The military has multiple responses for dealing with domestic violence – including criminal punishments, administrative remedies, services to treat victims, and compensation for victims. Here’s an overview of the most common responses.
By Steven P. Shewmaker and Patricia D. Shewmaker, Military Family Lawyers
Military families are subject to increased stress with the demands of military readiness and frequent deployments. With the increased number of deployments in the last 20 years, this stress has increased for service members and their families. Complicating matters and increasing family stress is the prevalence of Post-Traumatic Stress Disorder (“PTSD”) felt by service members returning from numerous deployments to Iraq and Afghanistan. The effects of PTSD can inhibit a servicemember’s ability to reintegrate himself/herself post-deployment, sometimes resulting in family issues and even criminal issues. Returning servicemembers sometimes seek ways to self-medicate their symptoms of PTSD using drugs and alcohol, compounding family issues. Unfortunately, one way this stress can manifest itself is through incidents of family violence.
The Department of Defense (“DoD”) has recognized that domestic violence is an issue. On August 21, 2007, the DoD issued Instruction Number 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel. DoD’s policy to prevent and eliminate domestic abuse across the DoD; to provide for the safety of victims; to hold abusers appropriately accountable for their behavior; and to coordinate the response to domestic abuse with the local community. Every Commander has the duty and authority to take action and to respond to domestic violence situations.
Military Responses in Domestic Violence Cases
The military has multiple responses for dealing with domestic violence ranging from criminal punishments to administrative remedies to services to treat victims of domestic violence to compensation for victims. However, most of the remedies and tools available to the commander to address domestic violence deal only when the service member is the abuser. Here’s an overview of the most common responses.
Military Justice: Judicial and Non-Judicial Punishment
Commanders have the authority to punish servicemembers under the Uniform Code of Military Justice (“UCMJ”). Punishment under the UCMJ includes both judicial and non-judicial punishment.
Judicial punishment is for criminal offenses with criminal penalties. Offenses under the UCMJ may include: Article 92. Failure to Obey Order or Regulation; Article 128. Assault; Article 133. Conduct unbecoming an Officer and a Gentleman; and Article 134. General Article. Article 134 provides:
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.
Sentences under the UCMJ can include confinement, reduction in pay grade, forfeiture of pay, and discharge.
On the other hand, non-judicial punishment is for minor offenses and includes non-criminal penalties. The guidelines for non-judicial punishment are found under Article 15 of the UCMJ. This Article outlines methods for which Commanders can administer punishment for minor offenses. Article 15(b) of the UCMJ provides that “any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial for judicial punishment: 1) restriction to post; 2) restriction to quarters; 3) forfeiture of pay; 4) reduction in grade; and 5) extra duties.”
The administration of non-judicial punishment can have unintended consequences on the family unit. A zealous commander may believe that harsh punishment under Article 15 will remedy a situation, when in practice a forfeiture of the service member’s pay and allowances and assignment of extra duty may worsen the tensions at home or take funds away from an already financially strapped family.
Military Protective Orders (MPOs)
In addition to punishment under the UCMJ, unit commanders can issue MPOs to an active duty service member to protect a victim of domestic violence or child abuse (the victim could be another service member or a civilian). To qualify, the victim must be the spouse, ex-spouse, current or former intimate partner, or have a child in common with the accused. A victim, victim advocate, installation law enforcement agency, or Family Advocacy Program (“FAP”) clinician may request a commander to issue an MPO.
