Domestic Violence and the Military

The Department of Defense (DoD) recognizes that domestic violence is an acute issue in the military. On August 21, 2007, it issued DoD Instruction Number 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel. It is DoD policy to prevent and eliminate domestic abuse within the DoD and 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. U.S. Dep’t of Def., Instr. 6400.06 ¶ 4.1 (Aug. 21, 2007) [hereinafter DoD Instr. 6400.06]. This instruction establishes that each commander has the duty and authority to take action and to respond to domestic violence situations.

Moreover, for a variety of reasons (beyond the scope of this article) the United States Congress is revamping the Uniform Code of Military Justice (UCMJ) and has “tinkered” with the UCMJ over the last several years, bringing it in line, somewhat, with the 21st Century. One of the proposed revisions currently before Congress is to remove military commanders from the criminal charging process and replace them with trained, licensed, and experienced senior military lawyers, acting very much like state district attorneys. While this revision is not yet law, it is expected to pass later this year and take effect in 2023. It will apply to a specific list of very serious offenses, like murder and rape, but it will also likely include domestic violence. In short, the military is quite serious about cleaning its house and addressing domestic violence effectively.

What follows is a concise primer of how the military currently handles domestic violence within its ranks and that which effects it members.

When the Abuser Is the Servicemember

The military can address domestic violence in many ways. It has a lot of resources and can address matters administratively. In extreme cases, it may also bring criminal charges. Below are several of the most common military responses to domestic violence.

Military Justice

The UCMJ grants military commanders broad authority to punish its servicemembers who commit domestic violence. Punishment under the UCMJ includes both judicial and nonjudicial punishment.

Judicial punishment is synonymous with criminal prosecution. Just like state court domestic violence prosecution, military commanders may bring charges before military criminal courts (“courts martial”) and seek adjudication of criminal guilt. Some offenses common in domestic violence cases 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 states:

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.

UCMJ art. 134 (2012).

Criminal punishment for domestic violence under the UCMJ may include punishment mirroring sentences in state courts like confinement and criminal status. However, the military judge or jury can also impose a variety of sanctions foreign to the state courts yet devastating to the service member. Those may include reduction in rank (pay grade), forfeiture of pay, and punitive discharge. These sanctions may impose further difficulties upon the family unit.

As an alternative to military criminal court, the commander may instead opt for non-judicial punishment. This option is only appropriate for more minor offenses. However non-judicial punishment still requires a violation of an article under the UCMJ, though punishment under Article 15 is not a criminal conviction. 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 base; (2) restriction to quarters; (3) forfeiture of pay; (4) reduction in grade; and (5) extra duties.” UCMJ art. 15 (2012).

Beware though, nonjudicial punishment can have unintended consequences on the family, even if the servicemember does not get branded a criminal or go to jail. Zealous commanders often believe that harsh punishment under Article 15 will remedy a situation, when in reality a forfeiture of the service member’s pay and allowances and assignment of extra duty may increase tension at home.

Military Protective Orders

A service member’s commander may impose a Military Protective Order (MPO) upon an active-duty service member to protect an alleged victim of domestic violence or child abuse. (The victim could be another service member or a civilian.) To qualify, the individual seeking the MPO must be the spouse or ex-spouse, current or former intimate partner, or have a child with the accused. A victim, victim advocate, installation law enforcement agency, or Family Advocacy Program clinician may request a commander issue an MPO.

DoD Instruction 6400.06 states that commanders “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).” DoD Instr. 6400.06 ¶ 6.1.2.1. The DoD means to grant commanders authority to emplace MPOs to augment state court CPOs.

Unlike a CPO, the MPO is imposed by the commander at her discretion. There is no formal process, like there is with a CPO. The commander may investigate or may simply ask questions sufficient to make her feel comfortable imposing an MPO. The commander cannot and will not notice the servicemember, the alleged victim, or other witnesses for an evidentiary hearing, as is required before emplacing a CPO. An MPO is neither a criminal tribunal nor an adjudication of any wrongdoing.

Often misunderstood, the MPO acts to separate the service member—who the commander has plenary authority to control under the UCMJ—from the alleged victim (often a civilian even if also a military dependent) over whom the commander has no legal authority. So even where the servicemember is the alleged victim, the commander often imposes an MPO to separate and impose control over often volatile circumstances. When this occurs, the servicemember can feel as if she is being punished even though she may be the victim. Again, an MPO is a control mechanism, not a tribunal assigning guilt or blame.

An MPO remains effective until terminated, modified, or the service member moves to another military assignment. 10 U.S.C. § 1567 (2009).

