Fraternization. UCMJ art. 134
1. The President has expressly forbidden officers from fraternizing on terms of military equality with enlisted personnel. MCM, pt. IV, ¶ 83b.
2. Elements: the accused
a) was a commissioned or warrant officer;
b) fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
c) knew the person(s) to be (an) enlisted member(s); and Improper Superior-Subordinate Relationships & Fraternization (ISSRFRT)
d) such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and
e) 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.
3. “Hard to define it, but I know it when I see it.”
4. Article 134 has also been successfully used to prosecute instances of officer-officer fraternization,
United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986), and even enlisted-enlisted relationships.
United States v. Clarke, 25 M.J. 631 (A.C.M.R. 1987),aff’d, 27 M.J. 361 (C.M.A. 1989). 5. Maximum punishment: dismissal/dishonorable discharge, total forfeitures and two years confinement. MCM, pt. IV, ¶ 83e. 6. Custom.
a) The gist of this offense is a violation of the custom of the armed forces against fraternization; it does not prohibit all contact or association between officers and enlisted persons.
b) Customs vary from service to service, and may change over time.
c) Custom of the service must be proven through the testimony of a knowledgeable witness.
United States v. Wales, 31 M.J. 301 (C.M.A. 1990).
7. Factors to Consider in Deciding How to Dispose of an Offense.
a) Nature of the military relationship;
b) Nature of the association;
c) Number of witnesses;
d) Likely effect on witnesses.