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: BCD, TF, 9 months, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), was, (at/on board—location), on or about __________, found drunk while on duty as __________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused was on duty as (state the nature of the military duty); and
(2) That the accused was drunk while on this duty.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Drunk” means either (1) the state of intoxication by alcohol that is sufficient to impair the rational and full exercise of mental or physical faculties, or (2) the state of meeting or exceeding a blood alcohol content limit with respect to alcohol concentration in a person's blood of 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath of 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
“Duty” means military duty. Every duty which an officer or enlisted person may legally be required by superior authority to execute is necessarily a military duty.
“On duty” means duties or routine or detail, in garrison, at a station, or in the field. It does not relate to those periods when the person has no duty required of them by order or regulation and is therefore considered “off duty” or “on liberty”. (In a region of active hostilities, the circumstances are often such that all members of a command may properly be considered as being continuously on duty.)
(Commanders, while in the field or on board a ship, are constantly on duty when in the actual exercise of command.)
(An officer of the day and members of the guard, or of the watch, are on duty during their entire tour.)
NOTE 2: If there is evidence that the accused used both alcohol and other drugs, the following instruction on proximate cause may be appropriate:
You have heard evidence that the accused used both alcohol and other drugs. The term “drunk” relates only to intoxication by alcohol. To find the accused guilty of the offense of being drunk on duty, you must be convinced beyond a reasonable doubt that the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of the accused’s mental or physical faculties. This means that the impairment of the rational and full exercise of the accused’s mental or physical faculties must have been the natural and probable result of the accused’s intoxication by alcohol. A proximate cause does not have to be the only cause, nor must it be the immediate cause. However, it must be a direct or contributing cause that plays a material role, meaning an important role, in bringing about the impairment.
It is possible for the use of both alcohol and other drugs to each contribute as a proximate cause to the impairment of the rational and full exercise of the accused’s mental or physical faculties. If the accused’s intoxication by alcohol was a proximate cause of the impairment, the accused will not be relieved of criminal responsibility because his use of other drugs was also a proximate cause of the impairment.
In determining whether the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of his/her mental or physical faculties, and the role, if any, of the use of other drugs, you must consider all relevant facts and circumstances, including, but not limited to, (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
NOTE: If there is evidence (1) that the accused may not have been drunk while actually on the duty alleged or (2) that the accused may not have actually performed the duty alleged, the following instruction may be appropriate:
To be guilty of this offense, the accused must have been drunk while actually on the duty alleged. If the accused was drunk but did not actually undertake the responsibility or enter upon the duty at all, the accused is not guilty of this offense. (An accused may be guilty of this offense if the accused was drunk while on duty of an anticipatory nature, such as that of an aircraft crew ordered to stand by for a flight duty, or of an enlisted person ordered to stand by for guard duty.)
NOTE 3: If there is evidence that the accused was permitted to assume the duty by a superior authority who knew the accused was drunk, the following instruction should be given.
It is a defense to this offense if, at the time the duty was assigned, a superior authority knew the accused was drunk and thereafter allowed the accused to assume the duty anyway. You may not convict the accused of this offense unless you are convinced beyond a reasonable doubt that the accused’s superiors did not allow (him)(her) to assume this duty while knowing that (he)(she) was drunk.
NOTE 4: If there is evidence that the accused may have accidentally overdosed on prescribed medication, the following instruction should be given.
It is a defense to this offense if the accused’s drunkenness resulted from an accidental overdose administered for medicinal purposes. You may not convict the accused of this offense unless you are convinced beyond a reasonable doubt that the accused’s drunkenness did not result from such an accidental overdose.