UCMJ Article 134

Defining Wrongful Fraternization

Some believe that defining fraternization in the military defense context is as simple as a an inappropriate relationship between two service members; however, military case law and the Manual for Courts-Martial make clear; it is not simple to define Fraternization in military defense context.

What does Military Case Law and the Manual for Courts-Martial say?

Military case law suggests wrongful fraternization is usually connected to some other military offense or criminal offense. However, whatever the nature of the relationship; the issue must be decided on its own merit.

The legal test for describing or defining fraternization is found in United States v. Free, 14 C.M.R. 466 (N.B.R. 1953): “Because of the many situations which might arise, it would be a practical impossibility to lay down a measuring rod of particularities to determine in advance what acts are prejudicial to good order and discipline and what are not. As we have said, the surrounding circumstances have more to do with making the act prejudicial than the act itself in many cases. Suffice it to say, then, that each case must be determined on its own merits. Where it is shown that the acts and circumstances are such as to lead a reasonably prudent person, experienced in the problems of military leadership, to conclude that the good order and discipline of the armed forces has been prejudiced by the compromising of an enlisted person’s respect for the integrity and gentlemanly obligations of an officer, there has been an offense under Article 134.”

The Manual for Courts-Martial (UCMJ) describes fraternization as an offense between an officer and enlisted person in Article 134 of the UCMJ. The elements of the offense include:

    1. The accused was a commissioned or warrant officer;
    2. The accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
    3. The accused knew the person(s) to be (an) enlisted member(s);
    4. That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and
    5. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM, pt. IV, 83b.

Additionally, Army Regulation 600-20, paras. 4-14 and 4-15 define an improper superior-subordinate relationship to include many specific prohibited relationships. The regulation is punitive; therefore, violations may be punished under Article 92.

DA Pam 600-35 (21 Feb 2000) states improper superior-subordinate relationships or wrongful fraternization may occur as a result of the following: (1) direct command/supervisory authority, or (2) power to influence personnel or disciplinary actions. “uthority or influence . . . is central to any discussion of the propriety of a particular relationship.” DA Pam 600-35 (21 Feb 2000). Further, these relationships may result in adverse effects.

Fraternization Specifications

Enlisted fraternization may be charged as a violation of UCMJ art. 134 in a variety of specifications. UnitedStates v. Clarke , 25 M.J. 631 (A.C.M.R. 1987), United States v. March , 32 M.J. 740 (A.C.M.R. 1991). Additionally, Article 134 was successfully used to prosecute officer-officer fraternization in United States v. Callaway , 21 M.J. 770 (A.C.M.R. 1986).

In additional to AR 600-20 multiple commands have published regulations and policies prohibiting acts of fraternization. Violations of regulations or policy letters are punishable under Article 92 of the UCMJ when the follow circumstances exist:

    1. The regulation or policy letter specifically regulates individual conduct without being vague or overbroad. See United States v. Callaway , 21 M.J. 770 (A.C.M.R. 1986); United States v. Adams , 19 M.J. 996 (A.C.M.R. 1985); United States v. Moorer , 15 M.J. 520 (A.C.M.R. 1983);
    2. The regulation or policy letter indicates violations of the provisions are punishable under the UCMJ (directory language may be sufficient); and
    3. Knowledge: Service members are presumed to have knowledge of lawful general regulations if they are properly published. Actual knowledge of regulations or policy letters issued by brigade-size or smaller organizations must be proven. See generally United States v. Mayfield , 21 M.J. 418 (C.M.A. 1981); United States v. Tolkack , 14 M.J. 239 (C.M.A. 1982).

What Options may a Commander exercise?

  1. Counsel the individuals.
  2. Pursue other non-punitive measures, i.e. oral or written reprimands or admonishments; adverse OER/EER; bar to reenlistment; administrative elimination.
  3. Consider nonjudicial punishment (“NJP”) or Punitive action.
    • UCMJ Article 134 may be charged, if the offense amounts to a social relationship between an officer and an enlisted person and violates good order and discipline.
    • Adultery, sodomy, indecent acts, maltreatment, or other sexual misconduct may be charged under the UCMJ, if such violations are alleged.
    • Other articles may be charged depending upon the specific facts of the case.
    • The conduct may be in violation of a regulation or order and charged under UCMJ Article 92.

How is Fraternization Applied?

Sexual activity has resulted in convictions for fraternization in multiple Courts-Martial proceedings. In United States v. Froehlke , 390 F. Supp. 503 (D.D.C. 1975) the Court upheld conviction of warrant officer for undressing and bathing an enlisted woman (not his wife) with whom he had been drinking. The offense of unlawful fraternization was held to not be unconstitutionally vague. In United States v. Hoard , 12 M.J. 563 (A.C.M.R. 1981). “rongfully socializing, drinking, and engaging in sexual intercourse with female receptees in violation of cadre-trainee regulation.”

