Fraternization

• Author: by Major Kevin W. Carter
• Pages: 05

I. INTRODUCTION

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description: and perhaps I could never succeed in intelligibly doing so. But I know it when I ~ e e it, and . . , this case is not that.'

This famous quotation from U S Supreme Court Justice Potter Stewart described his inability to define pornography despite his ability to recognize it on sight. Many commandera and judge advocates have en. countered similar difficulties when dealing with fraternization. Fraternization is a term commonly used to describe dating between officers and enlisted personnel, but it also includes many other types of relationships.

Prior to 1978 the Army's fraternization policy was based solely on CUB.

tom. In 1978 the Army published its first written fraternization policy. Subsequent conflicting interpretationa of that policy by the Office of the Deputy Chief of Staff for Personnel, the Office of The Judge Advocate General, and the Office of the General Counsel greatly contributed to the confusion surrounding fraternization.

1984 was a pivotal year for fraternization for two reasons. First, in August the 1984 Manual for Courts.Martia1 acknowledged for the first time a specific criminal offense of fraternization for certain officer. enlisted relationships. Second, on 23 November 1984 the Army pub lished Headquarters. Department of the Amy, Letter 600.84.2 and end. ed the era of conflicting interpretationa of the Amy's administrative fraternization policy.

This article outlines the history of the custom against fraternization and the development of the Army policy and examine8 the different

'Judge Advocate Generays Corps. US Army Currently aaagned 88 the 0ffmr.h. Charm Bsmberi Law Center. 1st Armored Divaion. Federal Fmubhc of Gemanv. For-

MnITARY LAW REVIEW Vol. 113

types of conduct that constitute administrative or criminal fraternization under current Army des. The analysis of the Army's current administrative policy includes individual discussions of specific types of relationships, commanders' options in disciplining violators and appeal procedures for disciplined soldiers. The article discusses the elements of the cnminal offense of fraternization and related criminal issues. It also examines possible constitutional challenges to the Army's fraternization policy, Finally, the article examines possible options for further clarify. ing the Army's admmistrative fraternization policy and proposes a more specific regulatory provision.

U. HISTORICAL DEVELOPHEST

OF FRATERNIZATION A. THE ROMMEXPERIENCE

No one knows precisely when or where the prohibition against freter. nization began. The term fraternization is a fairly recent one: but thecustom it embodies is generally considered to be at least centuries old." Perhaps the first attempt to regulate relationships between soldiers of different rank existed in Roman military law. Under ancient Roman law an officer who served in the position of military tribune could not sub-. quently serve in the same unit in the lower grade of captain.' Prior to this law some officers apparently were serving annual appointments as tribune, followed by a year a8 B centurion or captain, then another year as tribune.' This law recognized that undue familiarity between military personnel of different ranks had an adverse effect on military disci. pline.'

B. EUROPEANARMIES IN THEMIDDLEAGES

Notwithstanding the Roman experience, the class distinction between nobles and peasants during the Middle Ages generally is considered the

'Id st 180*A i d a r law provided that a eaptam m a unit could not later be forced to serve m the same u t m the rank of pnvafe Interestmgly, thia provmm w e meed 88 B defense by a

salder who was enrailed as B ~nrateand refused his military dutma because on earher ex. pemfians he had served as B ciptain -7th the ame unit Id at 175 This soldier's ultmafe fateIlunknoun

1986 FRATERNIZATION

origin of our custom against fraternization? By the middle of the twelfth century, the wealthiest families of Europe were very class can. scious and considered the title of nobility as a privilege which could only be inherited! Usually this wealth was based upon huge tracts of land called fiefs. These great nobles granted smaller fiefs to lesser vassal nobles to ensure their allegiance end military support. Each lesser noble granted smalier fiefs to his own vassels, who in turn did the -e thing. Thus a multi-level caste system was created with most persons having 8

dual social status: serving as a vassal to his lord while simultaneously serving as a lord to his vassals.s The knight's fief, which usually consist. ed of a small tract of land supported by the work of five peasant servant families, was the smallest fiefdam one could pageess and still have eome claim to nobility.1°

Fiefs could be acquired through warfare, marriage, gift, heredity, ex. change, or purchase.l' Every poeseseor of a fief was a gentleman, even if the fief wa8 smaller than B knight'e fief and did not confer the status of nobility upon its owner.LE

The phrase "an officer (i.e. B noble) and B gem

tleman" currently contained in Article 133 of the Uniform Code of Mili. tary Justice1%apparently had its inception from this distinction between a noble and a gentleman.

