statue of limitations for punishments

[happo]

What is the name of your state?Oklahoma

I was wondering what is the statue of limitations for punishing things under ucmj, I am being accused of adultry that happened almost over a year ago. my spouse decided that she wanted a divorce. She had commited adultry and wanted to seprate, under those terms I also had a relation, later after the deployment we made up, but a month later she really applied for divorce and this time told my commander of my relation, now i'm being punished for mine but she gets off scott free. Please advise.

[VR_Hunter]

Unless your spouse is also in the military, the UCMJ and the adultery punishments do not apply to her. You can bring this up in civil court during your divorce, but the military can do nothing to her. Unfortunately, they can do something to the active member. Not fair, but true.

As far as I know, there is no SOL for Adultery under the UCMJ.

[chrisdizz22]

She has to have proof that you had a sexual relationship- If i were you i would talk to the person that you were with at the time and tell them to say that nothing happend, and would also say the same thing myself, your wifes story wont get very far if both people say no it never happened.

[divgradcurl]

If i were you i would talk to the person that you were with at the time and tell them to say that nothing happend, and would also say the same thing myself, your wifes story wont get very far if both people say no it never happened.

Good idea -- then when one or the other screws up their story, you both get nailed for conspiracy and interfering with an investigation -- plus perjury if you happen to be under oath when you say it.

[badapple40]

Unless your spouse is also in the military, the UCMJ and the adultery punishments do not apply to her. You can bring this up in civil court during your divorce, but the military can do nothing to her. Unfortunately, they can do something to the active member. Not fair, but true.

As far as I know, there is no SOL for Adultery under the UCMJ.

This is WRONG. Please don't give advice if you don't know what you are talking about and cannot back it up with supporting statutory text or case law.

The only crimes for which there is no statute of limitations are crimes that are punishable by death.

Otherwise, there is a 5 year statute of limitations on mostly all military crimes. In this case, the punishment is within the 5 year limit.

I need to ask a couple more questions to help you:

First, since your spouse is not in the military, is the person she cheated on you with in the military?

Second, is the person you cheated on her with in the military?

This is an interesting case, given the holdings in U.S. v. Marcum, which came out of the Court of Appeals for the Armed Forces this past August (yours truly helped brief that particular case). Anyhow, that case stands for the proposition that private, consensual sex cannot be punished in the military, absent some military necessity. It has been suggested that the Marcum case applies in the adultery sense, so long as there was not a military connection. In the present case, if the adultery was committed with a civilian, I would argue Marcum applies, and thus application of the military's adultery provision is impermissible under Marcum and the U.S. Supreme Court's decision in Lawrence v. Texas. As such, if you are punished, it would be done illegally.

I suggest: 1. You print out my advice above. 2. You take it to the ADC. 3. You determine whether you are willing to put it on the line and demand trial by court martial and whether you are willing to go the distance. Your ADC may try to talk you out of it, especially if the punishment is simply a Article 15 with minimal punishment imposed. Nevertheless, someone has to be the test case.

[badapple40]

She has to have proof that you had a sexual relationship- If i were you i would talk to the person that you were with at the time and tell them to say that nothing happend, and would also say the same thing myself, your wifes story wont get very far if both people say no it never happened.

Do NOT do that. You will end up in Leavenworth if you follow this guy's advice.

[VR_Hunter]

This is WRONG. Please don't give advice if you don't know what you are talking about and cannot back it up with supporting statutory text or case law.

The only crimes for which there is no statute of limitations are crimes that are punishable by death.

Otherwise, there is a 5 year statute of limitations on mostly all military crimes. In this case, the punishment is within the 5 year limit.

I need to ask a couple more questions to help you:

First, since your spouse is not in the military, is the person she cheated on you with in the military?

Second, is the person you cheated on her with in the military?

This is an interesting case, given the holdings in U.S. v. Marcum, which came out of the Court of Appeals for the Armed Forces this past August (yours truly helped brief that particular case). Anyhow, that case stands for the proposition that private, consensual sex cannot be punished in the military, absent some military necessity. It has been suggested that the Marcum case applies in the adultery sense, so long as there was not a military connection. In the present case, if the adultery was committed with a civilian, I would argue Marcum applies, and thus application of the military's adultery provision is impermissible under Marcum and the U.S. Supreme Court's decision in Lawrence v. Texas. As such, if you are punished, it would be done illegally.

