Background Briefing

Background Briefing Good Order and Discipline Capt. Mike Doubleday and Senior Defense Officials Wednesday, July 29, 1998

Capt. Doubleday: And if we can bring down the lights, I'll kind of poll the press here and see if there is any desire to talk to some other individuals on background basis. If there is an interest in doing that, we will answer some additional questions. There is interest. Okay.

Let me just indicate that we have two individuals who are officers who have been involved in this process over the past year. They have experience both in the field, and, of course, here on the staff of the Secretary. And we'll bring them forward and ask them to answer some additional questions that you may have on this.

Q: One of the interesting facts is that the Air Force has a fair number of officer-enlisted marriages, and yet it prohibits fraternization between officer and enlisted. As a commander, what do you do if suddenly a marriage like that pops up? I mean, at the minimum, they probably fraternized before they got married. I wouldn't necessarily go beyond that, but unless it was an arranged marriage, that probably happened. I mean, should that marriage be something that reflects poorly on their record?

A: Well, I think the commander has to consider a wide variety of factors, obviously, and -- for example, are they in the same unit? Does one work for another? To anticipate, you know, what kind of inquiry or investigation he or she might want to do. So you've only given a few facts, but these are not easy. In fact many of the matters you've raised do not present easy fact patterns, and commanders have tough jobs. And the point of this was to try and give as much guidance as we could to ensure clarity, fairness, consistency.

Q: In a case like that, has a fraternization...

Capt. Doubleday: Pete, before you go on, let me just add one thing for the record so that everybody understands. And I'm sure that many of you do. But I think we ought to make it absolutely clear in the event there is somebody here who doesn't. And that is that there are opportunities for advancement through the ranks for enlisted personnel so that we do have a number of personnel in every branch of the Service who have moved from enlisted ranks to officer ranks and, indeed, may have married an enlisted individual when they were at that level. And then they have since advanced beyond that.

I think that most unit commanders -- most couples who find themselves in that kind of a situation are able to deal with it in a way that does not impact good order and discipline. And so these issues apply common sense frequently and can be resolved without a lot of legal input.

Q: I understand that. I just think there are probably a fair number of cases that just kind of arise. And, I mean, it has obviously had no effect on good order and discipline because nobody knew about it, and it is a fait accompli. At the end, I mean, is that something a commander under these kind of guidelines would have to actually look at, or is it not a problem?

A: Well, you're speaking of the fraternization issue, and as far as fraternization is concerned, if you are encountering a situation where a couple of married -- most people that see a married couple do not feel threatened by the fact that they are associating with one another, or that it creates a situation that is prejudicial to good order and discipline or brings discredit upon the armed forces. The primary thrust of fraternization as an offense under the Code [Uniform Code of Military Justice], and as a policy of professional and personnel behavior, is such that, as the admiral pointed out, that when you have two people in the organization who are engaged in a relationship, not married, who are -- that are officer and enlisted -- you raise the issue of whether or not there is inappropriate favoritism being applied to the decision-making -- decision makers -- in his judgment, or her judgment, when they make decisions about career actions.

He used the example, for instance, of who do you send out on to the slippery deck of the ship and possibly run a risk? That is the real focus of fraternization. It is not on the marital situation, because married -- the marital situation -- doesn't create that problem for other people in the organization as would the unfamiliar or overly familiar relationship between an officer and an enlisted. So that is, in essence, the best way that I can try to explain the difference between the two, from the commander's perspective, or the impact on the organization as that relationship is ongoing and is known and is impacting the unit. The commander has to evaluate that.

Q: So should a -- if a commander hears that two people are fraternizing, then should he go to them and say, well, either cut it out or get married?

A: That has always been the case, that when there has been information brought to the attention of a commander that individuals within the organization are carrying on an inappropriate relationship that could constitute fraternization and could threaten and/or impose a problem for the organization and the mission, that the commander should not sit back and wait for the damage to be done. The prudent thing for the commander would be to, with that information, speak to the individuals, bring it to their attention as to the potential harm to the organization that this continuing impermissible situation is, and tell them that, because of that impact on the military organization, that they need to adjust their conduct accordingly, because it is impacting on the commander's organization.

So that would be a prudent course of action for a commander if he feels that what is brought to his attention is threatening the mission, is threatening the readiness of his organization, the teamwork, as Admiral Blair pointed out. So, yes, I think a military organization would expect the commander to react to something that he feels is negatively impacting on his organization.