Pursuant to DoD Instruction 6400.06, a Commander “shall issue and monitor compliance with an MPO when necessary to safeguard a victim, quell a disturbance, and maintain good order and discipline while a victim has time to pursue a protection order through a civilian court, or to support an existing civilian protective order (CPO).” This implies that it is not the DoD’s intent that an MPO stand alone without a CPO; rather the MPO should supplement the CPO. The duration of an MPO is until it is terminated or the commander issues a replacement order. 1
The consequence of violating an MPO is punishment as a criminal offense under the UCMJ. Section 1567(a) of Article 10 of the U.S. Code provides that military authorities shall notify local civilian law enforcement agencies of the issuance of an MPO. The Commander is required to notify regarding the existence of the MPO, the individuals involved, any changes to the MPO, and the termination of the MPO. 2 However, there is no requirement for local law enforcement to enforce an MPO. Therefore, as already noted, it is often advisable that the victim not only get an MPO, but also a CPO. Section 1561(a) of Article 10 of the U.S. Code provides that “a civilian order of protection shall have the same force and effect on a military installation as such order has within the jurisdiction of the court that issued such order.” 3
MPOs may order the abuser (referred to as “the subject”) to:
- have no contact or communication (including face to face, by telephone, in writing, or through a third party) with you or members of your family or household;
- stay away from the family home (whether it is on or off the installation);
- stay away from the children’s schools, child development centers, youth programs, and your place of employment;
- move into government quarters (barracks);
- leave any public place if the victim is in the same location or facility;
- do certain activities or stop doing certain activities;
- attend counseling; and,
- to surrender his or her government weapons custody card.
Commanders may further tailor the order to meet the specific needs and circumstances of the situation.
An MPO is only enforceable while the service member is assigned to the unit that issued the order. When the service member is transferred to a new unit, the order shall no longer be valid. If the victim still believes that the MPO is necessary to keep him or her safe, the victim, a victim advocate, or a FAP staff member may ask the commander who issued the MPO to contact the new commander to advise him or her of the MPO and to request the issuance of a new one. The commander who issued the MPO should recommend to the new command that a new MPO be issued if an MPO is still necessary to protect the victim.
Commanders can only issue MPOs against the service member; civilian abusers cannot be subject to MPOs. They may only be subject to a civil protection order issued by a state or tribal court. However, a commanding officer may order that the civilian abuser stay away from the installation.
Family Advocacy Programs
The DoD Directive 6400.1 also provides that each of the services shall establish Family Advocacy Programs (FAPs) at each of the installations.5 In turn, each of the services has established its own regulations establishing Family Advocacy Programs.6 The purpose of the Family Advocacy Programs is to “promote public awareness within the military community and coordinate professional intervention at all levels within the civilian and military communities, including law enforcement, social services, health services, and legal services.”7 (Army Regulation 108-18, Section 1-5).
The FAPs provide assistance to victims and military families through the prevention of domestic violence, education, and counseling. Every installation has a victim advocacy office. The victim advocate will assist the abused individual in seeking MPOs and CPOs as well as getting access to or information about other assistance that may be locally available whether it is military provided or through a civilian agency. The victim advocate is also available to help the command develop safety plans as the situation requires.
Interim Family Support
The prior sections discuss the establishment of MPOs, CPOs, and safety plans, all of which may require the separation of a service member from his or her spouse and/or family. When this separation occurs, it may be necessary to ensure that there is some temporary financial support provided by the service member to the spouse and/or family. There is no single, cohesive DoD standard for interim or temporary family support in the absence of a court order or consent agreement between the parties. Instead, each of the branches of military service and the U.S. Coast Guard have published administrative regulations which address family support matters. 8
As a prerequisite, it is important to recognize that these regulations apply only under the following conditions:
- The service member must be on active duty, not in reserve status;
- There must be no existing court order addressing child support or alimony; and,
- There must be no existing consent agreement addressing child support or alimony between the parties.9
The Army addresses family support in Army Regulation (AR) 608-99, which may be found at www.army.mil/usapa/epubs/pdf/r608_99.pdf. This regulation is extensive and instructive regarding the Army’s overall perspective on military family support and compliance with state court orders regarding domestic support obligations. AR 608-99 is punitive under the UCMJ when servicemembers fail to comply with its provisions. However, there is no provision for recoupment of arrears, so even if a servicemember is convicted under the UCMJ, commanders cannot lawfully order that arrears be paid. Finally, AR 608-99 also vests the servicemember’s commander with the discretion to modify the support requirement under a variety of circumstances – for example, where the spouse’s income exceeds that of the servicemember. The servicemember bears the burden by a preponderance of the evidence that a modification is warranted under the regulation.
