Here is a link to MND-N General Order Number 1 that includes the new ban on impregnating or becoming pregnant in the operational area.   Paragraph 3.s. (page 4) is the one that is relevant, and reads:

Becoming pregnant, or impregnating a Soldier, while assigned to the Task Force Marne AOR, resulting in the redeployment of the pregnant Soldier.

H/t bobmccarty.com (his story has some data on soldiers already punished pursuant to ¶ 3.s.).  Interestingly the way the ban is worded, it excludes ciivilians or contractors that are subject to the UCMJ that may become pregnant, but not those that impregnate a member of the armed forces. 

Silly question, because of the way it is worded, can Devil Dogs (and sailors and airmen) become impregnated or impregnate fellow Devil Dogs willy nilly without fear of liability?

Finally, as an astute colleague of ours said aloud, ¶ 3.s. ain’t the only controversial addition to the list of prohibited activities (though he used slightly better English than I did).  What about “Directly or indirectly causing a Soldier’s next-of·kin to become aware of a casualty before the next-of-kin is officially notified through the casualty notification process?”

23 Responses to “MND-N General Order No. 1 – Pregnancy Ban”

  1. Anonymous says:

    subsection U is interesting. On its face it would suggest that if you impregnate someone, you have to report that within 24 hours of finding out. So assuming you aren’t forced to incriminate yourself, you’d have to “rat out” the person you impregnated while still one assumes maintaining your own right against self-incrimination. Of course, how long before you are ratted out after you’ve ratted out mom-to-be?

    This is just unnecessary and somewhat ridiculous.

  2. Some Army Guy says:

    The use of “Soldier” is definitely problematic, assuming there are Marines, airmen, sailors, etc., assigned to MND-N.

    What is wrong with para. 3s? The Army is very protective of the official notification procedures for casualties. Some units even shut down all outside comms (NIPR) after casualties until the family has been notified. Certainly the chain of command can enforce this concern under GO1.

  3. Cossio says:

    Same Army Guy,

    The word “Soldier” like “Troops” can mean generally anyone in the military according to Webster’s Dictionary. Many people, including myself, will use the term Soldier in the generic sense.

    Consider that the word “Airman” can apply to anyone in the Air Force or anyone in the Navy with an MOS applicable to aviation.

    Although certainly you can make a colorable argument that its application is Army, they did Capitalize the word (which implies a title).

    I’m guessing though that plain language would carry the day. I’m wondering if those already punished were people in other Services.

  4. Some Army Guy says:

    Cassio,

    The word “Soldier” when capitalized and used in an official Army document and correspondence has a specific and unique meaning: members of the Army. Army usage would trump Webster’s any day in an Army document. No Man made a good observation when he pointed out the poor or questionable wording of this provision.

    Also, the GO refers elsewhere to “United States military personnel.” That is not a distinction without a difference.

  5. Cossio says:

    Come to think about it there really should be different procedures for intra-service pregnancies.

    For example, if a male Soldier gets a female Airmen pregnant the female Airmen should be subjected to a battery of test for STD’s and in addition go through a Mental Health review, possibly a type of Sanity Board. If contaminates are indeed found she should be jettisoned into the Army via “Blue to Green” program. How’s that?

  6. Mike "No Man" Navarre says:

    SAG–the problem with the casualty notificaiton provision isn;t prohibiting informing the family, it’s mainly the inderectly portion of the prohibition. Potential liability scenario — Soldier A tells Soldier B (who is not in his unit) that Soldier X was KIA. Soldier B happens to know family and tells them. Soldier A and B are liable. As an anonymous reader pointed out, it is virtually a strict liability offense.

  7. Some Army Guy says:

    MNMN,

    The real danger that commands face is that the Soldier tells family at home, who then tells casualty’s family — since they’re probably in the same community. Facebook and blog postings are another source of leaks. That’s what part of the GO is about. The onus of this provision is on keeping the Soldier’s mouth shut until official notification procedures are completed.

    Soldiers in MND-N are a pretty self-contained unit. I doubt there are many conceivable instances where Soldier A (in MND-N) knows well enough and has enough regular contact to tell Soldier B (in MND-C, for instance), who then tells his family, who then tells the casualty’s family, before the official notification procedures are complete.

    Soldier A already erred by telling someone outside of the unit what happened.

    Certainly, there is the potential for some strict liability in an outlier case, but short of an outright order on saying anything about casualties to anyone (which would also be criticized by many), this is a reasonable way to address the problem.

  8. Anonymous says:

    It could be even worse than that, Soldier A is distraught and crying, Soldier B says what’s wrong buddy? Soldier A says Bobby just got killed. Soldier B knows Bobby and tells them. Now Soldier A is theoretically on the hook.

  9. No Man says:

    SAG–I agree that this is an issue and appreciate your on the ground insight. My prior statement about there being a “problem” was probably more than I intended. The strict liability provision makes it controversial. Whether the COM’s rationale provides sufficient justificiation for SL can only be resolved by the facts, which I do not know. Thanks for the insight.

  10. Anonymous says:

    If there are any trial counsel out there who eventually prosecute a case on this charge, PLEASE PLEASE PLEASE argue that “Soldier” refers to anyone in the military, citing the fact that Cossio uses it that way.

  11. Cossio says:

    Your very funny Anon, but like I said I’m not the only one, a lot vets do too.

