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New DoDi Clarifies the Rules on Prohibited Extremist Activity

 In ARTICLE 92, Blog, Board of Inquiry, Investigations, Separation Board

RULES GOVERNING EXTREMIST ACTIVITIES IN THE MILITARY

Pentagon Clarifies Extremism rules

DoDi 1325.06 gets specific about what the DoD considers active extremist participation

The Department of Defense recently updated the DoD Instruction prohibiting extremist activities in the military.  Department of Defense Instruction 1325.06, Enclosure 3, defines extremist activities.  Among other activities, the DoDI prohibits, “(a) Advocating or engaging in unlawful force, unlawful violence, or other illegal means to deprive individuals of their rights under the United States Constitution. . . . (b)  Advocating or engaging in unlawful force or violence to achieve goals that are political, religious, discriminatory, or ideological in nature. . . . (c) Advocating, engaging in, or supporting terrorism, within the United States or abroad. . . . (d) Advocating, engaging in, or supporting the overthrow of the government of the United States . . . .”  . The updated instruction attempts to define and clarify which online activities are prohibited. Violation of these rules could result in adverse administrative action such as a GOMOR for extremist activities.

PROHIBITED ONLINE ACTIVITIES

The DoDI makes clear that the following online activity is prohibited: “engaging in electronic and cyber activities regarding extremist activities, or groups that support extremist activities – including posting, liking, sharing, re-tweeting, or otherwise distributing content – when such action is taken with the intent to promote or otherwise endorse extremist activities.” Activities like these could result in adverse administration action like a GOMOR for extremist activities,

For years, since the advent of social media, commanders have been struggling to discipline service members for bad behavior online. Commanders have had to determine what falls under the heading of free speech and what constitutes a violation of good order and discipline. The DoDi says “Military personnel are responsible for the content they publish on all personal and public Internet domains, including social media sites, blogs, websites, and applications.” According to the Military Times, there are several ongoing investigations into this type of prohibited activity.

What will commanders do now that the Pentagon Clarifies extremism rules?

Commanders may leverage adverse administrative action like Letters of Reprimand for extremist activities, GOMOR for extremist activities, AdSep for extremist activities, and depending on the service, launch a Show Cause Board for extremist activities or Board of Inquiry for extremist activities.

The DoDI also provides instruction to commanders on how to prevent service members from participating or discipline service members for participating in extremist activities. These tools include counseling, adverse evaluation reports, adverse administrative action to include formal Letters of Reprimand,, which could lead to Adverse Administrative Separation (AdSep) to include a Show Cause Board or Board of Inquiry for officers. 

In some cases, the command could choose to prosecute service members for violating the prohibition on extremist activities.  However, A recent RAND Corporation article from May 2021 considered the difficulty of determining when activities are considered active participation and whether or not these activities rise to the level of a violation that disrupts good order and discipline. 

“Take, for example, U.S. Army Pvt. Jeremy Wilcox, who created an online dating profile where he identified himself as a “U.S. Army Paratrooper,” stated that he was “a Pro-White activist,” and shared his racist and anarchist views with an undercover government agent whom he met online and then invited to a white supremacist rally.

“At a minimum, Private Wilcox’s behavior would represent “passive” extremism and may in fact rise to the level of active involvement. “In 2008, the U.S. Court of Appeals for the Armed Forces said “no” based on military regulations and case law at this time. They noted evidence that Private Wilcox had a good working relationship with minorities in his unit, that there was no evidence his racist views affected his performance in the military, and found no evidence that his online views ever reached members of his unit,” said Marek N. Posard, William Marcellino, Todd C. Helmus of the RAND Corp.

This RAND Corp. article was written before the new DoDI came out and arguably Pvt Wilcox’ activity seems to fit the definition of endorsing extremist activity. However, this RAND Corp discussion demonstrates the difficulty commanders will have when determining whether their service member is promoting extremist activity, actively participating, and whether the behavior is disruptive of good order and discipline.

What are the risks of active participation in extremist activity to a military career?

Commanders often use a hammer instead of a screwdriver when dealing with threats to good order and discipline in their units. Considering the high profile nature of this issue and the expectation for commanders to prevent this activity, many service member-careers may be adversely affected. Commanders may issue Letters of Reprimand, General Officer Memorandum of Record (GOMOR), potentially leading to adverse administrative separation proceedings (AdSep) or a Show Cause Board or Board of Inquiry (BOI), when counseling may have been more appropriate. Since the Pentagon clarifies extremism rules, expect commanders to take more adverse administrative action. Service members may find themselves under investigation for extremist activities due to their regular social media habits.

Service members who are under 15-6 investigation or command investigation for suspected active participation in extremist activities should understand the risks of active participation in extremist activity to a military career and seek legal counsel as soon as possible. 

If you are under command investigation or 15-6 investigation, facing adverse administrative action like an adverse performance evaluation, a Letter of Reprimand or General Officer Memorandum of Record, or GOMOR for extremist activities, Adverse Separation proceedings (AdSep), a Show Cause Board or Board of Inquiry (BOI), call now for consultation(757) 504-2815 or Contact Us.

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