This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Between 2001 and 2021, the United States deployed roughly 2.7 million service members to Iraq and Afghanistan across both theaters, according to the Watson Institute for International and Public Affairs at Brown University. In that entire period, Article 99 charges remained extraordinarily rare. The most prominent case, United States v. Bergdahl (2017), involved a soldier charged with misbehavior before the enemy after his 2009 desertion from a combat outpost in Paktika Province, Afghanistan. The charge alleged that Bergdahl’s departure endangered the safety of his command when search parties sent to find him came under enemy fire. He was convicted, receiving a dishonorable discharge, reduction in rank, and a fine of $1,000 per month for 10 months, with no confinement.
The rarity of Article 99 prosecutions doesn’t reflect the article’s irrelevance. It reflects how seriously the military takes the charge. Article 99 carries the death penalty for every offense it defines, and invoking it signals something fundamentally different from ordinary misconduct.
“Before or in the Presence of the Enemy”
Article 99 (10 U.S.C. § 899) defines nine separate offenses. All share a single threshold requirement: the conduct must occur “before or in the presence of the enemy.” The nine offenses are: The MCM 2024 (Part IV, Paragraph 24) details the elements for each of the nine subsections, all requiring proof that the accused was before or in the presence of the enemy.
Running away. Shamefully abandoning, surrendering, or delivering up any command, unit, place, or military property it is the accused’s duty to defend. Endangering the safety of a command through disobedience, neglect, or intentional misconduct. Casting away arms or ammunition. Cowardly conduct. Quitting a place of duty to plunder or pillage. Causing false alarms. Willfully failing to do one’s utmost to encounter, engage, capture, or destroy the enemy. Failing to afford all practicable relief and assistance to allied forces engaged in battle.
Each offense targets a distinct failure mode in combat. Some punish active betrayal, surrendering a position, throwing away weapons. Others punish passive failure, not engaging the enemy, not helping allies under fire. The breadth is deliberate: Article 99 covers every way a service member can fail their combat obligations, from cowardice to negligence to deliberate sabotage.
“Before or in the Presence of the Enemy”
This phrase controls the entire article. Without it, most Article 99 offenses would collapse into lesser charges, dereliction under Article 92, disobedience under Article 90 or 91, absence offenses under Articles 85 or 86. Enemy presence transforms the nature of the misconduct.
Under the MCM, “enemy” is defined broadly: any hostile body that armed forces may be opposing, including combatants in both declared and undeclared conflicts. Formal war is not required. “Before or in the presence of” extends beyond direct visual contact, it includes situations where the accused is in a zone of active or expected hostile operations. A supply convoy moving through contested territory is “in the presence of the enemy” even if no enemy combatant is visible at that moment. A soldier at a forward operating base that receives regular indirect fire is “before the enemy” during the entirety of their deployment to that base.
Geography alone doesn’t determine the threshold. It asks: was the enemy a present factor in the tactical situation? If so, Article 99 applies.
Cowardice: The Most Legally Complex Offense
Among the nine offenses, cowardly conduct receives the most careful legal definition because it criminalizes something dangerously close to a natural human response. The MCM draws a sharp boundary: conduct is “cowardly” only if it amounts to misbehavior motivated by fear.
Fear itself is not criminal. A soldier who feels terrified under fire has committed no offense. A soldier who displays apprehension, shaking hands, elevated breathing, visible distress, has committed no offense. Even momentary hesitation under fire, standing alone, does not constitute cowardice. The offense requires an act, or failure to act, that constitutes misbehavior, where fear is the motivating cause.
This distinction matters because combat universally produces fear. Military discipline doesn’t demand fearlessness. It demands performance despite fear. A soldier who admits terror but continues to engage the enemy hasn’t committed cowardly conduct. A soldier who abandons a defensive position and hides in a bunker while their squad is under fire has, because the misbehavior (abandoning position) was motivated by fear (avoiding the engagement).
Proving motivation is the evidentiary challenge. Prosecution must establish that fear, specifically, caused the misbehavior, not confusion, not misunderstanding of orders, not tactical judgment. A squad leader who pulls their team back from an exposed position under heavy fire is making a tactical decision, even if fear contributed to it. The same squad leader who runs alone from the position, leaving their team, has acted on personal fear rather than tactical judgment.
United States v. Bergdahl illustrated this distinction. The prosecution charged misbehavior under the third offense (endangering safety through misconduct) rather than cowardice. The charge fit Article 99 because the departure from a combat outpost endangered the command when search parties came under fire, without requiring the prosecution to prove that fear of the enemy motivated the conduct.
Shameful Abandonment vs. Tactical Withdrawal
The second offense, shamefully abandoning, surrendering, or delivering up a command or position, contains a qualifier that defines its scope: “shamefully.” Not every withdrawal from a position constitutes abandonment. Not every surrender violates Article 99.
A commander who surrenders a position when ammunition is exhausted, the unit is encircled, and continued resistance would result in annihilation without military purpose has not “shamefully” surrendered. A commander who surrenders an intact, defensible position to avoid personal danger has. The word “shamefully” imports a standard of military reasonableness: would a competent officer in the same circumstances consider this action disgraceful?
