NOTE 1: 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.
NOTE 2: 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: Death or other lawful punishment. (Criteria)
b. SAMPLE 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 (his) (her) 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 or 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. DEFINITIONS AND OTHER INSTRUCTIONS:
The behavior of the accused was “shameful” if the (command) (unit) (place) (ship) (military property) was (abandoned) (surrendered or delivered up) except as a result of the utmost necessity or unless directed to do so by competent authority. 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 control) (giving up) (yielding) (leaving) because of threatened dangers or encroachments.))
“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into combat, may be “before or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy. To determine whether or not the accused was “before or 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 organized opposing forces in time of war, any 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.