The Department of the Air Force recently released DAF Instruction 36-3211, which increases support for sexual assualt victims, promotes accountability and prevention, and outlines the discharge steps to be taken for separation.
DAFI 36-3211 7G: Sexual Assault
DAFI 36-3211 describes sexual assault as rape, sexual assault, aggravated sexual contact, abusive sexual contact, or attempts to commit these offenses. Offenses against children are considered: rape of a child, sexual assault of a child, sexual abuse of a child, or attempts to commit these offenses. The new provisions for military separation under DAFI 36-3211 are more objective than previously stated. There is less room for subjectivity now when it comes to determining whether or not to discharge. Only pertinent information is allowed to influence the decision for discharge.
Under DAF Instruction 36-3211, sexual assault is incompatible with military service. If a member commits a sexual assault that member will be discharged unless certain criteria are met. Sexual assault undermines the ability to work effectively, impairs readiness, and detracts from the military mission. If a sexual assualt is committed, then the AF/SF is unable to:
- Maintain discipline, good order, and morale.
- Foster mutual trust and confidence among members.
- Facilitate assignments and prevent disruptions in worldwide deployment.
- Recruit and retain members.
- Maintain public acceptability of military service.
If a commander has enough information that a sexual assualt was committed by a member then they are required to start processing the separation immediately or the waiver action.
Exceptions to Mandatory Separation
There are exceptions to the Mandatory Separation in cases of sexual assault which can result in a waiver action. Certain criteria can be met that will allow for another outcome besides mandatory separation. These 5 conditions must all be met for the waiver:
- There is no other allegation of sexual assualt or sexual harassment at any point, not only in the service
- The sexual assualt did not involve a child
- The sexual assualt did not include any of these scenarios:
- Use or threat of violence to overpower or injure
- Threatening the person, or another individual, with grievous harm, kidnapping, or death
- Unable to provide sexual consent due to impairment from drugs, alcohol, or another substance, mental or physical disability, and the perpetrator knew they were unable to give consent
- Use of force, or threat of force, or without knowledge or consent of the person due to drug, intoxication, or other substance
- Making fraudulent representation that the sexual contact served a professional purpose
- Trying to hide, persuade, or convince the person committing the assault was another person
- There was no abuse of position, grade, authority, or rank
- The retention of the member is in the interest of maintaining proper discipline, good order, leadership, morale, and a culture of respect for the safety, dignity, and personal boundaries of others
If all of these conditions are met, the waiver action will go in front of the separation authority for final approval.
Factors Considered in Final Authority Decision
The new provisions guarantee that only relevant information may be used to consider the retention or discharge of a member. Commanders are not allowed to consider:
- Personal, family, or financial circumstances
- Good military character or service record
- Medical or mental health
Commanders can consider the above information only regarding the nature of the discharge. If a waiver action is taken then the following may be considered when determining the final decision on retention:
- Take into account the victim’s views on retention of member
- Impact the incident had on the victim
- The nature of the offense
- All of the circumstances surrounding the incident
- Evaluation of the requirements for exceptions to mandatory separation
It is up to the member to prove retention is justifiable.
HIRE THE SERVICES OF AN EXPERIENCED MILITARY DEFENSE ATTORNEY
The counsel of an experienced military defense lawyer can make a significant difference in the outcome of a trial. Joseph Jordan is a seasoned military attorney who fearlessly represents service members. Serious charges pertaining to DAFI 36-3211 7G require skillful representation and a comprehensive presentation of evidence in your defense. Joseph Jordan is a former Army Judge Advocate who has successfully defended service members in numerous court-martials. An accomplished military defense attorney of his skillset can provide remarkable legal counsel and challenge the prosecution’s case.
If you are facing charges under the DAFI 36-3211, contact Joseph Jordan to give you your best shot at winning your case.