Adultery questions... need advice.

[BBSlm]

Wa state

I'm currently active duty army deployed to iraq. Before i deployed i was told by a girl that she was pregnant. I was married at the time but just starting a divorce. The child was born after i deployed and after the divorce was finalized. I left a DNA sample before i deployed for paternity reasons. I was stop lossed so i will be ETSing as soon as i redeploy.

Here are my questions:

1. What are the realistic punishments for adultery? i am a e-4 soon to be promoted e-5 with no record of UCMJ or any other problems. I will also be getting out asap upon redeployment. will i be facing a letter of repremand or article 15 or possibly court martial and discharge?

2. I have not yet released my DNA to her, should i refuse to do so in hopes of ETSing before we are able to go to court? can the military stop me from ETS to resolve this?

3. My wife does not care about this situation. The mother of the child is just angry i didn't release my DNA to her yet. Is it likley that i will still be punished if niether of them try to press this? so far my chain of command hasn't really seemed to care about it, just said i need to make sure i'm taking care of it and to talk to them if i have any problems.

 

[marine]

Is this old me trying to talk to now me in Back to the Future

Firstly, please elaborate on the chronology of the alleged actions. I think I read you pulled a ‘marine’:

-Had a relationship before you were legally divorced, but were separated while you were on active duty. Wife doesn’t care. Girl is now pregnant. Wants support. Using the UCMJ to obtain it?

Does (ex?-)wife know?

You are really dealing with three things:

1. The adultery, simple enough.
2. Paternity
3. Civil support issues

The adultery and paternity are independent. Whether the child was born while you were in or out --or even at all--- has nothing to do with the adultery other than as a potential point to prove the relationship, in fact, took place.

The UCMJ cannot order you to submit DNA in this case.

By volunteering the DNA, you confirm the prosecutions case. All they will need is that document, cross reference your service records showing the dependent wife, and checkmate. However and if I understand correctly, she wont ‘tell’ if you give up the sample avoiding the ordeal altogether?

The bad news:
1. What are the realistic punishments for adultery? i am a e-4 soon to be promoted e-5 with no record of UCMJ or any other problems. I will also be getting out asap upon redeployment. will i be facing a letter of repremand or article 15 or possibly court martial and discharge?

Unfortunately, all of the above are possible.
UCMJ Article 134 Adultery: Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
Keep in mind maximums are usually only given in the most atrocious circumstances. They are other mitigating considerations. If your unit is aware and ‘does not care’, it has not disrupted good order. Also, separation is something that can be mitigating. It’s up to the CO and prosecution.
I hope that you are in a ‘unit’ and not a training or transient unit.
2. I have not yet released my DNA to her, should i refuse to do so in hopes of ETSing before we are able to go to court? can the military stop me from ETS to resolve this?

No, they cannot stop an ETS for an admin board. Yes, for a court martial.

3. My wife does not care about this situation. The mother of the child is just angry i didn't release my DNA to her yet. Is it likley that i will still be punished if neither of them try to press this? so far my chain of command hasn't really seemed to care about it, just said i need to make sure i'm taking care of it and to talk to them if i have any problems.

Its up to the CO. I take it the CoC does in fact know, or elements, such as an immediate platoon sergeant, etc?


Don’t let her 'black mail' you! It’s extortion. It’s a touchy thing as you don’t want to threaten her or push her, but what she is doing is using the rule to extort her demand. It’s illegal. She tells or not, but she can’t make it conditional. It might be enough to mention it. It might scare her into action though. My situation resulted in my threatening to file extortion charges and my ‘girl’ got scared and told in defense. Proceed with extreme caution.


Another case of anger and the extortion.

The Good News is we are a war time military who usually won’t waste the time without any other exacerbating circumstances and you are on a ‘stop loss’. Nothing definitive, but you should be out and or not.

Careful these things erupt over attention.

 

[BBSlm]

Thanks for the insight. I was never legally seperated from my wife. Our marriage was over before my first deployment, upon return we didn't get around to filling a divorce until after i heard of the pregnancy. My exwife knows about it but doesn't care, we had both moved on.

I'm in the same unit i've been in for 3 years, been deployed twice with this unit, currently on second deployment. My entire CoC is aware of the issue(battalion level) because they have conference call meetings with our rear detatchment, so every one hears. However my CoC doesn't really seem to care unless she presses the issue. I was told that they don't deal with alligations although they will explore them but my situation is purley "alligations" so there isn't any thing to explore until i'm found the father.