Q: Either one of the two officials, can you describe the willingness or the reluctance of the Army to sign up to this change in the fraternization policy? Is it something they fought tooth and nail, or is it something that they said, hey, sounds good, you know, we'll sign up to it?

A: I think the Army, as the process was ongoing, made it clear what their policy was, and what they thought the strength of it was.

Q: What were those arguments?

A: I don't know that I can detail all of them, but they seem to believe that, so long as it was not in the direct chain of command or the same unit, that it was manageable under their current rules that were working reasonably well.

Q: How strongly did they fight for that position to be sustained?

A; Well, you know, I'm just -- I'm very -- the decision process, as you can imagine, is complex and difficult. And to go back and detail who took what position on what day and how those things changed, that is not going to help us make decisions in the future. So I don't want to go there is, I guess, what I want to say.

Q: Well, what is the practical -- I mean, can anybody address what the practical effect of this is on the Army -- what sort of -- how much work it is going to cause the Army -- what is going to be the net effect? I mean, are there lots of people cohabitating in the Army that are going to be rudely awakened by this, or --

A: No, it's not just cohabiting. I'm sorry. It's not just cohabiting. I realize, because of the two conversations, it kind of falls into that category a lot in the questioning. But, you know, fraternization as an offense under the Code, or as an impermissible situation, talks about an overly familiar relationship between an officer and an enlisted person because of the breakdown in the structure between the -- in the chain of command and the structure within the military environment. And that is the danger. That is the concern.

So, you know, I wouldn't constantly go to the area that you're going as illustrative of what this is supposedly trying to address, because I don't think that is -- I don't think that is fair to the Army or any of the Services.

Q: Borrowing money -- I mean, the questions -- I'm trying to get some idea of what this really does to the Army. Is it a significant burden placed upon the Army, or it something you can change with a note sent around in one day, you know?

A: Well, you have to -- the Secretary has, in essence, heard the positions of the Services on this. And the Secretary has made the decision, and the Secretary has given each of the Services -- not just the Army -- has given all the Services an opportunity to, for 30 days, to go back and to evaluate how they're going to implement it and come back to the Secretary on it. So, I guess the answer to that question is, the Secretary has weighed the concerns expressed and, all things considered, the Secretary feels that this is reasonably doable. Otherwise, the Secretary wouldn't have made the decision.

Q: It sounds like there will be a number of couples who have been dating -- people who have been dating in the Army -- their options now will be to either break up or ask for a transfer. Is that basically what it amounts to?

A: I'm not sure how the Services will implement the policy exactly, or what their transition policy will be. But I think the goal is to treat the situation reasonably, with common sense and with compassion. So, obviously, you know, there may be a couple out there that has set a wedding date in a particular place off a few months. Those kinds of issues will have to be dealt with. It doesn't make sense to me to tell them they can't get married, so, I mean -- but, you know, I can't -- I don't want to speculate on individual cases. Just to say that the object is not to hurt people here that are in current relationships. The object is to have a rule that is consistent and fair and clear and to reasonably deal with those people that will find themselves in a transition situation.

Q: And how long is the transition period to run, do we think? I mean, I know we've got 90 days of public comment and rule making, but --

A: You're mixing -- you're mixing the public comment review on the guidance for adultery -- that process -- with this process on the fraternization review by the commanders. The materials spell out the two. But, in essence, the adultery review is a public comment [period] for 75 days. The fraternization review is a policy decision by the Secretary to the Service secretaries asking that they implement [produce] a [draft] policy consistent with that within 30 days, and training materials within 60 days. So there are two different tracks, even though we're talking about these two different issues at the same time today.

Q: Back to the rule making period, in the case of -- in the case of troops who are wondering what is my transition period here, like I have a marriage out in the future or something?

A: I mean, there is nothing that has changed on adultery regarding the offense. So if you have people that are currently committing adultery, they are unaffected by the changes. So what we're only talking about here is the change in the unprofessional relationships policy. Okay? And there will be transition guidance that will come out that will deal with individuals that are in current relationships that are not in violation of their Service's current policy.

Q: But there are (inaudible), for the Services, in fact, stretch out for...

A: We don't know. They need to decide the most compassionate, common sense, reasonable way to do that.

Q: In the case of the Army, they could peg it out at some point that they deem reasonable and correct?

A: That's correct.

Q: But there is change in the language in the adultery section of the MCM, right? A proposed change?

