The recent case of U.S. Air Force Chief Master Sergeant William Gurney serves as a reminder that military personnel are often held to a higher standard under the UCMJ than their civilian counterparts. According to media reports (available here and here), CMSgt Gurney was convicted last week in Illinois by a court-martial composed of USAF officer members of two specifications of maltreating junior female airmen while the CMSgt was serving as the senior enlisted advisor at Wright-Patterson AFB. CMSgt Gurney previously pled guilty to other offenses including adultery, indecent conduct, dereliction of duty, and misuse of government resources and was acquitted of several additional charges. He was sentenced to 20 months confinement, a dishonorable discharge, and reduction to E-1. Gurney’s military defense lawyer argued that the airmen willfully participated in their relationships with Gurney by sending sexually suggestive text messages and photos and could have chosen to end the relationship at any time.
Would there be a different result under these same facts if the accused had not been a 27 year veteran of the USAF but was instead a long-time employee of a Fortune 500 company? The answer in all likelihood is yes. In many instances, offenses under the UCMJ closely pattern crimes found under many state statutes. The UCMJ, however, also defines a number offenses that would not be crimes under any state criminal codes, including the majority of the offenses CMSgt Gurney was found guilty of. While sending sexually suggestive e-mail or making repeated offensive comments to co-workers would certainly be grounds for firing that employee and may expose the employee to civil liability, it would not likely result in a jail sentence or the harsh stigma of a punitive discharge from the military. Similarly, although some states continue to have an adultery statute ‘on the books,’ it is rarely enforced. Even in the military, adultery is seldom punished as a stand-alone offense and is usually only charged in connection with other offenses. Some personal favorite criminal offenses under the UCMJ include “Drinking Liquor with a Prisoner” and “Jumping from Vessel into the Water.” This is not to suggest that many state criminal codes do not contain some equally rarely enforced offenses. In Florida for example, it is a second degree misdemeanor to smoke in an elevator and to exhibit for a fee any deformed animal (thus the notable absence of billboards along I-95 advertising the famous Six-Legged Steer or “Roscoe the Miniature Donkey”).
The bottom line for all military members to remember is that just because something would not be an offense under your state’s criminal law does not mean that the military will turn a blind eye.