The United States Marine Corps (USMC) addresses family support in Marine Corps Order (MCO) P5800.16a, which may be found at http://sja.hqmc.usmc.mil/Pubs/P5800/15.pdf. It parallels AR 608-99 in many respects (e.g., modification of support and burden of proof), and it also is punitive if violated, but only after non-support is brought to the commander’s attention.
The United States Navy addresses family support in Naval Military Personnel Manual (MILPERSMAN) 1754-030, which can be found at www.public.navy.mil/bupers-npc/reference/milpersman/1000/1700Morale/Documents/1754-30.pdf. The general support requirements are based on a fraction of the servicemember’s base pay; see the Manual for this scale. The Navy also provides a method for modification, albeit at higher command levels than the Army and USMC. Violations may also be administratively or criminally prosecuted.
Section 2.E., “Support of Dependent,” in the Coast Guard’s Discipline and Conduct (COMDTINST M1600.2) manual demonstrates their commitment to honoring family support obligations. See www.uscg.mil/directives/cim/1000-1999/CIM_1600_2.pdf. General interim support requirement is a portion of the BAH and the servicemember’s base pay.
The United States Air Force has no regulation approaching the thoroughness of the other services. In fact, Air Force Instruction 36-2906, which may be found at http://static.e-publishing.af.mil/production/1/af_a1/publication/afi36-2906/afi36-2906.pdf, only states that allotments from a servicemember’s pay may be had pursuant to other statutory authority (e.g., state court orders).
In certain, very specific instances, the former spouse may be entitled to transitional compensation under 10 U.S.C. § 1059. Section 1059 establishes transitional compensation as an extreme remedy available for dependents of certain active duty service members who have been abused by the service member.10 It is important to always remember that transitional compensation is only available under certain, very specific circumstances. These are:
- The offending service member must be serving on active duty for thirty (30) or more days;
- The offending service member must have been discharged pursuant to court-martial or administrative separation11; and,
- The basis for the service member’s separation must result from the abuse of the dependent.
Section 1059 establishes transitional compensation rates as defined by 38 U.S.C. § 1311 (Dependency and Indemnification Compensation), which typically change each year.
Transitional compensation is generally paid for 36 months unless the service member’s remaining active duty service obligation was less than 36 months at the time of discharge. In this event, transitional assistance shall be paid for the remaining months of active duty service obligation or for twelve months if the remaining obligation is less than twelve months. Transitional compensation payments are not subject to income tax. During the period of Transitional compensation payments, the recipient shall be authorized to use military commissary and post exchange facilities. Recipients are also eligible for Tricare medical, dental, and mental health treatment during the applicable period. Transitional compensation shall be forfeited by the abused spouse if, during the period of payments, that spouse later cohabitates with the offending service member or if the spouse remarries.
There are many intricate details to the Transitional Compensation program. Your lawyer should review 10 USC 1059 and 38 USC 1311 or consult with a military family law practitioner, local Judge Advocate or the Transitional Compensation Point of Contact at the servicemember’s assigned post/base.
According to 18 USC § 922, it is a felony for any of the following persons to possess a firearm, ammunition, or explosives: any person who has (or is) been:
- Convicted of any crime punishable by more than one (1) year in prison;
- Convicted of misdemeanor for domestic violence; or
- Subject to a court order that finds that person “represents a credible threat to the physical safety of an intimate partner or child of that partner” and restrains that person from “harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fee of bodily injury to the partner or child.”
If a servicemember is unable to carry a weapon based on a conviction or court order implicated under the Lautenberg Amendment, the servicemember will be administratively separated from the military. A civilian protective order is a court order that will implicate the Lautenberg Amendment.
