An End to 'Til Deros Do Us Part': The Army's Regulation of International Marriages in Korea

• Author: Captain Dana Michael Hollywood
• Pages: 06

AN END TO "TIL DEROS DO US PART": THE ARMY'S REGULATION OF INTERNATIONAL MARRIAGES IN KOREA

CAPTAIN DANA MICHAEL HOLLYWOOD*

1. Introduction

   On 2 March 2007, U.S. Forces Korea (USFK) promulgated Regulation 600-240, International Marriages in Korea. The regulation applies to the 28,000 American servicemembers1 stationed in the Republic of Korea (ROK) and delineates a number of procedural requirements to marry a non-U.S. citizen. The regulation's purposes go far beyond counseling young servicemembers before they make life-altering decisions. For American military personnel stationed in the ROK, micro-decisions often have macro-consequences. Prior to the regulation, marriages between U.S. servicemembers and foreign nationals2 garnered USFK negative publicity and enervated an already fragile alliance.3 Since its publication, the regulation has successfully reversed this trend. Nonetheless, problems with interpretation and implementation have hampered the regulation's full effectiveness. Moreover, the regulation raises a number of constitutional concerns.

   This article considers several aspects of the military's decision to regulate servicemember marriages in South Korea. Section II considers the regulation in the larger context of U.S.-ROK relations, as one can

   only ascertain USFK Regulation 600-240's rationale with an understanding of the U.S.- Korean partnership.

   Section III traces the history of the military's regulation of marriage. The section begins with The Judge Advocate General of the U.S. Army's exhortation following the Civil War that a military directive seeking to regulate marriage would be ultra vires of a commander's authority. The section next reviews the changes in thinking and policy reversals witnessed as a result of World Wars I and II. A particular focus is the promulgation of Army Regulation (AR) 600-240, the 1953 regulation upon which USFK Regulation 600-240 is based. This section also evaluates two cases brought before the Court of Military Appeals in the 1950s challenging a Navy directive requiring command involvement in the marriage process. The section concludes with the public debate surrounding the controversial proposal by the Commandant of the Marine Corps to refuse to accept married recruits into the Marine Corps beginning in 1995.

   Section IV reviews the regulation's constitutional ramifications, emphasizing the status of marriage as a fundamental right. The right to marry has enduring antecedents as a fundamental right in Supreme Court jurisprudence. Governmental action impinging on that right should therefore trigger the highest standard of judicial review. Nonetheless, recent Supreme Court decisions have refused to extend this standard, thereby exposing an inherent dichotomy in a declaration of the right to marry as fundamental. This section also examines the presumption that the military is a "specialized community" invoking judicial deference. As will be analyzed, both the application of a standard of review other than strict scrutiny in recent right to marry cases and the treatment of the military as a "specialized community" have far-reaching implications for a possible constitutional challenge to USFK Regulation 600-240.

   Section V offers a critical analysis of USFK Regulation 600-240's purposes, procedures, policy, and applicability.4 Particular consideration is given to two provisions that render the regulation constitutionally suspect. The article concludes in Section VI with several recommendations.

2. The Enduring Alliance?

   The U.S.-ROK alliance's strategic importance is matched only by its complexity. In the words of one Korea commentator, there has long been "[a] virulent and violent form of anti-Americanism" in South Korea.5 Fissures in the relationship can be traced back to the Kwangju Uprising of May 1980.6 The Kwangju Uprising, or "South Korea's Tiananmen Square," refers to the massacre of Koreans protesting the military rule of the American-backed dictator, General Chun Doo-Hwan, in the city of Kwangju.7 Charges of American complicity in the crackdown led to violent anti-American demonstrations and have been ineffaceable as a source of tension in the relationship.8

   Both before and since the Kwangju Uprising, an incident seems to occur every decade that further destabilizes the already frail U.S.-ROK alliance. The 7th Infantry Division withdrew in the 1970s, one of two American Army divisions that had been in Korea since the end of the Korean War.9 The 1980s saw the Kwangju Uprising, and the 1990s brought the murder of Kum E. Yoon, a Korean prostitute, by a 2d Infantry Division (2ID) Soldier.10 In the first decade of the twenty-first century there was the uproar over the decision to resume the importation of American beef.11

