Once again, the Marine Corps redrafted MCO 5354.1F, which is commonly referred to as the Prohibited Activities & Conduct order (PAC order).  MCO 5354.1F updated the Marine Corps’ policy, procedures, and responsibilities for preventing and responding to prohibited conduct.  The PAC Order governs misconduct involving sexual harassment, prohibited discrimination, harassment, hazing, bullying, dissident and protest activities, and wrongful distribution or broadcasting of intimate images. As many Marines know, these behaviors are referred to collectively as prohibited activities and conduct (PAC). The Marine Corps revised MCO 5354.1F in order to align Department of Defense (DOD) and Department of the Navy (DON) policies on Military Equal Opportunity (MEO) and Harassment Prevention and Response programs and activities.

When a PAC Complaint is made and subsequently substantiated the accused can be punished both administratively and criminally.  In fact, the PAC order was specifically written to serve as a punitive order that can be punish Marines under Article 92, UCMJ – Violation of a Lawful Order or Regulation, and provide the basis to administratively separate Marine from the Marine Corps under MCO 1900.12 (“MARCORSEPMAN”).   When a Marine is processed for administrative separation the Command typically alleges a Commission of a Serious Offense, Sexual Misconduct or a Pattern of Misconduct occurred.

The PAC Order also provides specific definitions about what conduct is prohibited.  Experience has shown that many Marines misuse this order to file complaints against their peers, NCOs, SNCOs, and officers because they hold a grudge against them.  When a complaint is filed an investigator will be tasked with investigating the claim and then writing a report.  MCO 5354.1F gives guidelines that direct the way the investigation should be conducted and then after its completion the investigation is sent to the Commanding Officer.  Afterwards, the Commanding Officer decides whether to substantiate the complaint alleging an EO violation, sexual harassment, harassment or hazing.  No matter if the Commanding Officer decides to substantiate or unsubstantiate the complaint, each party involved has the right to appeal.  When an allegation of sexual harassment, hazing or bullying is substantiated it can result in a court-martial, administrative separation and most likely prevent a Marine from continuing to serve.

With that said, a Marine that is the subject of a substantiated PAC violation should strongly consider submitting an appeal. The Marine can challenge and appeal the Commanding Officer’s decision for the following reasons:

• The Commanding Officer misapplied 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 Commanding Officer ignored key facts or weighed the evidence incorrectly; or

• Any other “good faith basis,” such as undue command influence on the investigation, failure to adhere to required processes, bias, etc.

The burden of proof however, is on the Accused and the standard of proof is by “clear and convincing evidence.”  This standard is higher than the “preponderance of the evidence” standard used at non-judicial punishments and requires specific evidence to be collected and credible arguments to be made.

Any allegation of racist statements, discrimination, sexual harassment, or other PAC violation is a serious matter. If you are notified that you are the subject of a PAC complaint you need to retain counsel immediately in order to protect your career.  Before agreeing to an interview, writing a statement, or providing any evidence to the investigator you should speak with an attorney first. Make no mistake, a violation under MCO 5354.1F (the PAC Order) can end your career and change the future of your civilian life if not handled properly.

Having representation that will ensure that your rights are protected and more importantly can mean the difference between saving and losing a career. If you need assistance, Mr. Thomas is one of the best Marine Corps defense attorneys in the country and is ready to fight for your career.  Matthew Thomas Law, PLLC is standing by to put that experience to work for you.  Call 910-939-0263 for a free case evaluation.