A Military Protective Order (MPO) is a short-term order issued by a unit commander against an active duty servicemember under his or her command. The law permits commanders to issue MPOs under 10 US Code § 1567(a).
There is no hearing involved in the process. Generally, an MPO is supposed to be issued upon the request of a victim or victim's advocate. The reality is that MPOs are highly abused by commanders. They are often issued by a commander for the unstated purpose of protecting the commander against backlash in domestic abuse cases - though officials would never admit that. Violations of MPOs can be charged as violations of orders under Article 90, UCMJ.
Protective orders can be issued verbally or in writing. The orders are most commonly in writing on a DD Form 2873. The Department of Defense Instruction on the matter, and the DD Form 2873, clearly state that the MPO is intended to:
-Quell disturbances; and,
-Maintain good order and discipline while victims have time to pursue protection orders through civilian courts.
Protective orders are often indefinite - which can cause all sorts of problems for a service member. They will order a service member to maintain a certain distance from an alleged victim and prohibit communications either directly or through a third party. Lawyers, however, in our capacity as legal representatives can always communicate as appropriate.
A service member can violate an MPO even if the protected person violates the order by approaching them. There is ample appellate case law on that point.
The law states that the orders are command-specific. 10 USC § 1567 states:
"A military protective order issued by a military commander shall remain in effect until such time as the military commander terminates the order or issues a replacement order."
The implication is that if a service member transfers from an issuing command, the order is theoretically no longer valid. The prudent course of action, however, is to continue to comply with the protective order. DoD policy instructs the issuing command to recommend that the gaining command issue a new MPO. Nonetheless, this can be a grounds for potentially challenging alleged violations of an MPO.
Unfortunately, commanders often impose protective orders for women who don't need or want protective orders. The classic case involves a spouse pending a divorce who becomes involved with a military member. The individual dating the woman pending divorce is often slapped with a protective order prohibiting communications with her. It becomes even more complicated when the woman and military member have become pregnant. The woman, often, has no desire for a protective order prohibiting communication with the baby's father. It can be helpful for a lawyer to provide lawful communications with a victim or their legal representative to request their assistance in having the MPO lifted. All too often, we see commands issue protective orders in cases where the service members relationship is either intact or being repaired.
Lawyers can be immensely helpful in communicating with the Commander or Staff Judge Advocate to appeal the protective order. Often, the first step could involve an Article 138 Complaint. Injunctions in civilian cases are an extraordinary type of relief. Civilian courts typically require you to exhaust your military remedies before requesting injunctions.
The bottom line is that protective orders - when baseless or unwanted by the victim - can cause a serious interference with both the service member and sometimes alleged victim's life. A consultation from a lawyer is highly advisable before violating or trying to appeal an order believed to be baseless.
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