Service members in leadership positions are held to the highest personal and professional standards, especially when it comes to dealing with military recruits and trainees. Leaders who engage in certain prohibited activities with those under their charge may be administratively punished or even criminally prosecuted for violating Article 93a, UCMJ.
When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA are all military officers who served on active duty and have defended drill instructors/sergeant, recruiters, and cadre against some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.
Background and Intent Behind Article 93a, UCMJ
Article 93a is intended to criminalize situations that involve the improper use of authority by virtue of an individual’s position in either a training or recruiting environment. There are two categories of leaders who can be charged with an offense under Article 93a: military recruiters and those in a “training leadership position.” Each of these categories is discussed below.
Article 93a was created due to the inherent power differences between junior service members and leaders in the ascension and training pipeline. Article 93a explains that “military law, regulation, and custom invest officers, non-commissioned officers, drill instructors, recruiters, cadre, and others with the right and obligation to exercise control over those they supervise. In this context, inappropriate sexual activity between those potentially vulnerable persons and those with authority to exercise control over them is inherently destructive to good order and discipline.”
However, not all contact or associations between leaders and junior personnel are prohibited by Article 93a. Rather, the purpose of Article 93a is the prevent “inappropriate sexual activity” between leaders and recruits, trainees, students in military training, and other potentially vulnerable persons in the initial training environment. Article 93a recognizes that leaders may have preexisting relationships that are not prohibited by the article. Additionally, Article 93a “criminalizes only activity occurring when there is a training or recruiting relationship between the accused and the alleged victim.”
Prohibited Conduct Among Those in “Training Leadership Positions”
Under Article 93a, service members serving in a “training leadership position” are prohibited from engaging in “inappropriate sexual activity” with certain junior service members. Those in a “training leadership position” generally include drill instructors, cadre, faculty and staff at military academies, and others in the military training environment or schoolhouse who are in a position of leadership over junior service members.
For these leaders to be guilty of violating Article 93a, the Government must prove three elements:
- that the accused is an officer, a noncommissioned officer, or a petty officer;
- that the accused is in a training leadership position with respect to a specially protected junior member of the armed forces; and
- that the accused engaged in prohibited sexual activity with such specially protected junior member of the armed forces.
Let’s break down the important definitions from those elements.
First, it’s important to note that not all senior leaders are covered by Article 93a. Rather, in order to be punishable under the UCMJ, the senior leader must be in a “training leadership position” over the junior service member. The term “training leadership position” means any of the following:
(A) Any drill instructor position or other leadership position in a basic training program, an officer candidate school, a reserve officers’ training corps unit, a training program for entry into the armed forces, or any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification.
(B) Faculty and staff of the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, and the United States Coast Guard Academy.
Likewise, Article 93a does not protect everyone serving in the military but only to “specially protected junior member of the armed forces.” The term “specially protected junior member of the armed forces” means—
(A) a member of the armed forces who is assigned to, or is awaiting assignment to, basic training or other initial active duty for training, including a member who is enlisted under a delayed entry program;
(B) a member of the armed forces who is a cadet, a midshipman, an officer candidate, or a student in any other officer qualification program; and
(C) a member of the armed forces in any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification
Finally, in order for there to be a violation of Article 93a, the government must prove that the leader engaged in “prohibited sexual activity.” The term “prohibited sexual activity” is defined “inappropriate physical intimacy under circumstances described in such regulations. The individual services are required to determine and specify which actions are prohibited under this offense.
Military Recruiters Cannot Engage in Prohibited Sexual Activity
Military recruiters are the second category of leaders who can be charged under Article 93a, UCMJ. For a military recruiter to be guilty of violating Article 93a, the Government must prove:
- the accused is a military recruiter and engages in prohibited sexual activity with an applicant for military service; OR
- that accused is a military recruiter and engages in prohibited sexual activity with a specially protected junior member of the armed forces who is enlisted under a delayed entry program.
Article 93a defines the terms “military recruiter” as a “person who, under regulations prescribed by the Secretary concerned, has the primary duty to recruit persons for military service.”
Once the government has established that the accused was a military recruiter, the government must show that the junior service member was either an “applicant for military service” or a “specially protected junior member of the armed forces.”
An “applicant for military service” is “a person who, under regulations prescribed by the Secretary concerned, is an applicant for original enlistment or appointment in the armed forces.”
The term “specially protected junior member of the armed forces” means—
(A) a member of the armed forces who is assigned to, or is awaiting assignment to, basic training or other initial active duty for training, including a member who is enlisted under a delayed entry program;
(B) a member of the armed forces who is a cadet, a midshipman, an officer candidate, or a student in any other officer qualification program; and
(C) a member of the armed forces in any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification
Importantly, an accused must have actual or constructive knowledge that a person was a “specially protected junior member of the armed forces” or an “applicant for military service.” Knowledge may be proved by circumstantial evidence.
Defenses
Any defense under Article 93a is highly fact specific. In some cases, there may be no direct or circumstantial evidence to corroborate the allegation, or it may be that the complaining witness has a motive to make a false allegation, all of which are relevant to defending against the charge. Importantly, consent is not a defense under Article 93a.
Command sometimes try to punish leaders for conduct that is merely inappropriate but does not constitute prohibited sexual activity. While such behavior may constitute fraternization of a violation of a military order, it would not meet the elements for a violation of Article 93a. A skillful attorney can identify deficiencies in the allegations and ensure that all relevant facts are brought to light.
Maximum Punishment
The maximum punishment for violating Article 93a is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Protect Your Freedom and Military Career
When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended drill instructors/sergeant, recruiters, and cadre facing investigation, trial, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Contact us today for a free consultation.
