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) being (before) (in the presence of) the enemy, did, (at/on board—location), on or about __________, by (ordering (his) (her) own troops to halt their advance) (__________), willfully fail to do (his) (her) utmost to (encounter) (engage) (capture) (destroy), as it was (his) (her) duty to do, (certain enemy troops which were in retreat) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused was serving before or in the presence of the enemy;
(2) That the accused had a duty to (encounter) (engage) (capture) (destroy) certain enemy (troops) (combatants) (vessels) (aircraft) (__________); and
(3) That the accused willfully failed to do (his) (her) utmost to perform this duty by (state the manner in which (he) (she) failed to perform).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Willfully failed” means intentionally failed. “Utmost” means taking every reasonable measure called for by the circumstances, keeping in mind such factors as the accused’s rank or grade, responsibilities, age, intelligence, training, (and) physical condition (and __________).
“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), is ordinarily applicable.