The brigade commander calls you into their office to share some news: the annual brigade ball will occur three months from today. Having recently taken command, the goal is to improve the brigade’s esprit de corps with maximum participation by offering low ticket prices. The commander expects to use members of the S6 section to provide assistance with the audio visual equipment that will be used to play music during the event. Additionally, the commander wants to assign Headquarters and Headquarters Company (HHC) personnel to perform the color guard and to operate a courtesy shuttle service to mitigate alcohol-related accidents. Finally, the commander plans to invite a deputy commander (O-7) from a nearby installation to serve as the military ball’s guest speaker, and would also like to provide the speaker with a gift following their remarks. The brigade commander and deputy commander share a mentor-mentee relationship. As you get up to leave, the commander adds that they’ve appointed an S4 captain to lead the planning committee, and that they expect you to work with the committee to ensure maximum publicity before the military ball, as well as to provide any legal advice on issues that arise during preparation for the ball.
It’s inevitable. At some point in your career, you will provide legal advice about your unit’s military ball. To the undiscerning eye, military balls share the ceremonial underpinnings of an official Army event—guest speakers, formal dress uniforms, toasts, and color guards. In reality, military balls are hybrid events because they are unofficial functions1 that embody official components. Further, the employees that comprise the committees formed to plan and execute these events are private organizations that are treated as non-federal entities (NFEs).2 These distinctions will impact how you advise your unit, and your success will depend on your understanding of the relevant rules, as well as your proactivity during the planning process.
Through the lens of the above hypothetical, this article analyzes common legal issues you may encounter during the military ball planning process. Specifically, this article will address how the planning committee may seek to lower ticket prices through fundraising; discuss examples of logistical support the unit might provide during the event’s planning and execution; explore the ramifications of including a guest speaker, and some of the rules for providing the guest speaker with a token of appreciation for their remarks; and address how to correctly publicize event details without running afoul of the rules governing improper command endorsements. While this article cannot possibly address all the issues that might arise, it will help you anticipate common scenarios and provide a starting point for when you find yourself advising your commander on this time-honored—and unofficial (mostly)—Army tradition.
In order to meet the commander’s intent and keep ticket prices low, the planning committee will likely ask your advice on the permissibility of holding a fundraising event—such as a bake sale—within the brigade’s headquarters or some other high-traffic area within the unit’s footprint. As a starting point, Army employees are prohibited from fundraising in their official capacity for a non-federal entity (NFE) or NFE event.3 Further, while the brigade commander may authorize limited logistical support for the military ball, the commander is prohibited from providing personnel to conduct NFE-related “fundraising and membership drive events.”4 Therefore, the committee cannot conduct any fundraising events for the military ball within the brigade footprint.
One alternative is for the committee to request permission to hold the bake sale outside of the commissary or Post Exchange or to conduct a similar event at an off-post location. Committee members may fundraise in their personal capacity, provided they do not solicit from a subordinate or any person known to be a prohibited source.5 Regardless, you must remind the committee that they cannot use their official titles to promote the fundraising activity or do anything that would imply command endorsement of their fundraising event.6
While the commander’s fundraising options are limited, the commander has more flexibility to direct brigade resources in support of the event. For example, the use of brigade equipment may be authorized to support the execution of the military ball if the following requirements are met:
- 1. The support does not interfere with the performance of official duties or detract from the brigade’s readiness;
- 2. There is a community interest, Department of Defense (DoD) public affairs interest, or a military training interest served by the support;
- 3. DoD association with the event is appropriate;
- 4. The event is of interest to the brigade;
- 5. The brigade is willing to provide similar support to comparable events sponsored by other similar NFEs;
- 6. The support is not restricted by statute; and
- 7. Admission to the event reasonably covers the cost of the military ball or the portions of which the brigade resources participate.7
Here, the commander has the authority to provide limited logistical support in the form of the brigade’s internal equipment. Therefore, the commander can authorize the use of the brigade’s audio-visual equipment during relevant portions of the military ball (e.g., the playing of music and the national anthem), and the unit’s flags, streamers, and rifles for the purpose of conducting the color guard. Further, the commander can task qualified members from the brigade’s S6 section to transport, set up, and operate the audio visual equipment during all portions of the military ball, and can assign HHC personnel to perform duties of the color guard or other ceremonial functions (e.g., toasts, master of ceremony).8
As for the commander’s desire to provide a courtesy shuttle operated by brigade personnel and using brigade non-tactical vehicles (NTVs)—this type of logistical support is impermissible where it would be for the purpose of transporting military ball participants attending the event in their personal capacity. In place of a courtesy shuttle, judge advocates should advise the planning committee to emphasize alternatives such as public transportation and designated driver plans, or encouraging attendees to spend the night at the military ball location (assuming the event occurs at a hotel, or within walking distance of one).9 Conversely, the NTVs may still be used for the purpose of transporting the audio-visual equipment, color guard equipment, and the personnel tasked with using this equipment, since these activities would directly support the execution of the commander’s limited logistical support determination under the Joint Ethics Regulation (JER).10
Guest Speaker Implications
Since most portions of a military ball are categorized as “unofficial,” the commander cannot require members of the brigade to buy a ticket to attend. Further, the commander’s authority to compel attendance is limited to the “official” portions of the event. Here, this means that the brigade commander can require the attendance of brigade personnel during the remarks provided by the deputy commander guest speaker because the speaker will attend the event in uniform and give a speech in his official capacity. Despite the official nature of the guest speaker’s remarks, the inclusion of an official speech will not convert the entirety of the military ball into an official event.11 Judge advocates must be comfortable advising on this distinction.
