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.
Article 96 has existed since the UCMJ’s enactment in 1950, and its core concern has not changed: the military’s custodial system depends on the people guarding prisoners to keep them confined. When a guard releases a prisoner without authorization, permits an escape, or compromises the custodial relationship by drinking with a prisoner, the integrity of that system fails. Article 96 criminalizes all three categories of failure, and it does so whether or not the prisoner was originally confined in strict compliance with the law.
That last clause matters. A guard who releases a prisoner cannot defend the action by arguing the prisoner’s confinement was technically defective. The UCMJ positions the custodian’s duty as independent of the confinement’s procedural validity. If you are charged with guarding a prisoner, you guard them. Questions about whether the confinement was lawful belong to other proceedings, not to the guard’s discretion.
The Military Justice Act of 2016 restructured Article 96 (10 U.S.C. § 896) by separating it into distinct subsections and adding a new offense, drinking with a prisoner, that previously existed only in the MCM’s discussion of the article. The pre-MJA version was a single sentence covering release and escape. The post-MJA version has explicit subsections for each offense type, clearer element structure, and the codified drinking prohibition.
Release, Escape by Neglect, Escape by Design, and Drinking
Release without proper authority
A person who, without proper authority, releases any prisoner committed to their charge. “Release” means the removal of restraint by the custodian, not by the prisoner, under circumstances that demonstrate to the prisoner they are no longer in legal confinement or custody. The custodian must lack proper authority, meaning the release was not authorized by a person with the power to order it. For post-trial prisoners, that authority typically rests with the commander who convened the court-martial or the officer exercising general court-martial jurisdiction. Maximum punishment: dishonorable discharge, total forfeiture, and two years’ confinement. The MCM 2024 (Part IV, Paragraph 21) defines three offense types under Article 96, each addressing a different failure in prisoner custody.
Allowing escape through neglect
A person who, through neglect, suffers any prisoner committed to their charge to escape. “Neglect” means the custodian failed to take the care that a reasonably careful person in the same capacity would have taken under the same or similar circumstances. The escape must be the proximate result of the neglect, a direct consequence, not the result of an unforeseeable cause. Maximum punishment: bad-conduct discharge, total forfeiture, and one year’s confinement.
Allowing escape through design
A person who, through design, suffers any prisoner committed to their charge to escape. “Design” means the custodian intended for the prisoner to escape. Intent can be inferred from circumstantial evidence, including conduct so devoid of care that the only reasonable inference is that the escape was contemplated as a probable result. Maximum punishment: dishonorable discharge, total forfeiture, and five years’ confinement.
Drinking with a prisoner
Any person who unlawfully drinks any alcoholic beverage with a prisoner. The person need not be the prisoner’s custodian, any service member who drinks with a prisoner violates Article 96(b). The prisoner must have been a lawful prisoner at the time, and the beverages must have been alcoholic. Maximum punishment: forfeiture of two-thirds pay for one year and one year’s confinement. No punitive discharge is authorized.
The Neglect-Design Spectrum
Willful Release vs. Negligent Escape
The most analytically interesting feature of Article 96 is the three-tier culpability structure for prisoner escape. Release without authority is the straightforward case, the custodian actively removed restraint. Escape through neglect and escape through design occupy opposite ends of a spectrum that measures how much the custodian contributed to the outcome.
Neglect is the lower tier. The custodian did not intend the escape but failed to exercise reasonable care. Falling asleep while guarding a prisoner, leaving a cell door unlocked, or failing to conduct required checks, any of these could constitute neglect if the escape was a direct result. The standard is objective: would a reasonably careful person in the same position have prevented the escape? The maximum punishment (BCD, one year) reflects that the custodian’s failure was careless, not intentional.
Design is the upper tier. The custodian intended the escape, they wanted it to happen and either facilitated it or deliberately failed to prevent it. The five-year maximum and dishonorable discharge authorization reflect the betrayal of trust: a guard who intentionally allows an escape has fundamentally subverted their assigned duty. Proving design typically requires circumstantial evidence, prior relationship with the prisoner, unusual behavior before the escape, absence of any reasonable explanation for the custodian’s failure to act.
The punishment gap between neglect (one year) and design (five years) is substantial, and the discharge gap (BCD versus DD) is significant for the service member’s post-military life. In practice, defense arguments in escape cases frequently focus on keeping the charge in the neglect category rather than allowing the prosecution to establish design.
Where Article 96 Fits
Article 96 belongs to a cluster of UCMJ provisions that regulate the military’s custodial and detention functions. Article 95 governs sentinel duties, the security function. Article 97 prohibits unlawful detention, the abuse-of-custody function. Article 98 criminalizes misconduct as a prisoner, the prisoner’s own obligations. Article 96 fills the space between: the custodian’s obligation to maintain lawful custody without releasing, enabling escape, or compromising the relationship through fraternization.
The MJA 2016 restructuring of this cluster, breaking single-sentence provisions into clearly delineated subsections, reflects the same modernization pattern visible across Articles 89, 90, 95, and others in this series. The substance remained largely intact. The structure became analytically cleaner, separating offense types that had been compressed into single sentences for decades. For Article 96 specifically, the addition of the drinking-with-prisoner subsection codified conduct that the MCM had long treated as punishable but that lacked its own statutory text.
Joseph L. Jordan, Attorney at Law: Article 96 criminalizes four categories of custodial failure: releasing a prisoner without authority, allowing a prisoner to escape through neglect, allowing escape through design, and drinking with a prisoner. A guard cannot defend the release by arguing the prisoner’s confinement was technically defective.
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.