In some cases, it may be theoretically possible for a servicemember with a court order sufficient to invoke the mandate of 18 USC 922 to continue to serve in some capacities. In reality, most commanders who are made aware of servicemembers subject to a court order invoking 18 USC 922 will begin administrative separation proceedings. As a result, family practitioners should carefully counsel their clients regarding the extreme results that may arise from a court order invoking 18 USC 922.
Remedies if the Abuser is a Civilian
A commander has fewer remedies at his or her disposal if it is the civilian dependent that is the abuser. Naturally, the commander has no authority over civilians (including the dependents of service members). However, in some cases, where the dependent has received the benefit of travel expenses and on-installation housing in overseas locations under the command’s “sponsorship” of dependents abroad, the commander may revoke such command sponsorship for abuse. Otherwise, the commander may bar the offending civilian from the installation or pursue criminal charges against the civilian if the abusive conduct occurs on the installation.
- Bar to the installation. The installation commander has authority to ban from the installation any civilian (including a service member’s dependent or spouse) whom the Commander deems to be a threat to the service member, other service members, or persons residing or working on the installation.
- Coordination with civil authorities. If the installation commander bars the civilian from the installation, the commander may coordinate with local civil authorities to notify them of the ban. In addition, on many military installations, local civil authorities have concurrent jurisdiction with the military authorities. Even on those where civil authorities do not have concurrent jurisdiction, federal jurisdiction extends over civilians on the installation not subject to the UCMJ.
- Federal Criminal Jurisdiction. In cases where the military installation or a part of the installation has no concurrent state court criminal jurisdiction, the only remedy for criminal violations committed by the non-military abuser is a referral to the federal magistrate court which has jurisdiction over the installation. In cases where non-military abusers have committed criminal acts on military installations, the family law practitioner should inquire of the local Staff Judge Advocate whether the local Office of the United States Attorney (Department of Justice) and the Federal Magistrate Court will exercise jurisdiction over the offense.
1 10 U.S.C. § 1567 (2009).
2 10 U.S.C. § 1567a (2009).
3 10 U.S.C. § 1561a (2009).
4 DD Form 2873 eff. Feb. 2004. See also “Directive for Military Protective Orders” issued on March 10, 2004 by Undersecretary of Defense for Personnel and Readiness.
5 DoD Directive 6400.1, Family Advocacy Program (Aug. 23, 2004)
6 Air Force Instr. 40-301; U.S, Dep’t of the Navy, OPNAV Instrs. 1740.4D, 1752.2B, 1752.3B; U.S. Dep’t of the Navy, Marine Corps Order No. 1754.11.
7 Taken from Army Regulation 108-18, § 1-5. See also DOD Instrs. 6400.06, 6490.06; Air Force Instr. 40-301; U.S, Dep’t of the Navy, OPNAV Instrs. 1740.4D, 1752.2B, 1752.3B; U.S. Dep’t of the Navy, Marine Corps Order No. 1754.11.
8 Army: AR 608-99: Family Support Fact Sheet
Marine Corps: Chapter 15 of Marine Corps Order P5800.16A, “Marine Corps Manual for Legal Administration”
Navy: Chapter 15 of Naval Military Personnel Manual 1754-030, “Support of Family Members”
Coast Guard: Ch. 8.M. Coast Guard Personnel Manual
Air Force: Air Force Instruction 36-2906, “Personal Financial Responsibility”
10 Section 1059 is implemented by DoD through DoD Instr. 1342.24, “Transitional Compensation for Abused Dependents”.
11 This shall also include a pre-trial agreement.
Steven P. Shewmaker and Patricia D. Shewmaker are the founding partners at Shewmaker & Shewmaker, LLC in Atlanta, Georgia. Their practice focuses on family law, military family law, and military law. Patty, who spent ten years in the U.S. Army and with the Georgia Army National Guard, is a graduate of the United States Military Academy. Steve, her husband and law partner, currently serves as a U.S. Army Reserve JAG officer at the rank of Lieutenant Colonel. www.shewmakerandshewmaker.com
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