Distruction of Government Property

Today, I heard an soldier talking about a injury he received while he was drunk that he never sought treatment for because he might have been sent to a court-martial for destruction of government property. This military urban myth has been around for decades; in the myth, usually somebody was tried at a court martial because his sunburn was considered destruction of government property. This myth is easily dispelled by just reading the actual UCMJ, and not listening to urban myths repeated by others.

Although I was never a military lawyer, I have over 20 years of military law enforcement experience gained during 26 years of active duty in the Navy. Therefore, I know something about the Uniform Code of Military Justice (UCMJ) since I investigated and charged hundreds of sailors for violations of it.

The article in question is Article 108: Destruction of Government Property. The article states:
“Any person subject to this chapter who, without proper authority—

(1) sells or otherwise disposes of;

(2) willfully or through neglect damages, destroys, or loses; or

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of, any military property of the United States, shall be punished as a court-martial may direct.”

To be convicted of any article in the UCMJ, all of at least one of the elements of the crime (article) must be proven.

The elements of Article 108 are as follows:

(1) Selling or otherwise disposing of military property.

(a) That the accused sold or otherwise disposed of certain property (which was a firearm or explosive);

(b) That the sale or disposition was without proper authority;

(c) That the property was military property of the United States, and

(d) That the property was of a certain value.

(2) Damaging, destroying, or losing military property.

(a) That the accused, without proper authority, damaged or destroyed certain property in a certain way, or lost certain property;

(b) That the property was military property of the United States;

(c) That the damage, destruction, or loss was willfully caused by the accused or was the result of neglect by the accused; and

(d) That the property was of a certain value or the damage was of a certain amount.

(3) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of.

(a) That certain property (which was a firearm or explosive) was lost, damaged, destroyed, sold, or wrongfully disposed of;

(b) That the property was military property of the United States;

(c) That the loss, damage, destruction, sale, or wrongful disposition was suffered by the accused, without proper authority, through a certain omission of duty by the accused;

(d) That the omission was willful or negligent; and

(e) That the property was of a certain value or the damage was of a certain amount.

The element we are concerned with is the element (2). To be convicted of damaging government property, all the parts of this element must be proven. Part (b) of the element states that the property must be the military property of the United States. So can a person be the property of the United States.? The answer is no! The UCMJ speaks about “person” and “property” in many places and always makes a distinction between the two. Legally, property is owned and thus may be bought and sold. It has been over 100 years since any person was bought or sold in the United States.

Even if an argument could be made that people may be considered property, then part (d) would still pose an insurmountable obstacle. Part (d) states that the property was of a certain value or the damage was of a certain amount. What value could be placed on a person, a few dollars for the mineral content, a few thousand dollars for the sale of body parts, or maybe a few million dollars for sentimental value?

Some people say that instead of Article 108, a person with sunburn would more likely be charge with Article 115: Malingering. This article states:

Any person subject to this chapter who for the purpose of avoiding work, duty, or service”—

(1) feigns illness, physical disablement, mental lapse or derangement; or

(2) intentionally inflicts self-injury; shallbe punished as a court-martial may direct.

Its elements are:

(1) That the accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service;

(2) That the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself; and

(3) That the accused’s purpose or intent in doing so was to avoid the work, duty, or service. Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following element

(4) That the offense was committed (in time of war) (in a hostile fire pay zone).

The accused’s action must have been for the express purpose of avoiding doing something that the accused knew he or she was required to do. With this limitation, someone who gets accidentally sunburned at the pool would not be charged with malingering. However, if it could be proved that the person got sunburned for the express purpose of avoiding a duty, he or she could be charged with malingering.

In the military you are not taken to an Article 15 (administrative hearing for minor offenses) or to a court-martial (criminal trial) for first time minor offenses. Your direct supervisor give you more chances until he or she is fed up with you; then the office in charge will give you more chances until he or she is fed up with you. When a person goes to a Article 15 hearing it is because his or her chain of command has run out of other options.

Article 15 hearings are subject to appeal and courts-martial are automatically appealed. In addition, all military convictions are subject to review at many different levels. No military commander is going to put his or her career and integrity at risk to falsely punish some twerp.

Military accused have the same rights as they would have in the civilian justice system. The likelihood of false conviction in the military justice system is no more than it is in the civilian justice system.

As with other segments of society, the military has its share of people who are uninformed or misinformed. Just because a person served in the military for a few years, it does not make the person an authority on all aspects of the military.