What is a Military Protective Order (MPO)?
A Military Protective Order (MPO) is an order given by a military commander to a subordinate identifying a protected person and prohibit contact with that person. A MPO is akin to a civilian injunction that places limits on contact and liberty. A MPO can forbid a service member from having direct contact or contact through third parties with specific persons. It can forbid a service member from going to a specific place and possessing personal firearms. A MPO is enforceable like any other military order.
What is a Military No Contact Order?
A Military No Contact Order is similar to an MPO, but is generally given when the circumstances are unclear as to whether a MPO is warranted. A No Contact Order is often a verbal order to immediately cease contact with a specific person or persons while the commander investigations and evaluates the situation. Unlike MPOs, a No Contact Order is not entered into law enforcement databases and remains local within the command. A No Contact Order is enforceable like any other military order.
Can a civilian be given a Military Protective Order or No Contact Order?
Unless the civilian is accompanying the military abroad/overseas and therefore subject to UCMJ jurisdiction, there is no authority for a military commander to issue an order to a civilian. Though every case requires detailed analysis, a civilian overseas with the military can be given a MPO or No Contact Order and that order can be enforced. Within the United States, even though a commander can’t give such orders, a military commander has alternatives to maintain separation of parties including barring a civilian from entering the installation and suspending the civilian from work (if employed by the the military).
Are Military Protective Orders and No Contact Orders Reported to Civilian Law Enforcement?
10 U.S. Code § 1567a is titled “Mandatory notification of issuance of military protective order to civilian law enforcement.” This provision was enacted as part of the 2019 National Defense Authorization Act in response to reports that civilian law enforcement were unaware of and could not enforce MPOs issued by military commanders.
The biggest impact of 10 U.S. Code § 1567a is its application by the Department of Defense – the Marine Corps, Army, Air Force, and Navy. By DoD and makeshift service regulations, all MPOs are to be entered in the National Crime Information Center (NCIC). NCIC is the expansive database run but the Federal Bureau of Investigation that can be accessed by any civilian (federal and state) or military law enforcement agency. It’s the same system where arrests, convictions, and warrants are entered. NCIC is the system that the police are accessing from their car computer during the traffic stop or that dispatch is accessing over the radio when they are calling in the license.
Generally, No Contact Orders remain within the command and are not reported to civilian law enforcement.
How do I know if I have a Military Protective Order?
Military Protective Orders can only be issued using DD Form 2873, Military Protective Order. The person being given the MPO must sign and be given a copy of the MPO.
Should I be worried if I received an Military Protective Order?
Absolutely. The MPO is normally issued based on a credible allegation of sexual assault, child abuse, sexual harassment, or domestic violence. The MPO means the person is at least under investigation and that the claim does not appear to be baseless.
How long does a Military Protective Order Last?
The DD Form 2873 on its face indicates that the MPO never expires. So it is put into NCIC and it never expires. It can be removed from NCIC by a properly completed DD Form 2873-1, Cancelation of Military Protective Order, that is provided to the military law enforcement that originally entered the MPO into NCIC.
But here is the problem – unlike civilian courts that issue injunctions that last more than days only after an adversarial hearing (think due process!) and that have entire staffs dedicated to entering and removing those injunctions from NCIC, military commanders don’t have that support nor is tracking and updating MPOs a high priority for a commander. This doesn’t even account for the frequent changes of command!
What are some of the problems with the way the military uses Military Protective Orders?
There are numerous problems with MPOs – the lack of any real due process; the extensive duration of the MPOs; the idea that military commanders are suited to resolve domestic issues in cases involving spousal or child abuse; the lack of inexperience of military commanders to determine whether or not the circumstances (and more importantly, the facts) call for the issuance of MPOs. The reality is that MPOs are being issued by military commanders without a proper evaluation of all facts and circumstances. Rather, MPOs are issued as a standard operating procedure or at the request of an alleged victim of domestic violence or sexual assault. This is a real problem, and I expect it to get worse.
Years from now I have no doubt that honorably discharged service members or retired service members who were issued a MPO years prior will find out that the MPO still lives in NCIC and prohibits the possession or purchase of a firearm. Or the MPO will come up during a background check for a job. And in most of the cases the MPO should have never been issued in the first place.
How can a member fight a Military Protective Order?
Korody Law defends service members facing sexual assault and other UCMJ crimes all over the world. The firm maintains an office in Jacksonville, FL where Mr. Korody also practices state and federal criminal defense. And, as you can tell, he very much dislikes Military Protective Orders.
In the grand scheme of things, a MPO may be small potatoes. For example, someone issued a MPO based on an allegation of sexual assault or domestic violence allegaiton should be more worried about the sexual assault allegation or domestic violence allegation. However, the MPO may be provide a vehicle to begin fighting those allegations.
A member with a MPO should not speak to law enforcement including military investigators like NCIS, CID, OSI, or CGIS.
A military member who is given a MPO related to a spouse or child needs to consider whether taking action in a civilian court – such as a divorce or custody petition – is warranted. Once a civilian court has the case, there is an argument that the military commander should defer to the courts.
If in addition to an MPO the member is given a civilian injunction, the member should fight the civilian injunction because, if after an evidentiary hearing, the court determines the civilian injunction is not warranted, there is a strong argument the military commander has abused his or her discretion in issuing or refusing to terminate the MPO.
Appropriate vehicles for challenging MPOs may include Article 138 complaints; IG complaints; and Congressional Inquiries. It is important before challening any MPO to have concrete evidence that the MPO is not warranted. This evidence may include witness affidavits, civilian court documents, or videos/cell phone evidence. Members should not just lodge a complaint without speaking with an experiened lawyer.
Worldwide Military Defense
Mr. Korody has the experience, training, and skills to ensure that your rights as a member of the military and a citizen of the United States are protected. He spent close to a decade on active duty defending and prosecuting members of the military and advising commanders on how to dispose of misconduct. Mr. Korody is one of the elite few who has been certified by the Judge Advocate General as a Specialist in Military Justice Litigation. He has handled hundreds of General and Special Courts-Martial, Article 32 Preliminary Hearings, Non-Judicial Punishment (Article 15) hearings and appeals, and administrative separation hearings and appeals.
