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Rethinking Fraternization Regulations

 

 

 
 
   
   
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On 6 November 2014, the Army republished Army Regulation (AR) 600-20, Army Command Policy.1 As part of the revision to the regulation, the provisions governing relationships between Soldiers of different grades was updated, specifically prohibiting certain relationships between noncommissioned officers (NCOs) and junior enlisted Soldiers based on their status.2 Like previous status-based fraternization offenses, violations of the current policy are punitive.3 The creation of this new, status-based, strict liability offense increases the potential for victimless crimes and unnecessarily hampers esprit de corps among Soldiers of different grades. The Army’s fraternization policy should decriminalize status-based prohibitions on relationships between Soldiers of different grades, and should focus instead on prohibiting relationships that adversely affect good order and discipline. This article briefly discusses the historical development of status-based prohibitions against fraternization, reviews the Army’s current (revised) fraternization policy, highlights the problems with the current policy, discusses alternative policy options, and recommends the decriminalization of strict liability status-based fraternization.

Historical Underpinning of Fraternization Regulations

The change to the Army’s fraternization policy is recent, but the prohibition of fraternization among the ranks has been in practice since the formation of standing armies. In fact, the Army’s current policy traces its lineage over 2,500 years to the enforcement of Roman social class divisions among members of the Roman Army.

The Roman Empire employed a standing army with a rank-based structure and regulated the interaction between members of different ranks.4 Birthright and individual wealth dictated Roman societal status.5 The rank structure of the Roman army mirrored Roman society, with commanders coming from the noble class and infantrymen coming from the lower classes of society.6 The division among social classes extended to the Roman army to maintain the status quo of Roman society and to prevent problems with undue familiarity between the classes.

This status-based division within the ranks of European standing armies continued into the Middle Ages, when officership was still part of the aristocratic existence. The earliest explicit prohibition of fraternization between the ranks is found within the armies of King Gustavus Adolphus of Sweden. In the early seventeenth century, King Gustavus raised a standing army of over forty thousand soldiers.7 At the time, Swedish society was divided into four classes, a distinction maintained in the armies—with the nobles serving as officers and peasants serving in the enlisted ranks.8 In 1621, King Gustavus enacted the Code of Articles to regulate the conduct of his armies. While the Code did not mention fraternization, Article 116 prohibited conduct “repugnant to military discipline” and was used in practice to enforce the divisions of the Swedish class structure to maintain good order and discipline within the ranks.9

Later, in 1686, the British Empire enacted the English Military Discipline of James the Second, borrowing heavily from King Gustavus’s Code.10 Like the Swedes, the British included provisions prohibiting conduct prejudicial to good order and discipline, and an article punishing conduct unbecoming of an officer and a gentleman.11 These British Articles ensured a separation between officers and enlisted based on solid class boundaries of British society. By the beginning of the American Revolution, the British status-based prohibition of fraternization between officers and enlisted soldiers was as firmly rooted in the British military tradition as it was in the aristocratic British society; it mirrored the relationship between the nobility and the lower classes.12

Like many aspects of early American law, the American Articles of the War of 1775 were adopted nearly verbatim from the British Articles.13 To protect the New Republic, the second Continental Congress provided for a military and directed George Washington to prepare regulations for the new American Army.14 Washington and his assistants developed the Code of 1775, which included a general article regulating conduct prejudicial to good order and discipline and an article prohibiting conduct unbecoming an officer and a gentleman.15 Like the preceding European codes, the American Articles did not contain an explicit prohibition of fraternization among the ranks of the new American Army.

With the Declaration of Independence, America’s founders rejected the British class-based societal structure, noting that “all men are created equal.” The British army’s class-based fraternization prohibition was premised on social distinctions that American founders rejected as wholly un-American. Fraternization was, however, regulated in the early American Army, arguably out of simple wholesale adoption of most British regulations, which did not espouse equality for all.16

General George Washington cautioned his officers, “Be easy and condescending in your deportment to your officers, but not too familiar, lest you subject yourself to a want of that respect, which is necessary to support a proper command.”17 General Washington’s views on senior-subordinate relationships reflect the American tradition regarding fraternization in the ranks at the seminal moment of the American military—that the purpose for separation among the ranks was to maintain good order and discipline, not to maintain a social class system.