A: The Manual for Courts-Martial is a vehicle by which the Uniform Code of Military Justice is implemented and explained to members of the Armed Forces. Within the Manual for Courts-Martial, offenses are discussed, elements are provided, explanations are provided, discussion is provided, analysis is provided. All of that is intended to assist those who have to make judgment calls, make reasonable and good judgment calls.

What this analysis -- or what you have before you today, and what is being published in the Federal Register -- is an effort to take that body of information that the courts have spoken on in appellate court decisions and in practices, and put it there so the commander in the field, such as the admiral, could pick up the Manual, and he doesn't have to look through his law books, and he doesn't have to have his JAG necessarily right at his elbow, although I'm sure his attorney -- his military attorney will be there as an advisor. But it will be there to help him get through that process that -- better get through that process by evaluating all the facts and circumstances involved in a particular case. And no two cases, unfortunately, are the same.

Q: What exactly is the change -- is the proposed change to the MCM? To add this amount of material right here? Is that the extent of the proposed change?

A: The explanation that you have on the bottom of that page --

Q: Is this an explanation of a proposed change, or is this an explanation that is intended to go to the MCM?

AThat is an explanation of the offense of adultery.

Q: You're going to add this to the MCM?

A: Correct.

Q: It is this -- none of this is in the MCM right now? Is that right?

A: That is correct. If it is in bold, it is proposed to be added to the Manual as additional assistance to the commander. If it is not bolded, okay, if it is not highlighted, if you will, that is what generally -- that is what is currently in the Manual. And so that was the best way to depict it for this purpose.

Q: And what practical effect do you see this addition to the MCM having, if any, on how the court-martial standard is enforced?

A: First of all, in military practice, the instance of adultery being a court-martial offense is significantly -- or is almost insignificant. The point is, these are tough issues. You're here, and I'm here, and everybody else is here because these are not issues that are clear cut in black and white, and there are shades of gray, and there are other factors that you have to consider.

So the whole objective of this analysis and this product that we're providing them, is to give those commanders the benefit of those thoughts. These are factors to consider. There were other factors in the Manual for Courts-Martial, and in another portion of the Manual that talked about disposition of offenses, and it is quoted as Rule for Court-Martial 306 in the materials we provided to you. Those things are all a ball of wax, if you will, for a commander to evaluate and come up with an intelligent judgment call on whether this conduct is prejudicial to good order and discipline or Service-discrediting, and, if it is, what would be an appropriate disposition for that offense?

And you can see from the numerous factors and considerations that we have placed on the shoulders of a commander that no one factor necessarily by itself outweighs all the others in a weighted fashion. They were not intended to be a weighted factor. There is no "if D is there, then it outweighs E," or any of that sort of thing. These are all factors for a commander to evaluate and balance in making the decision. The Manual for Courts-Martial specifically, through the Uniform Code of Military Justice, has bestowed upon commanders discretion to make these decisions. Because, ultimately, in a military environment, it is the commander who is going to be responsible for whether or not he is commanding a disciplined force.

So this helps him maintain or correct behavior that deviates from a disciplined force, since he is the one who is expected to, under the Manual and under our system of justice, to enforce that and maintain that.

Q: As a legal matter, how binding is the guidance in the MCM? If I'm a commander and I say that I just think I need to handle all these cases with court-martial because, you know, I want to deal with them in this way, I think it is appropriate to take them to court-martial. Is that a discretionary thing, or does the guidance to resolve it at the lowest appropriate level somehow bind me as a commander?

A: Well, the language in the Manual about -- I keep wandering over there. I'm sorry. The guidance in the Manual on the commander's -- events that should be disposed of at the lowest practical level -- that is a policy statement that currently exists in Rule for Court-Martial 306 and has been there for a long time. Okay? In there are factors for consideration. These factors are more tailored, if you will, to the offense of adultery, but they are still factors, not to the exclusion of those or to trump those. There are still additional factors.

In any disciplinary environment, the general practice is for commanders, if at all practical, under the circumstances, to dispose of the disciplinary action at the lowest and most swift manner possible and get on with the military business at hand. And some offenses are such that the lowest level is at one level in that commander's mind because of the circumstances he has encountered, like a deployment situation where he is at home. It may not be of that import at that time.

So that is why the factors aren't weighted. That is why the factors aren't, say, if you have this, then that. Because all circumstances of the case and all circumstances facing that commander at the time, are varied.

