Prof. MICHAEL NOONE: I think that if women were allowed into combat arms, they'd have to prove that they're as macho as the next guy.

Prof. M.C. DEVILBISS: When you think of the term "warrior," probably the first thing that comes to your mind is not a woman and certainly not a woman with children.

LeROY FOREMAN: The Uniform Code of Military Justice is a statute, or a body of statues enacted by Congress to create a military justice system for all members of the armed forces.

ADM. JOHN SHANAHAN (USN, Ret.): I'm Vice Admiral Jack Shanahan, director of the Center for Defense Information.

Before October 1996, Aberdeen Proving Ground, in Maryland, was best known as a major Army training and testing base. That all ended with allegations of and subsequent conviction under the Uniform Code of Military Justice, the UCMJ, for rape, assault and other criminal actions by a small group of Army drill instructors. Meanwhile, the other services attracted national attention for what some saw as unnecessarily puritanical and unevenly applied prosecutions under the UCMJ.

Today, "AMERICA'S DEFENSE MONITOR" looks at the military justice system and how it is affected by the influx of women into the US military.

NARRATOR: From Dr. Mary Walker, the only woman to receive the Medal of Honor to "G.I. Jane," women in the military is a subject that the male-dominated political and military elite has kept at arm's length by relying on ill-defined cultural taboos and political authority to bar full gender integration.

The 1970s saw the end of the all-male draft, the start of the All-Volunteer Force, the opening of the military academies to women, and three court decisions that together began to strip away these barriers.

But gender integration with all its social and legal ramifications remains a rocky road. In the late 1990s, the US military is still buffeted by what might be called emotional terrorism stemming from uncertainty about conduct allowed or proscribed between women and men in uniform. One of the causes for this uncertainty, to judge from the popular press, is the uneven application of the military's Uniform Code of Military Justice, a legal system that parallels the civilian legal structure and helps create the distinctive cultures of each of the uniformed services.

Mr. FOREMAN: The Uniform Code of Military Justice as we have it now was enacted in May of 1950 and became effective in May of 1951.

NARRATOR: LeRoy Foreman, a former Army Staff Judge Advocate, is a Commissioner -- a legal advisor and assistant -- on the United States Court of Appeals for the Armed Forces. He notes that although the basic Code as it now exists became law only in 1950, the UCMJ has a venerable tradition.

Mr. FOREMAN: When the Revolutionary War began, we adopted the British Articles of War. And in June of 1775, the Second Continental Congress adopted the Articles of War for the Continental Army, and then revised them in 1776 and then a number of times thereafter.

NARRATOR: Probably most Americans who came of age after Vietnam and never served in the armed forces are unfamiliar with the UCMJ. Fewer still know why this separate legal system exists at all.

Michael Noone, a former Air Force Staff Judge Advocate, is a professor of law at Catholic University.

Prof. NOONE: The fact that military forces have available to them weapons of mass destruction, or even in the 18th Century, guns, and were capable of overthrowing the government or doing grave damage to the civilian structure meant that they had to be regulated in ways that it would not be appropriate to regulate civilians.

NARRATOR: Some rights that civilians have, such as the right to indictment by a grand jury, do not apply to the military. Conversely, Congress has decreed some acts to be criminal offenses when done by a military person even though the same actions are not crimes in the civilian world.

Prof. NOONE: It's a crime in the military that you can be sent to jail for for lying on your job application. That's called fraudulent enlistment. It's a crime to leave your job without permission. That's absence without leave, or desertion. And it's a crime to make false statements to your superiors or to be disrespectful to them -- all interferences with first amendment rights that all civilian citizens in the United States have.

NARRATOR: Many offenses in the UCMJ exist for traditional reasons of military discipline. But with more and more women entering the forces, the same strains and ambiguities created in civilian society and law following the influx of women into work environments also are affecting the military and its justice system.

The very nature of military life, the demographics of the All-Volunteer Force, the continuing lack of clear, uniform guidelines on what is and is not permissable conduct, and the tradition -- some would say myth -- of the male warrior culture, all these create special conditions for successful gender integration in the military.

TOM RICKS: I have a hard time explaining this to people in Washington sometimes, that military life can be extraordinarily intimate, both emotionally and physically.

NARRATOR: Tom Ricks is an award-winning journalist and author of "Making the Corps," a book tracing the transformation of a group of ordinary American men from civilians to Marines.

MR. RICKS: You cannot judge the military by analogy to a "yuppie" office. The military can be a 24-hour-a-day, seven-day-a-week job in very strenuous conditions. When I followed one Marine platoon through boot camp for my book, they would occasionally have them simply stand in formation, strip and change somewhere out in the woods or on a drill field. You cannot do that with a gender-integrated unit.

