The Regulation of 'Body Art' in the Military: Piercing the Veil of Service Members' Constitutional Rights

• Author: Major L.M. Campanella
• Pages: 02

56 MILITARY LAW REVIEW [Vol. 161

THE REGULATION OF "BODY ART" IN THE MILITARY: PIERCING THE VEIL OF SERVICE MEMBERS'

CONSTITUTIONAL RIGHTS

MAJOR L.M. CAMPANELLA1

[T]he world will not stop and think-it never does, it is not its way; its way is to generalize from a single sample.2

Mark Twain

1. Introduction

   A service member's body is never exclusively his own-that is readily apparent. The military can dictate both physical restrictions and physical requirements such as hair length,3 body fat percentages,4 physical training standards,5 consumption of alcohol or drugs,6 even forbidding sexual acts between consenting adults.7 It seems then, to make perfect sense, that the military would be able to dictate legitimately whether military members

   can poke holes in, brand, or place other tattoo "art" on their bodies. The issue, however, is not that straightforward.

   Given how effectively the United States military operates, it is safe to assert that the vast majority of service members adhere to the restrictions placed on them, regardless of whether they understand the reasoning behind the policies. Soldiers realize that they have surrendered their bodies (and a good portion of their free will) to the defense of the United States Constitution.8 Military members understand the sacrifices of military service.

   Despite the majority's willingness to adhere to the rules, the military should still articulate to service members and to the public why various restrictions are necessary.9 This is true in the area of "body art"-especially in light of potential Constitutional infringements on military members' personal affairs or private rights. Explaining why restrictions are nece

   sary gives our institution legitimacy and a sense of fairness. It also makes our policy decisions legally defensible.

   It is difficult to take issue with the propriety of the military services dictating the wear of the military uniform or the proscription of openly visible "body art"10 while on duty. The premise of this article is not to advocate that the military should completely abandon its policy against certain forms of body art. This article does not advocate that the military should permit soldiers with extremist-type viewpoints to display symbols of their beliefs on their bodies. The prohibition against displaying racist, extremist, or gang-related symbols in the form of body art, in almost all circumstances, is necessary to maintain good order, discipline, and readiness.11

   The underlying theme of this article is, instead, to explore more closely the Army's body art policy and its legality; to compare the other military services' policies to the Army's policy; and to examine whether the Army policy, as written, is justified, necessary, and practical.12 This article explores the notion that the Army's new "body art" policy simply goes too far.

2. Body Art and the Service Policies

   1. What is "Body Art?"

      "Body art" is one of the nation's newest fashion trends.13 It seems as though no sector of society is immune from the craze-young and old,

      women and men, educated and uneducated,14 civilians and military.15 "Body art" is a term used to connote the different methods a person may use to change the natural appearance of his body through various "additions." "Body art" includes such things as tattooing,16 body piercing,17 and branding.18 In all its forms, body art exists in the military.19

      There are an infinite number of reasons why people obtain body art.20

      A person could be motivated by the look, the feel, or the personal meaning behind the body art.21 Whatever the reason for obtaining it-two things are clear. First, the meaning behind the body art, whatever its form, is personal

      to its possessor.22 Second, and more importantly in the military context, "body art" is open to the interpretation of those who see it. It is, in part, on this second basis, that the Army began regulating body art.

   2. Regulating "Body Art" in the Military

      1. Army Policy

         Only very recently did the Army begin regulating "body art." The Army's concern began, in part, as a reaction to an incident in December, 1995, outside Fort Bragg, North Carolina,23 when an Army soldier (allegedly having ties to white supremacist extremists) randomly shot and killed a black couple.24 The soldier allegedly committed the killings to earn a skinhead tattoo of a spider web on his elbow.25 Given the depraved and disgraceful nature of the crime, the Army as an institution, as well as the Fort Bragg command, felt obligated to respond quickly and with a strong message-a message that would indicate that the Army would not tolerate even the thought of "extremist" affiliation from its members.26 Shortly thereafter, the Army's first tattoo inspection policy was born.27

