UCMJ Article 134 Adultery vs Article 134 Fraternization: Marital Betrayal vs Improper Professional Relationships

The Manual for Courts-Martial no longer contains an offense named adultery. Since January 1, 2019, when Executive Order 13825 took effect, the Article 134 offense is extramarital sexual conduct. It turns on marriage and on harm to the service. Fraternization, also under Article 134, turns on rank: an officer’s relationship with an enlisted member on terms of military equality, whether or not anyone is married.

Both offenses are listed under the general article, and both require the same terminal element: under the circumstances, the conduct was prejudicial to good order and discipline, service discrediting, or both. Everything else about them differs.

Extramarital sexual conduct

The elements are (MCM, Part IV, ¶ 99.b):

1. the accused wrongfully engaged in extramarital conduct with a certain person;
2. at the time, the accused knew that the accused or the other person was married to someone else; and
3. the conduct was prejudicial to good order and discipline or service discrediting.

“Extramarital conduct” is defined by act: genital to genital, oral to genital, anal to genital, or oral to anal sexual intercourse, “engaged in by persons of the same or opposite sex” (¶ 99.c(2)). A marriage exists until it is dissolved under the laws of a competent state or foreign jurisdiction (¶ 99.c(3)).

The terminal element in this offense

The Manual sets a demanding standard. Conduct that is “directly prejudicial” includes conduct with “an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion,” or that is clearly detrimental to a service member’s authority, stature, or respect. Conduct can be service discrediting when it tends, “because of its open or notorious nature,” to bring the service into disrepute. Private and discreet conduct may not be service discrediting under that standard, though it may still be prejudicial (¶ 99.c(1)).

The Manual lists factors commanders should consider, including:

• the marital status, rank, grade, and position of the accused and the co-actor;
• the military status of either spouse;
• any effect on the ability of the accused, the co-actor, or a spouse to perform duties;
• misuse of government time or resources;
• whether the conduct continued after counseling or orders to stop, how flagrant it was, and whether other UCMJ violations accompanied it;
• whether either marriage was pending legal dissolution, such as by a filed petition for divorce; and
• whether the relationship is ongoing, recent, or remote in time.

Legal separation and mistake of fact

Legal separation by order of a court of competent jurisdiction is an affirmative defense. It applies only if every party to the conduct was either legally separated or unmarried at the time (¶ 99.c(4)). A separation without a court order is not the defense; a pending divorce appears among the factors above, not as a defense.

Mistake of fact is also a defense when the accused honestly and reasonably believed that both people were unmarried or legally separated, or that they were married to each other. Once the evidence raises it, the government must prove the belief was unreasonable or not honest (¶ 99.c(5)).

Fraternization

The elements are (MCM, Part IV, ¶ 101.b):

1. the accused was a commissioned or warrant officer;
2. the accused fraternized on terms of military equality with one or more enlisted members in a certain manner;
3. the accused knew the person or persons were enlisted;
4. the fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and
5. the conduct was prejudicial to good order and discipline or service discrediting.

The offense needs no sexual conduct and no marriage. “Not all contact or association between officers and enlisted persons is an offense,” the Manual states; the factors include whether the conduct compromised the chain of command, created an appearance of partiality, or otherwise undermined good order, discipline, authority, or morale. The facts must be such that “a reasonable person experienced in the problems of military leadership” would conclude that good order and discipline were prejudiced (¶ 101.c(1)).

Only officers can commit this Article 134 offense. Relationships between enlisted members of different ranks, or between officers of different ranks, can be covered by service regulations, directives, or orders, and a violation of those can be punished under Article 92 (¶ 101.c(2)).

Where the two meet

For example, a married captain in a sexual relationship with an unmarried sergeant in the captain’s unit presents facts that could meet the elements of both offenses, each with its own terminal element to prove. By contrast, when an unmarried staff sergeant dates an unmarried specialist, neither Article 134 offense applies, because no one is married and no officer is involved, and the question becomes whether a service regulation or order governed the relationship (Article 92). Which charges fit a given relationship, and how the factors apply to it, are decided on the facts of the case.

Maximum punishments

Outside capital cases, a military judge sets the sentence in a general or special court-martial when every finding of guilty is for an offense committed after December 27, 2023 (10 U.S.C. § 853(b)(1)).

Sources

• 10 U.S.C. § 934, general article (Article 134)
• 10 U.S.C. § 892, failure to obey order or regulation (Article 92)
• 10 U.S.C. § 853, findings and sentencing (Article 53)
• Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 99 and ¶ 101.
• Executive Order 13825, 83 Fed. Reg. 9889 (March 8, 2018), Annex 2 and section 5.

The two offenses are described as the Manual defines them; no real relationship or marriage is evaluated. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.