Article 83 UCMJ

Malingering Definition

Malingering is defined as the fabrication or exaggeration of symptoms, whether physical or psychological, with the intent of achieving a certain outcome.

Deceptive acts such as feigning illness, pretending to have a mental lapse, and exaggerating physical disablement may be utilized for the sake of various purposes. The malingering individual may hope to avoid arrest, receive medication, or achieve some other type of personal gain.

In matters of military service, malingering involves fabrication, exaggeration, or even intentional self-inflicted injury with the intent of avoiding military work, duty, or service.

What is Article 83 UCMJ?

UCMJ Article 83 (10 § USC 883) details the specifics of malingering charges in the military. Malingering acts are acts that are willfully taken with the intent of avoiding work or otherwise fulfilling military duty. Any armed forces service member who “feigns illness, physical disablement, mental lapse, or mental derangement” or who “intentionally inflicts self-injury” to avoid work, service, or duty can be subject to punishment under the military justice system.

Feigning illness or injury is a matter of pretending to be affected by a certain condition. An individual who is feigning illness, physical disablement, or mental health issues, in these cases, is often totally unaffected by any such health issue.

Some individuals may even try to make their attempts at malingering seem legitimate by taking matters into their own hands by inflicting injury to themselves. Nonetheless, service members who are found to have inflicted intentional self-inflicted injury will be found in violation of UCMJ Article 83.

The law does not consider the severity of the illness or injury feigned or self-inflicted when determining the guilt of those accused of malingering. Service members who knowingly commit any act may be accused of malingering.

How to Prove Malingering

Accusations aren’t enough to convict an individual for malingering. Successful prosecution requires sufficient evidence of intentional acts (through violent or nonviolent means) or statements that are directly linked to the service member being unable to fulfill their duties. 

In other words, to prove malingering, the following elements of the offense must be confirmed:

1. The accused feigned illness or injury, OR suffered self-injury;
2. The action of feigning or self-injury was intentional;
3. The purpose was to avoid performance, work, duty, or service.

Only when proper evidence provides proof of malingering can a service member be convicted and punished for this crime. The absence of any of these elements of offense may lead to the dismissal of the case.

Examples of Malingering

Examples of malingering under Article 83 UCMJ can vary greatly, both in the extent of the action taken and the accused’s purpose behind it.

A malingering act may involve only intentional deception, or it may involve an intentionally inflicted injury or illness to oneself to escape anything from routine responsibilities to a prospective assignment. The accused individual may commit the offense to avoid deployment to a combat or hostile fire zone or only a particular job. 

To paint a clearer picture of what malingering may look like, here are a few more specific examples:

• Pretending to have a debilitating back injury to avoid an upcoming prospective assignment in a war zone.
• Feigning mental derangement by exaggerating psychiatric symptoms in an effort to avoid physical training or administrative duty.
• Committing acts of self-harm, such as cutting, burning, or breaking body parts, with the specific goal of receiving a medical discharge and evading deployment.