In United States v. Lowery , 21 M.J. 998 (A.C.M.R. 1986), aff’d, 24 M.J. 347 (C.M.A. 1987) the Court upheld a conviction when accused officer had sexual intercourse with enlisted female, formerly under his command, where the female would not have gone to the accused’s office to make an appointment but for the superior- subordinate relationship. Additionally, in United States v. Rogers, 54 M.J. 244 (2000) the Court held evidence was legally sufficient to sustain UCMJ Article 133 conviction for the offense of conduct unbecoming an officer by engaging in an unprofessional relationship with a subordinate officer in appellant’s chain of command. The Court held there is no need to prove breach of custom or violation of punitive regulation.

Drugs and other illegal activities with subordinates has been determined to be fraternization. In, United States v. Chesterfield , 31 M.J. 942 (A.C.M.R. 1990) the Court held drinking and smoking hashish with subordinates constituted fraternization. However, in United States v. Arthur , 32 M.J. 541 (A.F.C.M.R. 1990) the accused officer’s romantic relationship with an enlisted co-worker did not constitute fraternization.

In United States v. McCreight , 43 M.J. 483 (C.A.A.F. 1996) a conviction for fraternization was sustained without any evidence of sexual interaction; when the 1LT showed partiality and preferential treatment to senior airman; associated with airman on a first name basis at work and during numerous social contacts, including drinking and gambling. Fraternization does not require sexual conduct. In Accord United States v. Nunes, 39 M.J. 889 (A.F.C.M.R. 1994) the court specifically held, “hat no sexual relationship was alleged is irrelevant. This case is a useful corrective to the common notion that fraternization perforce must include sexual hanky-panky.”

Experienced Military Defense Counsel

John Cannon, owner of CANNON & ASSOCIATES, PLLC, is a JAG attorney and has experience defending and prosecuting a multitude of military criminal cases, including Fraternization. John has been honored by being identified as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association. John has the experience and will bring it to bear in your case. Additionally, he has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of military charges, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES to protect your freedom, your future, and your story. You may send an email inquiry, complete the contact form on the website, or call at (405) 657-2323.

Cannon & Associates

Fierce Advocates®

For Families and Freedom

Our Client Reviews

More 5-star Reviews Than 99% Of Lawyers In Oklahoma

"John has shown nothing but compassion and professional guidance in my case. He truly cares about his clients and is exceptionally understanding when it comes to any case he is representing. He communicates genuinely as well as in a timely matter. If I were able to give his firm any more than 5 stars, I most definitely would. He is incredible."

- HOLLY ROSE

"John Cannon is an awesome attorney. He is very professional and honest. He really cares about his clients. John always gets back to you quickly to answer any questions you have regarding your case. I highly recommend CANNON & ASSOCIATES for any legal needs you may have."

- SHARON PINKARD

"John Cannon has helped me through the hardest time in my life. He helped me through my divorce and custody case. He truly cares about his clients and it made me so happy he always put my daughter first and wanted what was in her best interest as a child. He is very sharp and resourceful and he has been very attentive and responsive to my needs, John is very polite and professional and he always has a great attitude. John always took the time to go over everything and explain everything in depth. I've enjoyed working with John and his team and would recommend him to other clients."

- LEXI COYLE

"I have known John for about 6 years now in his capacity as a Judge Advocate and a civilian attorney. John has a rare blend of both sharp analytical and interpersonal skills. I have seen John achieve positive outcomes for clients in complex scenarios and If you need an attorney who can do the same for you - this is your guy."

- ALAN MERRIMAN

"John did a very good job. Although the outcome was not 100% what we expected(strange judgement) it was overall positive. I would, have and will continue to recommended him. Although I certainly hope to not need his services again in the capacity I hired him for I would not hesitate to call if I do. Thanks John"

- MICHAEL RICKARD

"I signed up with John June 25th, July 5th I received an email that my case is in line to be DISMISSED, within a 2 week time period John made what was one of the most stressful times in my life better! Every case is different but he handled my case with care and he was extremely open in his communication throughout the whole process. I hope to never have to have a criminal attorney again but if I do I will definitely go back to John. I highly recommend him to anyone else who is needing an attorney!"

- ASHLEY

"John is a highly respected attorney. Professional and compassionate. He has a wealth of knowledge, being a military officer and having served as an Assistant District Attorney, a Public Defender, and an Assistant Attorney General. He helped a friend's son who was headed down the wrong path, but through John's legal defense the young man is now a successful business owner."

- ATTORNEY COLLEAGUE

"John is a very professional attorney, who is not only concerned about the welfare of his client but very attentive and considerate of the family, or other bodies that are in the face of the adversity. While working on my family members case, John took time out to take a class that would educate him on how to approach the many different types of cases tried in the court room. John proved his sincerity to the calling of his job, being an attorney. I would definitely recommend him to anyone."

