Before I discuss these factors, it's important to understand the role of the commanding officer in the Military criminal justice process. In the civilian world, whether or not an incident should be prosecuted as a crime is up to the District Attorney (DA). For example, in the hometown where I grew up, a 70 year-old shopkeeper who had been robbed one too many times, got a gun and then took a couple of shots at a robber, as the robber tried to drive away. This is a "crime" under the law. It's not "self defense," as the robber was already driving away at the time, and the shopkeeper had no reason to fear for his life, at the time he shot. Under the law, the shopkeeper could have been prosecuted for several offenses, ranging from unlawful discharge of a firearm within the city limits, to attempted murder. However, under the circumstances, the DA declined to prosecute. The DA felt that due to the shopkeeper's age, the history of previous robberies, and the lucky fact he didn't hit anyone, that prosecution was not in the best interests of the community.
In the Military, the role of the DA is performed by the commanding officer, after consultation with the Judge Advocate General (JAG). It's not the JAG who decides who is and is not prosecuted for an offense in the Military (he/she only advises). It's the commanding officer who makes the ultimate decision. Now that doesn't mean that the DA or the commanding officer have total arbitrary authority. The DA is responsible for his/her decisions to his/her boss (either the people who elected them into office, or the elected official who appointed them, depending on where you live), and the Military commanding officer is responsible to his/her boss (higher ranking commanding officers in the chain of command).
Factors Commanding Officers are Required to Consider
As mentioned above, the Manual For Courts-Martial now require commanding officers to consider certain factors when determining whether or not adultery has a direct negative impact on the military, and should be considered a criminal offense:
- The accused's marital status, military rank, grade, or position.
- The co-actor's marital status, military rank, grade, and position, or relationship to the armed forces.
- The military status of the accused's spouse or the spouse of co-actor, or their relationship to the armed forces.
If the affair involves two Military people (especially if they are in the same unit), this is more likely to have a direct negative impact on the Military than if a military person is having an affair with a civilian with no connection to the Military. If the affair involves the additional crime of fraternization, this would very likely have a direct negative impact on the Military.
- The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces.
The very next afternoon, I received a call from Security Forces (Air Force "Cops"), who said they were responding to my dormitory because they received a call that there was a woman in the parking lot with a shotgun, yelling. As it turns out (you guessed it), it was the female member. Apparently, the cause of the argument was that she found out her husband was having an affair with another Military member. Unfortunately, that other member happened to live in the same dormitory I moved the male member into. The thought of them being in the same building together caused her to "snap." She went out (with a shotgun) looking for them (thankfully, she never found them, and the shotgun was not loaded). In any event, it's safe to say that the male member's adulterous affair had a direct impact on the female member's ability to perform her duties.