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:
- The accused was a commissioned or warrant officer;
- The accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
- The accused knew the person(s) to be (an) enlisted member(s);
- 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
- 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.
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:
- 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);
- The regulation or policy letter indicates violations of the provisions are punishable under the UCMJ (directory language may be sufficient); and
- 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?
- Counsel the individuals.
- Pursue other non-punitive measures, i.e. oral or written reprimands or admonishments; adverse OER/EER; bar to reenlistment; administrative elimination.
- 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.”
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