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: DD, TF, 25 years, E-1. (Category 3)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, willfully and maliciously (burn) (set on fire) an inhabited dwelling, to wit: (a house) (an apartment) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (burned) (set on fire) an inhabited dwelling, that is: (state the inhabited dwelling alleged); and
(2) That the act was willful and malicious.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
An act is done “willfully” if done intentionally or on purpose.
An act is done “maliciously” if done deliberately for some mischievous purpose and without legal justification or excuse. The malice required for this offense does not have to amount to ill will or hostility. It is sufficient if a person deliberately and without legal justification or excuse burns or sets fire to the inhabited dwelling.
There is no requirement that the accused specifically intend to set fire to or burn the dwelling alleged in the specification. To satisfy the elements of this offense, the accused need only willfully and maliciously start the fire that resulted in the burning or charring of the dwelling alleged.
“Inhabited dwelling” means the structure must be used for habitation, not that a human being must be present therein at the time the dwelling is burned or set on fire. It includes the outbuildings that form part of the cluster of buildings used as a residence. (A shop or store is not an inhabited dwelling unless occupied as such, nor is a house that has never been occupied or which has been temporarily abandoned.)
(A person may be found guilty of burning their own dwelling, whether they are an owner or tenant of said dwelling).
(Proof that the dwelling was consumed or materially injured is not required to establish the offense. It is sufficient if any part of the dwelling is burned or charred.) (A mere scorching or discoloration caused by heat is not sufficient.)
e. REFERENCES: US v. Acevedo-Velez, 17 MJ 1 (CMA 1983); US v. Caldwell, 17 MJ 8 (CMA 1983); US v. DeSha, 23 MJ 66 (CMA 1986); US v. Banta, 26 MJ 109 (CMA 1988); US v. Crutcher, 49 MJ 236 (CAAF 1998).