MILITARY LAW REVIEW
Volume 184 Summer 2005
SPIT AND POLISH: A CRITIQUE OF MILITARY OFF-DUTY PERSONAL APPEARANCE STANDARDS
MAJOR JOHN P. JURDEN*
The essence of military service "is the subordination of the desires and interests of the individual to the needs of the service."1
The U.S. military has tremendous discretion to regulate service members' on-duty appearance. Historically, this discretion has extended both to a service member's on-duty personal appearance and to his uniform appearance.2 From regulating a service member's hair length
and style,3 to regulating weight,4 the military has a latitude unequalled in the civilian sector to dictate "appropriateness" in the context of on-duty physical appearance.
Arguably, the American public has been conditioned to stereotypical depictions of what it means to "be" a member of the armed forces, as projected in the media.5 For instance, Marine Corps commercials routinely feature images of clean-cut recruits striving to be one of "The Few, The Proud."6 Conversely, negative public perceptions, such as those of male service members as "extremists,"7 or those of female service members as "butch,"8 also are prevalent.
What it means to "be" a service member has changed dramatically over the years, as more emphasis on personal freedoms and individuality9
has infiltrated military culture.10 This change is embodied in the Army's 2001 adoption of the slogan "An Army of One," which emphasized-even if unintentionally-individual achievement and self-fulfillment,11 perhaps at the expense of teamwork and unity.12 By increasingly tolerating-and even welcoming-aspects of individuality in its ranks,13 the military must anticipate that evolving social norms will manifest themselves through the physical appearance of service members.14
Predictably, the military's quest to permit more individual identity within its ranks has led service members to "individualize" their bodies, in much the same way that American society at large has done.15 Thus, the military must prepare to encounter evolving societal trends within its ranks, including those of acceptable male and female appearance,16 and those unique to particular American subcultures.17
Courts recognize the right to "individualize" one's body appearance as a liberty interest under the U.S. Constitution.18 From cases involving
choice of clothing19 to cases involving choice of hairstyle,20 courts continuously have acknowledged individuals' rights to express themselves "in a veritable fashion show of factual scenarios."21
In the late 1990s, the Department of the Army confronted a mounting controversy regarding Soldiers' self-decoration propensities.22
The Army addressed and attempted to resolve, through a series of three Army-wide messages, specific issues regarding the propriety of certain tattoos and body piercings.23 Legal commentary has examined the military's authority to regulate service members' on-duty appearance in the context of "body art," including tattoos and body piercings.24 That commentary concluded that regulating the natural appearance of an on
duty service member's body, insofar as it furthers "legitimate military interests" such as protecting a "soldierly appearance," is constitutional.25
That commentary, however, specifically did not determine whether, or to what extent, the military rightfully may regulate service members' off-duty physical appearance.26
In February 2005, the Army published a new version of its regulation regarding uniforms and personal appearance standards.27 The regulation governs Soldiers' general on- and off-duty appearance, and incorporates much of the Army's previous interim guidance regarding the regulation of Soldiers' body art.28 To some extent, promulgation of the new regulation lays to rest many of the controversies regarding regulation of Soldiers' body art, at least while they are on duty. Unfortunately, the regulation continues to provide only cursory guidance regarding Soldiers' general off-duty appearance.29
The Army is not alone. The Marine Corps,30 Navy,31 and Air Force32 regulations also contain provisions that offer vague guidance, at best, regarding off-duty appearance standards. Such guidance may consequently impinge improperly on service members' individual liberties. For example, what does it mean to avoid "eccentricities" in civilian dress while off duty?33 A Marine who does not know is subject to potential punishment under the Uniform Code of Military Justice (UCMJ).34 Or, is it rational for the Navy to prohibit male off-duty Sailors from wearing an earring on a military installation, when they can don one as soon as they enter the civilian community for an evening out?35 Finally, is it a valid military concern whether or not service
members-in the privacy of their homes on a military installation- adhere strictly to off-duty personal appearance standards?36
Courts and commentators generally are loath to question the military services' authority, in furtherance of the services' maintenance of discipline and unity, to prescribe a service member's personal appearance while in uniform. Rather than delving into such a well-established area, this article analyzes the extent to which the military properly may-or should-regulate off-duty "personal appearance."37
The concept of "personal appearance" consists of "a set of meanings and understandings that are socially constructed."38 Put bluntly, combining or altering dress items or accoutrements such as jewelry, or even adopting certain hairstyles, often help to express self-identity.39
Such appearance choices may pose great risks to service members, for appearance standards have the perhaps unintended effect of empowering those in a position of authority to enforce stereotypes, and to discourage deviation from accepted institutional or social norms. 40
At one extreme, the result may be criminal or administrative punishment for those service members who deviate from traditionally acceptable off-duty appearance standards that military regulations establish.41 At the other extreme, courts may reject a military
commander's attempted enforcement of his own brand of "style," which the commander predicates on a misinterpretation of regulatory standards.42 Such judicial determinations thus may undermine the perceived legitimacy of military command authority. In this sense, then, the stakes are high: regulation of off-duty appearance in the military implicates encroachment on individual liberties, as well as preservation of the military's institutional legitimacy in regulating certain aspects of service members' private lives.
In exploring the military's right to enforce off-duty appearance standards, one must understand what empowers the military to dictate the meaning of "being" and "looking like" a service member. This article examines military culture, in the context of the military as a supposed "separate society." Acknowledging that the military is, in some respects, a separate society, this article next explores what it means to "be" and "look like" a military service member, at least in the armed forces' opinion.43
This article next examines the constitutional implications of enforcing what it means to "be" a service member. The military's interest in promoting "order and discipline," esprit, and a positive public image sometimes conflicts with service members' liberty interests and personal freedoms. This article concludes that there is great potential for the military to enact vague standards for off-duty appearance, to enforce those standards arbitrarily, and to perpetuate irrational stereotypes of what it means to maintain a "soldierly appearance" out of uniform. The military properly can do so only where important military interests justify it, and where regulations are narrowly tailored.
After examining the feasibility of employing Department of Defense (DOD)-wide policies applicable to common aspects of service members' off-duty appearance, this article recommends an approach requiring the military to employ time, place, circumstances, and purpose criteria when evaluating the majority of off-duty appearance issues. A natural
consequence of this proposal might be the military's ability to regulate more closely off-duty appearance standards when the service member is on a military installation, based on the military's heightened interest in regulating activities under its physical jurisdiction. This article also recommends that the military more fully articulate standards of acceptable appearance, in order to avoid constitutional issues of vagueness.
The "Nonuniformity" of Off-Duty Military Appearance Standards
Each branch of the uniformed services has enacted rather recent appearance regulations.44 Each regulation addresses off-duty appearance in the larger context of regulating service member uniform and dress policies. The four regulations differ significantly regarding the extent to which each branch regulates off-duty appearance. By promoting different interests and emphasizing different aspects of off-duty appearance, the uniformed services' regulations governing off-duty appearance are strikingly nonuniform. Rather than examining each service's regulation in a vacuum, this part compares and contrasts the current regulations according to five off-duty criteria: general guidelines, on- and off-installation applicability, civilian clothing, body alteration and enforcement mechanisms.
A. General Guidelines
Each of the regulations speaks, in one form or another, of the need for service members to present a respectable appearance, whether on or off duty. The Marine Corps regulation dictates that "Marines will present the best...