As a Service Member, you’re probably used to the famous safety briefs before weekends and major holidays. Without fail, there are cautions about the misuse of alcohol and the need to have a designated driver. However, when you joined the military, you didn’t give up your right to drink alcohol. In fact, having a few drinks after hours and letting off some steam with your battle buddies is in many ways a time-honored tradition in the military. Granted, some Service Members that take things too far, but what if you’re having a few drinks on a Friday night after your duty day is over and you suddenly get a call from your squad or section leader to report to headquarters? You can’t disobey the order, but you also don’t want to found to be drunk on duty. An honest status report to your chain of command may avoid a potential crisis, but you should also be familiar with Article 112 of the UCMJ covering the crime of being drunk on duty as well as its defenses. It may just come in handy for you or a buddy down the road.
What Are the Elements for Article 112?
The crimes laid out in the UCMJ contain specific elements each of which must be proven beyond a reasonable doubt in order for an accused to be convicted of a charge at a court-martial. Under Article 112, the elements for drunk on duty are fairly simple, as a Service Member must be:
- On a certain duty; and
- Found drunk while on this duty.
Definition of “Drunk”
The UCMJ defines drunk as, “any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.” In other words, there is no specific blood alcohol content (BAC) reading needed. So long as a determination is made (perhaps by a higher ranking NCO or officer) that a Service Member’s mental or physical faculties are sufficiently impaired, Article 112 may apply.
Definition of “Duty”
As noted above, however, this Article only applies if you’re drunk while “on a certain duty.” The UCMJ defines duty broadly as referring to “military duty” and covering “[e]very duty which an officer or enlisted person may legally be required by superior authority to execute [. . .]” For commanders, they are deemed to be constantly on duty when “in the actual exercise of command.” For all others, on duty would include:
- Regular duty day hours (whether in garrison, at a station, or in the field);
- When assigned a duty from a superior; or
- Anytime a Service Member is in a region of active hostilities.
What Are Your Defenses?
While a Service Member may be able to challenge the elements by arguing that he or she wasn’t sufficiently impaired to be considered “drunk” or that he or she was not “on duty” at the time, there are also other factors to consider. For example, a Service Member who is drunk but “absents himself or herself from duty” cannot be convicted under Article 112. This could refer to instances where a Service Member obtains an excusal from duty from his or her chain of command. In other words, a friendly chain of command could cover down for you by simply dismissing you for the day if there is a concern about your impairments (of course they would want a buddy to drive you home and your story might make a debut during safety brief that week, but you wouldn’t be facing a court-martial).
In addition to support from your chain of command to avoid being drunk on duty in the first place, if you are charged under Article 112, there are specific defenses available to you. For one, the Article states that it is a defense if a Service Member’s superiors know that he or she is drunk, but assign a duty anyway. This protects you against those unfortunate situations where a chain of command is actively trying to harm your career by calling you in for duty when they know that you’ve had a few drinks. Another defense is if the drunkenness results from an accidental overdose for medicinal purposes. While these may relieve you from a conviction under Article 112, it’s important to note that a convening authority may still charge you with a lesser offense depending on your conduct.
Who Can You Turn To?
If you’re worried about a charge of drunk on duty or just want to learn more about your rights under the UCMJ, reach out to a team that has been successfully defending Service Members like you for over 25 years. With the Law Offices of Haytham Faraj, you’ll find attorneys who have military experience, who speak your language and who are dedicated to protecting your rights. Call us today at 800-809-1581.