Fraternization ______________________________________________________________________________ FRATERNIZATION All military personnel are taught that mission accomplishment is the primary goal of a military unit. The crime of fraternization often interferes with a unit’s ability to accomplish the mission. Unduly familiar personal relationships between senior and subordinates call into question the ability of the senior to lead and to make impartial decisions. More importantly, unduly familiar relationships between seniors and subordinates are contrary to military custom because they do not respect the roles each party is required to play in obtaining mission accomplishment. A. B. C. Military services have struggled to find a comprehensive and consistent policy against unlawful fraternization caused by an increase of fraternization and resulting court-martial cases. Various experts have speculated that the increase in fraternization is due to the following: 1. With the development of a technically oriented military, the services have enlisted individuals who are better educated and often are the educational equal of many officers. Additionally, the enlisted ranks are often coming from similar social and economic backgrounds as officers. Opposite sexes with similar backgrounds have common interests and as a result fraternization becomes more common. 2. An increase in the number of women in the armed forces and their increased role in mission accomplishment. 3. Military culture reflects changes in society as a whole. Changed culture has emphasized personal freedoms and relaxed strict rules of behavior. Historical Background. Historically the prohibition against fraternization was based on social distinction or class. Prior to the 19th Century, officers in the military came from the ruling classes or aristocracy and their commissions were often paid for or inherited. The enlisted of that era came from the peasant or lower classes, with little or no formal education and who were often consider rabble. Enlisted ranks were sometimes pirated or impressed into service and may not even have spoken the same language as the officers themselves. 1. Over time, nobility lost the monopoly on officer status ,but the officerenlisted distinction was still found necessary to maintain an effective fighting force. 2. The present basis for the custom against fraternization is a need to maintain good order and discipline, while maintaining high morale. Because fraternization is largely a breach of custom, it is more describable than definable. Frequently, it is not the acts alone that are wrongful per se, but rather the circumstances under which they are performed. In 1953, a U.S. military court _____________________________________________________________________________________________ 5-1 Defense Institute of International Legal Studies _____________________________________________________________________________ articulated in its decision what is now recognized as the classical definition of fraternization: D. E. 1. “Because of the many situations which might arise, it would be a practical impossibility to lay down a measuring rod of particularities to determine in advance what acts are prejudicial to good order and discipline and what are not. As we have said, the surrounding circumstances have more to do with making the act prejudicial than the act itself in many cases. Suffice it to say, then, that each case must be determined on its own merits. Where it can be shown that acts and circumstances are such as to lead a reasonably prudent person, experienced in the problems of military leadership to conclude that good order and discipline…has been prejudiced by the compromising of an enlisted person’s respect for the integrity…of an officer, there has been the offense [of unlawful fraternization].” 2. A more simplistic, but accurate definition of unlawful fraternization includes the following: Fraternization is any over- familiarity that erodes the senior-subordinate relationship. Fraternization involves an improper superior-subordinate relationship which detracts from the authority of the superior and thereby adversely effects good order and discipline. Actual or apparent preferential treatment or improper use of rank prejudices good order, discipline, and high unit morale. Fraternization will affect a unit by: 1. Compromising the chain of command by an erosion of respect for the senior leaders; and 2. By creating the appearance of favoritism, which in turn destroys morale. If someone perceives that another is receiving better treatment because of something occurring outside of job performance, then a problem exists. It is not a defense to say, “…we’re just friends...”; and 3. Hindering the ability of a leader to perform by undermining his or her command authority and calling into question a senior’s objectivity; and 4. By creating situations in combat that could result in lives being placed at risk. Traditionally, the focus of unlawful fraternization was the relationship between an officer and an enlisted service member or the senior-subordinate relationship. ______________________________________________________________________________________ 2 Fraternization ______________________________________________________________________________ 1. It is possible to have unlawful fraternization between officers and officers or enlisted and enlisted. To have this type of misconduct, you need to have an unduly familiar relationship which is actually prejudicial to good order and discipline. To prove this type of relationship, a command will employ a “two-step test.” Contrast this with the more traditional form of fraternization between an officer and an enlisted service member. In the “traditional” form, the “one-step test” is used. If the relationship is found to be unduly familiar, by definition fraternization exists and the relationship is presumed to be prejudicial to good order and discipline. 2. Fraternization is also gender neutral. It does not have to involve intimate relationships between members of the opposite sex. 3. Traditionally, the senior partner in a fraternizing relationship was the one held accountable. However, under current U.S. service policies, though the senior member has primary responsibility for deterring fraternization, both parties are now accountable for their actions. 