Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 105 and Article 99 address how service members must behave when dealing with enemy forces, and both can carry the death penalty. The critical distinction lies in timing and status. Article 99 governs behavior while you’re actively fighting or facing the enemy as a combatant. Article 105 governs behavior after you’ve been captured and become a prisoner of war. These different contexts create different expectations and different offenses, though the underlying duty to resist the enemy and support fellow Americans persists in both.
The Status Distinction: Combatant vs Prisoner
Article 99 Misbehavior Before the Enemy applies when you’re still an active combatant. You’re facing the enemy in battle or in circumstances where combat is expected. Your duty is to fight, hold your position, engage the enemy, and support your unit’s mission. Failure to perform this duty, whether through cowardice, shameful conduct, or other misbehavior, violates Article 99.
Article 105 Misconduct as Prisoner applies after capture. You’re no longer able to fight in the traditional sense because you’re in enemy hands. But your duties don’t end. You must continue to resist, avoid aiding the enemy, and support your fellow prisoners. Failure to meet these obligations, or affirmatively aiding the enemy or maltreating fellow prisoners, violates Article 105.
The transition point is capture. Before capture, Article 99 governs. After capture, Article 105 governs. A service member who misbehaves while fighting and then commits misconduct after capture could face charges under both articles.
Article 99: The Combat Standard
Article 99 contains numerous offenses, all related to combat performance:
Running away from the enemy
Shamefully abandoning, surrendering, or giving up a position
Cowardly conduct
Casting away weapons
Willfully failing to engage or defend
Causing false alarms
Failing to do utmost to encounter, engage, capture, or destroy enemy forces
Each offense measures your performance as a combatant. Did you stand and fight when required? Did you fulfill your role in the military operation? The enemy must be present or imminent for Article 99 to apply.
Once captured, these standards no longer apply in the same way. A prisoner cannot be expected to “engage the enemy” in the traditional combat sense. Different obligations take over.
Article 105: The Prisoner Standard
Article 105 addresses misconduct while a prisoner of war. The article covers:
Securing favorable treatment by acting against the United States. Earning better conditions from the enemy by betraying your country.
Maltreating fellow prisoners. Abusing other prisoners, often in exchange for enemy favor.
Acting without proper authority as a medium for propaganda. Making statements, recordings, or other communications that serve enemy propaganda purposes.
Aiding the enemy. Providing assistance to enemy forces while in captivity.
These offenses reflect the reality that prisoners retain duties even in captivity. The Code of Conduct for prisoners of war, though not itself criminal law, informs what’s expected. Prisoners must continue to resist, provide only basic identification information, avoid aiding the enemy, and support fellow prisoners.
The Surrender Question
The transition from combatant to prisoner often involves surrender, which creates potential overlap between these articles.
Under Article 99, shamefully surrendering when continued resistance was possible constitutes misbehavior. The question is whether surrender was appropriate under the circumstances or shameful.
Once surrender has occurred and the person is a prisoner, Article 105 governs subsequent conduct. The manner of surrender might be prosecuted under Article 99, but post-capture behavior falls under Article 105.
This creates a sequence: a service member who shamefully surrenders (Article 99) and then aids the enemy while a prisoner (Article 105) has committed separate offenses under both articles. The Article 99 offense is complete at surrender; the Article 105 offense begins with captivity.
What Prisoners Are Expected to Do
The expectations for prisoners, reflected in Article 105, include:
Continue to resist. Prisoners should seek opportunities to escape, obstruct enemy operations where possible, and maintain military bearing.
Provide only limited information. Name, rank, date of birth, and service number. Anything beyond this aids the enemy.
Avoid propaganda participation. Making statements, appearing in videos, or otherwise serving enemy propaganda purposes without proper authority violates Article 105.
Support fellow prisoners. Prisoners form a community. Maltreating other prisoners, especially to gain favor with captors, is criminal.
Avoid providing any aid to the enemy. Beyond required identification, prisoners shouldn’t help the enemy in any way.
These expectations recognize that prisoners have limited capacity to resist. No one expects prisoners to fight their way out with bare hands. But within the constraints of captivity, the duty to resist continues.
The Duress Question
One of the most difficult issues in prisoner misconduct cases is duress. Prisoners are subject to coercion, torture, and other pressures that can make resistance extremely difficult or impossible.
Duress can be a defense or mitigation for Article 105 offenses. If a prisoner was tortured into making propaganda statements, or coerced into providing information beyond name, rank, and date of birth, the duress they experienced affects their culpability.
However, duress has limits as a defense:
The coercion must be severe enough to overcome the will of a person of ordinary firmness
The accused must not have been at fault in creating the coercive situation
Some conduct may remain prohibited even under duress (like causing death of fellow prisoners)
Evaluating duress claims requires careful examination of what pressures the prisoner faced, how severe they were, and whether the accused’s response was proportionate to those pressures.
For Article 99, duress is rarely relevant because the coercion of combat is already contemplated. The fear of enemy fire doesn’t excuse running away; that’s exactly the situation Article 99 addresses. Duress claims for Article 99 would need to involve something beyond ordinary combat pressure.
Punishment Comparison
Both articles authorize the death penalty, reflecting the extreme seriousness of these offenses during wartime.
Article 99 punishments vary by offense but include death for most misbehavior provisions.
Article 105 authorizes “death or such other punishment as a court-martial may direct” for aiding the enemy while a prisoner, and lesser punishments for other forms of misconduct.
In practice, death sentences are extremely rare in the modern military justice system. Lengthy confinement is more typical for those convicted of these offenses.
