Article 93, Cruelty and Maltreatment, is charged in a few different ways when service members are suspected of this UCMJ violation. In general, it’s used when a service member is suspected of sexual harassment, toxic leadership, or, when charged as Article 93a, Prohibited Activities with Military Recruit or Trainee by Person in Position of Special Trust.
Article 93, UCMJ. Cruelty And Maltreatment
The article reads as follows:
Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.
(1) That a certain person was subject to the orders of the accused; and
(2) That the accused was cruel toward, or oppressed, or maltreated that person.
Sexual harassment charged as Article 93
Commanders may charge sexual harassment as Article 93 when someone is accused of sexual harassment towards a subordinate. Sexual harassment is defined as behavior characterized by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation. This behavior is seen as cruel and constitutes maltreament.
Toxic Leadership charged as Article 93
Toxic Leadership Charged as Article 93 is for those accused of toxic leadership. It is when their behavior toward their subordinate is suspected of being cruel or oppressive. Congress is particularly on the lookout for this type of behavior so expect military leaders to investigate suspected incidents thoroughly. The behavior of leaders accused of Article 93 might be seen by their subordinate as cruel if they yell, demean, or otherwise ridicule their subordinates.
Misbehavior with recruits or trainees charged as Article 93a
Article 93a is an article newly defined as part of the Military Justice Act 2016. It specifies misbehavior by a military training instructor or a person in a position of special trust with persons in their charge. Behavior includes prohibited activities such as an inappropriate or sexual relationship with a trainee or recruit.
Command Investigation of Article 93 and Article 93a
If a commander’s inquiry provides enough evidence to conduct an investigation, a commander will conduct either a commander investigation or turn the investigation over to military law enforcement. An NCO or officer suspected of an Article 93 violation or Article 93a should immediately seek legal counseling as soon as they are aware of this investigation. An experienced military defense attorney can protect the accused interests during the investigation by providing counsel to the accused. Often military law enforcement or unit leadership will either intentionally or unintentionally try to convince the accused to make a statement against their own interest under the guise of being helpful. Service members accused of UCMJ violations should seek legal counsel before making any statements.
Does Article 93 get charged as a court-martial or adverse administrative action?
Most UCMJ violations with the exception of sexual assault are adjudicated with adverse administrative action starting with Article 15 or a General Officer Letter of Reprimand. The service member will have an opportunity to address this Article 15 or GOMOR with a response in order to convince the convening authority to file the GOMOR locally. A local filing can allow for career recovery. An excellent attorney can assist in shaping an GOMOR response to achieve a local filing. If the GOMOR or Article 15 is filed in a service member’s permanent record, then this is often followed up with either a command-instigated or human resource command-directed separation board. If the service member has six or more years of service, the accused has the opportunity to defend their actions before a separation board to avoid being found guilty of Article 93.
Charges of Article 93a can result in involuntary discharge
Recently the US Air Force Updated their discharge rules for airmen accused of sexual assault. It tightened the exceptions for automatic discharge of those credibly accused of sexual assault. Those determined to be guilty of Article 93a are subject to automatic discharge.
For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case, consult with an experienced military lawyer.
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