8.
a. UCMJ, Article 134. The elements of this 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 members 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 such a nature to bring
disrespect upon the armed forces. (MCM, paragraph 83c.)
It is clear that "not all contact or association between officers and
enlisted persons is an offense."
Instead, this "depends on the surrounding
circumstances." Relevant factors include "whether the conduct has compromised the
chain of command, resulted in the appearance of partiality, or otherwise undermined
good order, discipline, authority or morale.
The acts and circumstances must be
such as to lead a reasonable person experienced in the problems of military
leadership to conclude that the good order and discipline of the armed forces has
been prejudiced by their tendency to compromise the respect of enlisted persons for
the professionalism, integrity, and obligations of an officer."
(MCM, paragraph
83(c)1.)
This specific offense (Article 134) does not cover relationships between two
officers or two enlisted persons.
Such relationships may, however, be proscribed
by service wide and local regulations. (MCM, paragraph 83(c)2.) Also under this
definition, the parties needn't be of different sexes.
b. AR 600-20, paragraph 5-7f.
This is a much broader prohibition than the
specific one found in Article 134 that we just discussed.
Relationships between
soldiers of different ranks which involve (or give the appearance of) partiality,
preferential treatment, or the improper use of rank or position for personal gain,
are prejudicial to good order and discipline and high unit morale.
Such
relationships, therefore, are improper where they have one of the following
effects:
-
Cause actual or perceived partiality or unfairness;
-
Involve the improper use of a rank or position for personal gain;
-
Can
otherwise
reasonably
be
expected
to
undermine
discipline,
authority, or morale.
Relationships are not, then, inherently wrong.
What is important is the
effect of the relationship. Many Army regulations, for example, recognize the fact
that soldiers of different rank are going to marry one another.
Examples are AR
215-2, paragraph 5-13(a)l (use of the Army club system), AR 210-50, paragraph 3-9
(eligibility for post housing), and AR 614-200, paragraph 5-8 (assignments).
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MP1018
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