While adultery is still a criminal offense under the UCMJ, this Art. 134 offense was recently broadened to cover “extramarital sexual conduct.” However, there is now an affirmative defense to the conduct if the married parties were legally separated. To be clear, if both parties are married, each must be legally separated.

Extramarital sexual conduct not only includes the previous definition of adultery, i.e., genital to genital conduct, but now includes various other sex acts. The extramarital sexual conduct must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. Factors to consider are:

  • The accused’s marital status, military rank, grade or position
  • The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces
  • The military status of the accused’s spouse or the spouse of the co-actor, or their relationship to the armed forces
  • The impact, if any, of the extramarital conduct on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces
  • The misuse, if any, of Government time and resources to facilitate the commission of the conduct
  • Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the extramarital conduct was accompanied by other violations of the UCMJ
  • The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency;
  • Whether the accused’s or co-actors’ marriage was pending legal dissolution, which is defined as an action with a view towards divorce proceedings, such as the filing of a petition for divorce; and
  • Whether the extramarital conduct involves an ongoing or recent relationship or is remote in time.

In the typical case, extramarital sexual conduct may be added to other charges, such as sexual assault, or it may stand alone as the only charge. Regardless, it is imperative to have an experienced military attorney such as Mr. Karns examine the government’s evidence against you, including the statements of its witnesses. Many times, the government has relied upon witnesses who may have personal biases against you, or whose credibility is otherwise tainted. As an experienced military attorney, Mr. Karns can help you defend yourself against the charges by developing evidence and witnesses for your side of the case, as well as discrediting the evidence and witnesses being used against you.

If you are charged with adultery, you may be the subject of administrative action or a court-martial. The consequences of either process can be grave. You may be administratively separated, and if not, you may receive a letter of reprimand which could end your career. If you are court-martialed, you could receive jail time, a punitive discharge, reduction in rank, a possible federal conviction and/or the denial of benefits and future employment opportunities. Regardless of the process, Mr. Karns can employ the evidence for your side of the case in an attempt to resolve it in a manner most favorable to you.

If you have been accused or charged with extramarital sexual conduct, the representation of an experienced military attorney such as Mr. Karns is strongly recommended.

Past Cases

Client was a married female CPT in the Army with twelve years of service who carried on a long-term extramarital affair with another male CPT in her unit. The affair produced two children over two years and paternity of the children was determined by a court order. Client hired Attorney Karns after she was flagged and under investigation. The BG at Client’s command gave her a GOMOR and elimination action was initiated. Attorney Karns was able to persuade the BG to approve Client’s discharge in lieu of elimination proceedings with an Honorable Discharge.

Client was an Army Reserve Captain with fourteen retirement years accrued when he received a GOMOR for texting an inappropriate and offensive image to his supervisor, a LTC. Claiming the text was a deliberate and hostile act toward her meant as a threat or to intimidate, the LTC had made a SHARP complaint against the Client. Client hired Attorney Karns to assist Client in convincing the command to file the GOMOR locally in order to avoid an HRC initiated elimination action. Attorney Karns and Client successfully convinced the CG that the text was meant for the Client’s wife, and the CG filed the GOMOR locally.

Client was a CW3 in the Army who was brought back from retirement and investigated for a six-year-old allegation of sexual assault from an incident that occurred while he was in Iraq. Client hired Attorney Karns who persuaded Client’s command to move forward only with a GOMOR for adultery. Client was able to retire without being administratively separated.

Client was a 2LT whose husband was a SGT deployed overseas. Based on the recommendations from a 15-6 investigation, the government drafted four specifications of adultery and were committed to a general court-martial. Mr. Karns argued that three of the specifications could not be proven and persuaded the government to dispose of the case by a letter of reprimand (LOR). At Mr. Karns urging, the CG decided to file the LOR locally and the government agreed not to administratively separate the Client even though she was in a probationary status. This result allowed the Client to be retained and complete her term of service with an Honorable Discharge or continue her career with a “clean slate” once she PCS’s.

USMC Staff Sergeant was married to a fellow Marine and came under investigation for committing adultery and fathering a child with another Marine. Client hired Attorney Karns on a Saturday because that day Client’s battalion Sgt Maj told him that he was going to “go for the max.” That same day Attorney Karns contacted Client’s battalion commander and persuaded him to only verbally reprimand Client, rather than NJP or court-martial him, due to his outstanding duty performance and continuing need to care for his family. Client avoided any adverse paper in his file and this incident will not negatively impact his career.

* Past results achieved are not a guarantee of future results. Each case is unique and reference must be made to the specific legal and factual circumstances presented.

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