NARRATOR: But the intimacies of military life go far beyond what Tom Ricks describes. As Americans became all too aware in 1996 at Aberdeen Proving Ground, putting women and men together in enforced proximity, under unfamiliar, stressful conditions can lead to unwanted and even criminal behavior detrimental to military missions.

Susan Barnes, a practicing attorney, is president of Women Active in our Nation's Defense, their Advocates and Supporters, a nonprofit organization started in the aftermath of the 1991 Tailhook scandal.

SUSAN BARNES: In the military, for reasons of discipline, for reasons of what is necessary to get people to bond together and go out and fight together, you need to be able to make sure that there are no interpersonal relationships that interfere with that.

NARRATOR: "Discipline," as Susan Barnes uses the term, incorporates far more than the usual restraints that civilians understand or encounter in general society.

MS. BARNES: While "good order and discipline" sounds probably to civilians like a little catch phrase, in fact, most military people I know will say to you that good order and discipline for the unit morale is probably one of the most important values that we must enforce in the military.

NARRATOR: Professor Noone links good order and discipline to another key military concept: unit cohesion.

Prof. NOONE: "Conduct prejudicial to good order and discipline" was intended to search out behavior which, in the opinion of a commander, would lead to a deterioration in morale or to what we call nowadays unit cohesion. It can amount to all sorts of things. In the Vietnam War, for example, young officers were caught smoking marijuana with their enlisted troops. Those young officers would be charged under Article 134 for conduct prejudicial to good order and discipline.

NARRATOR: Article 134 of the UCMJ also explains "conduct unbecoming an officer" and "service-discrediting conduct," both of which have no civilian parallel.

Judge ROBINSON EVERETT: A person who wears the uniform carries with him the reputation of the service and, if he or she does something wrong, then that discredits the entire military establishment.

NARRATOR: Robinson Everett, professor of law at Duke University, is a former chief judge of the Court of Appeals for the Armed Forces.

Judge EVERETT: The provision as to good order and discipline is, by the same token, designed to prevent conduct which in some way is disruptive of military discipline. Then there's a third clause referring to offenses, not capital, which basically incorporates the entire federal penal code applicable to civilians.

NARRATOR: Good order and discipline doesn't just happen. But when lives are at risk, military men and women must function together as a seamless whole. This happens only if bonds of absolute trust exist before a battle, trust that everyone knows the mission, trust that each will do his or her job, trust that risks and rewards will be allocated fairly and equitably.

NARRATOR: As the percentage of women in the force has grown -- now 13 percent overall -- so have instances of fraternization, adultery, sexual harassment, and discrimination, all of which fall under the purview of the Uniform Code of Military Justice.

Fraternization is an old concept with special meaning for the military.

Judge EVERETT: Fraternization basically refers to social contact between persons who are of different rank. The military makes a great deal of it. There's a custom against certain types of fraternization because of the idea that if you have a superior officer, let's say, an enlisted man who are very close on a social basis, then this may affect the performance of duty.

NARRATOR: The increased reliance on women volunteers over the last twenty years has brought a marked change to this very old concept, a change whose impact the services underestimated.

Mr. FOREMAN: With the drastic increase in the number of women in the armed forces, fraternization obviously started taking on a little bit different turn, because you got into romantic relationships and sexual relationships.

NARRATOR: Dr. M.C. Devilbiss, a former servicewoman herself, is an author and professor of sociology at Hagerstown Junior College, north of Washington, D.C.

Prof. DEVILBISS: The military being a predominately male-dominated and male-defined institution, where you have women coming in, you have questions that surround that. By definition, the women bring these questions.

NARRATOR: Yet the military has, in one sense, been its own worst enemy. Each service has developed its own regulations on gender relations, a fact that complicates attempts to deal with fraternization and related UCMJ violations.

MS. BARNES: In the area of fraternization, the Navy, for example, encourages administrative discipline, encourages counseling. The Air Force, on the other hand, in an effort to resolve a problem they had -- where the courts were just telling them that their old rule was terrible and they needed to do something else -- the Air Force enacts this labyrinth of specific regulations to deal with fraternization. And they then manage to enforce those regulations to the letter.

NARRATOR: Other ambiguities are introduced when customary, generally accepted taboos are either not enforced or not formalized as regulations. The fundamental problems of ill-defined standards and differing customs are magnified if cases become media events.

Michael Noone cites the case of Lt. Kelly Flinn, the B-52 pilot who had an affair with the civilian husband of an enlisted woman. He thinks the Air Force failed to emphasize the real significant charges in this case.

Prof. NOONE: Media critics, they want to portray this in an exciting way, and I think it's become clear after the fact that adultery in all of these cases is the least important issue. It's a question of trust and a question of obedience.