I suggest: 1. You print out my advice above. 2. You take it to the ADC. 3. You determine whether you are willing to put it on the line and demand trial by court martial and whether you are willing to go the distance. Your ADC may try to talk you out of it, especially if the punishment is simply a Article 15 with minimal punishment imposed. Nevertheless, someone has to be the test case.

**Using the information provided by the poster, and NOT reading anything into it, NO my post is not wrong. Read it again slowly. I might have typed to fast for you to understand.

**You make suppositions without any additional input from the poster. The only thing that may be incorrect in my post is my statement on adultery SOL within the UCMJ. And as noted, I said, "As far as I know". Why did I make that statement? To make sure the poster knows, in that instance, I was not familiar with the specific UCMJ SOL adultery statute.

**Quoting case law, IN THIS INSTANCE, did nothing for the poster. What he wanted was what really happens in the military when accused of adultery. Not the one case you posted that you, briefed. Go back, do the research, find all the cases on adultery under the UCMJ, and then come back and tell me my post was wrong.

**BTW, here is something for you to ponder. Quoted, in part, from the bottom of every page.
"The FreeAdvice Forums are intended to enable consumers to benefit from the experience of other consumers who have faced similar legal issues. FreeAdvice does NOT vouch for or warrant the accuracy, completeness or usefulness of any posting or the qualifications of any person responding.” “Information on FreeAdvice or a Forum should not be relied upon and is not a substitute for advice from an attorney licensed in your jurisdiction who you have retained to represent you."

**What this means is, and I know this is hard for a LTC to understand, I can post my thoughts, observations, and advice even if an officer, like yourself, doesn't agree with the post. No, I don’t have to post case law or statutory text to prove my point. Thank you for your input.

[happo]

The other member was/is in the military. her proof was a video taken by a digital video camera taken by her friend

[BelizeBreeze]

The other member was/is in the military. her proof was a video taken by a digital video camera taken by her friend

You are free to take VR's advice or BA's. I would suggest you decide for yourself. VR has no conception of Military Justice nor the ramifications of his 'OPINION' based on current case law.

In other words, not one thing he has posted on this thread is of any worth.

As to the "PROOF" you spoke about, it's worthless unless supported by testimony. And even I could have it impeached so I know someone like BA, with such a pretty blond, can.

[badapple40]

The other member was/is in the military. her proof was a video taken by a digital video camera taken by her friend

To the Original Poster: Was the other person you cheated with junior to you in rank or vice versa (were they in your chain of command)? Can you give me more facts regarding what happened?


And for VR Hunter:

I did not take issue with your entire post, just the part that counted. You are correct, the UCMJ doesn't apply to the civilian spouse. And in most states today that are no fault, her infidelity won't matter for a hill of beans. The OP wanted to know the SOL on adultery. You responded there was none. That is patently and unambiguously incorrect, and while I can appreciate your inability to look up the statute of limitations in the Rules for Court-Martial, I cannot abide your accusatory tone that indicates that I am making suppositions or "reading things into" what the poster said.

Rather, I simply said "if X is true, then Y will happen." As an FYI, there is no case law on a post-Marcum adultery case -- that case just came out in August. I do know the guidance we (appellate defense) are putting out to the ADC's on these type of cases though, and his case *might* be subject to a Marcum defense.

And yes, you can post what you think, and I am free to refute it and post what my years of education, training, and experience have shown me to be the case. And, as BB said, the poster is free to take whatever advice he chooses. If you want to stack your credentials against mine, we can do that. If you want to stop posting things that you are not educated about and stick to the things you do know about, I'd be fine with that.

[happo]

both enlisted, i'm the higher (nco) and she is lower enlisted

[badapple40]

both enlisted, i'm the higher (nco) and she is lower enlisted

Is she in your chain?

[happo]

she is in the S-1. i am in a hhc company

[badapple40]

OK, since I'm used to the Air Force structure...

Is she in your chain of command or not? Does she report to you?

[happo]

nope. same company just diffrent platoons.