The Army general commanding U.S. forces in northern Iraq has added pregnancy to the list of prohibitions for personnel under his command.

The policy, which went into effect Nov. 4, makes it possible to face punishment, including a court-martial and jail time, for becoming pregnant or impregnating a servicemember, according to the wording of the policy and confirmations from Army officials.

Stars & Stripes reports.

This may be a new and seemingly draconian policy for the Army. However, the type of policy envisioned isn’t new in my view. The policy doesn’t actually punish pregnancy it seems, what it prohibits and potentially punishes is a form of fraternization. The Navy has operated under policies prohibiting sexual relationships among crew-members of ships – of mixed gender crews, n.1. As the GCMCA has indicated, there is an adverse impact on units for deployed soldiers who become pregnant. On the surface this order borders on interference with personal behavior of the people involved and subject to challenge as unlawful. But the impact does seem reasonably related to an ongoing combat mission and only applies to personnel within the AOR during the time they are assigned to the AOR. It seems to me that military law does allow for such an order, but I would expect challenges.

To be lawful the order must relate to military duty – includes all acts reasonably necessary to accomplish a military mission, to safeguard or promote the morale, discipline, and usefulness of members of a command and which is directly connected with the maintenance of good order in the service. The order may not interfere with private rights or personal affairs. But conscience, religion, or personal philosophy cannot justify or excuse the disobedience of lawful order. See United States v. Hughey, 46 M.J. 152, 154 and n.2 (C.A.A.F. 1997).

In principal it is the defense burden to prove that an order is illegal unless the order is “palpably illegal on its face.” United States v. Kapla, 22 C.M.R. 825, 827 (A.F.B.R. 1956). Orders are thus clothed with an inference of lawfulness. See Hughey, 46 M.J. at 154; United States v. Nieves, 44 M.J. 96, 98 (C.A.A.F. 1996). “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).

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n.1: Caution — haven’t checked, there may be a case or two on the Navy policies.

The Navy’s rule forcing sailors to “promptly” tell their commanding officers if they have been arrested for an off-base drunken-driving violation is unconstitutional, the Navy and Marine Corps’s highest military judges have ruled.

And so begins a Navy Times article on United States v. Serianne.

I have posted before about the new DoD regulation that requires persons E-6 and above to report all civilian convictions.

More work for lawyers – repeat.

Just when you were starting to worry that there wouldn’t be work – along comes DoD with a new policy about officer and senior enlisted civilian misconduct. The policy requires that officers and senior enlisted inform their command about civilian convictions. The policy directs that the Services issue (punitive) regulations and a reporting system. More “show cause” Boards, more administrative separation boards, more Article 15’s for failure to report — yes, more work for lawyers. This link should take you to the policy memorandum.

DoD gave the services time to put together their own implementing regulation. The regulation is intended to be punitive and can be prosecuted at court-martial as a violation of Article 92, UCMJ. The regulation may be in jeopardy (at least within the Navy and Marine Corps) if Serianne is not certified to CAAF, or it is certified and CAAF agrees. Of course if CAAF were to agree, then likely all the regulations may fall.