Army Recruiter Misconduct

January 21, 2024

Army Recruiter Misconduct has been the target of one of the most recent UCMJ updates, Article 93a.

Article 93a of the UCMJ was added to criminalize conduct that was otherwise not criminal; specifically, sexual activity between a recruiter and an applicant for military service or a "junior member of the armed forces who is enlisted under a delayed entry program." Consent is specifically excluded as a Defense. That means that it doesn't matter if the applicant/junior member of the armed forces who is enlisted under a delayed entry program consent to the sexual activity or not.

Army recruiter misconduct is also addressed by several policy letters published by Recruiting Command Headquarters, such as USAREC Regulation 601-210. The following actions are specifically listed as Army recruiter misconduct:

Knowingly directing the fabrication, withholding, altering, or concealing applicant information; this includes, but is not limited to, medical information of the applicant, criminal records, dependent information, and prior service.
Cheating on tests, which includes using ASVAB tests, locally developed test questions, test aids, and commercial study guides. Commercial study guides can be used, but not maintained by recruiters. Recruiters cannot participant in applicant study programs, nor provide or recommend actions that would afford an applicant with an unfair advantage
Knowingly making false promises, including misrepresenting benefits, enlistments, bonuses, or other aspects of service.
Coercing, threatening, or intimidating applicants
Engaging in any social activity of an unofficial nature with an applicant/prospect
Sharing lodging or a personal vehicle with an applicant/prospect
Drinking alcoholic beverages with an applicant/prospect
Unofficial, personal contact with an applicant/prospect
Entry of an applicant's/prospect's dwelling
Sale, purchase, leasing, giving, receiving, loaning, borrowing, or other exchanges of any money, property, or service to an applicant/prospect
Meeting a prospect/applicant of the opposite gender during the recruitment process without at least one qualifying individual present at all times, subject to exceptions listed by USAREC
Possession of privately owned weapons in a recruiting facility/government vehicle
Possession of alcohol in a recruiting facility/government vehicle
Using alcohol as a recruiting incentive
All other acts prohibited under the UCMJ, such as sexual harassment, sexual assault, assault, etc.

An applicant is defined as "a prospect who has agreed to process for enlistment, commissioning, or reclassification" or "any person who has commenced processing for enlistment or appointment in any of the military Services by initiating a DD Form 1966 or comparable form," depending on the source. Prospect is defined as "any person who agreed to meet with an Army Recruiter or a person who has met with a Recruiter but has not committed to process" or "any person who has expressed to recruiting personnel an interest in enlisting or receiving an appointment in a Military Service and who appears to possess, or who may in the future possess, the potential and qualifications for enlistment or appointment in said Military Service," depending on the source. Prospects or contacts retain their status even if they are no longer interested in the Army if the USAREC member first met that person in the course of official duty.

Army recruiter misconduct is therefore much broader than misconduct for all other Soldiers in the Army. Said another way, recruiters are held to a higher standard and can be punished if they do not meet this standard. Typically, Army recruiter misconduct is investigated through the AR 15-6 investigation process. If an allegation is substantiated, Army recruiter misconduct can result in no adverse action, a letter of concern, a General Officer Memorandum of Reprimand (GOMOR), an Article 15, a referred evaluation report, Separation (locally or through the QMP), or even a Court-Martial, if serious enough.

Anyone accused of Army recruiter misconduct is immediately in jeopardy of losing his/her career. Proper legal representation is vital. While Trial Defense Services (TDS) is available, they are often overworked and inexperienced. Furthermore, TDS is unlikely to provide the time and attention to anyone accused of Army recruiter misconduct that is needed at all stages (investigation through punishment). Army recruiters have the option to hire civilian counsel. This gives an individual the ability to vet their lawyer's experience, results, and testimonials from prior clients.

This article was written by Attorney Matthew Barry.

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.