MCM on Art.113 Misbehavior of Sentinel or Lookout

Article 113 -- Misbehavior of sentinel or lookout 2005 MCM Article 113-38 a. Text. "Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly relieved, shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the offense is committed at any other time, by such punishment other than death as a court-martial may direct." b. Elements. (1) That the accused was posted or on post as a sentinel or lookout; (2) That the accused was found drunk while on post, was found sleeping while on post, or left post before being regularly relieved. [Note: If the offense was committed in time of war or while the accused was receiving special pay under 37 U.S.C. § 310, add the following element] (3) That the offense was committed (in time of war) (while the accused was receiving special pay under 37 U.S.C. § 310). c. Explanation. (1) In general. This article defines three kinds of misbehavior committed by sentinels or lookouts: being found drunk or sleeping upon post, or leaving it before being regularly relieved. This article does not include an officer or enlisted person of the guard, or of a ship's watch, not posted or performing the duties of a sentinel or lookout, nor does it include a person whose duties as a watchman or attendant do not require constant alertness. (2) Post. "Post" is the area where the sentinel or lookout is required to be for the performance of duties. It is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the sentinel or lookout was posted. The offense of leaving post is not committed when a sentinel or lookout goes an immaterial distance from the post, unless it is such a distance that the ability to fully perform the duty for which posted is impaired. (3) On post. A sentinel or lookout becomes "on post" after having been given a lawful order to go "on post" as a sentinel or lookout and being formally or informally posted. The fact that a sentinel or lookout is not posted in the regular way is not a defense. It is sufficient, for example, if the sentinel or lookout has taken the post in accordance with proper instruction, whether or not formally given. A sentinel or lookout is on post within the meaning of the article not only when at a post physically defined, as is ordinarily the case in garrison or aboard ship, but also, for example, when stationed in observation against the approach of an enemy, or detailed to use any equipment designed to locate friend, foe, or possible danger, or at a designated place to maintain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work. (4) Sentinel or lookout. A sentinel or a lookout is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place and to sound the alert, if necessary. (5) Drunk. For an explanation of "drunk," see paragraph 35c(3). (6) Sleeping. As used in this article, "sleeping" is that condition of insentience which is sufficient sensibly to impair the full exercise of the mental and physical faculties of a sentinel or lookout. It is not necessary to show that the accused was in a wholly comatose condition. The fact that the accused's sleeping resulted from a physical incapacity caused by disease or accident is an affirmative defense. See R.C.M. 916(i). d. Lesser included offenses. (1) Drunk on post. (a) Article 112 -- drunk on duty (b) Article 92 -- dereliction of duty (c) Article 134 -- drunk on station (d) Article 134 -- drunk in uniform in a public place (2) Sleeping on post. (a) Article 92 -- dereliction of duty (b) Article 134 -- loitering or wrongfully sitting down on post 2 (3) Leaving post. (a) Article 92 -- dereliction of duty (b) Article 86 -- going from appointed place of duty e. Maximum punishment. (1) In time of war. Death or such other punishment as a court-martial may direct. (2) While receiving special pay under 37 U.S.C. § 310. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (3) In all other places. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specification. In that (personal jurisdiction data), on or about 20 (a time of war) (at/on board -- location), (while receiving special pay under 37 U.S.C. § 310), being (posted) (on post) as a (sentinel) (lookout) at (warehouse no. 7) (post no. 11) (for radar observation) ( ) (was found (drunk) (sleeping) upon his/her post) (did leave his/her post before he/she was regularly relieved). 3