    But no, don’t take my word for it. How about you shut your yap and open up a Dictionary and look up the word Soldier:

    Main Entry: 1sol·dier
    Pronunciation: \ˈsōl-jər\
    Function: noun

    Etymology: Middle English soudeour, from Anglo-French soudeer, soudeour mercenary, from soudee shilling’s worth, wage, from sou, soud shilling, from Late Latin solidus solidus
    Date: 14th century

    1 a : one engaged in military service and especially in the army b : an enlisted man or woman c : a skilled warrior

    2 : a militant leader, follower, or worker

    3 a : one of a caste of wingless sterile termites usually differing from workers in larger size and head and long jaws b : one of a type of worker ants distinguished by exceptionally large head and jaws
    4\ˈsō-jər, ˈsōl-\ : one who shirks work

    — sol·dier·ly \-lē\ adjective or adverb

    — sol·dier·ship \-ˌship\ noun

  12. Anonymous says:

    A wise man might realize he was wrong and just be quiet, not continually look to a dictionary for a term that has a specific, and more exclusive meaning in this context.

  13. Cossio says:

    Flip your argument

    So your argument is that the word “Soldier” has a specific meaning to imply those in the Army, and would exlude the other branches of service because they are not “Soldiers”, and despite Webster’s Dictionary we must think inside the box and look into what may be implied.

    I think your understanding of the definition of a “wise man” is a kin to the narrow definition of the word “Soldier” that you are advocating.

    I see your point though, as I pointed out the capitalization of “Soldier” in military contect would imply Army.

    It is a poorly worded order, it should say Armed Forces or maybe Squids, Jarheads, Flyboys, and Grunts.

  14. FormerTC says:

    Cossio, you’re a wee bit opinionated for someone who has seen military justice from the other side of the bench, aren’t you??

  15. Bracknell says:

    Men, this discussion is degenerating into a flurry of insults rather than what CAAFLOG intends it to be, a forum for reasonably intelligent people to exchange ideas and debate without being shouted down. Everyone dial it back a bit — it’s approaching the nastiness one sees (much to my chagrin) in the hyper-political and hyper-intolerant posts in our national online papers of record (NYT, WaPo, WSJ, etc.). Now, for some contribution: Cossio, the specific trumps the general. RCM 103 provides rules of construction, and RCM 202 and Article 2 refer to persons subject to the code as “members” of the regular component of the armed forces, cadets, aviation cadets, midshipmen…etc. without reference to the terms “soldier” “sailor” “airman” or “Marine.” So the GO’s use of the term “Soldier” probably fatally deprives the order of the ability to reach members of other services assigned to MND-N. This is probably not what the commander intended, but it’s what’s he’s got, because of sloppy draftsmanship. Or maybe he did intend to only punish soliders. It doesn’t matter what he intended, because the plain reading is unambiguous.

  16. Some Army Guy says:

    Bracknell, The punishment, as written, is for getting a Soldier pregnant. My reading of the sloppy use of “Soldier” is that Airman Arnold or Corpsman Halsey can be punished for getting Specialist Sally pregnant, but not for getting Airman Sally pregnant. Similarly, Sergeant (Army) Bradley cannot be punished for getting Airman Sally pregnant.

    The nexus, as constructed, is getting a female Soldier pregnant. Other servicemembers subject to the UCMJ in the MND-N AOR are prohibited from getting female Soldiers pregnant but not members of other services.

    Probably not what was intended, but it’s hard to argue otherwise.

  17. Tami says:

    I think the Marcum case gives an excellent discussion of the correct test–strict scrutiny, and is the restriction (no pregnancies) narrowly tailored to meet a compelling government interest?

    The right to procreate is a fundamental interest, so the test is “strict scrutiny.” I agree that there is a “compelling government interest” in not sending an otherwise able-bodied Soldier home and having to find someone to replace her. However, I think the Government loses on the “narrowly tailored” part of the test. First, the ban on getting pregnant is asking “Soldiers” to control something that they can’t–and I’m not talking about their sex drives. People who use birth control would be just as guilty as those who don’t if the birth control fails. Second, the ban is dicriminatory in its application, based on gender. Third, the ban is not “narrowly tailored” The fact remains that commanders have to “switch out” Soldiers unexpectedly all the time due to injury or illness. Are commanders going to order Soldiers not to get sick? Are they going to order Soldiers not to get shot, hit w/ an IED, etc.? This is a big loser for the government.

  18. Ary Dias says:

    A very strange rule… If she is “impregnate” by her husband?!?

  19. Jonas says:

    Tami, its simple, this General,believes he is in the P.L.A no American General could beleieve such an order could pass constitutional muster. This General needs a JAG Officer as his side arm, he needs legal protection or simply a brain.!!

    This order does’nt need the effort it takes for legal analysis. Even the order is unable to state its intended purpose. Oh, did you hear ther CG’s explanation on CNN.

    wELL Intended but truly poorly conceived.

  20. Cossio says:

    Jonas, while I agree with much of what you said aren’t you assuming that a JAG did not know of this beforehand?

    Would it be suprising to you that a General would push this order out without some type of leagl review?

    Not that I’m accusing Army JAGs of making mistakes….

    http://www.blackfive.net/main/2006/01/army_jag_bans_e.html

  21. Cossio says:

    *legal typo

  22. Anonymous says:

    Cossio,

    I would not be surprised if the General issued this order without the review of his SJA (or, at least, that the SJA assigned the tasks of advising the General and drafting the order to a junior JAG).

    For many SJAs — especially of the international/operational law sort — mere military justice is beneath them.

  23. jonas says:

    Cossio, I believe your lst comment is on to something there about the SJA’s in these theaters are usually the international law types. This simply should’nt have been issued in this conflict, everything about Iraq receives microscopic scrutiny these folks should have known that. As we all know there are many practices enforced in the military that though legal are abound with absurdities.

    This whole INCIDENT demonstrates if this ill advised order was issued in fort dix nj or tim bucktoo montana it would have been a big deal.