How Does the UCMJ Address Fraternization and Improper Relationships?
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The UCMJ reaches improper relationships in three ways. Fraternization is an Article 134 offense listed in the Manual for Courts-Martial: a commissioned or warrant officer who knowingly fraternizes with an enlisted member “on terms of military equality”, in violation of the custom of the officer’s service, with prejudice to good order and discipline or discredit to the armed forces; the maximum is dismissal, total forfeitures, and two years. Service regulations on relationships can be enforced under Article 92, which reaches enlisted-enlisted and officer-officer relationships the Article 134 offense does not. And Article 93a separately punishes recruiters and training leaders who engage in prohibited sexual activity with recruits, applicants, or trainees, with consent no defense.
Fraternization under Article 134
The Manual lists five elements (¶101.b):
- The accused was a commissioned or warrant officer.
- The accused fraternized on terms of military equality with one or more enlisted members in a certain manner.
- The accused then knew the person or persons to be enlisted members.
- The fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality.
- Under the circumstances, the conduct was prejudicial to good order and discipline, service discrediting, or both.
What the Manual says the offense is about. “The gist of this offense is a violation of the custom of the armed forces against fraternization. Not all contact or association between officers and enlisted persons is an offense.” Whether contact is an offense “depends on the surrounding circumstances”, and the factors include “whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale.” The test is whether the facts “lead a reasonable person experienced in the problems of military leadership to conclude that the good order and discipline of the armed forces has been prejudiced” (¶101.c(1)).
Direction and knowledge. As written, the offense charges the officer; the enlisted member is not the accused under ¶101. Knowledge that the other person was enlisted is an element.
Sexual conduct is not required. The elements turn on conduct “on terms of military equality”, not on a sexual relationship. A married participant raises a separate question: extramarital sexual conduct is its own Article 134 offense (¶99) with its own elements and maximum.
Regulations enforced under Article 92
The Manual adds: “Regulations, directives, and orders may also govern conduct between officer and enlisted personnel on both a Service-wide and a local basis. Relationships between enlisted persons of different ranks, or between officers of different ranks may be similarly covered. Violations of such regulations, directives, or orders may be punishable under Article 92” (¶101.c(2)). Those charges depend on the regulation’s terms, not on the Article 134 elements.
The Army example. Since January 18, 2024, the Army’s rules on relationships between Soldiers of different grades have been in a standalone regulation, Army Regulation 600-32, Conduct Between Soldiers of Different Grades, with scenarios in DA Pamphlet 600-35; the rules were previously in chapter 4 of Army Regulation 600-20 (Eighth Army Inspector General newsletter, Volume XI, Issue 4). One of the newsletter’s scenarios, a platoon sergeant dating a private first class in another company of the same battalion, is described there as an explicit violation of AR 600-32.
The earlier text. In a November 13, 2014, article on army.mil, the Fort Leonard Wood Inspector General’s office described the then-current version, Army Regulation 600-20, paragraphs 4-14 and 4-15:
- Leader-subordinate relationships (both opposite-gender and same-gender) are prohibited if they compromise or appear to compromise supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve or appear to involve improper use of rank or position for personal gain; are or are perceived to be exploitative or coercive; or create an actual or clearly predictable adverse impact on discipline, authority, morale, or mission (para. 4-14b).
- Categories prohibited regardless of unit. Paragraph 4-14c “codifies the customary prohibition of personal or intimate relationships between NCOs (corporal through command sergeant major) and junior enlisted service members (private through specialist)”: ongoing business relationships; dating, shared living accommodations other than those directed by operational requirements, and intimate or sexual relationships; and gambling, with stated exceptions.
- Training and recruiting. Under paragraph 4-15, relationships between permanent party personnel and initial entry training soldiers not required by the training mission are prohibited, as are personal relationships between recruiters and prospects, applicants, and Delayed Entry or Delayed Training Program members not required by the recruiting mission.
The article states that a violation may lead to action “under Article 92 as a violation of a lawful general regulation”, and that commanders’ responses include “counseling, reprimand, order to cease, reassignment, administrative action or adverse action.” The other services issue their own rules, and the text that governs a case is the edition of the member’s service regulation in force at the time of the conduct.
Article 93a: recruiters and training leaders
Article 93a, added by the Military Justice Act of 2016 and effective January 1, 2019, is a separate punitive article:
- Training leaders. An officer, noncommissioned officer, or petty officer in a training leadership position with respect to a “specially protected junior member of the armed forces” who engages in prohibited sexual activity with that member (Art. 93a(a)). Training leadership positions include drill instructor and other leadership positions in basic training, officer candidate school, ROTC, and initial career qualification programs, and service academy faculty and staff (Art. 93a(d)(2)).
- Recruiters. A military recruiter who engages in prohibited sexual activity with an applicant for military service, or with a specially protected junior member enlisted under a delayed entry program (Art. 93a(b)).
- Consent. “Consent is not a defense for any conduct at issue in a prosecution under this section (article)” (Art. 93a(c)).
- What is prohibited is defined by the Secretary concerned’s regulations as “inappropriate physical intimacy under circumstances described in such regulations” (Art. 93a(d)(5)).
The three routes compared
| Route | Who can be charged | What must be shown | Maximum punishment |
|---|---|---|---|
| Fraternization, Article 134 (¶101) | Commissioned or warrant officer | Five elements, including violation of the service custom and prejudice or discredit | Dismissal, total forfeitures, 2 years (¶101.d) |
| Relationship regulation, Article 92 | Anyone the regulation covers | Violation of the regulation's terms | Depends on the Article 92 charge |
| Article 93a | Officers, NCOs, and petty officers in training leadership positions; military recruiters | Prohibited sexual activity with a covered person; consent no defense | Dishonorable discharge, total forfeitures, 5 years (¶20.d) |
A commander can also respond without criminal charges, including through nonjudicial punishment, described in how nonjudicial punishment under Article 15 works. An officer’s relationship misconduct may also be charged as conduct unbecoming an officer under Article 133. How Article 134 offenses are defined and limited is covered in Article 134 as a residual criminal provision.
Questions readers ask
Can two enlisted members be charged with fraternization? Not under the Article 134 offense in ¶101, which requires an officer accused. Their relationship can still be punishable under Article 92 if a service regulation prohibits it, as the Army’s AR 600-32 does for some relationships between Soldiers of different grades.
Does marriage fix a prohibited relationship? The Article 134 offense and Article 93a contain no marriage exception. Service regulations address existing marriages and other exceptions in their own terms, so the answer depends on the regulation that applies.
Sources
- 10 U.S.C. § 934, Article 134 (Cornell LII)
- 10 U.S.C. § 893a, Article 93a, with effective-date note (Cornell LII)
- 10 U.S.C. § 892, Article 92 (Cornell LII)
- Conduct Between Soldiers of Different Grades, Eighth Army Inspector General Newsletter, Volume XI, Issue 4 (U.S. Army)
- Army updates reg defining inappropriate relationships, November 13, 2014 (U.S. Army)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶¶ 20, 99, 101
This article is general information about military law, not legal advice for any individual case.