- LAQUITA

"Mr. Cannon went above and beyond for my wife. She was facing some pretty hard fines and prison time with the US Marshalls. Mr. Cannon fought a hard fight and got her a GREAT offer. Words cannot express how much I appreciate him and what he did for my wife. I would give 10 stars and I will be promoting him. He's that awesome. He keeps you informed, he will text or call you back, and he goes above what he is asked to do and I can reassure you"HE WILL FIGHT FOR YOU OR YOUR FAMILY MEMBER". I will continue retaining him for other things my wife is battling. High five and a great big hug to Mr. Cannon. Thank you!!! John took the reigns and provided us instant peace of mind. He was timely, respectful, transparent, very professional, honest and courteous. The service he provided was above and beyond our expectations. Can’t believe professionals like him are around. Highly highly without reservations recommend him and his team."

- TARA

"John Cannon is an excellent attorney. He takes sincere interest in your needs. He maintains communication and provides all the information you might want to fully understand the legal process. He also suggests alternative resolutions to your legal needs so that you can make informed choices. I definitely recommend John."

- DUDLEY

"My experience with CANNON & ASSOCIATES was absolutely amazing. I hired John Cannon two days before my rebuttal statement was due back to the Staff Judge Advocate. Within that time frame he was able to talk to my Battery and Battalion Commanders, review my evidence, and help me write a rebuttal statement that help prove my case to them, the Brigade Commander and the Post Commanding General. Cannon worked thru the night to help me get the best results for me and my family. Due to his hard work and attention to detail I am still able to continue to serve my country and progress in my military career with no adverse actions on my record. I can not thank him enough on a job well done. Cannon showed me that he was invested in my case and I highly recommend you hire him when you need someone to represent you in a legal matter."

- ZAVIEN

"John Cannon assisted me through a very difficult time in my military career. He worked tirelessly with me on my case and kept me informed during the entire process. I can't say enough good things about Mr. Cannon. He's incredibly knowledgeable with regards to military justice. The outcome of my case was successful and I attribute that to Mr. Cannon's professionalism and expertise in dealing with military law. I would highly recommend Mr. Cannon to anyone with military justice or criminal defense needs."

- A FORMER CLIENT

"Hands down the best lawyer. Mr.Cannon accepted my case and got on it the same day. I would give him 10 stars if I could. I really appreciate the dedication on how he handles things with a short time frame."

- CHRIS

"Mr. Cannon has represented me on 2 criminal cases and one civil case over the past 4 years. He has always served me honestly, speedily and with good moral direction. John has integrity and humility. He has never belittled me or treated me in an unfair manor. I appreciate all that he has done for me and I most certainly recommend him to family, strangers and friends. I will definitely use Mr. Cannon in the future for any and all of my family's legal matters."

- CANDICE

"Mr. Cannon went above and beyond for my wife. She was facing some pretty hard fines and prison time with the US Marshalls. Mr. Cannon fought a hard fight and got her a GREAT offer. Words cannot express how much I appreciate him and what he did for my wife. I would give 10 stars and I will be promoting him. He's that awesome. He keeps you informed, he will text or call you back, and he goes above what he is asked to do and I can reassure you"HE WILL FIGHT FOR YOU OR YOUR FAMILY MEMBER". I will continue retaining him for other things my wife is battling. High five and a great big hug to Mr. Cannon. Thank you!!!"

- TARA

"I had a great experience with John. He is very personable and helped me a lot. I’m really grateful I found him. He made me feel confident that he was the right lawyer for my case and that he wasn’t trying to sell me but genuinely just wanted to help me. I would highly recommend John to anyone!"

- DOMINIQUE

"Working with Mr. Cannon has been a real life-saving experience for me and my family. He provides the knowledge of the possibilities as soon as he can get them, then works tirelessly to ensure that any concerns or questions are addressed immediately. He has been a great asset to us not only in the face of legal troubles, but in providing a sense of security that is truly reassuring in the face of the uncertain.Mr. Cannon has been a great resource and has been very patient with me. From the start he provided a list of things to do that would help me help him with my case and since the beginning has continued to give advice or suggestions on any matter that has bothered me with my situation, large or small. He is gentle, yet realistic, and this combination really does become a rock in tumultuous times such as these.I would highly recommend Mr. Cannon to anyone who needs a vigilant and committed attorney, especially one that stands by your side until your issue is resolved. He goes above and beyond not only to work, but to care for his clients!"

- ANONYMOUS

"John Cannon assisted me through a very difficult time in my military career. He worked tirelessly with me on my case and kept me informed during the entire process. I can't say enough good things about Mr. Cannon. He's incredibly knowledgeable with regards to military justice. The outcome of my case was successful and I attribute that to Mr. Cannon's professionalism and expertise in dealing with military law. I highly recommend Mr. Cannon to anyone with military justice or criminal defense needs."

- S VANZANTE