Marine Corps Prohibited Activities and Conduct Prevention and Response
In April 2021, the Marine Corps released MCO 5354.1F. The new Marine Corps Equal Opportunity (EO) policy consolidated guidance on equal opportunity, harassment (both sexual and otherwise), dissident and protest activity, bullying, hazing, and a host of other concerns. It is now the one-stop-shop policy document for filing complaints formerly under a combination Marine Corps EO, Navy EO, Department of Defense EO, and a series of Marine Administrative Messages (MARADMIN) dating back to 2013. Marines often review to it as the “PAC” – Prohibited Activities and Conduct. The order is a punitive order that can be punished under Article 92, UCMJ – Violation of a Lawful Order or Regulation.
The PAC instruction gives thorough explanations of what type of conduct is prohibited. Everything from racial slurs to indoctrination rituals to revenge pornography is prohibited by the PAC instruction. While the PAC instruction is meant to set the tone for behavior and serve as a shield so that every Marine can perform his or her duties without fear of discrimination, harassment, or retaliation, it also has the potential to be used as a sword via formal complaints that must be handled pursuant to a strict protocol. In other words, any formal complaint by any Marine of a PAC violation must be investigated and disposed by a commander, with the option for either party to appeal in most cases. Any formal complaint alleging an EO violation, sexual harassment, or PAC violation can result in UCMJ punishment and otherwise end a Marine’s career.
A Marine who feels that he or she has been the victim of a EO or PAC violation can file a complaint. The Marine can request a command-directed resolution or a formal resolution Commanders will consider the Marine’s requested resolution and determine how to handle the complaint . The first is called Commander-Directed Conflict Management (formerly “informal conflict resolution”). This process is for cases where the commander believes there has only been a minor violation. This process cannot be used for PAC complaints that allege sexual harassment. Commanders can resolve the cases with counseling and other remedial training. Cases are generally closed after 30 days unless the resolution fails or the Marine who made the complaint later requests formal processing.
Complaints may be referred to Commander-Directed Complaint Resolution (formerly “formal complaint process”). After a Marine Corps EO or PAC complaint is made through formal channels, the local commander convenes a formal investigation. It must be completed within 30 days (14 days for sexual harassment complaints). After the investigation, the Equal Opportunity Advisor (EOA) and the command’s JAG provide the commander with written opinions about the sufficiency of the complaint and the evidence. The commander then has six days to substantiate the complaint or not. A substantiated complaint can ruin a Marine’s career.
If the commander substantiates the PAC violation, the accused Marine is given notice within three days of the decision. The accused Marine then has five days to decide whether to appeal and 30 days to submit a written appeal to the commander, who will endorse and forward to the appeal to the first flag officer above the commander. The accused Marine is entitled to a supervised review of the command investigation, the findings of the commander, and all enclosures that are forwarded to the next level in the chain of command (the General Court-Martial Convening Authority, or GCMCA). This supervised review does not allow the subject to obtain physical copies, take photos of documents, or record the materials; they may only take notes. Some units will try and only let the Marine see a redacted version of the investigation. Redacting information before a supervised review is not required by the PAC instruction, and the Marine should immediately object. This is especially true if the redacted information is key to understanding the time, place, personnel involved, or the basis for the complaint.
A Marine may appeal a substantiated PAC violation on several grounds. They may challenge the commander’s application of the PAC instruction and EO policy. This can include areas where Marine Corps EO policy and DoD or Secretary of the Navy policy conflict. The Marine may challenge a commander’s decision to substantiate a complaint if the commander ignored key facts or weighed the evidence incorrectly. Finally, the Marine may challenge the commander’s determination under any other “good faith basis,” such as undue command influence on the investigation, failure to adhere to required processes, bias, etc. The burden of producing evidence supporting the appeal is on the Marine appealing, who must also prove their case by “clear and convincing evidence.”
The timelines, standards, and burden of proof involved in the Marine Corps EO or PAC violation process are strict, and they move very quickly. Commanders need not wait to complete the process to take administrative action (i.e., filing negative performance evaluations, initiating non-judicial punishment, and even administrative separation).
If you have been accused of violating MCO 5354.1F (the PAC instruction) via the formal complaint process, time is of the essence. You should have legal representation from the moment you become aware that a complaint has been made against you. You should have legal representation during any interview or questioning related to the allegation that you violated the PAC instruction. Any allegation of racist statements, discrimination, sexual harassment, or other PAC violation is a serious matter.
Having representation that will ensure that your rights are observed can mean the difference between saving and losing a career. If you need assistance, the attorneys at Korody Law have more than 25 years of combined military experience backing our legal services. We are standing by to put that experience to work for you. Call 1-833-MIL-ATTY for a free case evaluation.