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While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline.
Commanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces:(a) The accused's marital status, military rank, grade, or position;(b) The co-actor's marital status, military rank, grade, and position, or relationship to the armed forces;(c) The military status of the accused's spouse or the spouse of co-actor, or their relationship to the armed forces;(d) 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;(e) The misuse, if any, of government time and resources to facilitate the commission of the conduct; (f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ;(g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency;(h) Whether the accused or co-actor was legally separated; and(i) Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time.(3) Marriage: A marriage exists until it is dissolved in accordance with the laws of a competent state or foreign jurisdiction.(4) Mistake of fact: A defense of mistake of fact exists if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried, or that they were lawfully married to each other.
The MCM includes the UCMJ, and also supplements the UCMJ by establishing "Elements of Proof," (exactly what the government must *prove* to prosecute an offense), an explanation of offenses, and maximum permissible punishments for each offense (among other things).
While the MCM is an Executive Order, enacted by the President, in reality, much of the contents are a result of military and federal appeals court decisions.
Element #3, in many cases, can be the most difficult item to prove. Kelly Flynn was the Air Force's first female B-52 pilot. Flynn was an unmarried officer who was having an affair with a married civilian. Flynn was advised by a First Sergeant, and later ordered by her Commander, to terminate the affair. Flynn was then charged with the offenses of adultery, giving a false official statement, conduct unbecoming an officer, and disobeying an order of a superior commissioned officer. Flynn didn't face a military court, however; she was allowed to resign her commission in lieu of court martial (lots of media attention probably had something to do with this decision by the Air Force).
I get email all the time (usually from wives) asking what constitutes the crime of "adultery" in today's military?Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline.Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.One of the things that the MCM does is to expand article 134 into various "sub-articles." One of these "sub-articles" covers the offense of adultery (Article 134, paragraph 62).Element #2 is usually pretty easy for the government to prove.
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Given the ambiguity of the terms laid out by the Uniform Code of Military Justice (UCMJ), there is always be the potential for criminal liability and the only 100 percent safe course of action is to wait until a court has granted you a divorce before undertaking a sexual relationship.