First off, “malingering” is under article 83 of our UCMJ. It includes a provision that “Any person subject to this chapter who, with the intent to avoid work, duty or service—(1) feigns illness”...dismemberment, etc., or intentionally inflicts self-harm. So it does actually have intent. It's not as clearly spelled out as the Canadian law, but it does have that.
One thing that we have found is that when commanders are wanting to punish a service member, they quite easily satisfy themselves that the person was intending to avoid work. The example that we have of a service member who, through pain, after suffering a suicide attempt, admits that “I can't go back to battle”, is a very different thing from saying, “I'm afraid to go to this training”.
I do think the notion was expressed a moment ago of being able to parse out those instances where someone is healthy, able and well, but scared, like we all would be, and harms themself. It's being able to parse out those individuals who are suffering severely with mental disease. You had mentioned the notion of maybe having a pre-deployment versus post-deployment analysis. Distinguishing between someone who hurts themself pre-deployment, before they've been to war, versus someone who hurts themself post-deployment, I think is possibly a good way to get at the issue. The only thing is that you would want to be very careful about how you spell that out, because we have in our military, anyway, several people who come to military service, frankly, who have had violence in their past, who come with a lot.... They could be coming to military service with PTSD. While I think that's a step in the right direction.... I really applaud Canada, truly, for looking at this and really trying to get to how you might amend the statute in a way that could get to what we are trying to get at.
There are some instances, I think, where malingering does need to be punishable. We can't allow people to drop a brick on their foot intentionally the night before their ruck march because they don't want to go.
I don't know if I answered your question. I'm happy to go further.