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 or other lawful punishment. (Criteria)
(2) While receiving special pay under 37 USC § 310: DD, TF, 10 years, E-1. (Criteria)
(3) In all other circumstances: DD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), on or about __________ (a time of war) (at/on board— location), (while receiving special pay under 37 USC § 310), being (posted) (on post) as a (sentinel) (lookout) at (warehouse no. 7) (post no. 11) (for radar observation) (__________) (was (drunk) (sleeping) upon (his) (her) post) (did leave (his) (her) 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), the accused [was (drunk) (sleeping) while on post] [left (his) (her) post before being regularly relieved]; [and]
NOTE 2: Aggravating conditions alleged. Add element (3) only if it is alleged that the offense occurred in time of war or while the accused was receiving special pay under 37 USC § 310:
[(3)] That the offense was committed (in time of war) (while the accused was receiving special pay under 37 USC § 310).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A “sentinel” or a “lookout” is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place and to sound the alert, if necessary.
(“Post” is the area where the sentinel or lookout is required to be for the performance of duties. It is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the sentinel or lookout was posted.) (The offense of leaving post is not committed when a sentinel or lookout goes an immaterial distance from the post, unless it is such a distance that the ability to fully perform the duty for which posted is impaired.) (A sentinel or lookout becomes “on post” after having been given a lawful order to go “on post” as a sentinel or lookout and being formally or informally posted. The fact that a sentinel or lookout is not posted in the regular way is not a defense. It is sufficient, for example, if the sentinel or lookout has taken the post in accordance with proper instruction, whether or not formally given.)
(A sentinel or lookout is “on post” within the meaning of this offense not only when at a post physically defined, as is ordinarily the case in garrison or aboard ship, but also, for example, when stationed in observation against the approach of an enemy, or detailed to use any equipment designed to locate friend, foe, or possible danger, or at a designated place to maintain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work.)
NOTE 3: Drunkenness alleged. When drunkenness is alleged, include the following definition of “drunk.” If there is evidence that the accused used both alcohol and other drugs, the following instruction on proximate cause may be appropriate:
“Drunk” means any intoxication by alcohol which is sufficient to impair the rational and full exercise of the mental or physical faculties.
(You have heard evidence that the accused used both alcohol and other drugs. The term “drunk” relates only to intoxication by alcohol. To find the accused guilty of the offense of misbehavior of (sentinel) (lookout), you must be convinced beyond a reasonable doubt that the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of the accused’s mental or physical faculties. This means that the impairment of the rational and full exercise of the accused’s mental or physical faculties must have been the natural and probable result of the accused’s intoxication by alcohol. A proximate cause does not have to be the only cause, 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, in bringing about the impairment.
It is possible for the use of both alcohol and other drugs to each contribute as a proximate cause to the impairment of the rational and full exercise of the accused’s mental or physical faculties. If the accused’s intoxication by alcohol was a proximate cause of the impairment, the accused will not be relieved of criminal responsibility because his use of other drugs was also a proximate cause of the impairment.
In determining whether the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of his/her mental or physical faculties, and the role, if any, of the use of other drugs, 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 issue and indicate the respective contentions of counsel for both sides)).
NOTE 4: Sleeping on post alleged. If sleeping on post is alleged, the following 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 5: Other instructions. Instruction 5-18-1, Physical Impossibility, may be applicable.