Fraternization Under Article 134 of the UCMJ

Defining Wrongful Fraternization.

Military case law. 

Military case law suggests that wrongful fraternization is more easily described than defined. Usually, some other criminal offense was involved when officers were tried for this offense. Whatever the nature of the relationship, each case was decided on its own merits with a searching examination of the surrounding circumstances rather than focusing on the act itself. 

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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 specifically includes fraternization between an officer and enlisted personnel as an offense under UCMJ art. 134. The elements of the offense are:

  1. That the accused was a commissioned or warrant officer;
  2. That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
  3. That the accused then 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.

AR 600-20, paras. 4-14 and 4-15 (11 February 2009) define improper superior-subordinate relationships as several specified prohibited relationships. The regulation is punitive, so violation may be punished under Article 92. 

Case law and regulatory guidance can assist in developing a template for determining improper superior-subordinate relationships or wrongful fraternization. Additional scrutiny should be given to relationships involving (1) direct command/supervisory authority or (2) power to influence personnel or disciplinary actions. “[A]uthority or influence . . . is central to any discussion of the propriety of a particular relationship.” DA Pam 600-35 (21 February 2000). These relationships are most likely to generate adverse effects. 

Charging Fraternization. 

Enlisted fraternization may be charged as a violation of UCMJ art. 134. In addition to AR 600-20, many commands have published regulations and policy letters concerning fraternization. Violations of regulations or policy letters are punishable under Article 92. The regulation or policy letter specifically regulates individual conduct without being vague or overbroad.

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Knowledge

Service members are presumed to know 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.

Options Available to Commanders. 

  1. Counsel the individuals involved.
  2. Pursue other non-punitive measures (e.g., reassignment, oral or written warnings or
  3. Reprimands
  4. Adverse OER/EER
  5. Bar to reenlistment
  6. Relief
  7. Administrative elimination

Consider nonjudicial or punitive action.

  1. If the offense amounts to a social relationship between an officer and an enlisted person and violates good order and discipline, it may be charged under UCMJ art. 134. 
  2. If the relationship violates other offenses such as adultery, sodomy, indecent acts, maltreatment, etc., the conduct should be alleged as such. 
  3. Other articles may be charged depending upon the specific facts of the case. 
  4. The conduct may violate a regulation or order and charge under Art 92. 

Sexual activity. 

United States v. Froehlke, 390 F. Supp. 503 (D.D.C. 1975). 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 held not unconstitutionally vague. 

United States v. Hoard, 12 M.J. 563 (A.C.M.R. 1981). “[W]rongfully socializing, drinking, and engaging in sexual intercourse with female trainees in violation of cadre-trainee regulation.” 

United States v. Lowery, 21 M.J. 998 (A.C.M.R. 1986), aff’d, 24 M.J. 347 (C.M.A. 1987). The conviction was upheld when the accused officer had sexual intercourse with an enlisted female, formerly under his command. The female would not have gone to the accused’s office to make an appointment for the superior-subordinate relationship. 

United States v. Tedder, 24 M.J. 176 (C.M.A. 1987). Charges of unbecoming conduct based on the officer having a sexual relationship with an enlisted woman Marine and seeking to have subordinates arrange dates for him with another subordinate Marine were not impermissibly vague. 

United States v. Parrillo, 31 M.J. 886 (A.F.C.M.R. 1990), aff’d 34 M.J. 112 (C.M.A. 1992) Sexual relations with enlisted members under the accused officer’s supervision violated an Air Force custom against fraternization. 

Homosexual conduct. 

United States v. Lovejoy, 42 C.M.R. 210 (C.M.A. 1970). Accused convicted of sodomy and fraternization with an enlisted member of the submarine crew. Sodomy occurred at the accused’s onshore apartment, which he had invited enlisted sailor to share. 

United States v. Pitasi, 44 C.M.R. 31 (C.M.A. 1971). Charges of sodomy were set aside on appeal as unproven, but a conviction for fraternization based on the same relationship was upheld. 

United States v. Free, 14 C.M.R. 466 (N.B.R. 1953). Accused convicted of sharing liquor with an enlisted sailor in his quarters; sailor testified that after accepting an invitation to spend the night in accused’s quarters, he was awakened in the night by accused getting into bed with him. 

Drugs and other illegal activities. 

United States v. Graham, 9 M.J. 556 (N.C.M.R. 1980). Navy lieutenant convicted under Article 133 for conduct unbecoming an officer for smoking marijuana onshore with his ship’s crew members. 

United States v. Chesterfield, 31 M.J. 942 (A.C.M.R. 1990). Drinking and smoking hashish with subordinates constituted fraternization. 

Excessive socializing. 

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. 

United States v. McCreight, 43 M.J. 483 (C.A.A.F. 1996). A conviction for fraternization sustained where 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; repeatedly allowed the same airman to stay in his apartment; and on one occasion drank with the same airman under circumstances where the accused was the “designated drunk,” and the airman was the designated driver. No sexual aspect is alleged or proven. Fraternization does not require sexual conduct.

Proof of custom and other facts. 

