Article 125 | Kidnapping

Facing an Article 125 Charge for Kidnapping? Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 125 (10 U.S.C. 925), states any person subject to the UCMJ who wrongfully seizes, confines, inveigles, decoys, or carries away another person and holds the other person against that person’s will shall be punished as a court-martial may direct.

Kidnapping under Article 125 can be proven by the government at court-martial or administrative hearing by showing the service member wrongfully held someone against their will. The prosecution needs to prove the elements below.

Kidnapping Elements:

1. That the accused seized, confined, inveigled, decoyed, or carried away a certain person;
2. That the accused then held such person against that person’s will; and 
3. That the accused did so wrongfully.

The terms found within the statute above in Article 125 have specific definitions.  The following definitions apply:

Inveigle, decoy: “Inveigle” means to lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain destination has inveigled the passenger into the car. “Decoy” means to entice or lure by means of some fraud, trick, or temptation. For example, one who lures a child into a trap with candy has decoyed the child.

Held: “Held” means detained. The holding must be more than a momentary or incidental detention. For example, a robber who holds the victim at gunpoint while the victim hands over a wallet, or a rapist who throws his victim to the ground, does not, by such acts, commit kidnapping. One the other hand, if, before or after such robbery or rape, the victim is involuntarily transported some substantial distance, as from a housing area to a remote area of the base or post, this may be kidnapping, in addition to robbery or rape.

Against the Will: “Against that person’s will” means that the victim was held involuntarily. The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations. If the victim is incapable of having a recognizable will, as in the case of a very young child or a mentally incompetent person, the holding must be against the will of the victim’s parents or legal guardian. Evidence of the availability of nonavailability to the victim of means of exit or escape is relevant to the voluntariness of the detention, as is evidence of threats or force, or lack thereof, by the accused to detain the victim.

Financial or Personal Gain: The holding need not have been for financial or personal gain or for any other particular purpose. It may be an aggravating circumstance that the kidnapping was for ransom, however.

Wrongful: “Wrongfully” means without justification or excuse. For example, a law enforcement official may justifiably apprehend and detain, by force if reasonably necessary, a person reasonably believed to have committed an offense. An official who unlawfully uses the official’s authority to apprehend someone is not guilty of kidnapping, but may be guilty of unlawful detention.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for allegedly kidnapping someone under Article 125. The Commanding Officer may place the service member in the brig, not as punishment, but to protect society from the necessary risk of the accused committing another offense.

Attorneys at the Military Law Center help those confined in the brig pretrial seek release at their Initial Review Officer (IRO) hearing. At an IRO hearing, a neutral and detached officer shall review the probable cause determination and necessity for continued pretrial confinement. The IRO will consider whether:

• An Article 125 offense triable by court-martial has been committed;
• The confine committed it;
• Confinement is necessary because it is foreseeable that:
  • The confine will not appear at trial, pretrial hearing, or preliminary hearing; or
  • The confine will engage in serious criminal misconduct; and
• Less severe forms of restraint are inadequate.

As an accused, you have the right to require your command present a preponderance of evidence at the IRO hearing to prove why you should remain in pretrial confinement. Working with experienced kidnapping attorneys for IRO hearings is the first step to showing your command you will fight for your freedom!

An Article 125 charge is serious, can stop a military career, and even warrant brig time. But there are defenses available to fight the accusation:

• Alibi:
  “Alibi” means that the accused could not have committed the offense charged because the accused was at another place when the offense occurred. As this defense allows the accused to show he or she was not the person who kidnapped a person at a certain time or place, the government will be unable to meet its burden of proof. The burden remains on the prosecution to demonstrate the accused’s guilt.
• Complaining Witness Could Have Left:
  When someone makes an allegation of kidnapping, it may be because they do not want to get in trouble for some collateral misconduct that occurred around the same time. If the person accusing someone of kidnapping could have voluntarily left the location, then that would be a defense to kidnapping. For example, when someone makes the allegation they were kidnapped during a period in which they were also underage drinking, they may just be trying to avoid getting caught for their own misconduct.

The maximum punishment for Article 125 is a dishonorable discharge, confinement for life, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

The potential penalties for offenses in the military under Article 125 vary on the seriousness of the kidnapping and the length of time a person was wrongfully held. A court-martial can impose a range of punishments, including:

• Confinement: The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities and veteran benefits.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 125 offense will depend on how the government presents its case and how many separate specifications the accused is facing. Our attorneys at the Military Law Center can help provide a maximum punishment for your case during a free consultation.

The military has the option of charging an accused with kidnapping offenses at a court martial or choosing to use the administrative separation board process. All military services prohibit kidnapping. An ADSEP Board for Article 125 offenses is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial. 

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing all types of allegations. With diligent investigation and excellent courtroom presence, our attorneys have defeated these allegations in the past. By strategically planning a defense, preparing early, and critically analyzing the evidence, our ADSEP Board lawyers can help get your military career back on track.

When a service member is arrested for kidnapping or becomes “titled” in a law enforcement investigation, their security clearance may be in jeopardy. Service members may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA). DSCA is required to review a service member’s eligibility for an active security clearance when they are charged with or convicted of any criminal offenses (excluding traffic violations that do not involve alcohol or drugs, resulting in fines less than $300) since the last investigation pursuant to DoDM 5200.02. 

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues. Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 125 arrest and conviction can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector. It may also hinder your ability to get financial loans in the future.

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g)(6) when the accused separates from the military with a dishonorable discharge or is punished with more than one year of confinement.

Facing an Article 125 accusation for kidnapping can be frustrating, stressful, and oftentimes a distressing experience. At Military Law Center, our attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 125 Allegations Alone. Military Law Center Can Help.

An Article 125 charge can take away your gun rights and security clearance, stall your military career, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges and getting them the rehabilitative help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038