Does any one know if i would be able to redeploy and ets prior to being established the father? could the army, if she decides to push it, keep me in to resolve this even though its strictly here say at this point?

i would like if she would file some thing with the courts so i would be able to enact the CRA with a date around my ETS so i would be able to handle it after my ets but so far she has just had talks with the rear detatchment 1sg.

what are the chances of this being handled at a company level?

 

[marine]

if i would be able to redeploy and ets prior to being established the father?
---are you saying your CoC are telling you to get the DNA?
could the army, if she decides to push it, keep me in to resolve this even though its strictly here say at this point?
---Technically speaking, Yes. Just as they can keep you in for War, they can retain you to stand a CM. CM are only conducted when enough evidence exist to pursue the charge. CM have a high burden of proof esp with adultery. 'Simple' Adultery is usually resolved with an admin board. Those they cannot retain you. so simply, it would have to be a serious circumstance or open and shut to hold you over.

From the description, it is reasonable that the main elements for Article 134 exist.

Yet, at this time it appears that the command knows and is either in a holding pattern and/or doesn’t view it as a threat to good order. Thank your lucky stars and leadership. Side note, I bet that FirstSgt is fighting for you and probably stuck a toe out there for you. Remember that and others if you make it through.

Don’t want to be pessimistic, but realistically I must question if your understanding of their posture is the reality? Meaning, is the CO in a holding pattern for higher direction? Awaiting those DNA results? I hope that’s not the case.

However, you must manage the balance of that environment.

Herein is the real dilemma. How to placate this girl until you ETS.

Once you ETS, you are free. (It’s remotely possible, but unrealistic they’d pursue something of this degree after separating.)

The challenge is placating without implicating.

I would draft a letter of agreement. Just a formal letter you free form type with something to the effect of agreeing and conducting a DNA ‘as soon as you return from the combat zone of Iraq’. This would be binding. I’d also give her some direct contact points to you so that she has a way to contact you (and no reason to contact anyone else). You might –I repeat may—put something ‘light’ addressing that you want contact directly to protect your privacy or something to the effect. Just subtle enough to infer you want the harassment to stop but without seeming to aggressive and after all she is entitled to report the actions, but not entitled to continue to harass you. There are arguably third party disclosure cases here. With this letter you are clearly communicating your intent to do the DNA, her wish, and make it binding on her with your requests for a fair, rational plan to take care of the situation. There is a lot of rope and a challenge is to not trip or hang your self. You may want to consult an attorney, those crafty sob’s are wordsmiths.

There is also bad and good news here: the bad is she is seeking DNA, it’s probably yours, and you are going to pay child support and that’s not to say bad in and of itself. The good news is its probably not yours. I joke in sequence, but the reality, statistically, is it is not. In my case, the girl just wanted money. I freely offered to do a DNA and she threatened ‘if you want a DNA I’ll call your command and you can kiss your gold bars goodbye’. I drafted a letter, agreed to pay for the test, and ,ironically, she did not want to do a DNA and, obviously, the child is at least legally not mine. (Onslow County Court, NC)

Hopefully, the letter will hold her over. How long is your stop loss hold over for? Indefinite? If so, I’d put the return to CONUS date when your unit rotates out.

By the way, thanks for your service and keep it in your pants from now on.


If the letter backfires somehow or doesn’t otherwise work, your CO does have many options: there are page 11 entries, letters of reprimand –a plethora of ‘paper’ options—there is NJP, there is the dreaded CM, yet there is also the administrative separation board. That’s how I got out. I’d doubt they’d waste their time with a court martial or ASB when you are a stop loss retention. YES. They could retain you for a CM. They cannot for an ASB. Yt if they were mad enough to pursue, they’d do a CM. Unlikely. Wholly contingent on this matter remaining low key. Don’t talk about it with anyone but your superior chain of command. No one. You run the risk of a ‘that’s not fair Sgt Marine got kicked out or they gave me NJP, etc. i.e. disruption to good order…….

The sequence in the bad case is formal inferring of an investigation (loosely your ‘Miranda’ rights and the grounds (don’t say anything), a JAG investigation (say no comment), and you’ll be assigned a lawyer.

I don’t see this as likely unless it gets out of hand. You might also want to think about just giving her the DNA now as a last resort.

**Careful, she may be on this site or other like it as well. If that’s the case, I only urge caution. Extortion is a crime. I also reco you need read other posts on ramifications. If he gets bad paper that affects his income and affects your child yet you are free report what you may. However, it cannot be conditional**

This is clearly an innocuous situation and unworthy of the waste of taxpayers' dollars in pursuing.