Though never an adjudication of wrongdoing, violating an MPO may carry serious consequences. Servicemembers violating MPOs are frequently charged under 10 U.S.C. 892 (i.e., Article 92, UCMJ); United States v. Caudle, 2019 U.S. Dist. LEXIS 119139 (the wilful and knowing violation of any lawful military order is a crime punishable by a term of imprisonment pursuant to 10 U.S.C. § 892); United States v. Gifford, 75 M.J. 140, 146 (C.A.A.F. 2016) (“[A] violation of Article 92, UCMJ, can be punished with a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to two years.”); United States v. Bart, 61 M.J. 578, 582 (N-M Ct. Crim App. 2005) (violations of Navy Regulation trigger criminal sanctions under 10 U.S.C. § 892); United States v. Cochrane, 60 M.J. 632, 634 (N-M Ct. Crim. App. 2004) (“Although general orders and regulations are not in and of themselves statutes, when a violation occurs and is charged under Article 92, UCMJ, 10 U.S.C. § 892, such orders and regulations are subject to the same rules of construction as are statutes and the punitive articles of the UCMJ.”)

10 U.S.C. § 1567(a) 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 existences of the MPO, the individuals involved, any changes to the MPO, and the termination of the MPO. 10 U.S.C. § 1567a (2009).

However, there is no requirement that local law enforcement enforce an MPO. Therefore, as already noted, it is often advisable that the victim not only get an MPO, but also a CPO. Conversely, 10 U.S.C. § 1561(a) 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.” 10 U.S.C. § 1561a (2009).

MPOs may order the alleged 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 the 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 counselling; and/or
• Surrender his or her government weapons custody card.

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.

Commanders may further tailor the MPO to meet the specific needs and circumstances of the situation.

An MPO is enforceable only while the service member is assigned to the unit that issued it. If the service member is transferred to a new unit, the MPO is no longer effective. If the victim still believes that an MPO is necessary, 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 of the continued need for an MPO and request the gaining commander issue a new MPO. The commander who issued the MPO is supposed to recommend to the new command that a new MPO is issued when the service member is transferred to a new command and an MPO is still necessary to protect the victim.

Commanders may only issue MPOs against service members. Civilian abusers (though they may be married to the service member and considered “military dependents” by the military) are not subject to an MPO, just as they are never subject to the UCMJ. They may only be subject to a CPO issued by a state or tribal court. However, a commanding officer may order that the civilian abuser stay away from the military installation; in overseas assignments, the commander may also revoke the military’s “sponsorship” of the spouse, requiring him to return to the United States (or merely leave the country to which the service member is assigned), unless the civilian abuser can establish another basis for presence under that country’s immigration laws.

Family Advocacy Programs

DoD Directive 6400.1 requires each of the armed services to establish Family Advocacy Programs at each of their installations. DoD Directive 6400.1, Family Advocacy Program (Aug. 23, 2004).

Consequently, each service has established its own regulations establishing its Family Advocacy Program. 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. The Family Advocacy Program (FAP) is designed 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.” 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.

FAPs provide assistance to victims, military families, and unit commanders to prevent domestic violence through education, counselling, and safety plans. Each military installation has a FAP advocacy office. FAP victim advocates help abused individuals by assisting them to obtain MPOs, CPOs, and access/information about other resource that may be locally available.

Transitional Compensation

10 U.S.C. § 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. Section 1059 is implemented by DoD through DoD Instr. 1342.24, “Transitional Compensation for Abused Dependents.” It is important to always remember that transitional compensation is only available under the three very specific circumstances that follow:

1. The offending service member must be serving on active duty for thirty (30) or more days;
2. The offending service member must have been discharged pursuant to court martial or administrative separation (This shall also include a pre-trial agreement.); and
3. 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 for 2022 are as follows:

1. $1,437.66 paid to a spouse;
2. $356.16 paid to a child age less than 18;
3. $301.74 paid to a child age 18–23 and enrolled full-time in post-secondary education;
4. $607.02 to a disabled child. It is important to note that Dependency and Indemnity Compensation rates typically change each year. The current and historical DIC rates can be found at U.S. Dep’t Veterans Affairs, Compensation (Dec. 1, 2021).

Transitional compensation is generally paid for 36 months unless the service member’s remaining active-duty service obligation is 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 12 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 servicemember or if the spouse remarries.

There are many intricate details to the transitional compensation program. Consequently, the family law practitioner need only identify the possibility of transitional compensation and review 10 U.S.C. § 1059 and 38 U.S.C. § 1311 or consult with a military family law practitioner, local Judge Advocate, or the transitional compensation point of contact at the service member’s assigned post/base.