4. Commands have also defined unlawful fraternization in regards to their own special needs. These policies are usually grounded in common sense and established case law as the commanding officer strives for mission accomplishment. Special relationships which may be a basis for unlawful fraternization include: a. Non-commissioned officers (NCOs) occupy a unique leadership and are separate and distinct leaders within a command. They provide leadership, not just in their chain of command, but for the entire unit. Therefore, if a relationship between a noncommissioned officer and someone in the pay-grade of 0-6 and below is unduly familiar, fraternization is presumed to exist as long as they are attached to the same command. If the individuals are not attached to the same command, the “two-step test”, mentioned above, should be utilized. b. Staff/Instructor-Student Relationships. Unduly familiar relationships which do not respect the staff-student relationship are presumed to be prejudicial to good order and discipline and are often prohibited. c. Recruiters-Recruits/Applicants. Unduly familiar relationships which do not respect the recruiter-recruit dynamics are presumed to be prejudicial to good order and discipline and are often prohibited. d. Service Members who are Married. Service members who are married or otherwise related to each other must maintain the _____________________________________________________________________________________________ 5-3 Defense Institute of International Legal Studies _____________________________________________________________________________ requisite respect and decorum while either is on duty or in uniform in public. However, a marriage stemming from a previously existing improper relationship does not excuse those involved from responsibility for their activities prior to the marriage. II. FRATERNIZATION – U.S. MILITARY POLICY A. Fraternization is an issue with armed forces-wide implications. Given the different customs, traditions and mission statements of the various services however, some variance on how fraternization is interpreted is inevitable. In recent years, in order to find a common ground among themselves, all U.S. military services have reviewed and revised their various policies on fraternization. This can be a difficult area of the law to interpret because of the necessity to develop camaraderie and respect among the ranks while maintaining high morale. At the same time, good order and discipline must be maintained and are essential for an effective fighting force. A balancing test of these competing interests requires a common sense approach and positive leadership to avoid problems within the unit. B. All services prohibit personal and business relationships between higher and lower ranking service members. Examples of prohibited personal relationships include: 1. Dating. 2. Cohabitation – except in situations of operational necessity. 3. Intimate/sexual relationships. 4. Gambling. 5. Relationships between recruiters and recruits, as well as relationships between drill instructors and initial trainees. 6 Examples of prohibited business relationships. a. Loaning/borrowing money. b. Business Partnerships: Service members of different ranks cannot go into business together. c. Commercial Solicitation: If a higher ranking service member runs, is affiliated with, or knows of a private company, he/she cannot solicit business for that company from a lower ranking service member. ______________________________________________________________________________________ 4 Fraternization ______________________________________________________________________________ C. D. III. Fraternization policies are not intended to stop normal unit/team building functions or normal social interaction between people like: 1. Community functions – service members of all ranks live on military installations. When the installation holds activities for all service members, for example Fourth of July activities, this is not fraternization. 2. Religious activities – service members of all different ranks worship together at their churches/synagogues/mosques. 3. Unit based social functions – many units have, for example, picnics/family days which involve service members of all ranks. 4. “Right arm” nights – A tradition, especially in the Army, where an officer will take a trusted and valuable enlisted service member, mostly noncommissioned officers (NCO), to the officer club for drinks and dinner to show appreciation to that service member. 5. Athletic events – many units put together teams to compete in local sports leagues. Service members of all ranks may participate. Fraternization policies are not intended to stop routine, limited business transactions like: 1. Landlord/Tenant relationships – service members of higher rank who may own property and rent it out to service members of lower rank are not guilty of fraternization. 2. One-time transactions like the sale of a vehicle or home. POSSIBLE CONSEQUENCES OF COMMITTING FRATERNIZATION IN THE U.S. MILITARY A. Fraternization is a violation of the Uniform Code of Military Justice (UCMJ). The various service regulations prohibiting fraternization are considered punitive orders. Also, the Commanders of most installations and units have issued their own punitive orders strictly forbidding fraternization. B. If a service member is engaging in fraternization a full range of disciplinary options is available to the Commander: 1. Counseling and/or an oral/written reprimand. 2. Order to cease improper relationship. 