Article 133 UCMJ Conduct Unbecoming an Officer and

Article 133, UCMJ Conduct Unbecoming an Officer and a Gentleman 1

Article 134, UCMJ Conduct Prejudicial to Good Order and Discipline 2

Three Types of Court-Martial • Summary • Special • General 3

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. 4

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. 5

Rights at an Article 32 Investigation • • Attend the hearing Present Evidence Cross examine witnesses Right to counsel 6

Investigating Officers • • • Findings of Fact Recommendations Accused Receives a Copy of Report Accused Files Objections within 5 days Convening Authority take action. 7

Search and Seizure Only the following persons may authorize a search and seizure: • Commander • Military Judge • Military Magistrate 8

Who controls the person or place? • Authority to Search • Authority to Apprehend • Exception -apprehension in the home (warrant required) 9

Search and Seizure • Probable Cause • Totality of the Circumstances • Neutral and Detached 10

Search and Seizure • Consent • Incident to Apprehension • Exigent Circumstances 11

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 12

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 13

When to advise a soldier of his/her rights • Official Capacity • Prior to Questioning • Suspect or Accused 14

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? 15

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. 16

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 17

Do. D 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 18

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 – Can question persons suggested by the soldier 19

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 20

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 Do. D Homosexual Conduct Policy does not, however, prohibit investigating a soldier(s) who harasses or threatens another soldier for possible violations of the UCMJ 21

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 22

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 23

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 24

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 25

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. 26

HAZING • • • Abusive or Harmful Practical Jokes Branding Tattooing Body Painting “Blood Wings” Ceremonies Forced Consumption of Alcohol 27