NARRATOR: Outside observers might wonder why there is not a single set of rules for all the services. After all, the United States has but one commander-in-chief and one Congress who together set the rules for the military.

Mr. FOREMAN: When you get into what a reasonable Air Force officer knows, or what a reasonable Navy officer knows, or what a reasonable Marine Corps officer knows, that something is prohibited, then you're really looking at the custom in that service. And they're different because their missions are different, the way they deploy and the way they live are different.

NARRATOR: There is a solution, but one which will probably be long in coming, if ever.

MS. BARNES: The problem is that we need what we call a "purple regulation." That is, not withstanding the fact that services generally hate purple regulations -- which means a regulation promulgated at the DoD level that's applicable to all the services in the same way -- that makes sense, that reflects the reality of human relationships.

NARRATOR: Adultery involving military personnel, like fraternization, has recently attracted wide media attention, even though it, again like fraternization, has long been an offense under the UCMJ.

Mr. FOREMAN: Most military installations are like small communities, like small towns, which means everyone knows what everybody else is doing. And so, I think one of the underlying premises is that if there is adultery going on, it has a disruptive effect.

NARRATOR: Professor Noone notes that the Kelly Flinn case had just such a disruptive effect.

Prof. NOONE: It became known in the enlisted community where Lt. Flinn's boyfriend, married boyfriend lived that an officer, Lt. Flinn, was driving into the community to pick up her boyfriend. All the other enlisted families knew about this. That created a problem that wouldn't have arisen if, for example, the boyfriend and his enlisted wife had lived in a private apartment development off-base.

NARRATOR: Some people might regard morale, unit cohesion, and good order and discipline as mere excuses used by the military to meddle in affairs which largely would be ignored in a civilian context. But these concepts go to the heart of what is expected of those serving in the military.

Judge EVERETT: The military being a unique society where people are thrust together in a way that they're not put together in civilian society, the military believes that there are special restrictions on conduct that are necessary. Conduct -- Consensual conduct that might not be punishable in the civilian society might be very harmful to military morale. You've got people who have to be ready to take dangerous assignments on short notice and it's very important that they be cohesive, that they think as a unit.

NARRATOR: Today, how the military resolves complaints about fraternization, harassment and discrimination are carefully scrutinized both within and outside the military, particularly in terms of double standards, which critics say weaken unit morale and cohesion.

MR. RICKS: There's actually been a lot of grumbling in the Army that the women involved in a lot of these sex scandals have not been charged. When you ask the Army why, the Army says, "Because it was an unequal relationship, there's an element of coercion there." And to which the Army guys I'm hearing from respond, "Sure, it's unequal, sure there's coercion, but the woman still knew that she was in violation of fraternization rules when she engaged in consensual sex."

NARRATOR: But the concern over double standards is not one way. If women can resign in lieu of a court martial, but for the same offenses, men cannot, that's unequal treatment.

MS. BARNES: It's deeply resented by the men in the force when it happens to have the Air Force make that deal for Kelly Flinn and not change their policy for the young men who find themselves in that situation. It's bad policy. It's counterproductive to good morale, readiness. It needs not to happen. And it's unfortunate that our civilian leadership, particularly, has not been able to see that in their effort to even the playing field, if you will, for the women, they've tipped it the other way.

NARRATOR: Questions of double standards really become contentious when the public perceives that rank influences how cases are treated and punishments given.

Prof. NOONE: It's become routine now for each of the services to force officers to retire not at the highest grade which they've held, but at the highest grade in which, in the opinion of the service secretary, they've served honorably. This is used routinely in sexual harassment allegations. The officer has no opportunity to confront those charges in open court. The officer is simply told to retire at the lowest rate.

NARRATOR: While recent highly publicized cases involving junior officers included the possibility of trial by courts martial, two cases involving very senior officers did not. These cases concerned past behavior by Major General John Longhouser, commanding general at Aberdeen Proving Ground in 1996 to '97, and General Joseph Ralston, vice chairman of the Joint Chiefs of Staff and at one point a leading candidate to become the new chairman.

Nevertheless, since the events in question had occurred years before and had not involved anyone in the chain of command of the two generals, Michael Noone believes these cases were handled appropriately.

Prof. NOONE: The secretary of defense told the officers I have lost confidence in you as a potential leader. In one case, the Army commanding general lost his command, and in the other case, the Air Force general who'd been nominated for the highest job in the Department of Defense was compelled to withdraw his nomination. And I don't think there's any doubt about the compulsion; he didn't do that voluntarily.

NARRATOR: From Tailhook to Kelly Flinn, from assaults at the service academies to the Aberdeen scandal, all the services have come to the painful realization that something is very wrong with their efforts at gender integration.

Prof. DEVILBISS: I think that the military, not unlike other institutions in the society, has a very difficult time dealing with sexuality of any kind. It either obsesses on it or represses it.

