Military Malingering Defense Lawyers – Article 83, UCMJ

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The essence of this offense is the design to avoid performance of any work, duty, or service which may properly or normally be expected of one in the military service. Whether to avoid all duty, or only a particular job, it is the purpose to shirk which characterizes the offense. Hence, the nature or permanency of a self-inflicted injury is not material on the question of guilt, nor is the seriousness of a physical or mental disability which is a sham. Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose. MCM, pt. IV, 40c(1).

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Falsely Accused of Military Sexual Assault: What Should I Do?

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Elements

1. The accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service.
   1. All soldiers are inferred to be aware of their general, routine military duties. United States v. Mamaluy , 27 C.M.R. 176 (C.M.A. 1959).
   2. With regard to special duties or prospective assignments ( e.g. , emergency deployment to hostile regions), the government must establish that accused had actual knowledge of such duties.
2. The accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself.
   1. United States v. Pedersen , 8 C.M.R. 63 (C.M.A. 1953). Accused was charged with intentionally shooting himself in order to be discharged from the Army but testified at trial that the injury was accidentally inflicted. No one witnessed the shooting, and the government had no admissible evidence with which to impeach the accused. As a result, the court held that the prosecution had failed in its proof and dismissed the charges.
   2. United States v. Kisner , 35 C.M.R. 125 (C.M.A. 1964). Accused was charged with deliberately shooting himself in the foot in order to avoid transfer to Korea. After initially declaring that the injury was accidentally incurred, he confessed to intentionally inflicting the wound in order to avoid deployment to Korea. Because the record was devoid of any independent evidence to corroborate the confession, the Court of Military Appeals reversed the conviction and dismissed the charge.
   3. United States v. Belton , 36 C.M.R. 602 (A.B.R. 1966). Accused on orders to Vietnam, who refused to eat food over a period of time, resulting in his debility, intentionally inflicted self-injury for purposes of Article 115.
3. The accused’s purpose or intent in doing so was to avoid the work, duty or service.
   1. The words “work,” “duty,” and “service” are not restricted to one context or sense. The breadth of these terms would seem to cover all aspects of a serviceperson’s official existence. Unquestionably, what the law intended to proscribe was a self-inflicted injury, which would prevent the injured party from being available for the performance of all military tasks. See United States v. Mamaluy , 27 C.M.R. 176 (C.M.A. 1959) (Cutting his wrist to escape confinement was sufficient to allege a purpose to avoid either work, duty, or service.); United States v. Guy , 38 C.M.R. 694 (N.B.R. 1967) (Intentional self- injury for the purpose of avoiding disciplinary action was sufficient to avoid either work, duty, or service); United States v. Johnson , 28 C.M.R. 629 (N.B.R. 1959) (a sailor who persuaded a friend to cut off his thumb was convicted of conspiracy to maim himself and malingering when the act was done as a means of avoiding further military duty).
   2. Intent or purpose may be established by circumstantial evidence, and it may be inferred that a person intended the natural and probable consequences of an act intentionally performed by him. United States v. Houghton , 32 C.M.R. 3 (C.M.A. 1962); but see United States v. Lawrence , 10 M.J. 752 (A.C.M.R. 1981) (court held that evidence which established only that the accused injured himself in order to halt an investigation into a false report he had filed was insufficient to support a conviction for malingering).
   3. Unsuccessfully attempting to commit suicide to avoid prosecution constitutes malingering. United States v. Johnson , 26 M.J. 415 (C.M.A. 1988).
   4. Evidence of prior misconduct may be admissible against the accused for the limited purpose of establishing his wrongful intent. See United States v. Brown , 38 C.M.R. 445 (A.B.R. 1967) (where the accused was charged with malingering by intentionally shooting himself in the foot while on a combat mission in Vietnam, evidence that he had quit as a point man for a patrol the day before the shooting and had skulked in bringing up the rear and wanted to be evacuated and complained of headaches was relevant on the issue of intent).

Defense of Accident

United States v. Harrison , 41 C.M.R. 179 (C.M.A. 1970). Where an accused charged with malingering by intentionally shooting himself in the foot for the purpose of avoiding duty in the field testified he had a faulty weapon which discharged accidentally while he was dozing, the instructions on the elements of the offense and the defense of accident were prejudicially inconsistent where the court was advised it must find the accused intentionally inflicted injury upon himself by shooting himself in the foot, but the instructions on accident included the statement that even though the act is unintentional, it is not excusable where it was a result of or incidental to an unlawful act.

To Avoid Assigned Duty

See United States v. Yarborough , 5 C.M.R. 106 (C.M.A. 1952)(malingering to avoid assigned duty while before the enemy constitutes misbehavior punishable under UCMJ art. 99). See also , United States v. Glover , 33 M.J. 640 (N.M.C.M.R. 1991) (testimony required from people who knew what restrictions had been placed on accused’s activity to show he was attempting to avoid assigned duties.)

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Without Intent to Avoid Military Duty

See United States v. Taylor , 38 C.M.R. 393 (C.M.A.1968). In Taylor , the evidence pertaining to a charge of malingering in violation of UCMJ art. 115 showed that the accused superficially slashed his arms with a razor blade in the presence of two cell mates in the brig, representing at the time that he wanted to outdo the performance of another inmate who had done the same thing earlier. The law officer instructed that intentional injury without a purpose to avoid service but under circumstances to the prejudice of good order and discipline was a lesser included offense, and the court could validly find the accused not guilty of the portion of the specification alleging the purpose of the injury to have been avoiding service and the accused guilty of being disorderly to the prejudice of good order and discipline in the armed forces in violation of Article 134, UCMJ. Held: Article 115 does not pre-empt the spectrum of self-inflicted injuries. See also United States v. Ramsey, 40 M.J. 71 (C.M.A. 1994). XXVI.