Article 105—Misconduct as a prisoner

a. Text of statute.

    Any person subject to this chapter who, while in the hands of the enemy in time of war—

    (1) for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or

    (2) while in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct.

b. Elements.

(1) Acting without authority to the detriment of another for the purpose of securing favorable treatment.

(a) That without proper authority the accused acted in a manner contrary to law, custom, or regulation;

(b) That the act was committed while the accused was in the hands of the enemy in time of war;

(c) That the act was done for the purpose of securing favorable treatment of the accused by the captors; and

(d) That other prisoners held by the enemy, either military or civilian, suffered some detriment because of the accused’s act.

(2) Maltreating prisoners while in a position of authority.

(a) That the accused maltreated a prisoner held by the enemy;

(b) That the act occurred while the accused was in the hands of the enemy in time of war;

(c) That the accused held a position of authority over the person maltreated; and

(d) That the act was without justifiable cause.

c. Explanation.

(1) Enemy. For a discussion of “enemy,” see paragraph 23c(1)(b).

(2) In time of war. See R.C.M. 103(19).

(3) Acting without authority to the detriment of another for the purpose of securing favorable treatment.

(a) Nature of offense. Unauthorized conduct by a prisoner of war must be intended to result in improvement by the enemy of the accused’s condition and must operate to the detriment of other prisoners either by way of closer confinement, reduced rations, physical punishment, or other harm. Examples of this conduct include reporting plans of escape being prepared by others or reporting secret food caches, equipment, or arms. The conduct of the prisoner must be contrary to law, custom, or regulation.

(b) Escape. Escape from the enemy is authorized by custom. An escape or escape attempt which results in closer confinement or other measures against fellow prisoners still in the hands of the enemy is not an offense under this article.

(4) Maltreating prisoners while in a position of authority.

(a) Authority. The source of authority is not material. It may arise from the military rank of the accused or—despite service regulations or customs to the contrary—designation by the captor authorities, or voluntary election or selection by other prisoners for their self-government.

(b) Maltreatment. The maltreatment must be real, although not necessarily physical, and it must be without justifiable cause. Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, constitute this offense.

d. Lesser included offense. Article 80—attempts

e. Maximum punishment. Any punishment other than death that a court-martial may direct. See R.C.M. 1003.

f. Sample specifications.

(1) Acting without authority to the detriment of another for the purpose of securing favorable treat- ment.

In that _________ (personal jurisdiction data), while in the hands of the enemy, did, (at/on board— location) on or about __________ 20____ , a time of war, without proper authority and for the purpose of securing favorable treatment by his/her captors, (report to the commander of Camp _________ the preparations by __________, a prisoner at said camp, to escape, as a result of which report the said _________ was placed in solitary confinement) ( ___________ ).

(2) Maltreating prisoner while in a position of authority.

In that _________ (personal jurisdiction data), while in the hands of the enemy, did, (at/on board— location) on or about __________ 20____, a time of ward, while in the hands, of the enemy and in a position of authority over _________, a prisoner at _________, as (officer in charge of prisoners at _________ ) (_________ ), maltreat the said __________ by(depriving him/ her of _________) (________ ), without justifiable cause.