NARRATOR: Numerous regulations have been written, surveys have been conducted, reports have been produced -- including three in late 1997 by RAND, the Army inspector-general, and a separate one instigated by the secretary of the Army. What all show is a significant gap between directives and their application in operating units. Why?

Judge Everett says it's not bad faith at the top.

Judge EVERETT: The military is making, to my belief, a sincere effort to deal with the problem, but it's a very difficult problem. And I'm not sure that the various commissions that have studied it will be able to come up with a solution or the Congress will be able to come up with a solution. It's a very difficult problem when you have a lot of young people of different sexes thrown together under conditions where they may deploy for long periods of time together.

NARRATOR: Susan Barnes points to a seemingly simple but significant finding in these studies that constitutes a basic barrier to achieving greater gender integration.

MS. BARNES: The studies pretty much show that resistance to women within the military ranks is significantly greater in the military than it is in civilian society. And indeed, if we want to talk about a military culture, that may be a place where we can talk about the difference, say there's a different culture. And that culture, particularly among the older officers and the older NCOs -- that is, noncommissioned officers -- is profound in some places in the services.

NARRATOR: Eighty percent of women interviewed said they had suffered some form of sexual discrimination or harassment during their military careers. One reason may be insufficient monitoring and involvement by senior officers and civilians in ensuring regulations are implemented.

MR. RICKS: I think the military got a little bit cocky -- 'Hey, we solved race, we solved drugs.' And they really weren't paying that close attention to what was going on at the very small unit level in sexual harassment. They thought that the chain of command would catch it. And I think they're still really startled by Aberdeen in the Army, that somehow they didn't pick up the signals, that commanders were not going out and taking the temperature of the units closely enough to know what was going on in the units they commanded.

NARRATOR: Professor Devilbiss says the exclusion of women from many combat roles is another factor in the continuation of gender-related abuses.

Prof. DEVILBISS: If you have a condition under which it is okay, for whatever reason, to discriminate against someone -- for women in the military, this means no central roles, no combat duty -- then you also have at least organizational approval to carry out that discrimination in various forms, and we've seen various forms that it takes. We've seen it in Tailhook. We've seen it in the Aberdeen situation.

NARRATOR: In looking at what the UCMJ classifies as offenses, one must always keep in mind what makes a military force effective.

Judge EVERETT: Absolute trust. Integrity. Knowing that if you're a commander, that if you give the order that it will be obeyed. Knowing that if you're the subordinate, that the commander who is giving you the order is giving it in good faith, is a person of integrity, is not playing favorites.

NARRATOR: While changing military cultures wrestle with the need for good order and discipline, unit cohesion, and military effectiveness, there is a deeper reality which must be acknowledged and surmounted.

Prof. DEVILBISS: Gender is what sociologists call a "master status." That means that no matter what else it is that you are or irrespective of your abilities, you are judged by that master status. The military makes a particular point of this by saying that in the military, gender matters, okay, gender counts, gender is a master status.

NARRATOR: For Tom Ricks, gender's "master status" is associated with the equally powerful concept of "military culture."

MR. RICKS: I think culture is the single biggest issue facing the US military today. It is the umbrella under which all these other issues fit. Gender, the politicization of the military, the changing nature of the US military profession in the post-Cold War era. Culture is a very difficult issue and it strikes me that a lot of civilians aren't even aware of it, don't even know how to talk about military culture. But even in the military, it's what we talk about when we're really talking about other things. I think it's one reason that, for example, sex becomes such an issue.

NARRATOR: Of course, external differences such as race, ethnicity and gender will always be visible. But as in the civilian realm, the military must look beyond such differences and focus on each individual's ability to fully contribute to accomplishing the mission, a focus that Tom Ricks summarizes in two words.

MR. RICKS: Leadership and standards. What does leadership do? Leadership enforces standards.

NARRATOR: Military effectiveness -- which depends on individuals cohering under the stress of battle -- rests in part on how the institution governs itself and enforces discipline in its ranks. This is the real issue.

MS. BARNES: If you keep the goal of ready force, of good order and discipline, which is a part of building a ready force and keeping the morale high, and so forth, a lot of these other issues that are preoccupying us, especially in the media in this information age, will sort of fall into place and, if you will, the issues will go away.

ADM. SHANAHAN: Good order and discipline, unit morale, and unit cohesion. These military virtues exist when commanders exercise strong leadership and root out all vestiges of discrimination. This also requires that each individual assume responsibility for his or her actions, and that the military establishment have one set of standards that is fair and equitably enforced under the UCMJ or by non-judicial means. Fair and equitable treatment, after all, is a fundamental tenet of American life in or outside the military.

For "AMERICA'S DEFENSE MONITOR," I am Jack Shanahan.