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: 2/3 x 3 months, 3 months, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), was, (at/on board—location), on or about __________, as a result of previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of (his) (her) duties.
c. ELEMENTS:
(1) That the accused had certain duties to perform, to wit: (state the duties alleged);
(2) That (state the time and place alleged), the accused was incapacitated for the proper performance of such duties; and
(3) That such incapacitation was the result of previous indulgence in intoxicating liquor or any drug.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“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.
“Incapacitated” means unfit or unable to properly perform duties as a result of previous alcohol consumption or drug use. Illness resulting from previous indulgence is an example of being “unable” to perform duties.
NOTE 2: Mistake of Fact. The accused’s lack of knowledge of the duties assigned is an affirmative defense to this offense. If there is evidence raising such a defense, the following instruction should be given.
The evidence has raised the issue of ignorance on the part of the accused concerning the (duty) (duties) he/she was required to perform in relation to the offense of Incapacitation for Duty from Drunkenness or Drug Use.
If the accused, at the time of the offense, did not know that he was required to perform the (duty) (duties) alleged, then he/she cannot be found guilty of the offense of Incapacitation for Duty from Drunkenness or Drug Use.
The ignorance, no matter how unreasonable it might have been, is a defense. In deciding whether the accused did not know that he was required to perform the (duty) (duties) alleged, you should consider the probability or improbability of the evidence presented on the matter.
You should consider the accused's (age) (education) (experience) (__________) along with the other evidence on this issue, (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)).
The burden is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that at the time of the alleged offense(s) the accused knew that he was required to perform the (duty) (duties) alleged, then the defense of ignorance does not exist.
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.