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: 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, endanger the safety of __________, which it was (his) (her) duty to defend, by (disobeying an order from __________ to engage the enemy) (neglecting (his) (her) duty as a sentinel by engaging in a card game while on (his) (her) 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, or intentional misconduct;
(4) That the accused thereby 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 or in the presence of the enemy.
d. DEFINITIONS AND 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” does not include a mere error in judgment.)
“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.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), may be applicable. Instruction 5-5, Causation may be appropriate when causation is in issue.