United States v. Wales, 31 M.J. 301 (C.M.A. 1990). Accused’s conviction for fraternization was reversed because the judge did not instruct that the members must find that the accused (an Air Force officer) was the supervisor of the enlisted member at the time of the alleged fraternization and because the government did not prove that the accused’s conduct violated a custom of the Service. To prove a custom of the military service, proof must be offered by a knowledgeable witness- -subject to cross-examination–about that custom. 

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IMPROPER SUPERIOR-SUBORDINATE RELATIONSHIPS & FRATERNIZATION 

REFERENCES. 

Dep’t of Army, Reg. 600-20, Personnel–General: Army Command Policy (18 March 2008). (Rapid Action Revision (R.A.R.) Issue Date: 27 April 2010)

Manual for Courts-Martial, United States [hereinafter MCM].

Dep’t of Army, Pam. 600-35, Personnel–General: Relationships Between Soldiers of Different Rank (21 February 2000). [This document is currently only available in draft format from the Army G-1.]

Navy, Marine Corps, and Air Force References.

OPNAVINST 5370.2C, Navy Fraternization Policy (26 Apr 2007).

Marine Corps Manual 1100.4 (as amended by H.Q.M.C., ALMAR 185/96, 130800Z May 96, subject: Marine Corps Manual (MCM) Change 3) and MARCORMAN 1100.4 (13 May 96).

Department of Air Force Instruction 36-2909, Personnel: Professional and Unprofessional Relationships (1 May 1999).

The Current Army Policy under AR 600-20.

What is Fraternization in the Army?

  1. Relationships that compromise or appear to compromise the  the integrity of supervisory authority or the chain of command; 
  2. Relationships that cause actual or perceived partiality or unfairness;
  3. Relationships that involve or appear to involve the improper use of rank or position for personal gain;
  4. Relationships that are, or are perceived to be, exploitative or coercive; and  
  5. Relationships that cause an actual or predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

Prohibited relationships include: 

  • Ongoing business relationships (including borrowing or lending money, commercial solicitations, and any other ongoing financial or business relationships), except: Landlord / tenant; and One-time transactions (such as a car or home sales).
  • All ongoing business relationships existing on the effective date of this prohibition that was otherwise in compliance with the former policy were not prohibited until 1 March 00 (“grace period”). 
  • This prohibition does not apply to USAR / ARNG Soldiers when the ongoing business relationship is due to the Soldiers’ civilian occupation or employment. 
  • Personal relationships, such as dating, shared living accommodations (other than as directed by operational requirements), and intimate or sexual relationships. This prohibition does not affect marriages (change as of 13 May 2002)
  • Otherwise prohibited relationships (dating, shared living accommodations [other than directed by operational requirements] and intimate or sexual relationships), existing on the effective date of this prohibition, that were not prohibited under prior policy, were not prohibited until 1 March 00.
  • Relationships otherwise in compliance with this policy are prohibited under this policy solely because of the change in status of one party to the relationship (such as commissioning). The couple does have one year to either terminate the relationship or marry within one year of the actual start date of the program or before the change in status occurs, whichever is later.
  • Reserve Component (R.C.)/R.C. exclusion when the personal relationship is primarily due to civilian acquaintanceship, unless on active duty (A.D.) or full-time National Guard duty (F.T.N.G.D.) other than annual training (A T). 
  • AD/RC exclusion when the personal relationship is primarily due to civilian association, unless on A.D. or F.T.N.G.D. or other than AT.  

Gambling. There are NO Exceptions

  • An NCAA basketball pool with a monetary buy-in is prohibited when a mix of officer and enlisted personnel participants is mixed. There is no prohibition against gambling between officers.
  • An NCAA bracket competition with a certificate or trophy to the winner even with an officer and enlisted personnel participants.
  • Joint Ethics Regulation (J.E.R.), § 2-302 also addresses gambling. While it may not be prohibited under AR 600-20, it may violate the J.E.R.
  • These prohibitions are not intended to preclude normal team-building associations between Soldiers, which occur in the context of activities such as community organizations, religious activities, family gatherings, unit social functions, or athletic teams or events.
  • All Soldiers bear responsibility for maintaining appropriate relationships between military members. The senior military member is usually in the best position to terminate or limit relationships that may violate this paragraph, but all Soldiers involved may be held accountable for relationships in violation of this paragraph.

Other Prohibited Relationships. 

Trainee / Soldier.

Any relationship between I.E.T. trainees and permanent party Soldiers (not defined) not required by the training mission is prohibited. This prohibition applies regardless of the unit of assignment of either the permanent party Soldier or the trainee. 

Recruit / Recruiter.

Any relationship between a permanent party Soldier assigned or attached to U.S.A.R.E.C., and potential prospects, applicants, members of the Delayed Entry Program, or members of the Delayed Training Program, not required by the recruiting mission, is prohibited. The prohibition applies regardless of the unit of assignment or attachment of the parties involved. 

Violations can be punished as violations of Article 92, UCMJ. 

Fraternization. UCMJ art. 134. 

The President has expressly forbidden officers from fraternizing on terms of military equality with enlisted personnel. MCM, pt. IV, ¶ 83b.  

