Pending Issues and Concerns

The Uniform Code of Military Justice (UCMJ) governs the conduct of military personnel and outlines potential offenses that can lead to court-martial. Here are some of the most important issues military personnel face regarding actions that could trigger UCMJ proceedings and which any military defense counsel should be familiar with:

1. Disobeying Orders: This broad category encompasses a service member’s refusal to follow lawful orders directly given by a superior officer. The order must be clear, specific, and within the superior’s authority. Severity can range from disobeying a minor directive to refusing a deployment order. Ignorance of the law isn’t a defense, but intent and surrounding circumstances can affect punishment.
2. Dishonorable Conduct: This covers many actions that erode trust and integrity. Examples include lying to a superior officer, theft, forgery, and fraudulent enlistment. The act must be severe enough to discredit the service. The specific details and intent behind the action heavily influence the court’s decision.
3. Fraternization: Military regulations restrict social relationships between officers and enlisted personnel to prevent favoritism and maintain order. The exact limitations vary by service branch and rank difference, but romantic or overly familiar relationships are generally prohibited. Engaging in fraternization can lead to a court martial, especially if it compromises the chain of command.
4. Sexual Assault: The UCMJ takes sexual assault very seriously, with punishments ranging from reprimands to dismissal and imprisonment. This includes various forms of unwanted sexual contact, attempts at assault, and creating a hostile sexual environment. Both victims and perpetrators can be military personnel, and the UCMJ has specific procedures for reporting and investigating such offenses.
5. Misconduct Related to Military Property: Military personnel are entrusted with valuable equipment, weapons, and supplies. Losing, damaging, or misusing these items through negligence or deliberate action can lead to court-martial. The severity depends on the value and nature of the property involved and the intent behind the action.
6. Domestic Violence. One of the most significant changes to the UCMJ regarding domestic violence came in 2016 and 2022. Here’s a concise breakdown:
   • Domestic Violence as a Separate Offense (2016): Previously, domestic violence was prosecuted under assault charges. The UCMJ was amended to create Article 128b – Domestic Violence, specifically addressing crimes within intimate relationships. This clarifies the seriousness of the offense and allows for tailored punishments.
   • Strengthened Victim Support (2016 & 2022): Changes expanded eligibility for legal counsel to domestic violence victims in military families. Additionally, standardized policies ensure the safe relocation of victims and their families away from the accused.
   • Improved Data Tracking (2016): The UCMJ amendments improved how domestic violence cases are recorded within the military justice system. This allows for better tracking of offenders and may impact future background checks and firearms purchases.
   • Increased Accountability & Transparency (2022): An Executive Order in 2022 shifted decision-making authority in domestic violence cases (along with sexual assault and other serious crimes) from commanders to independent prosecutors. This aims to increase accountability and reduce potential conflicts of interest.

These changes represent a significant shift in how the military addresses domestic violence, prioritizing victim safety, clearer prosecution, and a more streamlined justice process.

We as military defense lawyers have represented many servicemembers charged with one or more of the above types of offense. We bring a history of experience and success to winning the best result for you under all the circumstances.

We also have a long history of representing clients from all the services before the appellate courts: The Air Force Court of Criminal Appeals (AFCCA), Army Court of Criminal Appeals (ACCA), Coast Guard Court of Criminal Appeals (CGCCA), the Navy-Marine Corps Court of Criminal Appeals (NMCCA), and most importantly the Court of Appeals for the Armed Forces (CAAF), and the U.S. Supreme Court.

Can you have salacious conversations online about sex and children?

I suppose you can. But should you, especially if you are a military officer–of course not.

[A] more exacting standard of conduct can be traced back at least to “the days of knighthood” where “knights were held to a higher standard of conduct than their fellow countrymen” in “the Court of Chivalry.” James Snedeker, Military Justice under the Uniform Code 887 (1953).

In United States v. Meakinan Air Force Lieutenant Colonel found out the hard way that you don’t engage in salacious conversations online, even if you use a fake name. For this LtCol he found out later that he was talking to police officers in Canada who were doing a To-Catch-A-Predator operation. Slip op. at 2. The Court of Appeals rejected his First Amendment and Privacy defenses.

Can you be guilty of a sexual offense if you conduct sexual acts in front of a child?

The Army Court of Criminal Appeals supports a yes answer to the question, but not in the specific facts of United States v. Lino, decided in April 2019.

In Lino, the accused had some sort of activity in bed while the females daughter was in the room. He was charged with engaging in “sexual intercourse.” The appellate court found the evidence insufficient to prove actual sexual intercourse happened and was proved. The conviction was dismissed. The case is a fact specific decision.

Another way to look at the opinion is the suggestion that had the prosecution charged differently a conviction might have been affirmed.

So why the question? Do not some parents allow their child to sleep in their room at night? What if the parents engaged in sexual acts during the night? Well–it looks like the military considers that and will charge that as a crime.