By Rachel Smith
As military spouse attorneys, we know that the military is its own world and its judicial system is no exception.
The unfortunate reality is that domestic violence is prevalent in the military. Many military spouses (civilians and service members) are victims of domestic violence. The military protective order (MPO) is a tool that many people are not aware of, both within and outside of the military. The MPO is a restraining order. Here are the basic and most important facts to be aware of when it comes to MPOs:
An MPO has to be issued by the service member’s commanding officer. That means that news of the domestic violence was reported up the chain of command of the service member who perpetrated the domestic violence. As a result, the service member’s commanding officer meets with the service member perpetrator to discuss the MPO, which means the MPO (DD Form 2873) is acknowledged by the service member. The restrained service member acknowledges the MPO by literally signing the terms of the MPO, which could include custody and visitation terms, surrendering their fire arm, attending counseling, etc.
This also documents the domestic violence in the military system. This is important, because the Judge Advocate General unit (JAG) can become aware of it and has access to the information. As a result, the military has recourse to discipline the restrained service member if s/he violates the MPO. Recourse includes disciplinary measures, non-judicial proceedings, and even court martial. For example, the restrained service member in one of my cases violated the MPO numerous times. When I brought that to the attention of his commanding officer (CO), he took that information to JAG. JAG looked into the restrained service member/defendant and his MPO violations. As a result, the restrained service member was discharged from the military.
My former client of this case, who was the spouse and also a service member, received a compassionate reassignment due to the circumstances surrounding the DV, the civilian temporary restraining order (TRO), the final domestic violence protective order (DVPO), and the MPO. In other words, she was PCS’d to another duty station. Another benefit was that her new duty location was confidential from her husband.
Because married spouses have legal rights and the ability to access each other’s information, the MPO acted as a shield and prevented my client’s husband from being able to access her information through the military, his chain of command, and my client’s chain of command.
However, it is important to be aware of the fact that an MPO has limitations. There are jurisdictional issues and obstacles to be aware of, as well. Perhaps the most significant limitation is that an MPO is not enforceable outside of the military. Local civilian law enforcement cannot enforce an MPO. For example, at Ft. Bragg, many service members and their families live off post, which is also where DV occurs. If the MPO is violated off post, civilian law enforcement can be called, but they cannot enforce the MPO. Civilian law enforcement can document the incident and do what is within their purview. However, they cannot enforce the MPO as a valid court order equivalent to a civilian judicial temporary restraining order (TRO) or final DVPO.
That also means an MPO may only be enforceable by the command who issued the MPO. If the restrained service member moves to a different unit and therefore has new commanding officers, it is important to be aware of the possibility that the new command might not uphold the MPO from the previous CO who issued the MPO.
This is where the Family Advocacy Program (FAP) gets involved. The DV victim is assigned an advocate through the local FAP, who helps guide and advocate for the victim. Advocates can be incredibly helpful. For example, the compassionate reassignment of my former client was successful because her advocate through FAP zealously advocated for her with my former client’s command. Most importantly, her advocate was aware of this option available to my former client’s command. I make sure to maintain regular communication with clients’ advocates from FAP, because they were more knowledgeable and helpful in the military arena.
What is important to be aware of is that the military has evolved in its approach to domestic violence. As military spouse attorneys, it is probably common for many of us to be approached with legal questions by others in our service member spouse’s unit. Therefore, it’s important to be prepared and know about this tool in the military. As GI Joe always says, “Knowing is half the battle.”
Rachel Smith is an experienced attorney for over 10 years. Rachel has worked in domestic violence since law school representing domestic violence victims to obtain domestic violence restraining orders. She is a project manager for a federal grant through the Department of Justice- Office of Violence Against Women and is working with Allegheny County’s Department of Human Services- Area Agency on Aging to combat elder abuse. She is licensed in 4 jurisdictions- California, North Carolina, Pennsylvania, and the Supreme Court of the United States. She is a graduate from Santa Clara University School of Law and obtained her B.A. in Communications, International Business, and Asian Studies.