The Current Policy

Army Regulation Army Regulation 600-20 employs a two-pronged analysis. The first step is to determine if a relationship falls within a status-based prohibition. If the relationship falls within a prohibited status, it is a per se violation, regardless of whether any adverse effects of the relationship exist. If the relationship is not per se prohibited, the second step is to determine if actual adverse effects exist. If the relationship does not violate a status-based prohibition, and no adverse effects exist, then the relationship is not prohibited. The Army’s policy applies to both same- and opposite-sex relationships and regulates Soldier conduct in relationships with personnel of other military services.18 The current policy places the onus on commanders to ensure compliance,19 gives examples of how relationships can become unduly familiar,20 and expands the scope of unit-based team-building activities by specifically listing new acceptable groups.21 The policy is punitive, and violations may be punished under Article 92, Uniform Code of Military Justice (UCMJ) as violations of a general regulation.22

Status-Based Prohibited Relationships

The Army’s policy creates three general categories of per se status-based prohibitions: business relationships, gambling, and personal relationships. Like the previous Army policy, the current regulation prohibits ongoing business relationships between officers and enlisted Soldiers23 and adds a prohibition of business relationships between NCOs and junior enlisted Soldiers.24 The policy also created a legacy allowance25 for existing NCOs and junior enlisted member business relationships, so long as the Soldiers are not in the same unit or chain of command, and so long as the business relationship does not create an adverse effect.

The regulation continues to prohibit gambling among officers and enlisted and creates a new prohibition on gambling among junior enlisted and NCOs.26 There are no exceptions to the policy prohibiting gambling.

The current regulation still criminalizes certain personal relationships between officers and enlisted Soldiers; however, it now also criminalizes personal relationships between junior enlisted soldiers and NCOs.27 Personal relationships that are per se prohibited include dating, shared living accommodations, and intimate and sexual relationships.28 These prohibitions mirror the previous regulation for relationships between officers and enlisted Soldiers;29 however, the new “junior enlisted” status means that specialists (SPCs) and below can only socialize with each other.30 Marriage is an exception to this crime, but fraternization that pre-dated the marriage is still criminal.31 When a Soldier’s promotion or selection results in a change in status, the couple is entitled to a one-year grace period in which to end the relationship or to marry.32

Adverse Effects Analysis

Like the previous policy, the current policy includes an adverse effects analysis test. Effects-based analysis requires a commander to examine the facts and circumstances surrounding the relationship, not just the actual relationship. Relationships between Soldiers of different grades33 are prohibited if they create any of the following five adverse effects:

  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.34

If the relationship does not create one of these adverse effects, and the relationship was not prohibited for status-based purposes, then the relationship is not prohibited.

Problems with the Current Policy

Upon reviewing the current Army fraternization policy, it becomes clear that several flaws exist. Particularly troubling are the misleading use of the term “grade,” the random legacy allowance of some relationships, the failure to cover all personnel in the Army, and, ultimately, the creation of another victimless crime.

Rank Versus Grade

In the current policy, the term “rank” has been replaced by the term “grade.”35 This shift aligns the policy to the Army’s formal definition of both words, but away from the colloquial use of “rank” and “grade.” Colloquially, the term “rank” refers to a Soldier’s title (captain or sergeant) while the term “grade” refers to a Soldier’s pay grade (O-3 or E-5). As officially defined by the Army, “[g]rade is generally held by virtue of office or position in the Army. For example, second lieutenant (2LT), captain (CPT), sergeant first class (SFC), chief warrant officer two (CW2) are grades.”36 Rank is officially defined as “the order of precedence among members of the Armed Forces. Military rank among officers of the same grade or of equivalent grade is determined by comparing dates of rank.”37 While this change from “rank” to “grade” is doctrinally correct, the shift is particularly confusing for commanders and practitioners. In paragraph 4-14(b) of AR 600-20, the policy notes, “[R]elationships between Soldiers of different grades are prohibited” if the relationship causes an adverse effect.38

This is a particularly confusing use of the word grade, and the words “of different grades” should be removed.39 The unintended meaning of this paragraph is that relationships between Soldiers of the same grade are not prohibited and are unregulated even if they create or result in an adverse effect. This will lead to absurd results and should be addressed in a rapid action revision to the policy. For example, a brigade command sergeant major (CSM) could have a sexual relationship with a subordinate battalion CSM without running afoul of the regulation, a company commander could date his executive officer once she was promoted to captain even though he is her immediate supervisor and rater, and a SPC team leader could gamble with another SPC in his team. In each of these relationships, the Soldiers are the same grade (CSM, CPT, and SPC), yet they are different ranks (the Brigade CSM, Commander, and Team Leader all have a higher order of precedence). Removing “of different grades” from the policy means that any relationship between Soldiers may be prohibited if the relationship creates an adverse effect—the intended purpose of the policy.

