Fraternization in the Military: Legal Issues
Fraternization in the military relates to prohibited personal relationships between military service members of different ranks and positions. Fraternization involves improper relationships, ranging from overly casual relationships to friendships to romantic relationships.
When this occurs between officers and enlisted service members or between some other hierarchical pairing, as between a commander and an officer or enlisted soldier in her command, it can potentially undermine the chain of command, order, and discipline. Not all contact between enlisted persons and officers or subordinates and superiors is prohibited, just contact that would compromise (or have the appearance of compromising) order, discipline, and the chain of command.
This article discusses the basics of fraternization in the military, the likelihood of facing charges, consequences, and possible defenses. See FindLaw's Military Criminal Law section for related articles and resources.
What Is Fraternization in the Military?
Each branch of the military used to have its own set of rules governing fraternization, but this changed in 1999 when the Department of Defense issued a issued a uniform policy for all branches to follow. The policy specified certain relationships that are always improper such as relationships between officers and enlisted service members that are personal, involve ongoing business, or involve gambling. However, any other type of relationship can also be prohibited if it has an adverse effect on a unit or chain of command, which can include just the appearance of impropriety.
That being said, a certain level of fraternization among service members of different ranks and positions is often encouraged in the military, such as softball games or other team building events. However, even this can cross the line if, for example, an officer goes out for drinks with an enlisted person after the game. This relationship could undermine the impartiality (or the perception of impartiality) of that officer or enlisted service member. Since military superiors have the authority to send troops into battle and can make or break an enlisted person's career, this specific type of fraternization is strictly prohibited. The key here in this example is whether you’re building a team or building a personal relationship.
Some exceptions do apply to the per se rules. If an officer and enlisted service member were married before joining the service or before the policy was enacted, that relationship would not violate the fraternization policy. Also, officers and enlisted service members in the Reserves or National Guard may have an ongoing business relationship based on their civilian jobs. They may also be able to have personal relationships if the relationship is due primarily to a civilian acquaintanceship. However, keep in mind that even if an exception to the policy applies, the relationship can still be prohibited if it has an adverse effect on the unit or chain of command.
When Fraternization Is Charged as an Offense
Fraternization becomes a criminal offense under Article 134 of the Uniform Code of Military Justice when the conduct "has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale," according to the Manual for Courts-Martial (PDF). Most offenses do not lead to a court-martial. However the per se categories mentioned above could result in formal charges. But remember that such charges can only be brought against an officer based on the elements of fraternization set forth in the Manual:
- The accused was a commissioned or warrant officer;
- The accused fraternized on terms of military equality with one or more certain enlisted members in a certain manner;
- The accused then knew the person(s) to be (an) enlisted member(s);
- The fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality; and
- 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.
Penalties for Violations
The penalty for fraternization in the military varies according to:
- The severity of the incident;
- Its overall impact on morale and the chain of command; and
- Other factors specific to the case.
For minor fraternization issues, the accused may receive a verbal or written reprimand. This type of action is often referred to as an administrative corrective measure.
A nonjudicial or "Article 15" process is not a trial but includes an inquiry into the facts and allows the accused a hearing, per Article 15 of the Uniform Code of Military Justice. Article 15 punishments may include (but are not limited to):
- A 30-day suspension from duty;
- Loss of a half-month's pay for two months;
- Confinement in quarters for 30 consecutive days; and
- Extra duties or additional limits, as deemed appropriate by the commanding officer.
A case considered flagrant or involving other serious circumstances may result in a court-martial. As with any court-martial process, the accused has access to counsel, the right to appeal, and many of the same rights civilian defendants have. The maximum punishment for a guilty verdict in a court-martial for fraternization is dismissal, forfeiture of pay, and confinement for two years.
Defenses to Fraternization Charges
Simply because someone is charged with fraternization doesn't mean that the accused lacks any recourse. There are several potential defenses to fraternization, such as:
- False accusation
- Failure to prove that the chain of command or morale was compromised
- Proof of legal marriage to enlisted member
- Proof that alleged fraternization was under the auspices of official duty
Fraternization in the military can result in serious penalties. Consider speaking with a military lawyer if you have additional questions or seek the assistance of a civilian counsel specializing in military law. To find a civilian attorney near you, see FindLaw’s lawyer directory.