Does UCMJ Article 88 apply when Commissioned Officers are speaking about individual members of Congress?

2017-05-31T02:22:47-04:00

“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

Response by MAJ Bryan Zeski made May 31 at 2017 2:23 AM

2017-05-31T02:23:24-04:00

Maybe we should look at being less hypocritical when calling out for Article 88s around here.

Response by MAJ Bryan Zeski made May 31 at 2017 2:40 AM

2017-05-31T02:40:55-04:00

Well damn, looks like it applies to retired folks as well.... interesting.

Response by LTC Private RallyPoint Member made May 31 at 2017 3:26 AM

2017-05-31T03:26:15-04:00

Relax. Only one retired service member has ever been court martialed for political speech, and it was over 100 years ago, and he was acquitted. And the Manual for Courts Martial and Army policy narrow the scope of Article 88 significantly. Even for active duty, the comments would have to be personally contemptuous versus contemptuous of their job performance.

https://www.lawfareblog.com/law-retired-military-officers-and-political-endorsements-primer

The Law of Retired Military Officers and Political Endorsements: A Primer

Among the many novel features of the 2016 presidential election campaign is the increasingly visible participation of former military officers in the political process. Below is a brief primer on the legal status of retired service members, and the statutes and rules which govern their participation in politics.

Response by 1stSgt Eugene Harless made May 31 at 2017 6:40 AM

2017-05-31T06:40:03-04:00

Response by SPC Erich Guenther made May 31 at 2017 8:21 AM

2017-05-31T08:21:19-04:00

I think the intent of that article was Civilian Chain of Command.....last I checked Congress only had an oversight or approval role and was not directly in the Chain of Command. Further..on the Officer side at least...doesnt Congress have a club of sorts in that they can refuse to approve a Senior flag officers promotion?

Response by SGT Cort Landry made May 31 at 2017 8:33 AM

2017-05-31T08:33:38-04:00

Considering what I read on Rally Point and Facebook by some Commissioned Officers on Active Duty towards the President and Vice President, seems the military would have a huge task in trying to Court Martial all of them. Even though it would be warranted. You may not like the person that holds that position but respect the Office. Hell, I hated some of my Commissioned Officers with a passion, but never once voiced my opinion because I knew when I took my oath to join the Army I did in essence give up my right to voice it. i think some forget what they are doing and some forget the oath they took, when they should just be keeping their emotions in check.

Response by SGM Steve Wettstein made May 31 at 2017 9:05 AM

2017-05-31T09:05:21-04:00

MAJ Bryan Zeski Sir that is a great question. In 25 years I never heard of it being used that way. But I guess if your unit didn't like you and you had a big mouth, per the UCMJ, they could get you.

Response by Maj Kevin "Mac" McLaughlin made May 31 at 2017 10:58 AM

2017-05-31T10:58:01-04:00

I don't really get too caught up into interpreting this Article when having a political discussion, nor do I accuse people of breaking it. When one uses insulting remarks against anyone (political or not) it demonstrates their inability to to respectfully debate and I tend to think less of them. Criticizing policy and actions is one thing, calling someone something disrespectful is entirely another. We've all done it (including me). But would you do it in a public forum in an official capacity? That is where I believe one is crossing the line. Lately the name calling and disparaging remarks have gone beyond ridiculous (both from the President and those bashing him).

Response by SPC Private RallyPoint Member made May 31 at 2017 5:42 PM

2017-05-31T17:42:39-04:00

Taxation is theft!

Response by SPC Private RallyPoint Member made May 31 at 2017 5:43 PM

2017-05-31T17:43:11-04:00

Taxation is theft!

Response by COL Charles Williams made Jun 3 at 2017 12:58 AM

2017-06-03T00:58:01-04:00

Yes MAJ Bryan Zeski
“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

Response by Lt Col Jim Coe made Jun 3 at 2017 11:18 AM

2017-06-03T11:18:12-04:00

The key phrase is "contemptuous words against". This is broad enough to drive an M-1 tank through in my opinion. Meaning it will be very hard to successfully prosecute anybody under this Article. If the officer doesn't put it in writing or "on tape", it's probably almost impossible. Simply saying a politician hasn't always told the truth or followed up on their campaign promises or objecting to their votes on specific bills isn't what this article is about in my opinion--that's probably protected speech under the First Amendment. If the officer has repeatedly spoken contemptuous in the presence of other officers or enlisted persons, then a more appropriate course would be to talk with his or her Commander.

Response by 2LT Private RallyPoint Member made Jun 4 at 2017 6:10 PM

2017-06-04T18:10:37-04:00

From a green cadet, does this apply if we speak well of the politician? At what point does a discussion among fellow SM's turn into violating the laws regarding political speech in uniform?

Response by SSG Private RallyPoint Member made Jun 4 at 2017 6:16 PM

2017-06-04T18:16:48-04:00

As a NCO I think this is more about having tact and applying the Army Values towards your conduct when involving yourself in political matters. I don't need a regulation or policy directed at me (as a NCO) to know right from wrong.

I know of a few Commissioned Officers that openly display hashtags of #NeverTrump on their social media and professional websites and I find that irresponsible, disrespectful, unprofessional and absolutely unbecoming of any officer.

I've had objections to decisions and policies made by leadership, congress and presidents but that's my right to have an opinion but I've never used my opinions to openly defy any leadership especially the POTUS/CDR in Chief. Once a decision is made, the discussion is over.

