However, in a very quiet move, in 2002, President Bush adopted many of the changes that were proposed by President Clinton. In addition to the Elements of Proof," the "Explaination" section under this offense now requires commanders to consider the following factors when determining whether or not the offense of "adultery" constitutes a crime:
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 co-actor, or their relationship to the armed forces;
The impact, if any, of the adulterous relationship 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 adulterous act was accompanied by other violations of the UCMJ;
Whether the accused or co-actor was legally separated; and
Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time.
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;
What this means is that many incidents of "adultery" may not be considered a punishable "crime" in the military, unless there is some kind of direct negative impact on the military itself.
This does not mean, however, that military members are free to shack up with whomever they please. Commanders have a lot of discretion when it comes to administrative procedures, and administrative actions (such as reprimands, denial of promotions, performance report remarks, etc.) are not governed by the relatively strict legal requirements of the UCMJ or MCM.
Thanks for amending, clarifying and elaborating on my atrophied recollections. It seems like forever since I've even thought about the UCMJ, much less picked up my battered copy of the MCM. I actually have a 1926 printing of THE ARTICLES OF WAR, which I more frequently peruse for no other reason than the historical and entertainment value (I just bought a pair of brown shoes the other day!).
Me resignation was effective on 31 DEC 00, so your more current info was probably a better answer for McGavin. If I recall correctly, adultery had been eliminated from MPI / CID purview well before the Clinton administration, (or my commission, for that matter) but I don't recall a specific date. I do remember, and can visualize the reg (AR 190-30), which I had to frequently cite when spouses would show up at the MP station to report it and I would refer them to the chain of command and/or IG.
The 2002 info is interesting; it sounds like a lot of the de facto manner in which this was routinely handled has been codified. I (having commanded at the company level) can certainly identify with the disruption something like this may cause within a unit, and I also object to adultery on moral grounds. Although I never had to administer non-judicial punishment (for adultery) as a commander, I was present for a few Article 15s administered to my soldiers and NCOs while serving as a platoon leader. I always saw any consideration in this regard as a fine line between a simple UCMJ enforcement action and a commander's most tempting opportunity to stamp their personal morality onto their unit and their soldier's record. Because a lot of this was disposed of at the company level (unless it involved a senior NCO or officer), my observation was that this was one of the most inequitably punished violations of the UCMJ.
Thanks again for the additional info and insight!
In other words: "What goes TDY, stays TDY."
That's all well and good, but, who would it be that removes a four star that quickly?