The social caste System not only precluded nobles and peasants from associating with one another, but it also prohibited saeial interaction between different levels of nobility. Offices of trust and power were conferred only upon those who acquired the status of nobility through prov-en hereditary lines." Children could not inherit the family fiefs unless both of their parents belonged to the same high class of nobility."

The privileges associated with being a gentleman were subject to for. feiture for improper conduct. A gentleman in France or Germany, for example, could not exercise any common trade without losing the advantages of his rank 'I The children of a gentleman and a peasant woman

'See Deo't of Arm" Letter No 600-M-2. DAPE-HRL Mi. subieet. Fmteinmfion and

(unbuhhshed paper pGaented ta The Judge id?& GenmraPs Sehnl, US Arhiy. Char.lottesvdle, Vagmla)

'G Sellery & A Krey. The Founding of Western C~vilirstlon 136 11929) W e i d at 137-39'*Id at 139"Zd''See H Hallam. View of the State of Europe During The khddle Ages 85 (6th ed New

l'lOU S C 5§ 801-940(1982)(hsrsmafterc~tedasUCMJi "Heilam.supmnote 12,at 86.

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were considered no better than B bastard class because of the deep taint from their mother."

Every class within the feudal caste system had its own customary no. tions and habits regarding social relationships." To understand the ap.parent harshness of the customs of the higher nobility, one must recog nize that society in the Middle Ages was attempting to restore a degree of moral discipline into social relationships after emerging from the moral depravity of the Dark Ages where vices such as deceit. treachery, and ingratitude were commonplace Is Violation of these socially accepted rules of conduct was considered a breach of faith Breach of faith was the most repugnant crime m B feudal society founded upon loyalty to one's superiors and it was severely and promptly punished by general in. famy and dishonor.'D

The custom against fraternization evolved from this background. Theconcept was simple: an officer and a gentleman was entrusted with cer. tain duties and responsibilities over the soldiers under hie supenision. An officer violated that trust by becoming too familiar with his submdi. nates. While the custom was clear and simple, its application remained more difficult.

C. EARL YBRITISHRULES

The US

Army custom against fraternization was assimilated from the British Army during the Revolutionary War. The British Articles of War of 1765 were substantially adapted by six of the American colonies during 1775.1776 and, more importantly. by the Second Continental Congress an 30 June 1775.'1 An examination of the early British rules on fraternization thus provides B meaningful insight concerning the scope of the custom at the time of the Revolution

The British Amcles of War of 1765 contained no express prohibition against fraternization. These articles did prohibit a commissioned offi. cer from 'behaving in a scandalous infamous Manner, such as is unbe.coming the Character of an Officer and B Gentleman."" They also pro.

>.Id at 86-87'ThheLegacyoftheMiddle Ages 287 iC Grump&E Jacobed 1926)'-Hsuarn.suom note 12 at 124*'See id"W Wmthrop. hlrhfari Law and Precedents 21-22, 22 n 32 i2d ed 1920 repnnti The

SIX calonie~were Maaisehunetta. Comeeficut. Rhade liland. Yew Harnpshue. Pennsikama, end South Carohns

"Bntmh Articles of Pai of 176;. B ~ C 15. art 23. repnfed an zd at 946 A subsequent amendment to this ~rriele prawded ''that !never? charge preferred against ~n offleer far aueh scandalous or unbecornrng behavior, the fact or facts on uhich the dsrne IS grounded ahall be clearly specified" A Tytler. An Easa) on Mld>taiy La-. 211-13 12d ed London 18061(lated n p 1779) Thia prmmonwss addedtoprowde theeecuiedafficerdueproc-~ P S w e notifresfion of har his conduct WBP scsndsloui Id

1986 FRATERNIZATION

hibited any soldier from committing any act or neglect "to the Prejudice of good Order and Military Discipline,"ld

During the period 1195.1820. there were twentyfour British general courts.martia1 caws against officers involving fraternization type of. fen8es.l' The most frequent charge was drinking with or in the presence of enlisted personnel, bath in military and public places." Other officer misconduct charged in conjunction with drinking with soldiers included smoking," dancing: fighting about women of bad character," dressing in a sergeant's jacket and associatmg with privates in the guardroom?* and watching and encouraging several privates in "the commission of an act of extreme violence and brutality on the person of a female" in the...