Military Law

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:

1. that the accused is an officer, a noncommissioned officer, or a petty officer;
2. that the accused is in a training leadership position with respect to a specially protected junior member of the armed forces; and
3. 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:

1. the accused is a military recruiter and engages in prohibited sexual activity with an applicant for military service; OR
2. 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.

Defense Base Act FAQs

The Defense Base Act (DBA) is an important federal law that provides disability compensation, medical treatment, and death benefits to employees of U.S. government contractors who are injured or killed while performing work overseas.

As a veteran-owned and operated law firm, MJA is committed to ensuring that U.S. government contractors and their families receive the maximum benefits and legal protections they are entitled to under law. Our experienced Defense Base Act attorneys can investigate your case, provide trusted advice, and properly submit a claim for benefits. Best of all, you don’t pay any out-of-pocket expenses for our services.

If you or a loved one were injured while working as a U.S. government contractor overseas, you might be able eligible for benefits under the Defense Base Act. Below are some of the most frequently asked questions (FAQs) about Defense Base Act. Review them and then call us today at (843) 773-5501 for a free consultation.

Frequently Asked Questions

1. What is the Defense Base Act (DBA)?

The DBA is an extension of the Longshore and Harbor Workers' Compensation Act (LHWCA) which is a federal law that provides disability compensation and medical benefits to employees of U.S. government contractors who perform work overseas. The DBA also provides death benefits to eligible survivors of U.S. contractors who are killed while working overseas.

2. Who is typically covered under the DBA?

You are likely covered by the DBA if you:

• Work for a private employer on a U.S. military base or foreign land used by the U.S. military;
• Work on “public work” contracts with a U.S. government agency, including those related to construction and service related to the U.S. military;
• Work on foreign land for a contract funded by the Foreign Assistance Act; and/or
• Work for an American employer that provides welfare or similar services outside the U.S. for the benefit of the Armed Services (like the USO).

3. What is “public work” under the DBA?
The DBA defines “public work” as “any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal, or repair for the public use of the U.S. or its allies.” Importantly, public work does not have to be expressly related to construction work and includes any project connected with national defense or war activities.

4. Does DBA cover worker injuries and deaths?

Yes. DBA coverage for eligible workers applies when an injury or death occurs during approved work tasks or activities, including transportation to and from the place of employment if the transportation is provided by the employer or a U.S. agency.

5. What benefits can I get under the DBA?

Like workers’ compensation for the average worker, the DBA primarily provides disability and medical benefits to eligible workers, as well as certain death benefits provided to eligible survivors of employees who lost their lives through employment-related causes. Total disability benefits through DBA are usually equal to two-thirds of the worker’s average weekly earnings, up to a cap that changes due to annual cost of living adjustments. Necessary medical treatments related to the work injury are also typically covered.

6. What should I do if I am injured at work?

If you are covered by the DBA and get hurt at work and do not need emergency medical care, you should notify your employer or supervisor as soon as possible. Make sure you maintain a record of all communications. If you need medical treatment, you can also ask your employer for a Form LS-1 Request for Examination and/or Treatment. If you need emergency medical care, get it first and then ask your employer for the right authorization form.

Injured workers are required to give an employer written notice of any injury by submitting a Form LS-201 (Notice of Employee’s Injury or Death) within 30 days of any work-related injury.

7. How do I obtain medical treatment for my injuries?

If you are you seriously injured on the job and need immediate treatment, you should go to the nearest hospital and let your employer know what happened as soon as possible. If it is not an emergency, you can ask your employer to authorize treatment from a medical provider of your choice. The DBA insurance carrier is responsible for paying the cost of medical transportation and/or medical care of any covered injury.

8. Can I receive financial compensation for a work-related disability?

Yes, if you qualify. Employees who are disabled for more than 3 days are eligible for disability compensation, but it is not immediate. Payments typically begin 14 days from the date the employer was notified of the loss in wages but are not overdue until 28 days after they are notified. In other words, the carrier has 28 days to provide you the first payment. If you do not receive your compensation in a timely matter or have questions about the amount you are receiving, you should discuss your case with an attorney.

9. Do you always get disability payments under the DBA?
No, you are likely not eligible to get disability payments (wage replacement benefits) if you miss 3 or fewer days of work due to your injury. However, you should be eligible for medical benefits if you are injured at work or while performing DBA-covered work, regardless of how many days or shifts you miss.

10. Are all employers of DBA-eligible workers required to carry workers’ comp insurance?
Under the DBA, any employer, which includes contractors and subcontractors, that hires workers under circumstances covered by the DBA must secure workers’ compensation insurance or gain permission to be self-insured. If your employer claims that they did not have to provide you with DBA workers’ compensation coverage, they might be mistaken. Always talk to an attorney if you have any questions about the benefits that may be owed to you.

11. Do I have to pay out-of-pocket for an attorney?

No, you don’t pay any out-of-pocket expense for our services. We will keep track of the amount of time we spend on your case, and the expenses generated in representing you for your claim. At the end of a successful claim, we file a petition with the court and ask the court to order the insurance company to pay our legal fees. If your case is settled, then our fees will likely be negotiated with the insurance company.

12. Can MJA represent me if I live overseas or in another state?

Yes. The Defense Base Act applies around the world and our attorneys can represent you regardless of where you are currently located. When there is a deposition or hearing taking place on your case, your attorney will come to you and meet with you in person or coordinate with you through video telephonic conference.

CONTACT MJA TODAY

MJA is committed to ensuring that U.S. government contractors and their families receive the maximum benefits they are entitled to under law. MJA has successfully helped injured contractors just like you obtain medical benefits and financial compensation under the DBA. Our experienced attorneys can investigate your case, provide trusted advice, and help you submit a claim. Contact us today for your free consultation.