The 82d Airborne Division changes command at Fort Bragg, NC. (U.S. Army photo by SGT Juan F. Jimenez)
Practice Notes
Notable Revisions of Army Regulation 600-20
By Major Michael J. Wood & Major Joshua S. Mikkelsen
To improve is to change; to be perfect is to change often.1
After almost three years of staffing, on 24 July 2020, the U.S. Army updated the previous version of Army Regulation (AR) 600-20,2 dated 6 November 2014. While incorporating fourteen Department of Defense (DoD) Instructions and Directives and sixteen Army Directives, the new AR 600-20 addresses cyber and social media misconduct, clarifies harassment issues, discusses political activities, and merges multiple policies connected to commanders’ responsibilities (e.g., family care plans, medical readiness, lactation support, religious accommodation, transgender Soldiers, sexual orientation, etc.). According to the four-page Summary of Changes, there are sixty-six substantive changes to the 224-page regulation. This article distills the most notable amendments that commanders at various grades and judge advocates might find insightful.
Brief Physical Exercise Can Be Corrective Training
The Army understands extra or corrective training is one of the most effective non-punitive measures. To this end, “brief physical exercises are an acceptable form of corrective training for minor acts of indiscipline (for example, requiring the Soldier to do push-ups for arriving late to formation), so long as it does not violate the Army’s policies prohibiting hazing, bullying, and unlawful punishment.”3 As the regulation notes, this corrective training “may be taken after normal duty hours.”4
Notice of Military Protective Orders
Commanders now have an obligation to notify the Director of Emergency Services/Provost Marshal Office (DES/PMO) of military protective orders (MPO) involving their Soldiers.5 This notice alerts DES/PMO to notify other military and civilian law enforcement officials of the MPO. Commanders must record each MPO using DD Form 2873.
Online Activity Associated with Extremist Organizations and Criminal Gangs
The Army now has a clearer policy regarding “extremist organizations, criminal gangs, and associated cyber activity and social media.”6 As a matter of accountability, “Army personnel are responsible for content they publish on all personal and public internet domains to include social media sites, blogs, and other websites.”7 Prohibited engagements not only include actual physical participation, but also include cyber participation such as promoting, recruiting, training, and fundraising through social media. Additionally, the regulation prohibits simple “browsing or visiting internet Web sites or engaging in cyber activities when on duty…that promote or advocate violence directed against the [United States or the] DoD, or that promote international terrorism or terrorist themes.”8 This section empowers commanders to prohibit Soldiers from ostensibly engaging in cyber-related activities with or on behalf of extremist organizations and criminal gangs. However, at least textually, commanders have much broader power.
Commanders have the authority to prohibit military personnel from engaging in or participating in any cyber or social media activities that the commander determines will adversely affect good order and discipline or morale within the command. This includes, but is not limited to: the authority to order the removal of images, symbols, flags, language, or other displays from social media and internet domains; or to order Soldiers not to participate in cyber and social media activities that are contrary to good order and discipline or morale of the unit or pose a threat to health, safety, and operational security of military personnel or a military installation.9
Online Misconduct
Listed under the umbrella of harassment, online misconduct is now on the list of punishable offenses under the Army Harassment Prevention and Response Program. Specifically, hazing, bullying, and online misconduct may be punished because they “undermine trust, violate our ethic, and negatively impact command climate and readiness.”10 Online misconduct has its own separate sub-paragraph and is defined as “the use of electronic communication to inflict harm.”11 The regulation’s examples of “electronic communication” and “harm” are quite broad. “Examples of online misconduct include, but are not limited to: hazing, bullying, harassment, discriminatory harassment, stalking, retaliation, or any other types of misconduct that undermines dignity and respect.”12
Lautenberg Amendment
Although Soldiers have an affirmative, continuing obligation to inform commanders of a conviction of a misdemeanor crime of domestic violence, “company and battery-level commanders will [now] ensure that Soldiers in-processing their unit are notified” of the requirements in the Domestic Violence Amendment to the Gun Control Act of 1968, also known as the Lautenberg Amendment.13 The regulation sets out four distinct provisions of the Lautenberg Amendment that Soldiers must be notified of when in-processing. Additionally, “a copy [of this section of the regulation] will be displayed outside the unit arms rooms and all facilities in which government firearms or ammunition are stored, issued, disposed, or transported.”14
Law of War
The regulation has a new section entitled “command responsibility under the law of war.”15 Under this section,
Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish. In order to prevent law of war violations, commanders are required to take all feasible measures within their power to prevent or repress breaches of the law of war from being committed by subordinates or other persons subject to their control.16
Accommodation of Religious Practices
This regulation incorporated Army Directive 2016-34, Processing Religious Accommodation Requests Requiring a Waiver to
Army Uniform or Grooming Policy, and Army Directive 2018-19,
Approval, Disapproval, and Elevation of Requests for Religious
Accommodation.17 Now commanders and their staff can easily reference this regulation rather than multiple, old, superseding directives.
