Article 126 | Arson

Facing an Article 126 Charge for Arson? Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 126 (10 U.S.C. 926), states any person subject to the UCMJ who, willfully and maliciously, burns or sets on fire an inhabited dwelling, or any other structure, movable or immovable, wherein, to the knowledge of that person, there is at the time a human being, is guilty of aggravated arson and shall be punished as a court-martial may direct. For simple arson, any person subject to the UCMJ who, willfully and maliciously, burns or sets on fire to the property of another is guilty of simple arson and shall be punished as a court-martial may direct.

Arson under Article 126 can be proven by the government at court-martial or administrative hearing through three different theories of liability. The prosecution needs to prove the elements below.

Aggravated Arson Elements:

A. Inhabited Dwelling

1. That the accused burned or set on fire an inhabited dwelling; and 
2. That the act was willful and malicious.

B. Structure

1. 1. That the accused burned or set on fire a certain structure;
   2. That the act was willful and malicious;
   3. That there was a human being in the structure at the time; and 
   4. That the accused knew that there was a human being in the structure at the time.

Simple Arson Elements:

1. That the accused burned or set fire to certain property of another; and
2. That the act was willful and malicious.
   [Note: if the property is of a value of more than $1,000, add the following element.]
3. That the property is of a value of more than $1,000.

Burning with the Intent to Defraud Elements:

1. That the accused burned or set fire to certain property; and
2. That the act was willful and malicious.
3. That such burning or setting fire was with the intent to defraud a certain person or organization.

The terms found within the statute above in Article 126 have specific definitions.  The following definitions apply:

In General: In aggravated arson, danger to human life is the essential element; in simple arson, it is injury to the property of another. In either case, it is immaterial that no one is, in fact, injured. It must be shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident. In burning with intent to defraud, it is the fraudulent intent motivating the burning of any property that is the essential element. It is immaterial to whom the property belonged; the focus is that the burning of that property was for a fraudulent purpose (e.g. the intent to file a false insurance claim for the property burned by the accused).

Inhabited Dwelling: “An inhabited dwelling” means the structure must be used for habitation, not that a human being must be present therein at the time the dwelling is burned or set on fire. It includes the outbuildings that form part of the cluster of buildings used as a residence. A shop or store is not an inhabited dwelling unless occupied as such, nor is a house that has never been occupied or that has been temporarily abandoned. A person may be guilty of aggravated arson of the person’s dwelling, whether as owner or tenant.

Structure: Aggravated arson may also be committed by burning or setting on fire any other structure, movable or immovable, such as a theater, church, boat, trailer, tent, auditorium, or any other sort of shelter or edifice, whether public or private, when the offender knows that there is a human being inside at the time. It may be that the offender had this knowledge when the nature of the structure—as a department store or theater during hours of business, or other circumstances—are shown to have been such that a reasonable person would have known that a human being was inside at the time.

Damage to Property: It is not necessary that the dwelling or structure be consumed or materially injured; it is enough if fire is actually communicated to any part thereof. Any actual burning or charring is sufficient, but a mere scorching or discoloration by heat is not.

Value and Ownership of Property: For the offense of aggravated arson, the value and ownership of the dwelling or other structure are immaterial, but may be alleged and proved to permit the finding in an appropriate case of the included offense of simple arson.

Simple Arson: Simple arson is the willful and malicious burning of setting fire to the property of another under circumstances not amounting to aggravated arson. The offense includes burning or setting fire to real or personal property of someone other than the offender.

Burning with the Intent to Defraud: “Intent to defraud” means an intent to obtain, through misrepresentation, an article or thing of value and to apply it to one’s own use and benefit or to the use and benefit of another, either permanently or temporarily.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for allegedly committing arson under Article 126. 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 or damaging more property.

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 126 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 arson attorneys for IRO hearings is the first step to showing your command you will fight for your freedom!

An Article 126 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. 
• No Mens Rea:
  To show willful and malicious actions, the government must demonstrate the accused’s mental state at the time of the fire. If the act of setting fire was an accident, then there would be no mens rea to support “willful and malicious.”

The maximum punishment for Article 126 is a dishonorable discharge, confinement for 25 years, 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 126 vary on the seriousness of the arson and whether a human being was in the dwelling or structure at the time of the fire. 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 126 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 arson offenses at a court martial or choosing to use the administrative separation board process. All military services prohibit aggravated and simple arson. An ADSEP Board for Article 126 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 arson allegations. Mr. Barthel led the charge against the wrongful allegation when the USS Bonhomme Richard caught fire in the summer of 2020. With a strong showing at the Article 32 hearing, Mr. Barthel and attorneys at the Military Law Center showed the command the accused was not giving up. 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 arson 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 126 arrest and conviction for arson 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.

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 126 accusation for arson 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 126 Allegations Alone. Military Law Center Can Help.

An Article 126 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 like arson and getting them the 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