Fraternization: Time for A Rational Department of Defense Standard

Author:Major David S. Jonas

I Introduction

The problems of pregnancy, single-parents, and dual service couples were made possible largely by the erosion of the age-old ban on fraternization between the ranks. To be sure, the American military has been moving toward greater and greater egalitarianism for some time, but nothing has done more to cheapen rank and diminish respect for authority than cute litcle female lieutenants and privates. Military customs and regulations are no match for the forces that draw men and women together in pairs without regard for differences in pay grade. Cupid mocks Mars Lusc and love laugh in the face of martial pomp and the pretensions of power.'

  1. Hypothetical

    The following hypothetical highlights some of the typical problems that arise in a paradigm fraternization case. Consider the case of a public affairs officer for the United States Central Command appearing on a major television network interview regarding a fraternization prosecution in the Persian Gulf. A Marine Corps first lieutenant has been dating a female Navy dental technician. They are engaged and the female is pregnant. The two are attached to separate units, and have never worked together. The civilian defense attorney representing the lieutenant is present and makes the following corn- 'Lnlted Stater Marine Corps B A . 1878, Dmmm Uni\eriil) J D 1881, Wake Farelr Unnersify La* School. LLM lS91, The Judge Advocate General's School For-merly assignad BI Commanding Oilleer, SYIDO~~

    Company. MCRD Sa" Dlego, Cnhforma, 1888-1880. Senlor Defenie Council MCRD. San Diego, California 19S7.18S8, 13th llAU Sraff Judge Ad\ocafe 1986-1988, Cammandmg Offleer. Headqvaneri Company 6th klarlnes, Camp Pendlefon. California, 1884-1@86, Trnl and Defense Council. Camp Pendleran, Callfarma. 1882-1883 Member ai the Penosglrania Bar The author mshea m exPireri hls graorude lor rho inialuable gmdance md advice of Lieutenant Coland Thomas d Leclair and ilr Daniel S Jonas Addalonall) Mr Daniel C Lavering prowded Superiar research a~si~rance

    83 the J4G School librarian This arfiile 19 based upon a wnuen thesis dlisenmon that the author submitted to .iati.iiy, in mrt, the degree requirements of the 39th Judge Adi~ocare Officer GndYBte Course

    I B illrcnrn. WEAK Liw Txi F~w\li~no\or WE A\(ES.ICA\ h l l i i ~ m ~

    178 (1989)

    ments' "This is a moral outrage. Both parties are young, single, attractive Americans They are here pursuant to orders. fighting for their country Both have perfect records They aren't in the same unit or service. All their activities were conducted in private What about their rights to privacy and freedom of associationl Those are the very constitutional rights they are risking their lives to defend.2 All they did was fall in love. And for this, the Marine Corps wants to brand them criminals and send them to jail." The moderator turns to you and says, "Howdo you respond?" The legal ramifications to the arguments raised by defense counsel are not susceptible to simple analy. sis. This article explores these and similar issues

  2. Background

    Anyone who has served in the military in the last decade 1s aware of the concept of fraternization. Unfortunately, genuine understanding of this concept lags far behind this general familiarity. When asked to define fraternization, most military personnel focus primarily upon officer-enlisted dating and sexual relationships. Those types of relationships are the primary focus of this article, yet the actual definition encompasses far more

    Surprisingly, little has been written on fraternization, given the lack of genuine understanding and the constant debate and confusion that it spawns. Most military personnel agree that the frequency of fraternization is on the rise One of the most significant factors responsible for increased fraternization is the influx of women into the military since World War 11, an influx that escalated rapidly in the 1970'~.~

    This increase has resulted in today's military, with over 221,000 nomen on ac-tive duty-roughly ten percent of our total force.' If nothing else, this explains increased oppwtunity for fraternization.

    With the end of the draft, the institution of a volunteer military has ensured that the American military mirrors society. American culture 1s essentially egalitarian--a far cry from the

    authoritarian nature of the military. The absence of real class distinctions in the civilian world highlights the military officer-enlisted distinction Americans do not recognize class distinctiow6 and accept them only if they are rationally related to a legitimate purpose. This is one reason for the conceptual and practical problems surrounding the fraternization regulations, especially in the context of disposition by criminal pros. ecutions. The failure to grapple adequately with this contemporary issue results in radically different policies and practices, and leaves virtually all military personnel in a quandary.