Permanent Legacy Allowance

Another unjustifiable creation of the Army’s fraternization policy is the permanent creation of legacy allowance for business relationships between NCOs and junior enlisted Soldiers.40 The updated policy allows these business relationships to continue in perpetuity so long as the Soldiers are not in the same unit or command and the relationship passes the adverse effects test. The regulation fails to explain why ongoing business relationships qualify for an exception but ongoing personal relationships do not.41 This disparity is perplexing because an abuse of power derived from rank disparity, which the policy aims to prevent, is possible in both personal relationships and business dealings. Business relationships are ripe for abuse of power and exploitation of rank differences.42 Unlike personal relationships, business relationships often occur out of sight of the command, making it difficult for commanders to prevent abuses of rank in the relationship.43

Non-Covered Parties

While expansive in nature, the updated Army policy fails to address several populations within the Army enterprise. Specifically, the policy fails to address relationships between Soldiers, Cadets, and Civilian employees.44

Currently, over 35,000 Reserve Officer Training Corps (ROTC) Cadets and nearly 4,400 United States Military Academy (USMA) Cadets are in the Army.45 The UCMJ covers USMA Cadets, yet Cadets are ignored by the fraternization policy.46 Under the current policy, Cadets are free to fraternize with officers, NCOs, and junior enlisted Soldiers. However, as Soldiers, Cadet relationships are still subject to an adverse effects analysis. Cadets are generally treated like officers under the UCMJ, so including Cadets in the policy’s definition of “officers” makes the most sense.47

With more than 330,000 employees, Army Civilians are an even larger population.48 The Air Force policy considers fraternizing with Civilian employees an unprofessional relationship,49 yet Civilians are completely unmentioned in the Army’s policy. Civilians, however, play a large role in the Army, often serving as raters or senior raters for Soldiers. Under the current policy, the Secretary of the Army could date a Private, and a Battalion Commander could have a sexual relationship with her Civilian secretary. These issues could be avoided by considering Civilians when conducting an adverse effects analysis.50

Another Victimless Crime

The most troubling issue of the current policy is the creation of a new strict liability offense for NCO and junior enlisted personal relationships that do not create an adverse effect. In such a relationship, there is no effect or impact on the command, the Army, or the Soldiers involved, thus creating a truly victimless crime. The same holds true for personal relationships between officers and enlisted Soldiers that do not create an adverse effect.51

If Soldiers of different rank classes keep their consensual, non-deviant relationships—whether friendly or intimate—private, then the military has absolutely no reason to criminalize such relationships. Such relationships have no direct, tangible, or adverse impact upon good order and discipline and are neither ethically nor morally wrong. These relationships form because of biological attraction and the need for human interaction. As such, these personal relationships are different from the rest of the policy because Soldiers do not have a biological drive to gamble or a need to conduct business with other Soldiers. The Army’s adverse effects analysis adequately prohibits personal relationships that are prejudicial to good order and discipline without the need to categorically deny Soldiers the ability to form relationships.

Alternate Policy Options

Given the breadth of problems with the current policy, the Army should explore alternate options. Potential options include the total removal of status-based prohibitions and the decriminalization of status-based offenses. Each option is briefly explained and critiqued below.

Total Removal of Status-Based Prohibitions

The most extreme revision to the current policy involves removing all status-based prohibitions. Under this option, Soldiers could date, cohabitate, gamble, and engage in business relationships with any other Soldier, regardless of grade, so long as the relationship does not create an adverse effect. This revision would generally comport with the Army’s policy prior to 1998.52

This policy fails to consider that some relationships, such as Soldier and trainee or recruit and recruiter, are ripe for causing prejudice to good order and discipline because of the inexperience of the junior Soldier and the significant imbalance of power. A per se effect, however, is an adverse effect violation, and this proposed policy would prohibit such relationships.

