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.
After a sequence of capital wartime offenses, spies, espionage, aiding the enemy. Article 104 shifts abruptly. No death penalty. No wartime requirement. No enemy. Article 104 addresses something far more mundane but operationally significant: the deliberate destruction or theft of public records.
The shift isn’t random. The MJA 2016 reorganized the punitive articles, and the current Article 104 (Public Records Offenses) is an entirely new provision, not a renumbering of the pre-2019 Article 104 (Aiding the Enemy), which became Article 103b. Understanding this numbering history matters because legal references to “Article 104” in pre-2019 case law refer to aiding the enemy, not public records.
Willfulness as the Gatekeeper
Article 104 (10 U.S.C. § 904) defines two offenses. Both require the conduct to be “willful and unlawful.”
The first offense: altering, concealing, removing, mutilating, obliterating, or destroying a public record. The verb list is deliberately comprehensive, it covers every method of making a public record unavailable or inaccurate. Altering changes it. Concealing hides it. Removing takes it from where it belongs. Mutilating and obliterating damage it partially or completely. Destroying eliminates it.
The second offense: taking a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy it. This captures the preparatory act, taking possession of a record for destructive purposes, even if the destruction hasn’t occurred yet. Consider a service member who removes official maintenance logs from a unit’s files intending to destroy them before an inspection has committed the second offense at the moment of removal, not at the moment of destruction.
“Willfully” means the act was intentional, not accidental. A clerk who accidentally shreds a personnel record hasn’t committed an Article 104 offense. A clerk who deliberately shreds a personnel record to conceal discrepancies has. “Unlawfully” means without legal authority or justification. Records disposition following established retention schedules is lawful destruction, it doesn’t violate Article 104 even though it eliminates records.
What Constitutes a “Public Record”
The statute doesn’t define “public record,” but the term carries established legal meaning in military context. Public records include official military documents maintained by units, commands, and military agencies in the execution of their official duties: personnel records, maintenance logs, financial documents, investigative files, medical records, operational orders, readiness reports, inspection records, and administrative correspondence maintained as part of the official record.
The key characteristic: the record belongs to the government and serves an official function. Personal notes don’t qualify. Draft documents that haven’t entered the official record system are arguable. But once a document becomes part of the military’s official records, filed, logged, indexed, maintained per regulation, it’s a public record under Article 104.
Digital records fall within the statute’s scope. An electronic maintenance log in a military database is as much a “public record” as a paper log in a filing cabinet. Deleting database entries, corrupting files, or altering digital records with the required willful and unlawful intent satisfies the elements laid out in MCM 2024 (Part IV, Paragraph 55).
Why This Article Exists Separately
Military operations depend on accurate records to a degree that civilian organizations rarely match. Maintenance records determine whether aircraft fly and vehicles deploy. Personnel records determine promotions, assignments, and legal status. Financial records determine pay, benefits, and accountability for government funds. Medical records determine fitness for duty, disability claims, and treatment continuity. Readiness reports inform command decisions that affect force deployment and national security.
Destroying or altering any of these records doesn’t just create an administrative inconvenience, it corrupts the information systems that military decision-making relies on. A falsified maintenance record can put an aircraft in the air that shouldn’t fly. A destroyed investigation file can prevent accountability for serious misconduct. A concealed readiness report can lead to deployment decisions based on false information.
Article 104 exists because other UCMJ articles don’t cover this conduct precisely. Article 107 (False Official Statements) covers making false statements, not destroying records. Article 108 (Military Property) covers loss or destruction of military property, but records are a distinct category, their value lies in the information they contain, not their physical form. Article 92 (Failure to Obey) could cover violations of records management regulations, but it lacks the specificity and signaling that a dedicated records offense provides.
Punishment and Practical Significance
Maximum punishment: as a court-martial may direct. No specific ceiling is prescribed in the statute, which means the maximum follows the general rules in the MCM based on the nature and circumstances of the offense. This is substantially less severe than the capital wartime articles that precede it in the numbering sequence, appropriately so, since records offenses, while serious, don’t carry the same existential threat as espionage or aiding the enemy.
In practice, Article 104 charges are more likely in contexts where records destruction serves as a cover-up mechanism: destroying evidence of fraud, eliminating records of equipment failures before safety investigations, concealing personnel actions that violated regulations, or removing financial documentation to hide misuse of government funds. The records offense often accompanies other charges, the destruction is the means, and the underlying misconduct is the motive.
The shift from capital wartime offenses to records crimes is abrupt, but the logic connecting them is straightforward. A military that cannot trust its intelligence is vulnerable to the enemy. A military that cannot trust its records is vulnerable to itself. Article 104 addresses the second problem, and the fact that it carries no death penalty does not make it minor. Records destruction is how fraud hides, how accountability disappears, and how institutional memory gets selectively erased.
Joseph L. Jordan, Attorney at Law: Article 104 criminalizes the willful and unlawful alteration, concealment, removal, mutilation, or destruction of public records, as well as the taking of public records with the intent to alter or destroy them. This is a post-MJA 2016 provision, distinct from the pre-2019 Article 104 which covered aiding the enemy.
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.