The Department of Defense is full of adulterers. From privates to generals, you can find service members, both enlisted and officers, who have committed adultery by cheating on their spouses. While it is commonly believed that if a service member is unfaithful to his/her wife, the Armed Forces will discharge him/her, military spouses can rattle off countless examples (many based on rumors) where the service member isn’t punished for cheating. A few of these examples reach national news headlines, as in the case of Gen. David Petraeus and Army Col. James H. Johnson III. But the majority of military adulterers never face repercussions from their chain of command and never face the public scrutiny.

If service members cheat on their spouses, but never get kicked out of the military isn’t this no-adultery rule pointless?

The Uniform Code of Military Justice (UCMJ) is a federal law, enacted by Congress, to govern legal discipline and court martials for the Armed Forces. The UCMJ is the guiding legal document for all service members. Articles 77 through 134 of the UCMJ outline the “punitive offenses” or crimes that service members can be prosecuted.

Here is a list of offenses that are listed in the UCMJ:

• Captured or Abandoned Property (Article 103)
• Absence Without Leave (Article 86)
• Drunken or Reckless Driving (Article 111)
• Dueling (Article 114)

Adultery is NOT listed as a punitive offense in the UCMJ.

That said let’s look at Article 134, the General Article within the UCMJ.

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the Armed Forces, all conduct of a nature to bring discredit upon the Armed Forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

–Article 134 of the UCMJ

It’s the typical catch-all paragraph that the government loves to have in any legal document.

Technically adultery is punishable by reprimand, dismissal and prison. But service members are rarely charged with adultery as a stand-alone offense. If they are charged with adultery, it’s usually tied to a list of offenses. That was the case for Air Force Lt. Kelly Flinn, the first female pilot of a B-52 bomber. She faced a court martial for adultery for an affair with a married civilian, lying about the affair by denying it to an investigator, fraternizing with an enlisted man in another brief affair and disobeying a direct order. In the end, Flinn was allowed to be discharged from the military instead of facing a court martial.

Adultery, as a military offense, is rarely prosecuted because of the necessity of 3 Elements of Proof, as outlined in the Manual for Courts-Martial. Here are those elements:

1. That the accused wrongfully had sexual intercourse with a certain person;
2. That, at the time, the accused or the other person was married to someone else; and
3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

This means that a court martial needs to have documented evidence beyond a reasonable doubt. Evidence normally requires photographs, a confession and eyewitness testimony. Rumors are not evidence. The 3 Elements of Proof also requires that the government show that the individual’s conduct had some direct negative impact on the military. It is nearly impossible and time-consuming to prove that a service member committed adultery.

Knowing that it is nearly impossible to punish a service member for adultery, I think DOD should stop including adultery as an offense. Let’s leave adultery where it belongs– in the bedroom– and work on the true issues of today’s military community.

What’s your opinion of including adultery in the UCMJ? Share it in the comments section below.