Response by PFC Cedric Powell made Jun 4 at 2017 6:23 PM

2017-06-04T18:23:13-04:00

If that was the case, we would have all been brought up on that charge.

Response by 1SG Private RallyPoint Member made Jun 6 at 2017 1:30 PM

2017-06-06T13:30:53-04:00

Yes, it applies.
Thank you for starting a thread on a military-themed site that is sure to instigate self-inflicted damage.
It serves as a reminder that those of us on here that seek to comment keep their opinions on issues and not on the individual civilian leader who espouses it.

Response by SSG Edward Tilton made Jun 6 at 2017 1:34 PM

2017-06-06T13:34:31-04:00

ABSOLUTELY, ask MacArthur

Response by SSG Edward Tilton made Jun 20 at 2017 6:39 PM

2017-06-20T18:39:13-04:00

Why the picture of Bergdahl ? Didn't Flynn's big mouth get him fired

Response by LT Terry Lober made Oct 20 at 2017 7:56 PM

2017-10-20T19:56:05-04:00

Yes.

Response by 1SG David Akerson made Nov 28 at 2017 5:45 PM

2017-11-28T17:45:41-05:00

What, no freedom of speech in military who served and dies to protect that Right for ALL Americans?

Response by LTJG Private RallyPoint Member made Nov 29 at 2017 9:22 AM

2017-11-29T09:22:22-05:00

According to the Article yes if a Comissioned officer hold contemptuous words against anyone listed in the article, then they have violated UCMJ Art 88.

Response by SCPO Bill Ashcraft made Aug 17 at 2018 7:16 PM

2018-08-17T19:16:16-04:00

So Vice Admiral McRaven essentially challenges President Trump to revoke his security clearance. Clearly he is questioning the president's motives and judgment to issue these orders. Besides article 88, the Admiral swore to uphold the Constitution to and follow the orders of the President of the United States. How can he be trusted to do this now?

Response by SGM Bill Frazer made Aug 17 at 2018 11:07 PM

2018-08-17T23:07:58-04:00

You answered your own question with the reg- they can be punished.

Response by Capt Private RallyPoint Member made Dec 18 at 2019 10:07 PM

2019-12-18T22:07:46-05:00

What if the person is a former president or elected official? Does it still apply?

Response by COL William Oseles made Mar 19 at 2020 6:20 PM

2020-03-19T18:20:46-04:00

It can, the Military does not have Free Speech

Response by PO3 Scot Fahey made Mar 20 at 2020 12:04 AM

2020-03-20T00:04:28-04:00

Congress members (US House or US Senate) are NOT in the Chain of Command

Response by William Barry made Mar 20 at 2020 5:58 AM

2020-03-20T05:58:42-04:00

I'm no expert on the UCMJ or a constitutional law scholar, but I do know the oath of enlistment talks about defending the constitution from all enemies. If you believe something goes against the constitution, are you not required to speak out? The laws and rules sometimes contradict themselves in reality. In reality if the President is behaving unconstitutionally, arent you a MANDATED REPORTER, so to speak. The Constitution has been our legal code for many years and goes back to the Magna Charta of King John at Runnymede in 1195 for its roots. The President is only a temporary officeholder.

For example, in another instance, the 2d amendment talks about a "well-regulated militia" and that "the right to keep and bear arms shall not be infringed". In normal life, if something is regulated it has laws regarding its use, sales, cleaning, etc. It is my understanding that if the right to keep and bear arms "shall not be infringed" then this basically means no laws like I could give a gun to a 5-year-old. So in my view, this is a contradictory statement.

I work for DMH and as such, I am a MANDATED REPORTER if I believe a patient's rights are violated. I had a nurse going down the hallway at 730 am screaming "Meds" and "Time to get up" into each patient's room. The accepted time on my unit is between 8A and 9A. At 858 AM she was kicking the wooden foundation of a patient's bed telling her "you have one minute==meds and breakfast". She is lucky she was not punched in the head. I reported her to the nursing supervisor as I believe she was being inappropriate. This conduct was reminiscent of the Sunday scene in a Full Metal Jacket where they bang the garbage cans and pick 2 service members to wake them up and have them clean the head so the Virgin Mary can use it. This may be fine in boot camp but is not appropriate in a non-military health care setting.

MY point here is I believe with a good lawyer that really understands the laws, there is no way any service member should be prosecuted for this. And more to the point, not saying something could be held against you.

Response by CW3 Private RallyPoint Member made Jun 28 at 2020 8:53 PM

2020-06-28T20:53:27-04:00

I certainly wouldn't want to test out whether or not Article 88 applies. If I'm on duty and in uniform I'm not saying anything about anyone.

Response by Maj Roberto Benitez made Aug 30 at 2021 2:01 AM

2021-08-30T02:01:54-04:00

I'd venture to say yes to Article 88 if one is an active duty. Also, the catch all Article 134 could be used. Perhaps even more germane would be Article 133, Conduct Unbecoming.

However, if one is retired, I don't believe any of those Articles could be applied except if one were to advocate for the overthrow of the government, essentially, an act of sedition. It's also covered under Article 94 for active duty officers.

Response by Sgt Dale Briggs made Apr 1 at 2022 8:06 PM

2022-04-01T20:06:10-04:00

If your in the military UCMJ isn’t civilian law, the right to free speech is stifled a bit. But I get it, riding out 2 1/2 more years of Biden just might destroy our middle class as we’re being enveloped by progressive leftists. I’m independent but at this point I’d never ever turn left, like that or not.