UCMJ Article 105 Misconduct as Prisoner vs Article 99 Misbehavior Before Enemy: Captivity vs Combat
On this page: 5 sections
Misconduct as a prisoner is charged under Article 98; the old Article 105 number has belonged to forgery since January 1, 2019. Misconduct as a prisoner and misbehavior before the enemy apply at different stages of contact with the enemy. Article 99 governs conduct “before or in the presence of the enemy,” and carries a possible death sentence. Article 98 governs conduct “while in the hands of the enemy in time of war,” and the Manual for Courts-Martial sets its maximum at any punishment other than death (MCM, Part IV, ¶ 26.d).
Article 98: misconduct as a prisoner
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.
Source: 10 U.S.C. § 898 (Article 98), renumbered from § 905 by Pub. L. 114-328, § 5401(6).
The article has two offenses, and the Manual explains both (¶ 26.c):
- Informing or collaborating for favor. The conduct must be intended to improve the accused’s own condition with the captors and must operate to the detriment of other prisoners, by closer confinement, reduced rations, physical punishment, or other harm. The Manual’s examples are reporting others’ escape plans or reporting secret caches of food, equipment, or arms.
- Escape is not an offense under the article. “Escape from the enemy is authorized by custom,” and an escape that leads the captors to punish the remaining prisoners is not a violation.
- Maltreatment by a prisoner in authority. The authority can come from military rank, from designation by the captors, or from election by fellow prisoners. The maltreatment “must be real, although not necessarily physical,” and “Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, constitute this offense.”
The statute does not list propaganda or collaboration beyond these two forms, and it does not state a duty to attempt escape.
Article 99: misbehavior before the enemy
Article 99 reaches any member of the armed forces who, before or in the presence of the enemy, commits any of nine acts: running away; shamefully abandoning, surrendering, or delivering up a command, unit, place, or military property the member must defend; endangering its safety 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 the utmost to encounter, engage, capture, or destroy the enemy; and failing to afford all practicable relief and assistance to U.S. or allied forces engaged in battle (10 U.S.C. § 899).
“Before or in the presence of the enemy” is “a question of tactical relation, not distance”: an antiaircraft crew miles from enemy lines may be before the enemy, while a unit away from any current or imminent tactical operation is not (MCM, Part IV, ¶ 27.c(1)(c)).
How the facts sort
| Article 98 | Article 99 | |
|---|---|---|
| Stage | In the hands of the enemy | Before or in the presence of the enemy |
| Time of war | Required | Not a statutory element; the test is tactical relation to an enemy |
| Who can commit it | Any person subject to the UCMJ | Any member of the armed forces |
| Core conduct | Acting to the detriment of fellow prisoners for favor; maltreating prisoners while in authority | Nine forms of misbehavior in combat |
| Maximum | Any punishment other than death | Death or such other punishment as a court-martial may direct |
For example, a service member captured in wartime who tells the guards where fellow prisoners have hidden a radio, hoping for better food, and whose report leads to the others being punished, fits Article 98(1). Before capture, throwing away a rifle and fleeing as the enemy approached the position would instead raise running away and casting away arms under Article 99. Whether a period was “in time of war,” and whether a unit was “before the enemy,” are decided on the facts; for the second, the Manual’s test is tactical relation, not distance (¶ 27.c(1)(c)).
Maximum punishments
- Misconduct as a prisoner: “Any punishment other than death that a court-martial may direct” (MCM, Part IV, ¶ 26.d). The statute itself says only “as a court-martial may direct.”
- Misbehavior before the enemy: “death or such other punishment as a court-martial may direct” (10 U.S.C. § 899).
In a capital case, the members decide whether a death-eligible conviction results in death or life without eligibility for parole, or return the matter to the military judge (10 U.S.C. § 853(c)(1)). In a case not tried as capital, where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial (§ 853(b)(1)).
Sources
- 10 U.S.C. § 898, misconduct as prisoner (Article 98)
- 10 U.S.C. § 899, misbehavior before the enemy (Article 99)
- 10 U.S.C. § 905, forgery (Article 105)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 26 and ¶ 27.
General information about Articles 98 and 99; it does not evaluate any service member’s conduct in captivity or combat. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.