According to CAAFlog, the Court of Appeals for the Armed Forces (CAAF) has declared invalid military regulations that prohibit chaplains from serving on courts martial.
Traditionally, chaplains have been excluded from serving on courts martial because of conflict of interest concerns. Chaplains, as clergy, hear the confessions of Soldiers. It is unethical and illegal to disclose the details of pastoral counselling with Soldiers to anyone. In some cases, the chaplain must use discretion about even revealing that he has had a counselling relationship with a Soldier. If chaplains are not barred from sitting on courts martial, one could possibly sit on a court martial in a case involving a counsellee. There is obviously a conflict of interest which could possibly taint the impartiality of the chaplain and the entire proceedings of the court in administering justice.
Another area of concern is the appearance of conflict of interest. Soldiers talk to chaplains because they know what is disclosed to a chaplain is confidential and because chaplains have no command authority to punish them for inappropriate conduct revealed during counselling. If chaplains become a party of courts martial, the sanctity of that confidential relationship appears to be violated. A Soldier, who believes (rightly so) that chaplains are safe resources for disclosing possibly-incriminating information, may lose that appreciation for the chaplain’s ministry if he knows that the chaplain can also mete punishment on a court martial. Even if there is not direct counselling relationship (as described in the preceeding paragraph), the legitimacy of all chaplains as ministers of the sacraments would be in question. Instead of chaplains being ministers who serve Soldiers, they will become officers of the court who administer punitive actions against Soldiers.
This is not to suggest, of course, that chaplains should not function as all officers do when upholding military standards (for example, verbally instructing a Soldier to correct his uniform when it is out of compliance with regulations). Instead, I am here drawing a distinction between chaplains in the judicious application of military standards and chaplains in the judicial enforcement of military standards. There is a vast difference; for the sake of our ministry, we cannot afford to terminate this distinction.