  3. Fwpose

    This article examines the fraternization regulations of all five branches of the uniformed military services6 from a functional perspective-that is, what are the purposes for the regulations, and are the regulations fulfilling these goals? The article first places fraternization in a brief historical context; then it examines the reasons for the creation of the Uniform Code of Military Justice (UCMJ),' its legislative history, and its emphasis on uniformity. This article shows how the current concept of fraternization is virtually unrecognizable from its ancestry. The article then examines the current punitive article on fraternization in detail and discusses the concepts of fraternization in the civilian sector and in allied military forces to provide standards against which to measure the American military regulations. The analysis of individual regulations of the services culminates in a functional analysis specifically addressing whether the regulations are accomplishing their intended purposes. Finally, this article examines attempts to revise fraternization policy, and concludes with proposing a Department of Defense (DOD) "purples standard" for fraternization.

    Four out of five services revised their regulations in the last two years. Fraternization is a subject of heated debate, and there have been legislative attempts to create a DOD standard. The services are united in their opposition to a DOD presumably because no unit commander likes to be told how to run his or her outfit. regardless of who is doing the telling Alternatively. mere bureaucratic inertia, or hostility to change, may be responsible

    A majority of the services stress that fraternization is a gender-neutral'@ concept that IS not objectionable as a policy matter, but modern enforcement focuses almost exciusively on opposite sex dating and sexual idationships." The article therefore wall focus primarilj on mutually consensual, nondeviant private sexual These qualifications are necessary to segregate fraternization from assault, rape, sex-ual harassment, and a host of other criminal offenses l3

    11. History of Fraternization A. Inceptton and Early Decelopment-Roman Era

    Fraternization has steadily evolved since its inception To quote Justice Frankfurter. "Wisdom, like good wine. requires maturing."l* Fraternization appears to have originated in the Roman emx6 References to the custom against fraternization appear throughout writings on military history and military

    law.16 The ancient Romans have the first recorded regulations regarding associations of personnel of different rank within their military."

  4. European and British Concepts of Fraternization

    The origin of the current policy on fraternization stems from the class distinction between nobles and peasants in the European Middle Ages.l8 The military concept of social and class distinctions in the feudal era, as in Roman times, presented a microcosm of social mores. Battles were fought by knights who returned to their castles upon completion of wars. Officership was merely a part-time aspect of aristocratic existence.'g The Code of Articles of King Gustavus Adoiphus of Sweden prohibited close relationships between officers and common soldiers, circa 1621 A huge social chasm existed between the officer and the soldier, even when the medieval feudal economy stalled, and capitalism arose in its place.21 As this occurred, knights gave way to mercenary armies--"soldiers organized and led by nobility and financed by capitalists."22 Through the standing army, the nobility found employment and leadership positions by virtue of officer~hip.~~

    They perpetuated the concepts of honor and superiority as prerogatives based on their "high born estate, which could not be shared by inferiors."24

    " l e Later Dep t ai Army Ha 80044-2. DUE-HRL (Y). rublicr Fr~fim1zmm snd Regulatory Polley Regardhg Relalionrhipi Between Members of Different Ranks.23 hor 1984. S Rase, The Military Offenie af Wrongful Fralerni~alian-~~darrng

    Old Currom (Apr LOB%! (ungublbrhed pwei wesenled to The Judge Advocate Gen-eral I School. lJ S Army, Charlotreivrlle, Vmgmia)

    M Jihourrz Sociaraav A\D TXE MILITARY



    Hemmer, !'lalarlon of the klllllary Supor$or-Subordmau Relaflooshlp Is B Crlme'

    Isn't It' (Am 1073) (unpublished ~ w e r presented to The Judge Adiacafe Generals

    School. U S .Army Chsrlorresulle, Yirglma) z'ld 81 82s id

    YAGIS, A HISTORI or EILITARIIM 39 119371 An example of this social dlwde LI

    wrirten Inlo the Saxon.Pallsh Fleld Servlee Rules of 1712

    Far the offlier hanar 11 reserved for the common man obedience and loyally

    From hanar now8 mtrepidiry and equanimity in danger, %ea1 to *IO. ability and D X B D ~ ~ O C ~ respect for iuperiori modesty toU-BidS one's equals. eondsaean-

    26 (1939)

    n J WI\TIROP, Mlrir~ar LAUS

    j 8

    A\Y P ~ ~ ~ i o i l i r

    (26 ed 1820)

    Enlisted soldiers were recruited from the lowest elements of society and were often beggars and criminals While the vivid demarcations between nobles and peasants terminated due to the...

To continue reading