Q: Can I get in trouble if I help a fellow service member who may have committed a crime?
A: That depends on whether you actually know a fellow service member has committed a crime. The law regarding accessories after the fact in the military is found in Article 78 of the Uniform Code of Military Justice. To become an accessory after the fact, one must know that an offense punishable under the UCMJ has been committed, and then help the offender for the purpose of preventing the offender’s apprehension, trial, or punishment. The punishment for becoming an accessory after the fact can be severe because the accessory is subject to the same maximum punishment as the offender.
To be an accessory after the fact, one must take affirmative action to assist an offender. If a service member simply does not report an offense of which he or she is aware, or is questioned by law enforcement and is not forthcoming with information, it is usually not enough to become an accessory after the fact. However, the service member could still be subjected to other violations of the UCMJ including potentially the violation of a lawful general order under Article 92.
The distinction between a failure to assist law enforcement and affirmative assistance to the offender is illustrated by the United States v. Davis, a 1995 case from the U.S. Court of Appeals for the Armed Forces. In that case, Davis, a Navy air controlman airman, and his friend got a ride home from a third service member. Earlier that day, Davis’s friend had stolen a car bra and was bringing it home. When stopped at the front gate, the friend told Davis that he stole the car bra and asked Davis to say it was already in the third service member’s car when they got in. Davis agreed. This was enough of an affirmative action to make Davis an accessory after the fact and was more than a mere failure to disclose Davis’s friend’s involvement.
At a special court-martial at Naval Air Station Jacksonville, Fla., Davis was found guilty of disobedience of a lawful general order and being an accessory after the fact in violation of Articles 92 and 78 of the UCMJ. On appeal, the Navy-Marine Corps Court of Criminal Appeals affirmed Davis’ sentence and conviction, and CAAF affirmed the lower court’s ruling.
Service members should be very careful if they suspect that a friend has committed some sort of offense. Although being an accessory after the fact requires actual knowledge, it can be inferred from circumstantial evidence. Therefore, if all the signals point to a crime, the service member may have a hard time claiming he or she did not know. Providing any affirmative help in this type of situation could carry severe consequences. Service members who are suspected of being accessories after the fact should contact a military law attorney for assistance.
Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to email@example.com. The information in this column is not intended as legal advice.