Additionally, Article 134, UCMJ (fraternization) specifically criminalizes fraternization between officers and enlisted Soldiers.53 The terminal element of Article 134, prejudice to good order and discipline or service discrediting, is the same as an effects-based analysis. As such, any relationship that would result in a conviction under Article 134 would also violate this proposed policy.

Decriminalization of Status-Based Offenses

A more moderate policy option is to decriminalize purely status-based offenses.54 This option would still list all of the status-based prohibitions, but would not make that paragraph punitive. Under the policy, if a commander becomes aware of a purely status-based relationship, the parties can be ordered to cease the relationship by the commander. If the Soldiers fail to follow the commander’s order, they could be punished for violation of Article 90, failure to obey lawful order.55

The most likely criticism of this proposed policy is that there would be a declining respect for officers and NCOs, and that liberalizing fraternization regulations will civilianize the Army. It is illogical, however, to assume that a single enlisted Soldier’s relationship with an officer or NCO will cause the Soldier to view all other officers or NCOs in a similar fashion.

A “non-effect” relationship between Soldiers of different statuses is problematic only because of the policy’s artificial status restrictions. Ultimately, the status-based provisions come from an unfortunate compulsion to regulate every aspect of military life. Under this second proposed solution, commanders are able to conduct an effects analysis to determine if these relationships truly create an adverse effect on the command and, if they do, to prohibit them on a case-by-case basis. This is a more intellectually honest solution than a blanket prohibition on certain status-based relationships—especially ones that do not need paternalistic protection measures.

Conclusion

The time has come for the Army to reconsider the need for status-based fraternization prohibitions. Days of maintaining social class structure by separating officers and enlisted Soldiers are long gone, yet the Army’s current fraternization policy still traces its lineage to the maintenance of social distinctions in the armies of King Gustavus Adolphus. The eradication of this antiquated custom suffered a setback with the creation of new status-based strict liability relationships of NCOs and junior enlisted Soldiers. Fostering esprit de corps among Soldiers of different ranks is as perilous as ever, and commanders are required to enforce a policy that creates victimless crimes and could erode the vibrant mentorship that exists—or at least should exist—among caring NCO leaders and their mentee subordinates in junior enlisted ranks.

Army policymakers must consider alternate policy options and should adopt a policy that decriminalizes purely status-based offenses. At a minimum, AR 600-20 must be updated with a rapid action revision to prevent illogical results from occurring as a result of the current policy. Regardless of the future of the Army’s fraternization policy, all Soldiers must recognize that leadership and obedience are founded on respect and professionalism, not antiquated artificial distinctions rejected since the founding of this country. TAL

 


MAJ Lohnes is the Vice Chair, Administrative and Civil Law Department, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia.



Notes

1. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy (6 Nov. 2014) [hereinafter AR 600-20].

2. Id. para. 4-14. The term “grade” is consistently used incorrectly throughout the updated regulation.

3. Id. para. 4-16. “Violations of paragraphs 4–14b, 4–14c, and 4–15 may be punished under UCMJ, Art. 92 as a violation of a lawful general regulation.” Id.

4. 1 Hans Delbruck, History of the Art of War 430 (Walter J. Renfroe Jr. trans., Univ. of Nebraska Press 1990) (1975). The Roman Empire was founded in 509 B.C. and lasted until 31 B.C., marked by the rise of Caesar. See Larry H. Addington, The Patterns of War Through the Eighteenth Century 26 (Indiana Univ. Press 1994) (1984).

5. John Peddie, The Roman War Machine 1 (Grange Books 1997) (1994).

6. Captain Jeffrey C. Russell, A History of the Development of Fraternization Policies (Sept. 1998) (unpublished M.S. thesis, Air Force Inst. of Tech.) (on file with the Def. Tech. Info. Ctr.), https://apps.dtic.mil/dtic/tr/fulltext/u2/a354245.pdf.

7. Addington, supra note 4, at 83.

8. Delbruck, supra note 4, at 173.

9. Code of Articles of King Gustavus Adolphus of Sweden (1621), reprinted in William Winthrop, Military Law and Precedents 907 (Gov’t Printing Off. 1920) (1896) [hereinafter Winthrop].

