The Soldier's Right To A Private Life

• Author: Lieutenant Colonel Arthur A. Murphy
• Pages: 02

1. INTRODCCTION

   Among officers and enlisted men generally, there 1s considerable disagreement on the extent to which military law and discipline permit a soldier' to have a private life. At one extreme stands the "old Army" archetype who quotes the maxim about a soldier being an duty twentyfour hours a day to justify command meddling in the most intimate affairs of the soldier. At the other pale is the disgruntled draftee who feels the soldier becomes B civilian when he takes off his uniform at the end of an eight-hour day. Of course, as all military lawyers know, neither of these simplistic views is correct. An Army career today demands some sacrifice, but not total submission to authority.

   A number of decisions, textbooks, and articles have treated one or more aspects of the personal life of the serviceman.* None of them, however, has attempted to catalogue and correlate the many rights, privileges, and immunities which define the area of freedom of the typical officer or enlisted man in his ordinary, off-duty affairs.

   In this article the author has two principal objectives. The first is tescnptive, to present a survey of the law relating to the domestic affairs, business dealings, social life, and recreation of the soldier. Occasional digressions are made to explain the circumstances of military life and history which have led to the present law. The second objective is modestly evangelistic, to suggest that the particular rights, privileges, and immunities discussed should

   *The Opinions and e~nclusioni presented herein are those of the author snd do not necessarily represent the views of The Judge Advocate General's School or m y other governmental agency.

   ** JAGC, C S. Army: Patents Division, Office of the Judge Advocate Gen-eral; B.S., 1946, United States Military Academy, LL.B., 1852, Harvard Law Schwl; admitted to Practice in the Sfate of Milsssaehusetts and beiore the United States Court of Customs and Patent Appsaii and the United S t a b Court of Xiiitary Appeals; registered attorney with the Unhd States Patentnm"n

   "111.1

   1 The terms "loldier" and "aervieemsn" are used herein, unless the context rhaws orhewiae, in 8. generic ienne to m a n any mihtary member of the Army. They inelude offieern, warrant omcers, and female permnnei BP well BS

   enlisted men. Although thin article is addressed pmmsriiy to the Amy, much of what 1s said applies to other B B N I C ~ ~ .

   2 See, w., CM 403828, Jmdan, 30 CMR 424. pet denkd. 12 USCMA 727, 30 CMR 417 (18601, Quinn, Thr L'niLed State8 Court oj ,Mihtary Apperli and lndrviduol Right8 2n the .iil%fory Serilce, 36 NUTRE DAME LAW. 481, 500-02 (1960)

   24 MILITARY LAW REVIEWbe regarded as manifestations of a single, more fundamental right, one which should be called "the soldier's right ta a private life.">

   11. BACKGROUXD

   A. SOURCES OF THE RIGHT TO A PRlVATE LIFE

   There are a large number of loosely related rights, privileges, and immunities found chiefly in the Cniform Code oj Military Justice, custom, Army regulations, and the decisions of militan. courts and agencies which might be said to be manifestations or constituents of the soldier's "right to a private life."

   Two groups of articles from the Lbiiform Code figure in the decisions of military appellate courts and in the opinions of The Judge Advocate General defining the relationship between individual freedom and military power. In the first gmups are articles 90, 91, and 92 which, in sum, call for the punishment of any person who disobeys a "lawful" command. order, or regulation. The other group consists of articles 133 and 134. Knder article 133, an officer who engages in conduct "unbecoming an officer and a gentleman" is guilty of an offense. Under article 134, an officer or enlisted person who commits a disorder or neglect "to the prejudice of good order and discipline in the armed forces" or who engages In conduct "of a nature to bring discredit upon the armed forces" may be tried and punished. These articles are andOgDUs to provisions found in all the Articles af War that antedated the Uniform Code, except for the proscription against conduct likely to bring discredit upon the Bervice; this particular provision first appeared in1916.' The language of the cited articles and their predecessors is broad. There has been much rcmm for judicial exposition in such words as "lawful," "unbecoming," ''prejudicial," and "discreditable;"5 many of the rights connected with the serviceman's private life haw been read into these protean terms.

   If the concept of the right to a private life is to be fully under-stmd, sources other than the Uniform Code of Military Justice must be Considered. The soldier has, for exampie, substantial free. dom to leave his Organization when off-duty, a "right" based on

   S The basic right might also be termed P right ta "freedom of Setion.''See Quinn, sura note 2.

   4 For text Of the Artidea of War, which preceded the Gniimn Cod% o i .Wihte7# Judice, %%e 62 Stat. 804, 627-44 (1948): 41 Sfat. 789 (1820); 39Stat. 660 (1916)i WIYTHSOP, MILITARY LAW AXD Pnec~ocvrs 1118.537 (2dad. 1896).

