§ Article 134 : Extramarital Sexual Conduct

Extramarital sexual conduct is an enumerated offense under Article 134 of the UCMJ (10 U.S.C. § 934), the General Article. It replaced the former offense of adultery and applies only when the conduct is directly prejudicial to good order and discipline, service-discrediting, or both.

Disambiguation — this is not Article 134 itself

Article 134 is a general clause under which the Manual for Courts-Martial lists numerous separately defined offenses. Extramarital sexual conduct is one of those enumerated offenses.

Who It Applies To

Any person subject to the UCMJ who wrongfully engages in extramarital sexual conduct with another person, knowing that the accused or the other person is married to someone else, under circumstances that are prejudicial to good order and discipline or service-discrediting.

What It Covers

1. The accused wrongfully engaged in extramarital conduct, as defined below, with a certain person.
2. At the time, the accused knew that the accused or the other person was married to someone else.
3. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Key definitions and rules

• Extramarital conduct means genital-to-genital, oral-to-genital, anal-to-genital, or oral-to-anal sexual intercourse, between persons of the same or opposite sex.
• A marriage exists until it is dissolved under the laws of a competent state or foreign jurisdiction.
• Directly prejudicial conduct is conduct with an obvious and measurably divisive effect on unit or organization discipline, morale, or cohesion, or that is clearly detrimental to the authority or stature of, or respect toward, a service member. Service-discrediting conduct injures the reputation of the armed forces, for example because of its open or notorious nature. Private and discreet conduct may not be service-discrediting but may, depending on the circumstances, be prejudicial to good order and discipline.
• The Manual lists factors for commanders to consider, including the marital status, rank, grade, and position of those involved; the conduct’s impact on duty performance and on the units involved; any misuse of government time or resources; whether the conduct persisted despite counseling or orders; its notoriety; whether a marriage was pending legal dissolution; whether other UCMJ violations accompanied it; and whether it is ongoing or remote in time.

Maximum Punishment

Maximum authorized punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Sentencing parameters. Category 1 (0–12 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Extramarital sexual conduct is one of the offenses listed under the General Article. Relationships that violate custom or regulation because of rank or position may instead be addressed as fraternization or under Article 92, and conduct by a trainer or recruiter with a trainee or applicant by Article 93a.

What the Provision Does

Under the Manual, extramarital conduct is an offense only when it is directly prejudicial to good order and discipline, service-discrediting, or both; directly prejudicial conduct includes conduct that has an obvious and measurably divisive effect on unit or organization discipline, morale, or cohesion. The Manual lists factors for deciding whether that standard is met, and the maximum confinement is 1 year.

History

The offense derives from the Article 134 offense of adultery (paragraph 62 of the 2016 edition of the Manual for Courts-Martial). The 2018 amendments to the Manual (Executive Order 13825), effective January 1, 2019, replaced it with extramarital sexual conduct, defined the conduct in gender-neutral terms, made legal separation an affirmative defense, and added pending legal dissolution as a factor in assessing the terminal element.

Sources

• 10 U.S.C. § 934 (Article 134, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 99
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 17 (Analysis of Punitive Articles)