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“Any person subject to this chapter who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.”

Elements.

(1) Releasing a prisoner without proper authority.

(a) That a certain prisoner was committed to the charge of the accused; and

(b) That the accused released the prisoner with-out proper authority.

(2) Suffering a prisoner to escape through neglect.

(a) That a certain prisoner was committed to the charge of the accused;

(b) That the prisoner escaped;

(c) That the accused did not take such care to prevent the escape as a reasonably careful person, acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; and

(d) That the escape was the proximate result of the neglect.

(3) Suffering a prisoner to escape through design.

(a) That a certain prisoner was committed to the charge of the accused;

(b) That the design of the accused was to suffer the escape of that prisoner; and

(c) That the prisoner escaped as a result of the carrying out of the design of the accused.

Explanation.

(1) Releasing a prisoner without proper authority.

(a) Prisoner. “Prisoner” includes a civilian or military person who has been confined.

(b) Release. The release of a prisoner is removal of restraint by the custodian rather than by the prisoner.

(c) Authority to release. See R.C.M. 305(g) as to who may release pretrial prisoners. Normally, the lowest authority competent to order release of a post-trial prisoner is the commander who convened the court-martial which sentenced the prisoner or the officer exercising general court-martial jurisdiction over the prisoner. See also R.C.M. 1101.

(d) Committed. Once a prisoner has been confined, the prisoner has been “committed” in the sense of Article 96, and only a competent authority (see subparagraph (c)) may order release, regardless of failure to follow procedures prescribed by the code, this Manual, or other law.

(2) Suffering a prisoner to escape through neglect.

(a) Suffer. “Suffer” means to allow or permit; not to forbid or hinder.

(b) Neglect. “Neglect” is a relative term. It is the absence of conduct which would have been taken by a reasonably careful person in the same or similar circumstances.

(c) Escape. Escape is defined in paragraph 19c(4)(c) (Article 95).

(d) Status of prisoner after escape not a defense. After escape, the fact that a prisoner returns, is captured, killed, or otherwise dies is not a defense.

(3) Suffering a prisoner to escape through design. An escape is suffered through design when it is intended. Such intent may be inferred from conduct so wantonly devoid of care that the only reasonable inference which may be drawn is that the escape was contemplated as a probable result.

Lesser included offenses.

(1) Releasing a prisoner without proper authority. Article 80—attempts

(2) Suffering a prisoner to escape through neglect. None

(3) Suffering a prisoner to escape through design.

(a) Article 96—suffering a prisoner to escape through neglect

(b) Article 80—attempts

Maximum punishment.

(1) Releasing a prisoner without proper authority. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(2) Suffering a prisoner to escape through neglect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(3) Suffering a prisoner to escape through design. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.