The Infidel at Home
If you’ve been in the military for any length of time, you’ve heard the stories…probably lots of them. A soldier leaves his spouse for a deployment, and before long, they find someone else. The inevitable “Dear John” letter is sent, explaining how they “didn’t mean for it to happen” and they hope “we can still be friends.” When I was in the National Guard, I heard a few stories where a guy would come home after annual training (two weeks) to find all his stuff in the yard and another man sleeping in his bed. It’s the stuff country songs are born of.
Today, I will write about the other side of that coin…what happens when a servicemember cheats. Any way you cut it, finding out your spouse cheated on you is going to hurt, and it could potentially change the trajectory of your life. In addition, if you are a member of the armed forces, there is another layer of ugliness to deal with; under the Uniform Code of Military Justice (UCMJ), adultery is a punishable criminal offense.
Disclaimer: I’m not an attorney, and I’m not offering legal advice here. Adultery in the military is not treated the same way as outside of the armed forces…legally, anyway. If you find yourself in this kind of hot water, call an attorney.
1995: 2d Lt Kelly Flinn begins training as the first woman bomber pilot in the USAF. pic.twitter.com/9vCoKLRWfJ
— Air Force Historical Foundation (@AFHF) March 31, 2017
Flinn was a former B-52 pilot and was discharged from the military after having an adulterous affair with the husband of an enlisted subordinate. She was also charged with conduct unbecoming an officer, disobeying a lawful order, and making false official statements under oath.
Definition of Adultery
Under the UCMJ, to which all military members are bound, the act of adultery is defined as a situation where a servicemember engages in sexual relations with someone other than his or her spouse. That’s clear enough, right? But what if a soldier is single and has sex with a married person? I hate to be the one to tell you this, but the military considers that to be an adulterous relationship.
You might wonder why the US armed services consider adultery a punishable criminal offense. Here is how they see it… they believe the act to be “of a nature that brings discredit upon the armed forces and is in violation of good order and discipline.” And we are all about good order and discipline.
On their official website, army.mil, the Army published quite an informative piece on legal separation, adultery, and the UCMJ. It was written by a Judge Advocate General (JAG) Corps member, so we know the source is trustworthy. The author says he gets the following question at least once a week in the course of his duties, “If I am legally separated and start dating, can I get in trouble in the military for adultery?” That’s a pretty good question since the process of divorce can take many months and sometimes years.
The answer, as you might imagine, isn’t exactly straightforward. Article 134 of the UCMJ states that three legal criteria, known as elements, must be met before someone can be considered to be guilty of the crime of adultery.
- A soldier must have had sexual intercourse with someone.
- The soldier or their partner was married to someone else at the time.
- Under the circumstances, the conduct of the soldier 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.
The law always has to toss you a curveball, and number three seems to me like it’s open to a lot of interpretation. The first two elements should not require an explanation. To cut through all the legal mumbo jumbo and get to the direct answer to the question: Yes, you can still be tried and punished for adultery under the UCMJ even if you are legally separated from your spouse. The reason for this is because, to quote Article 134, “A marriage exists until it is dissolved in accordance with the laws of a competent state or foreign jurisdiction.” Legally separated equals still married.
In 2019 the Article was changed a bit. Now, legal separation from a court of competent jurisdiction can be used as an affirmative defense, but I would not count on that being enough to have the charges dropped. In the past, prosecutors had to prove “traditional” intercourse to obtain a conviction for adultery. Now the definition has been expanded to include oral sex and other types of sexual intercourse.
If a service member is found guilty of the crime, the maximum punishment for adultery/extramarital sexual conduct is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to a year.
For the sake of argument, let’s assume that the wife of a military member finds out that her husband is having an affair. She’s pissed, she’s hurt, she’s done with the bum, and now wants revenge. Being a military spouse, she is well aware of what could happen to her cheating hubby if court-martialed and found guilty. It’s a career-ending offense. He could go to prison for up to a year, and he will lose all of his future benefits. The reporting spouse often does not consider how that last part could directly affect them and their children if they have any.
Income stops, healthcare and life insurance benefits are taken away. There are no entitlements to military housing. If the kids would have been able to use dad’s GI bill for college, that option is now gone. The process affects the entire family. If you start the Article 134 ball rolling, there is no calling it back. You can’t just phone the commander one day and say, “Sir, I’ve changed my mind. I want to drop the charges.” Why? Because the crime has not been committed against you as a spouse (at least not in the eyes of the government). It’s an act considered to bring discredit against all of the armed forces.
My Two Cents
My unsolicited advice as a former soldier who has seen this happen to people; leave the military out of it. File for divorce if you think that is the right thing to do, or go for counseling, or whatever. Nothing good comes out of dragging the government into it.
It’s ugly, brutal, and wrecks lives and careers.