         The 82d Airborne Division Commanding General at Fort Bragg directed that all commanders conduct physical inspections of their soldiers as part of their routine health and welfare program.28 The command designed the policy to identify tattoos, body markings, or other symbols representing racist beliefs, extremist organizations, or gang affiliation on the soldier's body not covered by the physical training uniform.29 If a commander found a potentially extremist-type tattoo, the commander was directed to interview the soldier and inquire into the meaning of the symbol and take appropriate action to address the situation.30 Some soldiers met the new inspection system with disapproval.31

         The initial inspections at Fort Bragg identified a large number of soldiers with tattoos, but only a small number of soldiers with alleged racist,

         extremist, or gang-related tattoos.32 After concluding the initial inspections, the 82d Airborne Commander rescinded and replaced the directive mandating inspections with a more permissive inspection policy.33

         The 82d Airborne Division commander later took command of Fort Lewis and I Corps and instituted a similar tattoo inspection policy.34 The Fort Lewis commanders, like the commanders at Fort Bragg, conducted a post-wide tattoo inspection after the policy was first promulgated.35 As a

         result of the inspection, the command found no soldiers who possessed racist or gang-related tattoos.36

         The Army as an institution also responded to the killings at Fort Bragg. In early 1996, the Secretary of the Army formed the Task Force on Extremist Activities to evaluate whether the Army had a problem with extremism among its members and, if so, whether the Army should revise its policies.37 The Task Force eventually determined that there was "minimal evidence of extremism in the ranks," yet it recommended that the Army begin screening at initial entry for extremists and other hate group

         influences.38 The Task Force identified tattoos as a means of extremist identification.39

         On 11 June 1998, the Army's Office of the Deputy Chief of Staff for Personnel (DCSPER) promulgated several changes to the Army's uniform regulation.40 Among those changes was the Army's new "body art" policy

         prohibiting body piercing41 and prohibiting tattoos and brands prejudicial to good order and discipline or detracting from a soldierly appearance.42

         The Army's body art policy led to many practical questions from the field regarding policy implementation.43 The policy was vague on many points, such as how to determine prohibited tattoos, what to do with soldier violations, and whether the policy applied retroactively.44 The Army tried again.

         In August 1998, the Army published a second message, attempting to clarify the original change to the uniform regulation.45 It rescinded the old,

         male-earring standard46 and allowed for female soldiers to wear earrings on the installation while on duty in civilian attire.47 The message left the same issues previously noted unresolved.

         In December 1998, the Army again published additional guidance on the new body art policy.48 This guidance gave more breadth to the policy. The guidance stated that the tattoo policy did not contain a "grandfather clause" that would allow exceptions for those members who obtained tattoos before the policy was promulgated.49 The December 1998 guidance provided criteria for commanders to determine prohibited tattoos and what to do in response to a violation.50 The message stated that examples of violations may include tattoos that: (1) show an alliance with extremist org

         nizations, (2) are indecent,51 or (3) are unreasonably large or excessive in number.52 The policy was expanding.

         The message established that the mere visibility of a small inconspicuous tattoo was not prohibited per se.53 Commanders must instead, establish two conditions for a tattoo violation to exist in a Class A uniform.54

         First, the tattoo must be visible.55 Second, it must detract from a soldierly appearance.56 Discretion was left to commanders to decide whether a tattoo detracted from a soldierly appearance.57

         The Army's current policy on body art is embodied in the June 1998 change to uniform regulation and the two subsequent ODCSPER me

         sages.58 There is currently no Department of Defense guidance in the area of body art. A comparison of the Army's body art policy with the other services' policies highlights the Army's shortcomings.

      2. Marine Corps Policy-First to Strike

         The Marine Corps was the first service to implement body art restrictions. In 1996, the Marine Corps promulgated changes to its uniform regulation, forbidding Marines to possess any body piercings, while on or off duty, except earrings for women.59

         The Marine policy also prohibited tattoos or brands on the neck and head.60 Other tattoos or brands anywhere else on the body are forbidden if the tattoo is prejudicial to good order, discipline, and morale or is of a nature to bring discredit upon the Marine Corps.61 The Marine Corps does not further define the parameters of the policy.

      3. Air Force Policy-A More Balanced Approach?

         In June 1998, during the same month that the Army released its new body art policy, the Air Force released its new...