Article 133, UCMJ

Conduct Unbecoming an Officer

and a Gentleman

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 Article 134, UCMJ

Conduct Prejudicial to Good Order

and Discipline

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Three Types of Court-Martial

• Summary
• Special
• General

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 Factors to Consider
• Character and military service of the
accused.
• Nature and circumstances of the offense, as
well as the extent of the harm caused,
including effect on morale, health, safety,
welfare, and discipline. This reminds you
that our justice-based system reinforces
your unit’s good order and discipline.
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 Factors to Consider(Cont.)
• Appropriateness of the authorized punishment
to the particular accused or offense.
• Possible improper motives of the accuser.
• Reluctance of the victim or others to testify.
• Cooperation of the accused in apprehension or
conviction of others.
• Availability and admissibility of evidence.
• Jurisdiction over the accused and offenses.
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 Rights at an Article 32
Investigation
• Attend the hearing
• Present Evidence
• Cross examine witnesses
• Right to counsel

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 Investigating Officers
• Findings of Fact
• Recommendations
• Accused Receives a Copy of Report
• Accused Files Objections within 5 days
• Convening Authority take action.

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 Search and Seizure
Only the following persons may authorize a
search and seizure:
• Commander
• Military Judge
• Military Magistrate

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 Who controls the person or
place?
• Authority to Search
• Authority to Apprehend
• Exception -apprehension in the home
(warrant required)

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 Search and Seizure
• Probable Cause
• Totality of the Circumstances
• Neutral and Detached

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 Search and Seizure
• Consent
• Incident to Apprehension
• Exigent Circumstances

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 Inspections
• Not a Search
• Primary Purpose must be to ensure
security, military fitness, good order
and discipline of a unit
• Does not require probable cause

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 Rights warning under Article
31(b), UCMJ

• Right to be informed
• Right to Remain Silent
• Any Statement Can be Used Against
You
• Right to Counsel

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When to advise a soldier of
his/her rights

• Official Capacity
• Prior to Questioning
• Suspect or Accused

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Waiver of Rights under
Article 31(b), UCMJ

• Do you understand your rights?

• Do you want a lawyer?
• Are you willing to make a
statement?

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 Article 15 Responsibilities
Commanders should inquire about:
1. Whether an offense was committed
2. Whether the soldier was involved, and
3. The character and military record of the
soldier.

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 Rights of a soldier under
Article 15
• Right to remain silent
• Right to counsel (formal proceedings only)
• Right to demand trial
• Decision period
• Right to call witnesses
• The Hearing
• The Right to Appeal
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 DoD Homosexual Conduct Policy
• Focus of the policy is Homosexual Conduct, NOT
Sexual Orientation
• Command will separate soldiers for homosexual:
– Statements (e.g. “I am gay”);
– Acts; or,
– Marriages (actual or attempted)
• Note: A soldier who makes a homosexual
statement, but who also convinces a separation
board that he or she will not engage in homosexual
acts, can be retained in the Army
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Investigating Homosexual Conduct
• Only Commanders Initiate Inquiries
• An inquiry must be based on Credible Information
• Examples of information that is NOT Credible:
– Mere suspicion, opinions or rumors
– Reading homosexual publications/Going to “gay
bars”
• Conduct the inquiry (informal inquiries preferred):
– Right against self-incrimination (Article 31, UCMJ)
– Cannot ask soldier about his/her sexual orientation
– Can question soldier’s supervisory chain-of-command
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– Can question persons suggested by the soldier
 Investigating Homosexual Conduct
• “Substantial investigation” requires DA approval
• Statements to chaplains, attorney and spouses may
be considered confidential
• You will violate the Policy IF:
– You investigate a soldier for homosexual conduct without
a commander’s permission; or,
– Accuse a soldier of violating the Policy based on either
suspicion w/o credible evidence, rumor, or observing the
soldier w/ homosexual materials or in certain locations
– Require a soldier to reveal his/her sexual orientation
– Initiate a substantial investigation w/o DA approval
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 Anti-Harassment Policy
• A soldier being harassed should seek out the
chain-of-command, a chaplain, the IG, or a legal
assistance attorney
• A harassed or threatened soldier should not be
investigated simply because of the harassment or
threat
• The DoD Homosexual Conduct Policy does not,
however, prohibit investigating a soldier(s) who
harasses or threatens another soldier for possible
violations of the UCMJ
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 Anti-Harassment Policy
• Commanders need credible information other than
harassment to investigate a soldier for homosexual
conduct. HARASSMENT ALONE IS NOT
CREDIBLE INFORMATION.
• Absent credible information, an investigation into a
complaint of either harassment or of a threat must
focus on the harassment or threat, ONLY
• Credible information discovered during the course
of an investigation does NOT stop the requirement
to properly dispose of allegations of harassment
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 Anti-Harassment Policy
• The command cannot make harassment stop if it is
not reported
• Commanders must adequately address reported
instances of harassment
– The focus of any investigation into alleged harassment
must be on the soldier(s) committing the harassment
– When conducting the investigation, a commander can
request the assistance of either MPI or CID
– Harassed or threatened soldiers must know that their
own sexual orientation will not be the subject of the
investigation
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 Extremist Organizations
• Participation is inconsistent with military
service
• Organizations or activities which advocate
racial, gender, ethnic hatred or intolerance
• Commanders have widespread authority to
prohibit soldiers from participating in these
activities

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 Extremist Organizations
Prohibitions
1. Public demonstration or rally
2. Attending in Uniform
3. Fundraising
4. Recruiting or Training
5. Visible Leadership Role
6. Distributing Literature

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 HAZING
Any conduct by a service member
regardless of rank, that is cruel,
abusive, humiliating, impressive,
demeaning or harmful to another
service member, regardless of rank.

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 HAZING

• Abusive or Harmful Practical Jokes

• Branding
• Tattooing
• Body Painting
• “Blood Wings” Ceremonies
• Forced Consumption of Alcohol

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