Defending Service Members Charged with Malingering
“Malingering” is the criminal offense of feigning mental or physical illness, or intentionally hurting oneself, in order to avoid military duties. While this military-specific offense may sound archaic, malingering is still prosecuted in the military and carries serious punishment.
MJA has defended service members charged with the most serious offenses under the UCMJ, including malingering. Contact our military defense lawyers now to learn more.
Elements
A violation of Article 83, UCMJ (malingering), generally requires three elements:
- That the accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service;
- That the accused feigned illness, physical disablement, mental lapse, mental derangement, or intentionally inflicted injury upon himself or herself; and
- That the accused’s purpose or intent in doing so was to avoid the work, duty, or service.
If the offense was committed in time of war or in a hostile fire pay zone, an additional element is added to the offense.
Malingering Explained
Malingering is best described as any act designed to avoid performance of any work, duty, or service normally expected of a service member. This can be an attempt to avoid all duty or only a particular job.
According to the Manual for Courts-Martial, the “nature or permanency of a self-inflicted injury is not material on the question of guilt. . . . Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.”
How Injury is Inflicted
An injury may be inflicted by violent or nonviolent means, and “may be accomplished by any act or omission which produces, prolongs, or aggravates any sickness or disability.” For example, voluntary starvation which weakens a service member is considered a self-inflicted injury and act of malingering if done for the purpose of avoiding work, duty, or military service. Bona fide suicide attempts should not be charged as the criminal offense of malingering.
Maximum Punishment
The maximum punishment for malingering varies depending on whether the service member is simply feigning illness or intentionally hurt themselves. For example, the act of feigning illness, physical disablement, mental lapse, or mental derangement carries the risk of a dishonorable discharge, total forfeitures, and confinement for a year. In contract, intentional self-inflicted injury carries up to 5 years confinement.
These punishments increase to 5 years and 10 years confinement, respectively, if the feigned illness or self-inflicted injury occurs in a hostile fire pay zone or time of war.
Protect Your Freedom and Military Career
MJA has defended service members facing investigation, court-martial, and discipline for some of the most serious offense under the UCMJ, including malingering. Call us today at (843) 773-5501 for a free consultation.
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