Fraternization – Article 134

Wrongful fraternization is more easily described than defined. Usually, some other criminal offense is involved when an officer or enlisted member is tried for this offense. Whatever the nature of the relationship, each case is clearly decided on its own merits with an examination of the surrounding circumstances rather than focusing on the act itself.

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

a)  That the accused was a commissioned or warrant officer;
b)  That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
c)  That the accused then knew the person(s) to be (an) enlisted member(s);
d)  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
e)  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.

Army Regulation (AR) 600-20, paragraphs 4-14 and 4-15 define improper superior-subordinate relationships, to include several specified prohibited relationships. The regulation is punitive, so violation may be punished under Article 92.  Enlisted fraternization may also be charged as a violation Article 134.  Additionally, Article 134 has been successfully used to prosecute instances of officer-officer fraternization.  The key portion of the AR 600-20 is as follows:

Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly predictable perception of undue familiarity between an officer and an enlisted Soldier, or between an NCO and a junior-enlisted Soldier.  Examples of familiarity between Soldiers that may become “undue” can include repeated visits to bars, nightclubs, eating establishments, or homes between an officer and an enlisted Soldier, or an NCO and a junior-enlisted Soldier, except for social gatherings, that involve an entire unit, office, or work section. All relationships between
Soldiers of different grade 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 grade or position for personal gain.
(4) Are, or are perceived to be, exploitative or coercive in nature.
(5) Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

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: a) The regulation or policy letter specifically regulates individual conduct without being vague or overbroad; b) The regulation or policy letter indicates that violations of the provisions are punishable under the UCMJ (directory language may be sufficient); and c) 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.

Civilian Lawyer

If you are charged with fraternization, and would like a civilian defense lawyer’s assistance with defending you at a court-martial, contact Mr. Coombs today for a free consultation.  Mr. Coombs is a civilian defense lawyer with over 20 years of experience.  He specializes in defending only Army Soldiers.

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