Are service members that are also elected officials protected if they speak out on something that would be covered by Article 88?

2021-01-08T00:23:13-05:00

I saw in an article that Rep. Adam Kinzinger called for the use of the 25th amendment to remove the president.

He’s currently still in the NG. The comment section of the article was blown up saying he’s a traitor and should be brought to court martial and kicked out.

Is he protected? Can he get in trouble?

Response by SFC Private RallyPoint Member made Jan 8 at 2021 12:36 AM

2021-01-08T00:36:34-05:00

UCMJ *generally* only applies to NG when they’re in federal status. Most states have a mirror version of UCMJ enforceable on traditional Guardsmen at any time but I have to assume there is some verbiage or command discretion to be reasonable about things like this.

Response by Sgt Bruce C. made Jan 8 at 2021 12:46 AM

2021-01-08T00:46:39-05:00

I don’t think so, because I don’t think he was in contemptuous for calling for the use of Amendment 25 as a member of congress

Response by Cpl Benjamin Long made Jan 8 at 2021 1:08 AM

2021-01-08T01:08:40-05:00

Commissioned officers are subject to ucmj... but legislators have to be impeached to get around their sovereign immunity

Response by SFC Private RallyPoint Member made Jan 8 at 2021 1:13 AM

2021-01-08T01:13:16-05:00

Generally speaking, anything that a member of Congress says during a speech or debate in Congress is protected by the U.S. Constitution from lawsuits and criminal prosecution. This immunity is covered in Article I, Section 6, and is known as the "Speech and Debate Clause". I can only assume it protects them from UCMJ as well.

Response by Capt Gregory Prickett made Jan 8 at 2021 2:00 AM

2021-01-08T02:00:46-05:00

First, members of the NG are not subject to the UCMJ unless on federal duty. Second, as a Congressman, he cannot be held to answer for any speech related to his duties in any place other than Congress. In other words, no, he cannot be charged.

Response by SrA Ronald Moore made Jan 8 at 2021 4:01 AM

2021-01-08T04:01:50-05:00

Yes, He is Protected, As Agree with My fellow Veterans who posted

Response by SPC Jesse Davis made Jan 8 at 2021 1:39 PM

2021-01-08T13:39:06-05:00

After what happened, you'd be pressed to find anyone that would prosecute that, and for good reason.

Response by SPC Dawn Appelberg (Johnson) made Jan 8 at 2021 2:36 PM

2021-01-08T14:36:25-05:00

He should actually be brought up on charges for speaking out against his acting commander in chief publicly. You do not have that right under UCMJ. I had to keep my mouth shut under Obama and Clinton!

Response by CPT Private RallyPoint Member made Jan 9 at 2021 11:41 AM

2021-01-09T11:41:46-05:00

Bottom line up front all someone has to do is keep their military and civilian lives separate and they have the freedom of speech to say whatever they want.

If someone is in uniform or actually on official duty like an active duty member posting to their FB during regular work hours or a National Guardsmen during drill weekends while on duty they could get into hot water.

That’s another reason why this country is great, it provides everyone an opportunity to have free speech.

Response by SgtMaj Mark Davis made Jan 11 at 2021 1:19 PM

2021-01-11T13:19:42-05:00

UCMJ doesn't apply to NG and Reserve members while they are in a non-paid duty status. PFC Benotz could walk up to the President and say "FU" when not in a paid duty status and the UCMJ would not apply. Not a good move career-wise but no UCMJ implications. This is why NG/Reserves cannot be NJP'd/CM for popping on a piss test. They can be admin separated but they cannot be subject to the UCMJ for illicit drug use unless they are in a paid duty status.

Response by PO1 Brian Sweeney made Jan 29 at 2021 1:12 PM

2021-01-29T13:12:00-05:00

Not right on topic but similar. Everyone should take a closer look at Lindsey Graham. Bronze Star??????? Retirement pay ??????????