3. Reassignment and/or adverse evaluation report. _____________________________________________________________________________________________ 5-5 Defense Institute of International Legal Studies _____________________________________________________________________________ C. 4. Nonjudicial punishment – a commander may conduct a hearing into the matter and if he/she finds that the service member has been engaging in fraternization he/she may restrict the service member to a certain area, impose extra duty, take some of the service member’s pay, or demote the service member to a lower rank. Article 15, UCMJ 5. Administrative separation. A service member may be sent to an administrative discharge board. This board will review whether the service member should remain on active duty and, if not, what type of discharge to award. 6. Impose a bar to reenlistment – in those cases involving enlisted personnel, a service member can be prohibited from reenlisting when his/her current obligation expires. 7. “Flagging” – puts a halt to all favorable personnel actions for a servicemember (i.e. promotion, awards, and schooling). 8. Courts-martial – the maximum penalty for fraternization is a Dishonorable Discharge (“Dismissal” in the case of an officer), reduction to the lowest enlisted grade in the case of enlisted servicemembers, forfeiture of all pay and allowances, and imprisonment for up to 2 years. The unique aspects of fraternization and its inherent limitations on personal freedoms have at times called into question its constitutional viability. In fact, all manner of constitutional challenges have been leveled against the concept of fraternization. Despite these challenges, the United States Supreme Court, as well as lower courts, has largely recognized the military’s unique need for discipline, against which certain personal liberties may be sacrificed. Unsuccessful challenges to criminal proceedings relating to fraternization include: 1. Freedom of Association. This right is afforded less weight because of the negative impact fraternization has on discipline. The prohibition is “valid and necessary” to preserve good order and discipline while at the same time discouraging inappropriate conduct between seniors and subordinates. 2. Vagueness. The existence of a long acknowledged custom, and the circumstances surrounding the misconduct, make the prohibition against fraternization specific. 3. Equal Protection. Officers have always been held to a higher standard of conduct, so it is reasonable to single them out. Some regulations governing fraternization apply to the instructor-student relationship, even ______________________________________________________________________________________ 6 Fraternization ______________________________________________________________________________ when the instructors are also enlisted. Singling out this group of enlisted personnel has also been held to be reasonable because of their temporary special status as teachers. 4. IV. Privacy. There is no right to privacy when it compromises discipline. The need for discipline has been called a compelling state interest when weighed against an individual service member’s need for sexual privacy. FRATERNIZATION IN CIVILIAN SOCIETY/PUBLIC SECTOR A. While lives are not at stake and the superior/subordinate dividing line is not as strict in the public sector as in the military, fraternization can still be a problem because it can reduce the efficiency and productivity of an organization. B. When speaking of fraternization in the public sector, we are mainly dealing with intimate/romantic relationships between employees. C. Fraternization in the workplace, both in the military and civilian sector, can raise problems like: D. 1. Sexual harassment claims. 2. Charges of favoritism - co-workers can resent the special treatment they perceive the subordinate is receiving from his/her superior. 3. Discipline problems – the ability to administer effective discipline can be eroded if a superior engages in fraternization with a subordinate. 4. Discord and disruptions – two employees romantically involved may bring disagreements and relationship problems to work. 5. Scheduling and leave problems – can arise when two employees romantically involved want to take time off together. 6. Information access – if an employee has access to confidential information that can directly benefit his/her romantic partner, the employee may find it difficult to keep this information confidential to the other. Civilian fraternization policies: while not as strict as the military policies, some public sector organizations have adopted fraternization policies. These include: 1. Definition of fraternization and scope of policy – the agency should clearly state what kinds of relationships are covered and what activities are either prohibited or restricted. _____________________________________________________________________________________________ 5-7 Defense Institute of International Legal Studies _____________________________________________________________________________ V. 2. Protection against disparate impact – the agency should make sure that neither men nor women are being affected disproportionately by application of the policy. Subjective measures should not be used to decide whether the policy has been violated or not. 3. Efficiency/productivity reasons – the agency formulating a fraternization policy should document the legitimate efficiency/productivity reasons for the policy, e.g. conflicts of interest, potential charges of sexual harassment. 4. Uniform and fair application of policy – the policy must be applied uniformly to both management and non-management employees. The agency should avoid making exceptions to the fraternization policy and should apply it without regard to gender. CONCLUSION Unfortunately, fraternization is very much a viable issue in today’s armed forces. Somewhat unique among crimes in that the acts alone are not wrongful per se, but rather become an offense because of the circumstances under which they are performed. First and foremost, fraternization presents a significant leadership challenge for the commanding officer. A commanding officer is tasked with developing camaraderie and respect among the ranks while maintaining good order and discipline. A balancing test of these competing interests requires both a common sense approach and positive leadership to avoid problems caused by unlawful fraternization. ______________________________________________________________________________________ 8