 

[badapple40]

There is a significant chance that this is not a UCMJ violation, in light of recent case law from the U.S. Supreme Court, the Court of Appeals for the Armed Forces, and the Army Court of Criminal Appeals. I'll share more with you after you answer my questions...

But to confirm that, I'd like to get a little bit more information from you.

1. What is the military status of your now ex-wife? (Is she or was she in the military). Explain her military connection, if any?

2. What is the military status of the girl you impregnated? (Is she or was she in the military). Explain her military connection, if any?

3. Were you conducting this affair on government time or with government resources?

4. Did they ever order you to cease and desist the relationship?

OK, now for the DNA testing...

Lets say you do not consent to the testing... I'd venture a guess that she will obtain a court order to have you tested. Could be good, could be bad. I'd advise testing before you pay her one cent. I say that because this girl could be a Maury Povitch episode waiting to happen -- in that she's been riden more than a downtown bus, and you may not be the father of this child.

But, lets say that you are the father, and that she establishes it... at that point, the child becomes a dependent, and you owe a debt to her, which the military will enforce, or you will risk them charging you will failing to pay a just debt. Right now, it is not an issue, but the court could order the release of the DNA and impose a support obligation at that point.

 

[marine]

Badapple

Not to post-steal, but this guy is on Iraq time. Can you give me the case so I can research it without stealing any thunder? I would like to see if I can apply it to my case. I’ll throw this out there for you to answer later or in the interim but dont want to digress from this soldier’s question: but would higher court and precedent affect an admin board or BCNR ruling? or at least toll the limitations period for a district court appeal?

 

[badapple40]

Badapple

Not to post-steal, but this guy is on Iraq time. Can you give me the case so I can research it without stealing any thunder? I would like to see if I can apply it to my case. I_ll throw this out there for you to answer later or in the interim but dont want to digress from this soldier_s question: but would higher court and precedent affect an admin board or BCNR ruling? or at least toll the limitations period for a district court appeal?

No, it won't help you, they are not applying any of the cases retroactively (they apply the waiver doctrine). You could try another appeal to the BCMR. But I suspect they will determine that this is something that you should have raised originally.

Because this is a public forum, and because I want to protect the readers from potential problems, I do not advise ANY MILITARY MEMBERS to commit adultery based on this case law or otherwise rely on this. This should be limited to people who have already gotten themselves into a jam, and need options to help themselves out. Keep in mind, no appellate case has specifically addressed adultery or defined the constitutional right in the military setting.

The application of these cases is REALLY case specific. I don't like to tell people not to help themselves, but a lawyer really aught to look at these cases and the individual circumstances of any given case.

The U.S. Supreme Court case is Lawrence v. Texas:
Lawrence

The CAAF case is U.S. v. Marcum:
Marcum

The Army Court cases include U.S. v. Bullock:
Bullock

While these cases dealt with sodomy, there has been a push at the appellate defense level to apply the same principles to adultery as well. I have argued (in several briefs and motions to dismiss at the trial level) in the last two years (before becoming a reserve wing SJA) this issue in support of area defense counsel as a reserve appellate defense counsel. In one case, the military judge dismissed the charge, in the other, he denied it and the member was convicted -- but is appealing based on this issue.

The cases recognize that consensual conduct between adults is a core liberty interest. Again, careful analysis is important as is obtaining counsel to look at this and draw appropriate analogies. I point this out, simply because a non-lawyer could screw this argument up and create bad precedent.

We have a couple test cases in the pipeline now (past trial level and on appeal in front of the AFCCA).

The issue, of course, becomes complicated when the sexual relationships involve two military members. Under Marcum, if either the spouse of the military member or the person the military member sleeps with is in the military, especially where the military member is senior in rank to the person who he is cheating with, the constitutional defense would arguably not apply.

But, where the military member's spouse is not in the military, where the person the military member slept with is not in the military, and where no military resources were utilized in fostering the adulterous relationship, then there would be a defense. Depending on the circumstances of the relationship, arguably even the military status of the spouse or the person who the military member slept with may not matter, but that gets into additional issues and arguments.

--badapple, COL, JA, USAFR

 

[marine]

badapple

You mentioned a second BCMR attempt, will I have a new three member panel or can I request that the former panel recuse themselves? I guess it couldnt hurt to attempt other than the calories burned, waste of stamp, and time spent. 18 months of suspense! (sarcasm) Rest assured I would neither hold my breath nor cross fingers.