Fraternization. UCMJ Art. 134

Defining Wrongful Fraternization

  1. test1 075 (Side 75)Military case law.
    1. 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 clearly decided on its own merits with a searching examination of the surrounding circumstances rather than focusing on the act itself.
    2. 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.
  2. The Manual for Courts-Martial specifically includes fraternization between officerand 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.
  3. AR 600-20, paras. 4-14 and 4-15 (11 Feb 2009), define improper superior-subordinate relationships, to include several specified prohibited relationships. The regulation is punitive, so violation may be punished under Article 92.
  4. 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 Feb 2000). These relationships are most likely to generate adverse effects.

Charging Fraternization

  1. test1 092 (Side 92)Enlisted fraternization may be charged as a violation of UCMJ art. 134. UnitedStates v. Clarke , 25 M.J. 631 (A.C.M.R. 1987), aff’d, 27 M.J. 361 (C.M.A. 1989); United States v. Carter , 23 M.J. 683 (N.M.C.M.R. 1986); United States v. March , 32 M.J. 740 (A.C.M.R. 1991). Additionally, Article 134 has been successfully used to prosecute instances of officer-officer fraternization, United States v. Callaway , 21 M.J. 770 (A.C.M.R. 1986).
  2. 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, if:
    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), aff’d in part, rev’d in part, 16 M.J. 451 (C.M.A. 1983); United States v. Hoard , 12 M.J. 563 (A.C.M.R. 1981);
    2. The regulation or policy letter indicates that 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); see also United States v. Tedder , 24 M.J. 176, 1981 (C.M.A. 1987).

Options Available to Commanders

  1. Counsel the individuals involved.
  2. Pursue other non-punitive measures ( e.g. , reassignment, oral or written admonitionsor reprimands, adverse OER/EER, bar to reenlistment, relief, administrative elimination).
  3. 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 be in violation of a regulation or order and charged under Art 92.

Applications

  1. test1 086 (Side 86)Sexual activity.
    1. 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. Offense of unlawful fraternization held not unconstitutionally vague.
    2. United States v. Hoard , 12 M.J. 563 (A.C.M.R. 1981). “[W]rongfully socializing, drinking, and engaging in sexual intercourse with female receptees in violation of cadre-trainee regulation.”
    3. United States v. Lowery , 21 M.J. 998 (A.C.M.R. 1986), aff’d, 24 M.J. 347 (C.M.A. 1987). Conviction upheld 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.
    4. United States v. Tedder , 24 M.J. 176 (C.M.A. 1987). Charges of unbecoming conduct based on officer having sexual relationship with enlisted woman Marine and seeking to have subordinates arrange dates for him with another subordinate Marine were not impermissibly vague.
    5. 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.
    6. United States v. Sanchez , 50 M.J. 506 (A. F. Ct. Crim. App. 1998). Accused cannot be convicted of both conduct unbecoming (Art. 133) and fraternization (Art. 134) when the misconduct alleged in the specifications is identical; fraternization gets dismissed. Those fraternization allegations not alleged in conduct unbecoming specifications remain. Court cites United States v. Harwood , 46 M.J. 26, 28 (1997) in support.
    7. United States v. Rogers, 54 M.J. 244 (2000). Evidence legally sufficient to sustain Art. 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. AF Court holds there is no need to prove breach of custom or violation of punitive regulation.
  2. Homosexual conduct.
    1. United States v. Lovejoy , 42 C.M.R. 210 (C.M.A. 1970). Accused convicted of sodomy and fraternization with enlisted member of submarine crew. Sodomy occurred at accused’s on-shore apartment, which he had invited enlisted sailor to share.
    2. United States v. Pitasi , 44 C.M.R. 31 (C.M.A. 1971). Charges of sodomy set aside on appeal as unproven but conviction for fraternization based on same relationship upheld.
    3. United States v. Free , 14 C.M.R. 466 (N.B.R. 1953). Accused convicted of sharing liquor with enlisted sailor in his quarters; sailor testified that after accepting invitation to spend the night in accused’s quarters, he was awakened in night by accused getting into bed with him.
  3. Drugs and other illegal activities.
    1. 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 on shore with members of his ship’s crew.
    2. United States v. Chesterfield , 31 M.J. 942 (A.C.M.R. 1990). Drinking and smoking hashish with subordinates constituted fraternization.
  4. test1 121 (Side 121)Excessive socializing.
    1. United States v. Arthur , 32 M.J. 541 (A.F.C.M.R. 1990). Accused officer’s romantic relationship with an enlisted co-worker did not constitute fraternization.
    2. United States v. McCreight , 43 M.J. 483 (C.A.A.F. 1996). 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 same airman under circumstances where the accused was the “designated drunk” and the airman was the designated driver. No sexual aspect alleged or proven. Fraternization does not require sexual conduct. Accord United States v. Nunes , 39 M.J. 889 (A.F.C.M.R. 1994) (“That 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.”).
  5. Proof of custom and other facts.
    1. 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.
    2. United States v. Appel , 31 M.J. 314 (C.M.A. 1990). If the government relies on a violation of a custom as fraternization, it must prove the custom (Air Force accused). Proof of a military custom may not be based on judicial notice.
    3. United States v. Thompson , 31 M.J. 781 (A.C.M.R. 1990). Military judge is entitled to take judicial notice of a post regulation proscribing fraternization.
    4. United States v. Johanns , 20 M.J. 155 (C.M.A. 1985), cert. denied 474 U.S. 850 (1985). Decision of A.F.C.M.R. that “[C]ustom in the Air Force “against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command or supervision, unavailable.
    5. United States v. Fox , 34 M.J. 99 (C.M.A. 1992). Air Force fraternization specification must at least imply existence of a superior-subordinate or supervisory relationship and court members must be instructed that to find the accused guilty they must find the existence of such a relationship.
    6. United States v. Blake , 35 M.J. 539 (A.C.M.R. 1992). Specification alleging fraternization between Army 1SG and female NCO in his company was fatally defective where it failed to allege a violation of Army custom, which is an essential element.
    7. United States v. Boyett , 37 M.J. 872 (A.F.C.M.R. 1993), aff’d 42 M.J. 150 (1995). Determination in previous case ( Johanns ) that custom against fraternization in the Air Force had been so eroded as to make criminal prosecution against officer for engaging in mutually voluntary, private, nondeviate sexual intercourse with enlisted member, neither under his command nor supervision, unavailable was limited to state of customs reflected in record in that case, and would not preclude every prosecution for fraternization based on such conduct. (Per Heimberg, J., with three Judges concurring and one Judge concurring separately).
    8. United States v. Brown , 55 M.J. 375 (C.A.A.F. 2001). The military judge did not abuse his discretion when he admitted the nonpunitive Air Force Pamphlet (AFP) 36-2705, Discrimination and Sexual Harassment (28 February 1995) over defense objection. In so ruling, the CAAF agreed with the military judge that the AFP was relevant to establish notice of the prohibited conduct and the applicable standard of conduct in the Air Force community to the appellant. Additionally, the CAAF stated that in cases were evidence of the custom of the service is needed to prove an element of an offense, it is likely that the probative value will out weigh the prejudicial effect.

Drugs and other illegal activities.

Proof of custom and other facts.