Adultery’s Role in a Military Divorce

Under Article 134 of the UCMJ, adultery is a crime.  However, to be found to have committed adultery in the military a service member must commit the act under circumstances that are either: (1) prejudicial to good order and discipline of a command, or (2) are likely to cause discredit to the armed forces. Thus, the circumstances of the adultery rather than the act determine whether the adultery is a crime under the UCMJ. 

Adultery under the UCMJ defined:

Defining adultery under circumstances which are “prejudicial to good order and discipline” is not an exact science.  Ultimately, the matter is decided by a military panel.  However, the adultery must present a direct and concrete harm to a unit. An Air Force case from the 1990’s exemplifies the meaning adultery that is directly “prejudicial to good order and discipline.” 

A female lieutenant was having a romantic relationship with the husband of one of the female airman under her command.  Upon learning of the adultery, her CO counseled her about the impact on the unit her adulterous relationship was having. The warning went unheeded and after the affair continued, the lieutenant was administratively separated at a Board of Inquiry for misconduct.

Generally, adultery is considered “discrediting to the armed forces” when one of the parties to the affair holds himself or herself out as married.  For example, when a service member is on temporary assignment in another area (“a geographical bachelor”) but otherwise holds himself out as married, his affair while on TAD orders would likely be considered “service discrediting conduct.”

However, if the relationship occurs after the service member and his or her spouse were separated from one another and no longer holding themselves out as married (for example, when the parties have signed a Marital Separation Agreement), then it is difficult to make the case that the extra-marital relationship would cause discredit to the armed forces. Again, the issue would ultimately be determined by a military jury.

Consequences of Adultery in the Military:

While adultery is a crime under Article 134 that carries of a potential maximum punishment of up to 1 year of confinement as well as discharge, the consequences of committing adultery under the UCMJ vary based on the command and the circumstances. It is rare when adultery is prosecuted as a court-martial offense (except as a lesser included offense in a sexual assault prosecution).  Few commands will process a service member for administrative separation for adultery (even when the aggrieved spouse is insistent).  However, an allegation of adultery will likely be reflected in the service member’s performance evaluation. For a senior officer or flag officer, allegations of adultery can often affect future command assignments, or cause the end of a military career.