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, fail to afford all practicable relief and assistance to (the U.S.S. __________, which was engaged in battle and had run aground, in that (he) (she) failed to take her in tow) (certain troops of the ground forces of __________, which were engaged in battle and were pinned down by enemy fire, in that (he) (she) failed to furnish air cover) (__________) as (he) (she) properly should have done.
c. ELEMENTS:
(1) That certain (state the troops, combatants, vessels, or aircraft of the armed forces alleged) belonging to the United States or an ally of the United States were engaged in battle and required relief and assistance;
(2) That the accused was in a position and able to render relief and assistance to these (troops) (combatants) (vessels) (aircraft), without jeopardy to (his) (her) mission;
(3) That (state the time and place alleged), the accused failed to afford all practicable relief and assistance as (he) (she) properly should have done in that (state what the accused is alleged to have failed to do); and
(4) That, at the time specified, the accused was before or in the presence of the enemy.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“All practicable relief and assistance” means all relief and assistance reasonably required which could be provided within the limitations imposed upon the accused by reason of (his) (her) own specific task or mission.
“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: Defense. If the task or mission of the accused was so important that it could not be delayed or deviated from, no offense is committed by failing to afford such relief and assistance.