Political Activities
The regulation clarifies the Army policy on political activities in accordance with DoD Directive 1344.10.18
“Soldiers are expected to carry out their obligations as citizens.
However, while on active duty, Soldiers are prohibited in certain cases
from engaging in certain political activities.”19
The plain text of the regulation and its appendix20
provide helpful guidelines and examples of both permissible and
prohibited political activities.
MEO and SHARP Program
The Military Equal Opportunity (MEO) policy and program saw revisions as
well.21 For instance, sexual harassment no longer falls under the MEO program. In addition, the complaint processing system for MEO and Harassment (hazing, bullying, or discriminatory harassment) now seeks to be clearer and faster. As an example, there are now three types of complaints: anonymous, informal, and formal. The regulation further provides that “when practical, an informal complaint should be resolved within [sixty] calendar days”;22 whereas the old regulation exempted informal complaints from a timed suspense. Finally, the Sexual Harassment/Assault Response and Prevention (SHARP) program now incorporates DoD policy on the Sexual Assault Response Program—including DoD Sexual Assault Advocate Certification Program requirements, Sexual Assault Incident Response Oversight Report requirements, and Commander’s Critical Information Requirements.23
Retaliation
The new AR 600-20 incorporates Army Directive 2014-20, Prohibition of Retaliation Against Soldiers for Reporting a Criminal
Offense. The regulation continues to make violations consisting of reprisal
and maltreatment punitive;24 however, retaliation consisting of ostracism is not punitive. Army Directive 2014-20 defined ostracism as the exclusion from social acceptance, privilege, or friendship of a victim or other member of the Armed Forces because they reported—or individuals believed they reported—a criminal offense with the intent to discourage reporting or the administration of justice.25 Although ostracism is no longer punitive under AR 600-20, commanders are still charged with preventing ostracism,26
and they must still report ostracism to the SARB as a form of
retaliation.
Notification/Updates to Victims of Sexual Assault
The requirement for battalion commanders to update a victim within
fourteen days of reporting and to ensure updates every month and within
forty-five days of disposition has changed. The language now specifies
that the Senior Commander (SC) will ensure that the victim’s immediate
commander provides monthly updates within seventy-two hours of the SARB.
This is a non-delegable duty.27 Additionally, the SC—or someone under the SC’s command—will inform the victim of all case dispositions, including those disposed of by non-judicial punishment, within two business days of the final disposition decision.
Sexual Contact Offense Withholding Authority
Under the previous AR 600-20, paragraph 8-5(m)(5),28 all sexual contact offenses were withheld to the battalion command level. This requirement no longer exists under the new AR 600-20. However, the reader should note that the withholding of penetrative sexual assaults to the O-6 /Special Court-Martial Convening Authority level is still in effect.
Conclusion
Informed by Churchill’s quote, because of the plethora of changes, one may automatically deem this regulation improved. However, most of the sixty-six substantive changes are not creations of new policy; they are merely incorporations of various standing policies into a more convenient one-stop shop for commanders to reference. Although there is not much new policy with the update of AR 600-20, it is imperative that commanders and judge advocates understand the subtle and nuanced changes that did occur and, more importantly, know where to reference these requirements in the field. TAL
MAJ Wood is a student in the 69th Graduate Course at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
MAJ Mikkelsen is a professor in the Criminal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. Winston Churchill said this in 1924. Karl-Georg Schon, Wit & Wisdom, Int’l Churchill Soc’y (Sept. 27, 2020), https://winstonchurchill.org/ publications/finest-hour/finest-hour-100/wit-wisdom-10/.
2. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy
(24 July 2020) [hereinafter AR 600-20].
3. Id. para. 4-6b(1).
4. Id.
5. Id. para. 4-7e.
6. Id. para. 4-12h.
7. Id.
8. Id.
9. Id.
10. Id. para. 4-19.
11. Id. para. 4-19a(5).
12. Id.
13. Id. para. 4-22c(2).
14. Id.
15. Id. para. 4-24.
16. Id.
17. Id. para. 5-6.
18. Id. para. 5-15.
19. Id.
20. Id. app. B.
21. Id. ch. 6.
22. Id. para. 6-6b(2)(a).
23. Id. ch. 7.
24. Id. para. 5-13c(1).
25. U.S. Dep’t of Army, Dir. 2014-20, Prohibition of Retaliation Against
Soldiers for Reporting a Criminal Offense (19 June 2014).
26. AR 600-20, supra note 2, para. 7-11n(b)(11).
27. Id. para. 7-5t(11).
28. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy (6 Nov. 2014).