The framework for handling sexual harassment allegations within the military has undergone significant transformation. Under the current landscape, AR 15-6 administrative investigations strictly incorporate the mandates of Army Directive 2022–13 (Reforms to Counter Sexual Harassment/Sexual Assault in the Army).
These reforms change how investigating officers (IOs) are appointed, how investigations are conducted, and how defense counsel must approach these high-stakes cases.
The Rise of Specially Trained Investigating Officers (IOs)
Pursuant to 10 U.S.C. § 1561 and AR 15-6, para. 2-1(c), the Army now enforces strict parameters on who can investigate these claims:
- Specialized Training: Commands must appoint specially trained IOs specifically qualified to handle administrative investigations of formal sexual harassment complaints.
- Independent Chain of Command: To ensure impartiality, the appointed IO must come from outside the immediate chain of command of both the complainant and the subject.
Furthermore, under AR 15-6, para. 2-3(g), the IO is required to consult directly with the U.S. Army Criminal Investigation Division (USACID) sexual harassment liaison before even beginning the administrative investigation.
Defending Against “Substantiated” Findings and Show Cause Boards
To substantiate a claim of sexual harassment, the IO faces a strict regulatory burden. According to AR 15-6, para. 3-7(b):
“The IO must show that the subject’s conduct met each element of sexual harassment as defined in law or Army policy.”
Because the regulatory elements of sexual harassment can be complex or vaguely applied, civilian defense counsel have critical opportunities to intervene.
The Stakes: Administrative Separation
Make no mistake: a “substantiated” finding of sexual harassment will almost automatically trigger an HRC-initiated Show Cause Board (Board of Inquiry). Competent defense counsel must actively persuade the appointing authority to disapprove the IO’s findings before they are finalized to avoid a separation board entirely.
Defense Strategies and Avenues of Appeal
- Bill of Particulars: Counsel can file a Bill of Particulars premised on military due process to force the command to clarify vague or ambiguous allegations.
- Command-Directed Investigation (CDI): A service member may request a CDI within sixty (60) days of the initial complaint to ensure a fair look at the facts.
- OER Appeals (AR 623-3): If the substantiated finding results in a Referred Officer Evaluation Report (OER) or a Relief-for-Cause OER, the officer can formally appeal the adverse evaluation through the Army Evaluation Appeals Office.
The Ambiguity of Article 134, UCMJ, and AR 600-20
It is important to note a lack of definitive federal appellate case law analyzing what specific behaviors constitute criminal “sexual harassment” under Article 134 of the UCMJ.
Without clear judicial precedents, military prosecutors often rely heavily on the broad definitions found in AR 600-20, para. 7-7, to argue that conduct brought “prejudice to good order and discipline” or “service disrepute.”
| Type of Harassment | AR 600-20 Examples / Definitions |
|---|---|
| Nonverbal | “Inappropriately or excessively staring at someone too long” or “winking.” |
| Verbal | Utilizing terms of endearment such as “honey,” “sweetheart,” “dear,” “stud,” or “hunk” when referring to Soldiers, DA Civilian coworkers, or family members. |
The Legal Conundrum
While terms of endearment or awkward nonverbal cues can certainly offend, a service member’s risk of a federal criminal conviction should not hinge on subjective interpretations or regional command climates. This interpretational vacuum makes early, aggressive representation by experienced military defense practitioners absolutely paramount.