   1 See Aekroyd, Ths G m a d A7tble8, ArLiolrs 135 and is4 of tha Cnifom Code of .Wilil~w

   Auttca, 35 ST. JOHN'S L. REV.

   266 (1961)

   98 AGO BMZB

   ~

   SOLDIER'S PRIVATE LIFE

   regulations which is protected almost exclusively by administrative means. On the other hand, commanders at ail levels may have recourse to sanctions besides the court-martial trials and nonjudicial type of punishment' authorized under the Unifom Code through which they may limit the freedom of their subordinates. Regulations and custom may permit them to reduce B subordinate in gradeor separate him from the Service for deviant behavior which is not punishable under the Code.'

   Rather surprisingiy, the Constitution has not been a notable source of soldier rights in the areas we are considering. The tribunals and writers who have dealt with the question, in fact, have divided on whether any af the procedural and substantive rights guaranteed to citizens by the United States Constitution apply to servicemen.8 Even the Court of Military Appeals, created by Congress in 1951 a8 a court of last resort in cases arising under the Linifomn Code of Military Jutice, did not take a stand immediately. After its period of hesitation, however, the Court now seems committed to the position that a soldier does derive rights directly from the Constitution and that it has the duty to protect those rights against any infringement.' In United States u. Williamson, Chief Judge Quinn expressed a broad charter for soldier rights: The serviceman "is entitled not only to the benefits of the Uniform Code of Military Justice, but to the safeguards of the Bill of Rights of the Constitution of the United States, and, as a human being is also entitled to the protection of both natural and divine law."1o The Williamson case, however, concerned the procedural rights af

   8 person accused of crime, as do most of the cases in which a Constitutional issue has been explicitly met by the members of the

   6 Far minor offensen against the Cde, commanders may, subject to certaineondmons, impose pumshment themselves. U ~ ~ F O R M

   Coon OP MILITARY

   JUSTICE art 16 [hereinafter cited SI UCMJli

   See Army Regviation 63E-105, 13 Dee. 1960 with Changes 4, 5, and 6; Army Regviation 63b209, 8 April 18.58 with Changes 6. 6, and 7; p r ~ .

   30,

   Army Remlanon 624-200, 1 Nov 1960 with Chsnee 4.

   8 See, e.#., Burns V. Wilson, 346 U S. 137 (1953) : WIUTIIROP, op ctt. supranote 4, at 2-4, i4-56, 60.5, 101G, Henderson. Couits-Marfiof and the Consti-'ution The Orwnal Cliderziondmg, 71 HaRv. L. RE'. 293 ,1957); %'>mer. Coz~ita-Yartiuf and the Bill o i Rwhis The Ongtnal Proctwi 11. 72 HARI. L. REV. 266 (1858), Rurfel, ".>Irliiory Diie Piocess " Whot Is It' 6 VAFD. L. REY. 251 (1953).8 See, e.Y., United States Y. Jaeoby, 11 DSCMA 428, 28 CMR 244 (1960) ; United States V. Voarhees. 4 USCMA 509, 16 CMR 83 (1854); United States V. Clay, 1 USCMA 74, 1 CMR 74 (1951); Warren, The Bill of Rights and

   the Mdrlarw, 37 NY.U.L. RE,. 131 (1962)

   104 USCXA 320, 331: 15 CPR 320, 331 (19541 idmsentlng opinion). See

   Quinn, 8ipra note 2, for an unomeial statement of Judge Qumn's viwb.

   AGO ilms 99

   Court." The Court has rarely found it necessary to refer to the Constitution when dealing with some aspect of the soldier's substantive right of a private life.lz

   B. L'.VDERLYISG FACTORS

   A great many diverse factors determine the balance between command power and individual liberty as it is expressed m the statutory law, Army regulations, customs, and interpretive decisions of a given period. The particular facets of the soldier's right ta a private life, consequently, have not evolved according to any regular pattern. There has been no obvious historical progression either towards greater liberty or towards lesa liberty far oficera and enlisted men. The soldier's relations with his creditors, for instance, are now subject to much less official control than between World Wars I and 11, while restrictions are imposed on his freedom to marry which did not exist in the Same period.

   Two fundamental, and often contending, influences have been at work: the liberal democratic tradition and the professional military traditi0n.1~ The exponents of the democratic tradition, heritors of the colonial mistrust of Jtanding armies and of professional officer corps, have generally advocated equalization of the status of officers and enlisted men, and a discipline in u.hich the rights, privileges, and immunities of the soldier approach those of a citi-Zen in an ideal democracy." In modern times, the democratic traditionalists were moat articulate and effective during World Wars I and I1 and the t w post war periods when public and congressional attention was focused on the Arrny.ls

   See, eo., United Stare. \ Jacoby, 11 L'SCIA 423. 29 CMR 214 (1960): 1 USCMA 251, 22 CHR 41 (18561; United Stares v. 20. 16 CYR 320 (18541; United Skates Y. Swansor.,

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