Q: Sir, a sailor, let's say, whose court-martial for adultery, as a matter of his defense, or hers, could not say, well, the CO could have handled this at a lower level. That -- you can't assert that as a defense?

A: No, but the burden is on the government to establish that the conduct is prejudicial to good order and discipline or Service-discrediting. That issue is an element the government has the burden of proving, and the defense, if you will, in the case, certainly can say, Your Honor, I believe that the facts and circumstances in this case don't meet that requirement, and raise that as a defense.

Q: I understand that. But you can't say as a matter of defense, well, Your Honor, this could have been resolved short of court-martial. We don't have to be here today?

A: No, that is not -- that is not a defendant's choice of forum.

Capt. Doubleday: Maybe it would be useful -- I don't know if the folks here understand what rights a defendant, or as we call them, an accused, has to counsel, to judge, to members, you know, that it is not just the commander that is involved. You might want to --

A: As in any judicial system. The military justice system is no different than any judicial system. It has got a court system. It has got a whole system of trial judges, full-time trial judges. It's got a whole system of full-time defense counsel to represent people. They are entitled to retain civilian counsel at their own choice, which would be in addition to. They have rights to remain silent, just like civilian counterparts would have. They have all of those rights to protect their interests. They have a full opportunity to either defend their case, or to try to mitigate the circumstances as the commander may have initially proceeded, to be, so that it wasn't as serious or as damaging as the commander initially thought.

And we have an entire appellate process in the military. Non-judicial punishment can be appealed. And the courts-martial process has an elaborate appellate system in which all these free appellate counsel entitlements and things go hand-in-hand. So it is not like the individual military member is left there by him or herself against the military command action. He has assistance and you can't get between the individual and that assistance.

Q: Did the Air Force at one point prefer lowering the maximum penalty for adultery?

A: You have to remember, this has been a year-long process. And from the very beginning of this process until the day we're speaking now -- and it's not over yet because of the public comment period that is coming -- but, throughout this process, I can assure you, all the Services were represented. All the Services had free and open discussion to lay on the table for consideration any and all factors for consideration. What you have before you is a consensus of those Services after people have expressed their views.

I'm not going to tell you what was on the table and off the table at what particular point in time, because it was a give and take scenario with multiple reviews in effect. And, in reality, the decision that is being made today by the Secretary is a culmination of that consultation and agreement on the Services as what would be appropriate -- what is best appropriate for all.

Q: Did you have to give a little to get the Marine Corps to sign on?

A: Give a little. What do you mean by that?

Q: Did you have to make sure that adultery, you know, remained criminalized in that there were...

A: Now if you go back to the June 7th memorandum from the Secretary, it was clear at that time that he was saying we're not changing the language in the Uniform Code of Military Justice. What we're looking for is clarity as to the guidance that is provided to commanders. There was never at a point in time, to my knowledge, where the issue in this review process was that the offense of adultery or the UCMJ, and the Manual provisions regarding that aspect of it, were to be eliminated or considered for elimination. It was, given that we're not changing those, what additional guidance and clarity can you give to help our people out there? That was the task.

Q: Is there anything in the new guidance that would discourage punishment of long ago adulterers -- the indiscretions of ten years ago?

A: There is a factor in there that -- one of many factors -- that talks about whether the incident brought to a commander's attention is ongoing, is of recent vintage, or is remote in time. Because, again, as the admiral indicated in his statement, he has to deal with the problem now. He has to decide what now is impacting upon my organization as prejudicial to good order and discipline or Service-discrediting now? And the timing of the situation is a factor. Is it the factor? Is it the only factor? Of course not. I told you earlier that it is just one of many considerations for a commander. And it is not weighted more or less than any other. It is certainly believed to be worthy of consideration.

Q: Okay. As either a current practice or tradition, is there any appreciable difference in how any of the four Services enforce adultery?

A: I don't think so. No. I don't there is any.

Q: Is there any difference in how any of the four Services enforce the --

A: Are you talking about court-martial?

Q: I'm talking about even NJP [non-judicial punishment], or anything else, and how each of the Services views the transgression of adultery. Is there any cultural difference, tradition, or just practice in how they go about enforcing that?