10. Margaret A. McDevitt, Wrongful Fraternization and the U.S. Air Force, 33 Clev. St. L. Rev. 547, 555 (1984-85).

11. English Military Discipline of James II (1686), reprinted in Winthrop, supra note 9, at 28.

12. See British Articles of War (1765), reprinted in Winthrop supra note 9, at 929-46.

13. Id. at 22. Prior to Declaration of American Independence, the British Articles were adopted by six of the American colonies. Ultimately, the Second Continental Congress also adopted the British Articles on June 30, 1775. See id. at 953-61.

14. Id. at 22.

15. Id. at 957. Article 47 provided, “Whatsoever commissioned officer shall be convicted before a general court- martial, of behaving scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman, shall be discharged from the service.” Id.

16. Major Kevin W. Carter, Fraternization, 113 Mil. L. Rev. 61, 67-68 (1986). Officers were frequently charged with drinking in the presence of enlisted men, gambling, dancing at enlisted dances, and conduct leading to undue familiarity with enlisted men. See id. at 68 nn. 44–52.

17. John F. Schroder, Maxims of Washington: Political, Social, Moral, and Religious 152-53 (Mount Vernon Ladies Assoc. 1953) (1859). General Washington sent this maxim to Colonel Williams Woolford in 1775. In 1777, Washington noted, “One circumstance in this important business ought to be cautiously guarded against; and that is, Soldiers and Officers being too nearly on a level.” Id. at 159.

18. AR 600-20, supra note 1, para. 4-14(a). These are not changes from the previous Army policy.

19. Id. para. 4-14(f).

20. Id. para 4-14(b). Examples include repeated visits to bars, nightclubs, eating establishments, or homes. By explaining how relationships may become undue, the policy acknowledges that some personal interaction between Soldiers from different status classes is acceptable and inherent to the establishment of esprit de corps. Id.

21. Id. para 4-14(d). The regulation now includes fraternal associations such as scouting, youth or adult sports leagues or teams, and membership in organizations like the Masons or Elks among groups that are considered unit-based team activities. Id.

22. Id. para. 4-16.

23. Id. para. 4-14(c)(1). The term “officer” encompasses both commissioned and warrant officers, but not Cadets.

24. Id. Junior enlisted Soldiers includes Soldiers in the grades of Private (E-1) through SPC (E-4), while NCOs includes Soldiers in the grades of Corporal (E-4) though the Sergeant Major of the Army (E-9).

25. Business relationships entered into after 22 November 2014 are not eligible for the legacy exceptions.

26. Id. para. 4-14(c)(3).

27. Id. para. 4-14(c)(2).

28. Id. The regulation authorizes shared living accommodations if directed by operational requirements. As such, commanders can determine that because of housing limitations in the barracks, a sergeant may share a room with specialist; however, if cohabitation is not operationally required, commanders may not authorize such cohabitation. Id.

29. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy (18 Mar. 2008) para. 4-14(c)(2) [hereinafter AR 600-20 (2008)].

30. Socialization is not completely limited. Department of the Army Pamphlet (DA PAM) 600-35 authorizes personal relationships between the classes if the Soldiers are Family members. U.S. Dep’t of Army, Pam. 600-35, Relationships Between Soldiers of Different Ranks ch. 2 (21 July 2017) [hereinafter DA Pam. 600-35]. Additionally, AR 600-20 notes that the “prohibitions are not intended to preclude unit based normal team building or activity based on interaction which occurs in the context of community based, religious, or fraternal associations.” AR 600-20, supra note 1, para. 4-14(d).

31. AR 600-20, supra note 1, para. 4-14(c)(2)(a).

32. Id. The one-year grace period is calculated from the date of the Soldier’s change in status. For example, a SPC and PFC would have one year from the SPC’s date of rank to SGT (or lateral promotion to CPL) to end their relationship or marry.

33. The use of the word “grade” in paragraph 4-14(b) is particularly troubling and creates illogical results.

34. AR 600-20, supra note 1, para. 4-14(b).

35. Compare AR 600-20, supra note 1, para. 4-14, with AR 600-20 (2008), supra note 29, para. 4-14.

36. AR 600-20, supra note 1, para. 1-6.

37. Id.

38. Id. para. 4-14(b) (emphasis added).

39. It remains unclear why the words “of different grade” are included. The words “of different rank” are present in every version of AR 600-20 since the fraternization policy was first published in the 1971 version of the regulation. The words “of different grade” are likely a vestige of the previous versions of the regulation. See AR 600-20 (2008), supra note 29, para. 4-14(b); U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 4-14(e)(8)(30 Mar. 1988); U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 5-7(f)(20 Aug. 1986); U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 5-7(f)(28 Apr. 1971).

