What Happens If You Commit Adultery or Fraternize in the Military
On this page
- Extramarital Sexual Conduct: The Three Elements
- When Private Conduct Becomes a Military Offense
- The Two Defenses Written Into Paragraph 99
- Fraternization: An Officer and Enlisted Offense
- Maximum Punishments and Sentencing Categories
- When the Relationship Involves Authority Over the Other Person
- Sources
Adultery and fraternization are two different military offenses, and neither is automatically a crime. What used to be called adultery is now charged as “extramarital sexual conduct” under Article 134 of the Uniform Code of Military Justice. Fraternization is a separate Article 134 offense that only a commissioned or warrant officer can commit with an enlisted member. Both require proof that the conduct was prejudicial to good order and discipline or service-discrediting under the circumstances. Both also carry court-martial maximums, but the relationship and its effect on the unit decide whether either becomes a charge.
Extramarital Sexual Conduct: The Three Elements
The Manual for Courts-Martial, United States (2024 ed.), Part IV, paragraph 99, lists three elements:
- The accused “wrongfully engaged in extramarital conduct” with a certain person.
- “That, at the time, the accused knew that the accused or the other person was married to someone else”
- Under the circumstances, the conduct was prejudicial to good order and discipline, service-discrediting, or both.
The Manual defines the covered conduct as specific acts “engaged in by persons of the same or opposite sex”: genital to genital, oral to genital, anal to genital, and oral to anal sexual intercourse. A marriage “exists until it is dissolved in accordance with the laws of a competent state or foreign jurisdiction”, so a couple living apart is still married for this offense.
When Private Conduct Becomes a Military Offense
The third element is the one that separates a private relationship from an offense. Paragraph 99 says conduct is directly prejudicial when it “has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion,” or is “clearly detrimental to the authority or stature of or respect toward a Servicemember.” “Discredit” covers conduct that, “because of its open or notorious nature,” tends to bring the service into disrepute. The Manual adds that conduct “that is private and discreet in nature may not be service discrediting”, though it may still be found prejudicial to good order and discipline.
The Manual then lists factors commanders “should consider”. They include the rank, grade, position, and marital status of the accused and the co-actor; the military status of either spouse; any effect on anyone’s ability to perform duties; misuse of government time or resources; whether the conduct continued after counseling or orders to stop; notoriety; other UCMJ violations committed alongside it; harm to unit morale and teamwork; whether a marriage was “pending legal dissolution,” such as by a filed petition for divorce; and whether the relationship is ongoing or “remote in time.”
Those factors describe the facts that turn a private relationship into a case. For example, a relationship with a subordinate’s spouse that becomes known across a unit touches several factors at once. A relationship years in the past with no service connection touches few.
The Two Defenses Written Into Paragraph 99
Legal separation. “It is an affirmative defense … that the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction”. The defense is narrower than it sounds. It “does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct.” An informal separation does not qualify. Neither does a separation agreement that no court has ordered. If either person is still married without a court order of separation, the defense also fails.
Mistake of fact. A defense exists “if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried or legally separated, or that they were lawfully married to each other.” Once the evidence raises it, “the burden of proof is upon the United States to establish that the accused’s belief was unreasonable or not honest.”
Fraternization: An Officer and Enlisted Offense
Paragraph 101 sets five elements:
- The accused “was a commissioned or warrant officer”.
- The accused “fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner”.
- The accused “then knew the person(s) to be (an) enlisted member(s)”.
- 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.
Marriage plays no part. The Manual says “Not all contact or association between officers and enlisted persons is an offense”, and lists the factors: “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 “a reasonable person experienced in the problems of military leadership” would conclude that good order and discipline were prejudiced.
Relationships outside the officer and enlisted line are not fraternization under paragraph 101. They are not automatically lawful either. The Manual says service-wide and local regulations “may also govern conduct between officer and enlisted personnel”. It adds: “Relationships between enlisted persons of different ranks, or between officers of different ranks may be similarly covered.” Violating such a regulation “may be punishable under Article 92.” A relationship between a senior NCO and a junior enlisted member in the same chain is measured against the service’s own relationship regulation and, if charged, is charged through Article 92. Officer and enlisted fraternization falls under Article 134.
Maximum Punishments and Sentencing Categories
| Offense | Maximum punishment (MCM 2024) | App. 12C category, App. 12B range |
|---|---|---|
| Extramarital sexual conduct (para. 99) | dishonorable discharge, total forfeitures, 1 year | Category 1, 0 to 12 months |
| Fraternization (para. 101) | dismissal, total forfeitures, 2 years | Category 1, 0 to 12 months |
| Violation of a lawful general order or regulation (para. 18), where a relationship regulation applies | dishonorable discharge, total forfeitures, 2 years | Category 1, 0 to 12 months |
The categories apply to offenses committed after December 27, 2023. A court-martial is one possible response. A command can also use counseling, a written reprimand, nonjudicial punishment under Article 15, or administrative action. For an officer, a written reprimand placed in the record can affect promotion and retention without any conviction.
When the Relationship Involves Authority Over the Other Person
When the senior person controls the junior person’s duties, the analysis can move beyond paragraphs 99 and 101. Article 93 punishes cruelty, oppression, or maltreatment of a person “subject to his orders”. Article 93a, 10 U.S.C. 893a, covers “prohibited sexual activity” by a person in a training leadership position with a “specially protected junior member”, such as someone in basic training or an officer candidate program, and by a military recruiter with an applicant. The statutory text printed in the Manual says “Consent is not a defense for any conduct at issue in a prosecution under this section (article).” The Manual sets a five-year maximum for Article 93a (para. 20.d). Those offenses turn on the authority relationship, not on marriage or rank custom.
Sources
- Manual for Courts-Martial, United States (2024 ed.), Part IV, para. 18 (Article 92), para. 20 (Article 93a), para. 99 (Article 134, extramarital sexual conduct), para. 101 (Article 134, fraternization); Appendix 12B; Appendix 12C.
- 10 U.S.C. 934, Article 134, General article (Cornell LII)
- 10 U.S.C. 892, Article 92, Failure to obey order or regulation (Cornell LII)
- 10 U.S.C. 893, Article 93, Cruelty and maltreatment (Cornell LII)
- 10 U.S.C. 893a, Article 93a, Prohibited activities with military recruit or trainee by person in position of special trust (Cornell LII)
This guide explains how relationship offenses are defined and charged under the UCMJ and the 2024 Manual for Courts-Martial. It is general information, not legal advice about a particular relationship or command action.