Typical Fact Patterns
Clear Article 99 (combat misbehavior):
During a firefight, a soldier abandons his fighting position and runs to the rear, hiding until the engagement is over. He’s later found and returns to his unit. No capture occurred. This is Article 99 misbehavior: running away and abandoning position.
Clear Article 105 (prisoner misconduct):
A prisoner of war, seeking better food and quarters, agrees to make radio broadcasts condemning U.S. policy and praising enemy forces. In exchange, the enemy moves him to better accommodations. This is Article 105 misconduct: securing favorable treatment by acting against the United States and participating in propaganda.
Another prisoner, promised release, physically abuses fellow prisoners who refuse to cooperate with captors. Maltreating fellow prisoners violates Article 105.
Sequential offenses under both articles:
A pilot’s aircraft is hit. Rather than attempting to fly to friendly territory or crash-land in a defensible position, he immediately ejects over enemy territory without attempting to fight or evade. This might be shameful surrender under Article 99. After capture, he voluntarily provides detailed information about squadron capabilities and makes propaganda videos without coercion. The post-capture conduct violates Article 105.
The Code of Conduct
The Code of Conduct for Members of the Armed Forces of the United States provides guidance for behavior in captivity. While not itself criminal law, it informs what’s expected and shapes Article 105 analysis:
“I will never surrender of my own free will.”
“If I am captured I will continue to resist by all means available.”
“I will make every effort to escape.”
“If I become a prisoner of war, I will keep faith with my fellow prisoners.”
“I will give no information… beyond my name, rank, service number, and date of birth.”
“I will never forget that I am an American, responsible for my actions, and dedicated to the principles which made my country free.”
These principles reflect what Article 105 legally requires. Service members who violate the Code of Conduct may have committed Article 105 offenses, depending on the specific conduct and circumstances.
Defenses
For Article 99, potential defenses include:
Not before the enemy. No enemy presence or involvement.
Conduct wasn’t misbehavior. Actions were tactically appropriate, authorized, or not shameful under the circumstances.
Mental health. Combat stress or other conditions affected capacity (more often mitigation than complete defense).
For Article 105, potential defenses include:
Duress. Coercion was severe enough to overcome reasonable resistance.
Authorization. Conduct was approved by senior prisoner leadership or otherwise proper.
No aiding occurred. The conduct didn’t actually benefit the enemy.
Information was not beyond what’s permitted. Only name, rank, service number, and date of birth were provided.
The Repatriation Investigation
When prisoners are repatriated, debriefing and investigation occur. Interrogators seek to understand what happened during captivity, what information may have been compromised, and whether misconduct occurred.
These investigations are sensitive. The government recognizes that prisoners endured hardship and may have acted under extreme duress. At the same time, genuine collaboration with the enemy must be identified. The investigation process attempts to distinguish between:
Conduct that was forced and doesn’t warrant punishment
Conduct that, while pressured, crossed lines and requires accountability
Conduct that was voluntary collaboration deserving serious punishment
Service members returning from captivity should expect investigation but should also understand that investigators are trained to distinguish true misconduct from forced compliance.
Modern Complexities
Modern conflicts create situations not contemplated by traditional prisoner-of-war frameworks. Capture by non-state actors, detention by forces that don’t follow the Geneva Conventions, and complex scenarios where combatant status is contested all raise questions about how Articles 99 and 105 apply.
Courts address these issues case by case, applying the articles’ purposes to modern circumstances. The core principles remain: fight when fighting is possible, resist when captured, and never voluntarily aid the enemy.
Frequently Asked Questions
If I was tortured into making a propaganda video while a prisoner, can I still be charged under Article 105?
Duress from torture is a significant factor that courts consider carefully. If you were tortured to the point where a person of ordinary firmness would have complied, and you didn’t voluntarily participate beyond what was coerced, duress may provide a complete defense. However, the analysis is fact-specific. Courts examine the severity and duration of the torture, whether you resisted before complying, whether you went beyond what was strictly coerced, and whether the coercion was genuine or if you used torture as a pretext for willing collaboration. Many prisoners subjected to torture have been found not culpable for statements made under severe duress. But someone who initially resisted, experienced minor pressure, and then enthusiastically collaborated faces a different analysis than someone who endured prolonged severe torture before making minimal statements.
Can I be charged with both Article 99 and Article 105 for the same overall course of conduct during a capture scenario?
Yes, if your conduct violated both articles at different stages. Article 99 governs pre-capture combat behavior; Article 105 governs post-capture behavior. If you shamefully surrendered (Article 99) and then aided the enemy while a prisoner (Article 105), you’ve committed separate offenses. The articles address different time periods and different duties. There’s no double jeopardy issue because the offenses are distinct. However, if the “misconduct” you’re thinking of occurred entirely during the capture event itself (rather than afterward in captivity), Article 99 would likely be the appropriate charge. The transition from combatant to prisoner status is the dividing line between these articles.
What’s the difference between escaping as required under Article 105 versus the offense of resisting apprehension under Article 95?
These situations involve completely different contexts. Article 105 imposes a duty on prisoners of war to seek escape from enemy captivity. This is part of continuing resistance to the enemy. Article 95 addresses service members resisting lawful military custody by their own forces, such as resisting arrest by military police or escaping from a brig. One involves resisting the enemy (which is required); the other involves resisting your own military’s lawful authority (which is prohibited). A prisoner of war who escapes enemy custody is fulfilling their duty. A service member who escapes U.S. military custody is committing an offense. The key is whether the custody is lawful U.S. military custody or enemy captivity.