   It is difficult to overstate the deleterious impact on the alliance brought about by the rape and murder of Kum E. Yoon by Private Kenneth Markle. At the time of the crime, Markle was assigned to 2ID and stationed at Camp Casey in Dongducheon.12 Yoon worked as a "juicy girl"13 in one of the camptown clubs. On 28 October 1993,

   Markle raped Yoon and bludgeoned her to death with a soda bottle.14

   Yoon's landlord discovered her naked, blood-caked body.15 Her legs had been spread apart, a bottle inserted into her vagina, and an umbrella inserted eleven inches into her rectum.16 Markle had also covered the body and the entire crime scene with laundry detergent-apparently believing it would act as lye and destroy the evidence.17 Markle was sentenced to fifteen years in prison by a Korean court.18

   Yoon's death brought the widely acknowledged but seldom discussed topic of crimes committed against Koreans by USFK Soldiers to the forefront of the Korean psyche.19 Per the National Campaign for the Eradication of Crime by U.S. Troops in Korea (an umbrella organization composed of forty-six Korean non-governmental organizations formed in response to Yoon's murder), American Soldiers in Korea committed 39,452 criminal offenses between the years 1967 and 1998.20 In the year Yoon was murdered, USFK Soldiers committed 850 crimes.21

   With the turn of the century, the U.S.-ROK alliance entered a further period of decline, due largely to fundamental differences with the Bush administration over how to deal with North Korea.22 As the U.S. President was declaring North Korea a member of the Axis of Evil, the ROK was pushing ahead with its "Sunshine Policy," seeking to emphasize peaceful cooperation with the Democratic People's Republic of Korea (DPRK) as a prelude to eventual reunification.23 Furthermore, in October 2002, the Bush administration's doctrine of preemption replaced containment and deterrence as the cornerstone of American defense policy.24 To America's South Korean partners, this signaled a dangerous new development in which a war could be launched against the DPRK without the ROK's consent or approval.25

   Against this background, in June 2002, two young South Korean girls were killed when a U.S. Army engineering vehicle accidentally ran them over as they were walking to a birthday party.26 Their deaths rallied the South Korean people, many of whom viewed the American military presence as a humiliation.27 A military court's acquittal28 of the two Soldiers driving the vehicle further inflamed tensions, leading to

   widespread demonstrations against USFK and contributing in no small measure to the 2002 election of President Roh Moo Hyun, "the first president in South Korean history with no experience with or attachments to the United States."29 One analyst at the Brookings Institute has referred to the Roh-Bush relationship as "the 'single rockiest' of Bush's tenure."30

   During Roh's tenure as president of the ROK, the United States accused him of being overly nationalistic and anti-American.31 Not only did President Roh consistently criticize the American approach to North Korea as "hardline,"32 but President Roh also made the thorny issue of restructuring the U.S.-ROK military alliance a chief objective of his administration. Although the United States abdicated peacetime troop command to South Korea in 1994, an American four-star general continues to head the Combined Forces Command (CFC).33 This means that although the United States accounts for less than two percent of the active duty forces in the ROK, an American general officer would command ROK forces in a war with the DPRK.34 In 2007, the United States and the ROK agreed that the CFC would be deactivated and wartime control would shift to the ROK by 17 April 2012.35

   In December 2007, ROK voters elected Lee Myung-Bak as President Roh's successor.36 President Lee immediately pledged to commit his administration to rebuilding the U.S.-ROK relationship.37 As one analyst explained in June 2008, "If what troubled Roh's presidency was too much nationalism, Lee's problem is a lack of it."38 In April 2008, President Lee decided to lift the ban on American beef imports as part of

   a larger free-trade deal with the United States.39 American beef imports had been banned since 2003 after a case of mad cow disease was detected in the United States.40 Beef-loving South Koreans saw the decision as kowtowing to the Bush administration. The move sparked massive and virulent anti-American and anti-government demonstrations, paralyzing the Lee government and culminating in a mammoth 10 June 2008 demonstration that "appear[ed] to be the largest in the capital since the 1980s . . . ." 41 Following this demonstration, President Lee's entire cabinet offered to resign;42 it was only after President Lee offered a public mea culpa, dismissed several of his presidential aides, and revised the trade deal that a tense equilibrium was restored.43

   Like the outrage provoked by the murder of Kum E. Yoon in 1993 and the accidental killing of the two young Korean girls in 2003, the furor over beef was less about the event and more about the tenuous state of U.S.-ROK relations. Taken as isolated incidents, neither Yoon's...