The brigade commander’s ability to provide the deputy commander with a token of appreciation after the speaker’s remarks is restricted by the relevant gift rules under the Code of Federal Regulations (CFR).12 This requires a multi-part analysis. As a general rule, DoD employees cannot accept gifts from employees receiving less pay where the employees are in an official subordinate-superior relationship and where no pre-existing personal relationship between the two employees justifies the gift.13
Here, the token of appreciation is likely permissible. First, the brigade commander and the guest speaker are not in an official subordinate-superior relationship14 because the guest speaker is the deputy commander at a nearby installation and therefore outside of the brigade commander’s supervisory rating chain. Second, since the facts indicate that the brigade commander and guest speaker share a mentor-mentee relationship, it is possible that their relationship qualifies as a personal one.15
If we change the facts slightly—by assuming that the brigade commander and the guest speaker share an official subordinate-superior relationship—then one of the CFR’s enumerated exceptions must apply.16 One such exception permits a subordinate employee to give a gift to an official superior, provided the gift is given on an “occasional basis”17 and has an aggregate market value under ten dollars.18 Under these circumstances, a judge advocate will want to advise the commander of these limitations and suggest gifts that would likely satisfy these requirements, such as a plaque or memento of de minimis value. Finally, judge advocates will want to consider advising about the possibility of providing the guest speaker with an item of “little intrinsic value” that is “intended primarily for presentation,” since these items are excluded from the definition of a gift under the JER.19
The planning committee will want to publicize relevant details via email and social media. Under the JER, the brigade can use Public Affairs Office (PAO) channels to publicize information “of common interest” via official communication methods.20 This means that, in coordination with the unit PAO, the brigade can publicize information on email or social media, provided the information does not appear to be an endorsement of the event by the command (implicitly or otherwise). Judge advocates should work with the PAO and the planning committee to include disclaimer language that mitigates the possibility of an implied endorsement.
As a judge advocate, commanders will likely ask you questions about military balls at some point in your career. Success in addressing these questions hinges on both your proactive involvement during the planning process and your understanding of the relevant rules. Your role as the legal advisor puts you in the unique position to keep your commander and the planning committee from straying outside of permissible conduct. Your understanding of the rules and involvement with the planning process from the beginning will pay dividends.
1. See Advisory 10-03 April 2, 2010, U.S. Dep’t. of Def. Standards of Conduct Off. (June 11, 2018), https://ogc.osd.mil/defense_ethics/ethics_counselors/resources/advisories/2010_03_advisory.html; see also Guidance Regarding DoD Participation in a Military Ball Sponsored by a Non-Federal Entity, Dep’t. of Def. Standards of Conduct Off. (Apr. 14, 2004), https://ogc.osd.mil/defense_ethics/resource_library/military_ball_guidance.pdf.
2. See U.S. Dep’t of Def., 5500.7-R, Joint Ethics Regulation (JER) § 300(a) (30 Aug. 1993) (C7, 17 Nov. 2011) [hereinafter JER] (permitting voluntary Department of Defense (DoD) employee participation in non-federal entity (NFE) activities when participation is outside the scope of official position).
3. See JER, supra note 2, § ٢١٠(a) (stating that DoD employees are prohibited from endorsing NFE fundraising events in their official capacity); see also 5 C.F.R. § 2635.202 (2019) (noting that executive branch employees may not solicit or accept gifts given because of the their official position).
4. JER, supra note 2, § ٢١١(a).
5. 5 C.F.R. § 2635.808(c) (2019).
6. See JER, supra note 2, § 209.
7. Id. § 211(a).
8. See id. (providing that the commander can require “the services of DoD employees necessary to make proper use of the equipment”).
9. See Information Paper: DoD Support of and Participation in Military Balls, Off. of the Staff Judge Advocate Fort Knox, Ky. 3 (Dec. 11, 2008), https://home.army.mil/knox/application/files/7715/6623/5549/Military_Ball.pdf [hereinafter Military Ball Information Paper].
10. JER, supra note 2, § 211(a).
11. Military Ball Information Paper, supra note 9, at 2.
12. 5 C.F.R. § 2635.301-304 (2019).
13. 5 C.F.R. § 2635.302(b).
14. See 5 C.F.R. § 2635.303(d) (defining official superior as “an immediate supervisor, whose official responsibilities include directing or evaluating the performance of the employee’s official duties or those of any other official superior of the employee”).
15. See 5 C.F.R. § 2635.302(b).
16. See 5 C.F.R. § 2635.304.
17. See 5 C.F.R. § 2635.304(a) (2019) (noting that an occasional basis includes occasions on which gifts are typically given).
18. 5 C.F.R. § 2635.304(a)(1) (2019).
19. 5 C.F.R. § 2635.203(b)(2) (2019). Example 1 under this rule notes that a situation where an employee receives a glass paperweight engraved with the employee’s name and the date of the employee’s speech is an example of an item of little intrinsic value provided for presentation purposes. Id.
20. See JER, supra note 2, § 208.