SERGEANT "A"

All three branches of the United States Armed Forces are governed in disciplinary matters by the Uniform Code of Military Justice, as amended, in 1951. The "bible" of military law is the Manual for Courts-Martial, United State, 1951. This relatively thin volume is a remarkable condensation of the major aspects of the criminal law as applied mainly by the federal courts. While it embodies all of the individual safeguards provided in the United States Constitution, it also preserves, unfortunately, the criminal law's severe prejudices against homosexual activity.

However, it may be well to note here there is no offense under the Code known as homosexuality. Sodomy is the only activity which is specifically proscribed. From holdings of the United States Court of Military Appeals (the "Supreme Court" of the Armed Forces) it may be safely assumed that genito-oral contact is as much an offense of sodomy as the traditional anal contact contemplated at common law. However, the point is not so certain in federal and state courts.

All other homosexual offenses which may not be classifiable as sodomy are contemplated in the general "catch all" provisions of Article 134 of the Code. Hereunder, all offenses which "bring discredit upon the Armed Forces" are charged. With specific reference to officers, the key words are "Conduct unbecoming an officer and a gentleman."

The essential fact to remember,

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By PAUL MARC

however, is that these "catch all" provisions do not dispense with the necessity of proving the elements of the offense charged. Once invoked, they must be supported by each particular element of the offense charged, and each must be proved at trial to warrant conviction. Except for purely military offenses, such as absence without leave, wrongful appropriation, dishonorable refusal to pay a debt, and insubordination, which have peculiarly military elements, all offenses must be proved by the elements by which they are recognized in the criminal law as offenses.

This factor proved to be the saving grace of an Air Force Technical Sergeant charged with indecent exposure in Louisiana, in 1952. The facts are these:

Sergeant A met Sergeant B at a local tavern, and soon found a mutual interest. After soaking themselves in beer at a half dozen or more bars, they drove through the fetid night and finally parked among a clump of bushes in the general area known as "Lover's Lane." Sergeant A became completely disrobed except for his shoes and socks; and Sergeant B was content to be naked from the thighs up.

Two local gendarmes in a cruiser spotted the parked car, and upon investigation found the two men, as described, sprawled over the back seat. Repeated questioning of the police officers at trial failed to show any "flagrante delicto" (caught in the act).