A: I believe the consensus of opinion is the vast majority of incidents of this nature are handled administratively. And, rarely -- rarely -- is an act or an offense of adultery by itself ever the subject of a court-martial. Usually, where you're going to encounter it in a court-martial is where you have a series of other indiscretions, a series of other offenses. And the facts and circumstances of those offenses also establish simultaneously the offense of adultery, or a by the way occurrence of adultery. And so the commander is addressing this whole series of misconduct, this whole array of offenses, and he is saying, based upon all of this and all factors relating to all of this, I think this ought to be a court-martial offense. And since the evidence also supports adultery, we will -- we will charge adultery as well. But it is less than one -- less than half of one percent of all the courts-martial deal with adultery only.

Q: The Commandant of the Marine Corps has spoken publicly, and some of his answers are very outspoken on this issue. Does that complicate the decision-making internally by having some of those voices outside the building being very public and --

A: Well, we are inviting public comment. I mean, the whole idea of us being here is announcing a public comment in the Federal Register. So the public comment that was submitted internally within the building, and externally within the building, is all comment that is helpful to the decision making process. And we are continuing that by what decision the Secretary has approved today.

Q: At the risk of sounding like the village idiot one more time, lots of people get divorced. Their marriages break up. Lots of people fall into other relationships which some people regard as adultery before courts have acted or anything else. I assume that the local commander, if this comes to his attention, would just -- this is something he weighs in making decisions?

A: And we added that as a factor. We added that as part of the discussion. If you look in there, we tried to give -- we tried to make it clear to everybody that marriage is marriage is marriage is marriage. Okay? But we also said, you know, you ought to consider also the circumstances surrounding the particular situation and whether either of the parties was separated at the time -- the marital party, if you will -- was separated at the time that the act occurred to see whether or not -- what impact, if any. So it is a factor to consider, but it is not, again, the trump card, if you will.

Q: It would need to be a legal separation, right?

A: Yes. It is not -- what was intended was certainly not a -- you know, a handshake on Saturday night before they go to a movie type of separation. It was intended -- you know, marriage is by operation of law, and when we put in legal separations, we have to have some degree of legality associated with the separation so it is recognized as such, rather than just, well, let's be separated tonight, and we won't be separated tomorrow type of things. So that factor -- the legal separation that was in there -- was intended to add some formality to the process, some reliability to the process as a factor for the commander. And so that was considered, at least at this point and time, a valid consideration.

Q: Do you know how many people were punished in the military in the last year for crimes that included adultery or offenses that included adultery?

A: In the last five years, courts-martial -- general and special courts-martial -- 3.7 percent of those courts-martial had an adultery charge accompanying other charges.

Q: Three point seven --

A: Three point seven percent of all courts-martial in the last five years.

Q: How many total courts-martial were there?

A: 27,000.

Q: So 3.7 percent of 27,000?

A: Right.

Capt. Doubleday: This starts with the figure of 1.4 million people.

Q: Right. I understand.

A: Three hundred and sixty-five days a year for five years. The other thing is the point it wanted to make -- you know, when you link it with other offenses, it complicates the situation. Okay? And that is one of the factors that you see in there -- whether or not it was by itself or with others. If you're trying to look at how the military is addressing adultery as a stand alone offense, then really what you're talking about out of those cases is less than one-tenth of a percent of those cases.

Q: Okay. Now, let me make sure I understand. Less than one-tenth of one percent of the 3.7 percent, or less than one-tenth of one percent of the whole?

A: Of the 27 [,000]. Basically, 18 cases.

Q: Now, do you keep statistics on how many people...

A: ... over the last five years.

Q: How many of those resulted in dishonorable discharges?

A: None. No court adjudged a dishonorable discharge for an adultery only case. Adultery only. Well, because -- and let me explain why that is important. Because the other offenses may have been the reason for a discharge, so it would be difficult to attribute the discharge to the adultery because it could very well not have been the adultery. But -- so that is why the more pure way of looking at it in my mind is, okay, the only thing we have on the plate right now is adultery. Eighteen cases out of -- we only have 18 cases in which it was adultery only that was sent to a court-martial among the Services in the last five years. And of those 18 cases that were sent to a court-martial, none of them got a dishonorable discharge.

Q: Were the 18 disproportionate with any one Service?

A: No.

Q: Okay. One last question. How many people have been punished for adultery in the military in a given period of time?

A: What do you mean by punished?

Q: You know, gone by the captain's mast?

A: I am sorry. I don't have those figures.

Capt. Doubleday: Thank you all.

Press: Thank you. I appreciate your patience.

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