NOTE: 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 __________, without proper authority, offer to surrender to the enemy by (striking the (colors) (flag)) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), there was an offer to surrender to an enemy;
(2) That this offer was made by striking the colors or flag to the enemy or in some other manner;
(3) That the accused made or was responsible for the offer; and
(4) That the accused did not have proper authority to make the offer.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
To “strike the colors or flag” means to haul down the colors or flag in the face of the enemy or to make any other offer of surrender.
The offense is committed when a person takes upon (himself) (herself) the authority to surrender a military force or position (except as a result of the utmost necessity or extremity) (unless authorized to do so by competent authority). (An engagement with the enemy does not have to be in progress when the offer to surrender is made, but it is essential that there is sufficient contact with the enemy to give the opportunity for making the offer.) (It is not essential that the enemy receive, accept, or reject the offer. However, the offer must be transmitted in some manner designed to result in receipt by the enemy.) (The sending of an emissary charged with making the offer or surrender is an act sufficient to prove the offer, even though the emissary does not reach 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.