40. AR 600-20, supra note 1, para. 4-14(c)(1).

41. It remains unclear how many ongoing business relationships exist between NCOs and junior enlisted Soldiers; however, it is likely that, at the time of the update to the policy, there were far more personal relationships between NCOs and junior enlisted Soldiers. This small number of ongoing business relationship may offer a justification for the clause allowing for a legacy exception. Additionally, the regulation fails to explain why business relationships between officers and enlisted Soldiers are not legacy-authorized while those between NCOs and junior enlisted Soldiers are.

42. The Joint Ethics Regulation regulates business relationships and places limitations on solicited sales to Department of Defense (DoD) personnel and their Families who are junior in rank, grade, or position. U.S. Dep’t of Def., 5500.7-R, Joint Ethics Regulation (JER) para. 2-205 (30 Aug. 1993) (C7, 17 Nov. 2011).

43. It is unlikely that a commander would learn of an NCO’s abuse of rank in a business relationship unless the junior enlisted Soldier risked his finances and reported his NCO business partner’s abuses. Commanders must be sensitive to abuses in these business relationships because of the private nature of such relationships.

44. There are many other groups that are not covered by the Army’s policy, such as Soldier relationships with foreign service members or civilian contractors, and relationships between senior and junior officers.

45. Brigadier General Sean A. Gainey, Our History, U.S. Army Cadet Command, http://www.cadetcommand.army.mil/history.aspx (last updated Dec. 20, 2018); Westpoint Class Profile, USMA West Point (6 July 2018), https://www.westpoint.edu/admissions/class-profile.

46. See UCMJ art. 2(a)(2) (2018); Manual for Courts-Martial, United States, R.C.M. 202(a) (2018) [hereinafter MCM].

47. See UCMJ art. 133 (2018) (including Cadets in the population of Soldiers able to be punished for conduct unbecoming an officer and a gentleman).

48. Civilian Careers, Go Army, https://www.goarmy.com/careers-and-jobs/army-civilian-careers.html (last updated 29 Nov. 2019).

49. U.S. Dep’t of Air Force, Instr. 36-2909, Air Force Professional Relationships and Conduct (14 Nov. 2019). The Air Force policy also prohibits relationships between cadets and officers or between cadets and enlisted personnel. Id.

50. Using this idea, relationships with Civilians would not be outright prohibited because of the Civilian’s status of employment with the Department of the Army; but if the relationship created one of the five adverse effects, it would be prohibited.

51. The historical tradition of prohibiting personal relationships between officers and enlisted Soldiers can be traced to the formation of a standing American Army. This, however, is not the case for personal relationships between junior enlisted Soldiers and NCOs, as this is the first time in the nearly 245-year history of the American Army that enlisted Soldiers are prohibited from forming personal relationships with enlisted Soldiers of different ranks solely on the basis of their rank.

52. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 4-14(a)(30 Mar. 1988). Under the pre-1998 policy, there were no status-based offenses and the adverse effects analysis simply examined whether relationships “[c]ause actual or perceived partiality or unfairness, involve the improper use of rank or position for personal gain, or create an actual or clearly predictable adverse impact on discipline, authority, or morale.” Id.

53. UCMJ art. 134 (2018). Further, case law has expanded this article so that enlisted Soldiers may be charged with fraternization in violation of Article 134. See United States v. Clarke, 25 M.J. 631 (A.C.M.R. 1987), aff’d, 27 M.J. 361 (C.M.A. 1989).

54. A purely status-based offense occurs when Soldiers are in statuses that make their relationship prohibited, and the relationship does not cause any adverse effects.

55. This shift from a violation of failure to obey a regulation to failure to obey a lawful order would reduce maximum punishment from dishonorable discharge, total forfeitures, and two years’ confinement to a bad conduct discharge, total forfeitures, and six months’ confinement. MCM, supra note 46, ¶ 17e(1)-(2).