Tactical withdrawal ordered by higher command is never shameful abandonment, even if the position being abandoned is later overrun. The obedience hierarchy resolves the conflict, a lawful order to withdraw supersedes the duty to defend a specific position.
The “delivering up” language targets a different scenario: the officer who actively hands over a position, military property, or command to the enemy. This goes beyond passive surrender. Delivering up implies an affirmative transfer, cooperating with the enemy to ensure they gain control of what the accused was duty-bound to protect.
The Duty to Engage and the Duty to Assist
Offenses eight and nine, failing to do one’s utmost to engage the enemy and failing to assist allies in battle, impose affirmative duties. These aren’t prohibitions against harmful action; they’re requirements for action.
The “utmost” standard in offense eight is demanding. It doesn’t require suicidal action, a court-martial would evaluate what a reasonable service member in the same tactical position could accomplish. But it requires genuine effort, not merely the appearance of engagement. A fighter pilot who dumps ordnance in empty terrain rather than making a combat pass against a defended target hasn’t done their utmost. An infantry soldier who fires over the enemy’s heads rather than at them hasn’t done their utmost.
The ninth offense, failing to afford all “practicable” relief to allied forces, uses a different standard. “Practicable” acknowledges that assisting allies sometimes conflicts with the immediate tactical situation. A unit pinned down by enemy fire has no obligation to break contact and rush to an ally’s aid. But a unit with the capability and tactical freedom to assist allied forces engaged in battle must do so.
Both offenses require willfulness or recklessness, not mere ineffectiveness. A soldier who tries to engage the enemy but misses every shot hasn’t committed misbehavior. A soldier who deliberately aims to miss has.
The Death Penalty and Proportionality
Every offense under Article 99 is death-eligible. This makes Article 99 one of the broadest capital articles in the UCMJ. Running away carries the same maximum penalty as casting away arms, which carries the same maximum as causing false alarms. No other punitive article applies the death penalty so uniformly across such varied conduct.
This uniformity is intentional. Article 99 doesn’t calibrate punishment to the specific misconduct, it calibrates to the context. Any failure before the enemy is treated as potentially catastrophic because the consequences are unpredictable. A soldier who causes a false alarm might trigger a friendly fire incident. A soldier who runs away might create a gap in the defensive line that leads to a unit being overrun. The death penalty authorization reflects the potential severity, not the guaranteed outcome.
In practice, the death penalty has never been imposed under Article 99 in the modern era. In United States v. Bergdahl, the sentence included no confinement. The historical use of the death penalty under Article 99’s predecessor (Article of War 75) during World War II, particularly the execution of Private Eddie Slovik in 1945 for desertion before the enemy, remains the most cited example, though that case technically involved Article of War 58 (desertion), not Article of War 75 (misbehavior).
The 12-member panel requirement, unanimous verdict mandate, and separate sentencing phase for capital cases create procedural barriers that make Article 99 death sentences extremely unlikely. The capital authorization functions more as a statement of institutional values, combat failures threaten not just individual lives but unit cohesion, mission success, and ultimately national security, than as a realistic sentencing outcome.
Relationship to Other Combat and Duty Articles
Article 99 overlaps with several other punitive articles, and the overlap creates charging decisions the prosecution must navigate carefully.
Running away before the enemy shares elements with desertion under Article 85. The distinction: Article 85 requires intent to remain away permanently or to avoid hazardous duty. Article 99 doesn’t require permanent intent, momentary flight from an engagement is sufficient if it constitutes running away before the enemy. A soldier who flees a firefight and returns ten minutes later hasn’t deserted but has potentially committed misbehavior.
Endangering a command through disobedience overlaps with Article 90 (willful disobedience of a superior commissioned officer) and Article 92 (failure to obey). The Article 99 version adds two elements the others lack: the enemy’s presence and the endangerment of safety. These additions make Article 99 the more serious charge, and the death-eligible one.
Casting away arms connects to Article 108 (military property offenses). Destroying your rifle in garrison is a property offense. Throwing it away during a firefight is misbehavior before the enemy.
The prosecution’s charging decision often comes down to whether “before or in the presence of the enemy” can be proven. Without it, the same conduct channels into lesser articles with less severe maximum punishment.
The elements of Article 99 offenses vary by subsection, but every charge requires proof that the accused was before or in the presence of the enemy at the time of the alleged misconduct. For running away: the accused was before the enemy, misbehaved by running away, and the running away was to avoid actual or anticipated engagement. For endangering safety: the accused was before the enemy, committed disobedience/neglect/intentional misconduct, and that conduct endangered the safety of a command, unit, place, or military property the accused had a duty to protect. For cowardice: the accused was before the enemy, committed an act of misbehavior, and the misbehavior was motivated by fear. Each subsection’s specific elements are detailed in the MCM, but the common thread, the enemy’s presence transforming misconduct into something categorically more serious, runs through all nine.
Joseph L. Jordan, Attorney at Law: Article 99 defines nine separate offenses committed before or in the presence of the enemy, from running away to cowardly conduct to failing to engage. Every offense under this article carries the death penalty. It is among the most severe and least frequently prosecuted provisions in the UCMJ.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.