Domestic Violence Protection

Unfortunately, the  military is not immune to families with domestic violence issues. Sociologists can better explain the causes, but a few obvious ones seem to be stress from long hours and deployments, as well as periodic PCS’g making it difficult to establish roots in the local community.

The military imposes consequences on domestic violence perpetrators beyond those from any other employer. No other employers have punitive authority over its employees, so an offender could face punitive measures such as Article 15 non-judicial punishment, or, in a severe case, even a court-martial.

This Guide focuses on administrative measures which affect both the perpetrator and the victim.

Military Protective Order

Rule for Courts-Martial 304 has long authorized officers to impose conditions on liberty, short of actual confinement, on military members suspected of committing offenses. Such measures include moving a soldier into the barracks, issuing a no-contact order, requiring a member to check-in periodically, prohibiting a member from leaving the military installation, etc. And in extreme cases, commanders can order pretrial confinement pursuant to R.C.M. 305. For an in-depth article of the various forms of pretrial restraint in the court-martial context, see A distinction with a difference: Rule for Courts-Martial 304 pretrial restraint and speedy trial.

Commanders have utilized this rule long taken measures to protect domestic violence victims, including ordering a soldier into the barracks, and issuing an order to have no contact with the victim. But rather than such orders being issued ad hoc by commanders, the military has now formalized such orders through DOD Instruction 6400.06, and with a standard DD Form 2873, Military Protective Order. And having tick boxes for standard terms, it ensures there are no loopholes.

“A DD Form 2873, Military Protective Order (MPO) is a written lawful order issued by a commander that orders a Soldier to avoid contact with those persons identified in the order.” 32 C.F.R. § 635.19. The Army has further guidance contained in para. 3-21, AR 608-18, The Army Family Advocacy Program.

The military protective order serves the same function as a civilian protective order or restraining order. It may be issued regardless of whether a civilian court has also issued a protective order. However, while a civilian order is issued by a judge/magistrate after a hearing, the MPO is issued by a commander without the requirement of due process or the ability to challenge it. There is a good discussion at Aaron Myer Law about the shaky legal grounds of military protective orders, but such considerations are beyond the scope of this article.

The military protective order potentially addresses the following issues:

• The facts supporting the issuance of the order.
• Reference to any civilian court orders.
• Box to tick for no direct or indirect contact.
• Box to tick ordering the member to stay a specified distance from the victim & family
• Order to move out of military quarters
• Order to dispose of firearms
• Box for other case-specific terms.

When a commander issues a military protective order, the member must be notified in writing within 24 hours. 32 C.F.R. § 635.19. And if the member will be residing off-post at any time while the order is in effect, the military must notify civilian authorities. 10 U.S. Code § 1567a.

Department of Defense Instruction 6400.06, section 6.1.2, provides commanders with guidance for an MPO. Among the guidelines is that an MPO may not contradict or be more relaxed than a civilian protective order but may be stricter.

Pursuant to 10 U.S. Code § 1567, a military protective order remains in effect until terminated by the commander, which means they can last days, months, or even years. Violation of the order is punishable under Article 92, UCMJ.

Family Advocacy Programs

Each of the branches has a family advocacy program intended to provide training and treatment to prevent domestic abuse, separate from any punitive measures which may be taken. The types of support offered typically includes seminars & workshops to teach life skills to help cope with anger or stress, communicate better, etc, as well as individual or couples counseling.

For more information, see:

• Army. AR 608-18, The Army Family Advocacy Program.
• Air Force. Air Force Instruction 40-301.
• Navy. Family Advocacy Program Site.
• Marines. Family Advocacy Site.
• Coast Guard. Family Advocacy Program Site.

Lautenberg Amendment & Access to Firearms

The Lautenberg Amendment, codified at 18 U.S. Code § 922(h), prohibits the possession or transportation of a firearm or ammunition by a person with a:

• Protective order issued after a hearing where the person had notice and the opportunity to appear, where the order restrains the person from harassing, stalking, or threatening an intimate partner or the partner’s child, 18 U.S. Code § 922(g)(8), or
• Misdemeanor conviction for domestic violence. 18 U.S. Code § 922(g)(9).

Why only misdemeanors and not felonies? Because the law already prohibited felons from possessing firearms, albeit with exceptions for military or police who carry them on duty. Get a felony domestic violence conviction, and in theory a person could still serve in the military, but not with a misdemeanor, because the Lautenberg Amendment has no exception for police or military.

In the military, a Special and General Court-Martial conviction is Lautenberg-disqualifying, but not a Summary Court-Martial. Moreover, the military will treat a felony domestic violence as Lautenberg-disqualifying. Department of Defense Instruction 6400.06, section 6.1.4.3.

The military utilizes DD Form 2760, Qualification to Possess Firearms or Ammunition, whereby military members must disclose whether they have a disqualifying domestic violence conviction.

Department of Defense Instruction 6400.06 implements the Lautenberg Amendment, and has a host of provisions for military members, protection of family members, and commanders. Here are a few of the provisions in section 6.1.1:

• Commanders are required to hold members accountable for their conduct.
• Counsel the military suspect.
• Ensure victims are advised of available services.
• Victims shall be referred to appropriate facilities for medical and mental health treatment.
• Ensure the victim has safe housing by removing the perpetrator.
• Ensure a safety plan is in place.
• Issue a Military Protective Order if appropriate.

Army Implementation of the Lautenberg Amendment

AR 600-20, Army Command Policy, requires commanders to have soldiers complete the DD Form 2760, and sets forth repercussions for soldiers with qualifying convictions:

• Soldier is reported to Headquarters, Department of the Army. Para. 4-22(c)(6).
• All government-issued firearms and ammunition are retrieved, and the soldier is advised to seek legal counsel re: private firearms. Para. 4-22(c)(7)
• May be accommodated by assignment to a duty position that does not involve firearms. Para. 4-22(c)(8). But the regulation makes it clear this is not the norm - there are a host of criteria to be satisfied first, and even then, it’s the Army - there are not a lot of duty positions a soldier can perform that would never involve a firearm!
• Barred from reenlistment. Para. 4-22(d)(1), and a soldier already in the indefinite enlistment program is given an ETS date not more than 12 months out.
• An officer is to be separated within 12 months. Para. 4-22(d)(2).
• Flagged (denied favorable personnel actions). Para. 4-22(d)(3).
• Non-deployable. Para. 4-22(d)(8).
• Such conviction may be referenced on the member’s efficiency report. Para. 4-22(d)(11)

By imposing every administrative repercussion possible, the regulation could not be more blatant - get a Lautenberg-qualifying conviction, and your career is over!