threatening manner in the presence of and at the superior. (The phrase “lifted up” includes the raising in a threatening manner of a firearm, whether or not loaded, of a club, or of anything by which a serious blow or injury could be given.))
(“Offered violence against” includes any type of assault.)
NOTE 3: Defining assault. When necessary, the judge should supplement these instructions with appropriately tailored instructions on “assault” and “assault consummated by battery.” See para. 3-52-1 and 3-52-2.
NOTE 4: Divestiture of status raised. When the issue has arisen as to whether the officer has conducted himself or herself in 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.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.