BY MAT TULLY — WEARETHEMIGHTY.COM
The Uniform Code of Military Justice (UCMJ) is a massive collection of rules, regulations, standards and procedures that defines the justice system for those serving according to Uncle Sam. It is federal law enacted by Congress that spells out all the activities that can cause troops to get slapped with an Article 15, Article 32, a court martial, or a host of other not-so-fun punishments.
Servicemembers have all raised their right hands and sworn an oath to protect and defend this nation and its constitution and, by default, they have also agreed, for as long as they’re in uniform, to live according to the rules and regulations of the UCMJ. But, I’m willing to bet 60 days of rollover leave that most of them don’t have a good idea of how severe the consequences often are of violating the UCMJ.
Here are 10 ways servicemembers get themselves into big trouble most often:
1. Failing the whizz quiz
At one point or another, we have all likely been subjected to a “sweep urinalysis,” which tests an entire company for illegal drug use by way of urine samples. Company-wide urine tests are allowed by the UCMJ, but you need to be on the lookout for commanders who order these inspections hoping to single out one specific person – perhaps you – for illegal drug use. Illegal drug use violates Article 112a of the UCMJ and could cost you your military career. Commanders need probable cause to order you to take a urine test, but not for a company-wide urine test. A commander may want to conduct a company-wide urine test to catch one specific person using illegal drugs because they may not have the evidence needed to test this one person. Ordering a company-wide urine test with the goal of catching one person using drugs is not allowed by the UCMJ.
2. Taking one drug to hide another
As a member of the U.S. Military, you are not allowed to wrongfully possess, sell or use drugs or items used to take drugs (needles, syringes, crack pipes, etc). The Department of Defense (DoD) specifically disallows this in DoD Instruction 1010.04, which addresses “problematic substance use by DoD personnel.” The DoD says drug paraphernalia is anything involved in, meant to be involved in, or meant to hide drug use. This includes things like diuretics taken before a drug test in order to hide drug use. If you are caught using one drug, such as a diuretic, to hide your use of another drug, you could be charged with failure to obey a lawful regulation. This is a violation of Article 92 of the UCMJ.
3. Getting too drunk to remember what happened
There’s nothing in the UCMJ that says service members can’t engage in consensual sex or enjoy alcohol responsibly. But UCMJ violations often appear when a lot of alcohol is mixed with a lot of sex. The extreme consumption of booze is often tied to charges of sexual assault in the military. As a result, it is common for service members to face Article 120 charges under the UCMJ for sexual assault, even when the alleged sexual assault victim does not remember consenting to sex or engaging in any sexual activity at all. The alleged victim’s lack of memory leads to an Article 120 charge and the alleged-person-who-did-the-assaulting’s lack of memory moves the charge forward with nothing to disprove a sexual assault occurred in the first place. No bender, no matter how epic, is worth this risk.
4. Sex with someone who’s underage
The last thing you want is a visit from “To Catch a Predator’s” Chris Hansen. If you are caught having sex with a minor, you’ll receive much worse than that under the UCMJ. And don’t count on the fact that you “didn’t know he/she was only 16” saving you from the wrath of military prosecutors. It doesn’t matter if the minor consented to sex or if you did or did not know the minor was underage at the time of sex, you will be charged with aggravated sexual assault of a child under the UCMJ anyway. This offense is punishable by up to 20 years of confinement. The cliff note summary here is if he or she looks to be under 18, don’t get involved with him or her. It isn’t worth the punishment or the end of your military career.
5. Sexting using a government phone
The next time you feel the need to snap and send a pic of your unmentionables, I recommend thinking twice, especially if you are about to do so with a phone issued to you by Uncle Sam. If you engage in sexting on a government-issued phone, you could be slapped with the charge of failure to obey a lawful general regulation, which violates Article 92 of the UCMJ. You may also be unaware of the real age of the person you are sexting, and sexting a minor could get you charged with online sexual exploitation of a minor, indecent language or exposure, or possibly manufacturing and/or distributing child pornography. These charges all violate Article 134 of the UCMJ or any applicable federal statute. You should also keep in mind that it is very common for text messages to be used as evidence by military prosecutors to help prove adultery and fraternization.
6. Playing fast and loose with marital status
Military swingers beware: Your wife or husband’s thumbs up for you to sleep with other men or women will not save you from a conviction under the UCMJ. Your conviction could stem from a charge of adultery in violation of Article 134 of the UCMJ. Adultery, an offense unique to the military that non-military members do not have to worry about (just ask Tiger Woods or Arnold), occurs when a service member has sex with someone who is not his or her spouse or who is married to someone else. Take note that this offense is triggered by both consensual and non-consensual sex.
7. Solving an argument with a fist
The military promotes confrontation. It is one of the reasons we love serving. But the military also requires good order and discipline and so confrontation and aggression are only allowed under specific circumstances, such as during drills, patrols, and obviously when deployed. Violent confrontation is not allowed by the military whenever and wherever. For instance, if two service members have an argument and agree to a fist fight to settle the disagreement, this is illegal under the UCMJ. If you take this approach to solving your disagreements while enlisted, you’ll likely find yourself charged with assault by battery in violation of Article 128 of the UCMJ.
8. Failure to be not fat
A negative fitness assessment (FA) or physical training (PT) test failure can have a disastrous impact on your military career. Depending on your status and whether any other poor fitness assessments are already in your records, just one or more failures can cause you to be kicked out of the military. If you feel your FA or PT failure was due to an error, you could challenge it up your chain of command. If you have already tried that or have already been kicked out of the military, you could go to your branch’s Board for Correction of Military or Naval Records (BCMR or BCNR) and request that the error be removed or corrected.
9. Failure to be a snitch
Let’s say you are deployed to Afghanistan like I was a few short years ago, and you have a friend also stationed there who is a mail clerk. Your friend begins showing up after his shift with all sorts of extra goodies clearly coming from somewhere off base (cigars, video games, home cooked meals, etc.). You ask where he is getting all the loot and he says he has been opening the mail coming into the base and stealing the goods. Your ongoing knowledge of this theft and failure to report it could amount to a conspiracy in violation of Article 81 of the UCMJ.
If you positively need to catch a high but are concerned about doing it with drugs that are labeled illegal by the UCMJ, you should know that “huffing” substances like dusting products, glue and gasoline can still get you in trouble with military prosecutors. If you use substances like these to get high, the military cannot punish you using Article 112a of the UCMJ, which addresses the wrongful use of a controlled substance. BUT, the military CAN charge you under Article 92 of the UCMJ for failure to obey a lawful regulation. There are various other branch regulations, such as in the Army and Navy, that also prohibit huffing. My recommendation – stick with runner’s high.
Mat Tully is a retired Army Lieutenant Colonel with tours in Iraq and Afghanistan. Mat is the Founding Partner of Tully Rinckey PLLC, a coast to coast law firm defending the legal rights of servicemembers. The above is not intended as legal advice.
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