Elements: the accused 

  1. was a commissioned or warrant officer; 
  2. fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;  
  3. knew the person(s) to be (an) enlisted member(s); and 
  4. 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. under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to discredit the armed forces.  

 AR 600-20 FRATERNIZATION (EXTRACT) 

Rapid Action Revision (R.A.R.) Issue Date: 27 April 2010 

Relationships between Soldiers of different rank

The term “officer,” as used in this paragraph, includes both commissioned and warrant officers unless otherwise stated. The provisions of this paragraph apply to both relationships between Army personnel (to include dual-status military technicians in the Army Reserve and the Army National Guard) and between Army personnel and personnel of other military services. This policy is effective immediately, except where noted below, and applies to different gender relationships and same-gender relationships.

Relationships between Soldiers of different ranks are prohibited if they:

    1. Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.
    2. Cause actual or perceived partiality or unfairness.
    3. Involve, or appear to involve, the improper use of rank or position for personal gain.
    4. Are or are perceived to be exploitative or coercive.
    5. Create an actual or predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

Certain types of personal relationships between officers and enlisted personnel are prohibited. Prohibited relationships include:

  1. Ongoing business relationships between officers and enlisted personnel. This prohibition does not apply to landlord/tenant relationships or one-time transactions such as an automobile or house sale. Still, it does apply to borrowing or lending money, commercial solicitation, and any other type of ongoing financial or business relationship. Business relationships that were authorized under previously existing rules and regulations are exempt until 1 March 2000. In the Army National Guard or United States Army Reserve personnel, this prohibition does not apply to relationships that exist due to their civilian occupation or employment.
  2. Dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel.

This prohibition does not apply to—

  1. Marriages. When evidence of fraternization between an officer and enlisted member before their marriage exists, their marriage does not preclude appropriate command action based on the prior fraternization. Commanders have a wide range of responses available, including counseling, reprimand, order to cease, reassignment, administrative action, or adverse action. Commanders must carefully consider all of the facts and circumstances in reaching an appropriate disposition. Generally, the commander should take the minimum action necessary to ensure that the needs of good order and discipline are satisfied.
  2. Situations in which a relationship that complies with this policy would move into non-compliance due to a change in status of one of the members (for instance, a case where two enlisted members are dating and one is subsequently commissioned or selected as a warrant officer). In relationships where one of the enlisted members has entered into a program intended to result in a change in their status from enlisted to officer, the couple must terminate the relationship permanently or marry within either one year of the actual start date of the program, before the change in status occurs, or within one year of the publication date of this regulation, whichever occurs later.
  3. Personal relationships between members of the National Guard or Army Reserve, when the relationship primarily exists due to civilian acquaintanceships, unless the individuals are on active duty (other than annual training), on full-time National Guard duty (other than annual training), or serving as a dual-status military technician.
  4. Personal relationships between members of the Regular Army and members of the National Guard or Army Reserve when the relationship primarily exists due to civilian association and the Reserve component member is not on active duty (other than annual training), on full-time National Guard duty (other than annual training), or serving as a dual-status military technician.
  5. Prohibited relationships involving dual-status military technicians, which were not prohibited under previously existing rules and regulations, are exempt until one year of the publication date of this regulation.
  6. Soldiers and leaders share responsibility for ensuring that these relationships do not interfere with good order and discipline. Commanders will ensure that personal relationships between Soldiers of different ranks emanating from their civilian careers will not influence training, readiness, or personnel actions.

Gambling between officers and enlisted personnel. 

These prohibitions are not intended to preclude normal team building associations that occur in the context of activities such as community organizations, religious activities, Family gatherings, unit-based social functions, or athletic teams or events.

All military personnel share the responsibility for maintaining professional relationships. However, in any relationship between Soldiers of different grades or ranks, the senior member is generally in the best position to terminate or limit the extent of the relationship. Nevertheless, all members may be held accountable for relationships that violate this policy.

Commanders should seek to prevent inappropriate or unprofessional relationships through proper training and leadership by example. Should inappropriate relationships occur, commanders have available a wide range of responses. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to reenlistment, promotion denial, demotion, and Court-martial. Commanders must carefully consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. 

Other prohibited relationships

Trainee and Soldier relationships.

Any relationship between permanent party personnel and initial entry training (I.E.T.) trainees not required by the training mission is prohibited. This prohibition applies to permanent party personnel without regard to the installation of assignment of the permanent party member or the trainee.

Recruiter and recruit relationships. 

Any relationship between permanent party personnel assigned or attached to the United States Army Recruiting Command and potential prospects, applicants, members of the Delayed Entry Program (D.E.P.), or members of the Delayed Training Program (D.T.P.) not required by the recruiting mission is prohibited. This prohibition applies to United States Army Recruiting Command Personnel without regard to the unit of assignment of the permanent party member and the potential prospects, applicants, D.E.P. members, or D.T.P. members. 

Training commands. 

Training commands and the United States Army Recruiting Command are authorized to publish supplemental regulations, which further detail proscribed conduct within their respective commands. 

Fraternization in the Military

 Violations may be punished under Article 92, UCMJ, as a violation of a lawful general regulation. 

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