Interim Family Support

When the servicemember and spouse become estranged, temporary financial support frequently becomes a pressing matter. Domestic law attorneys may be able to obtain temporary financial support by consent or by civil court order fairly quickly. Conversely, in many cases, months may pass before a civil court will find the time to address this need. While there is no single, cohesive DoD standard for “interim” or “temporary family support” in the absence of a civil court order or consent agreement between the parties, the military may assist. Each of the services has published administrative regulations addressing interim family support matters. Army Regulation 608-99; MCO P5800.16a; Navy MILPERSMAN 1754-030; Ch. 8. M. Coast Guard Personnel Manual.

First, it is vital that the practitioner recognize that these regulations apply only under the following conditions:

1. The service member must be on active duty, not in reserve or national guard status;
2. There must be no existing court order addressing child support or alimony; and,
3. There must be no existing consent agreement addressing child support or alimony between the parties. Id.

Remedies When the Abuser Is a Civilian

Again, the commander has no authority over civilians (including the dependents of service members). However, when the dependent has received benefit of travel expenses and on-installation housing in overseas locations under the command’s “sponsorship” of dependents abroad, the commander may revoke this sponsorship for abuse. Also, the commander may bar the offending civilian from the installation or encourage criminal charges (through U.S. federal or host nation authority) against the civilian if the abusive conduct occurs on the installation.

Bar to the Military Base

The base commander has authority to ban any civilian (including a service member’s dependent or spouse) from the base when the commander believes him to be a threat to the service member, other family members, other service members, or persons residing or working on the installation.

Coordination with Civil Authorities

When a base commander bars a civilian from the base, she may also coordinate with local civil authorities. The commander may notify authorities of the ban and the basis. Also please note, on many military bases local authorities may have concurrent jurisdiction with the military authorities. Within the United States and its territories even on those bases where civil authorities do not have concurrent jurisdiction, federal jurisdiction extends over civilians on the installation not subject to the UCMJ.

Federal Jurisdiction

Again, where a military base (or a part of the base) has no concurrent state court criminal jurisdiction, the only remedy for criminal violations committed by the non-military abuser is referral to a U.S. Federal Magistrate Court having jurisdiction over the base. In such cases, the family law practitioner should ask the base 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.

The Lautenberg Amendment

18 U.S.C. § 922(g) establishes that it shall be a felony for any person who has been (or is) any of the following to possess a firearm, ammunition, or explosives:

1. been convicted of any crime punishable by more than one (1) year in prison.
2. been convicted of a misdemeanor act of domestic violence; or
3. 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 fear of bodily injury to the partner or child.” For 18 U.S.C. § 922 (2012) to apply, the court order cannot merely be an ex-parte temporary order. Instead, the order must have arisen from actual notice to the service member and the opportunity for the service member to participate in the hearing. And the court order must include “a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or by its terms explicitly prohibit “the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”

The final category applies to the issuance of CPOs (sometimes called temporary protective orders or temporary restraining orders) which appear frequently in family law matters. Frequently, domestic violence felony offenses are pled to lesser misdemeanor offenses, i.e., battery, which was the purpose for the inclusion of paragraph (2).

A lot of the litigation over the Lautenberg Amendment has addressed what qualifies as a “misdemeanor crime of domestic violence” under the statute. The statute defines as misdemeanors those acts that “ha[ve], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian.” 18 U.S.C. § 921(a)(33)(A)(ii). (2012). See also Tom Lininger, An Ethical Duty to Charge Batterers Appropriately, 22 Duke J. Gender L & Pol’y 173–204 (2015).

18 U.S.C. § 922 is designed to protect the past victims of an offender and society at large. It makes no exception for those whose daily employment requires their ability to carry and use firearms (e.g., service members or police officers). If the abuser is the sole financial provider for the family, the application of the Lautenberg Amendment may very well impose financial hardship upon the family.

Servicemembers subject to CPOs cannot carry firearms per the Lautenberg Amendment, but all is not necessarily lost. Facts matter, and the service member’s prior quality of service matters most. Since many CPOs sunset in six to twelve months, a service member may be able to “wait out” the expiration. Often the commander supports the service member, most often from exemplary service. In other cases, the commander may seek immediate separation (to kick out the service member). Again, facts matter.

If a service member is facing involuntary separation, he and his family will lose medical benefits, retirement benefits, and potentially Veterans Administration benefits (depending on the characterization of his discharge). This means the family law practitioner advising either the abuser or the victim must carefully counsel her client regarding the consequences the family faces from a CPO or a conviction invoking 18 U.S.C. § 922. This is not to say that the victim of domestic violence in a military family should countenance abuse in favor of the servicemember’s continued service. Rather, this possibility and the ancillary effects discussed above require the family law attorney to be cognizant of these matters to counsel her client effectively.