Article 88 in the UCMJ - Contempt Toward Officials

Article 88 in the UCMJ - Contempt Toward Officials

UCMJ Article 88 - Contempt Toward Officials

Punitive Articles of the UCMJ

By Rod Powers

Updated December 28, 2018

When a military member is wearing the uniform and receiving a salary from the Department of Defense, that military member has essentially signed away his First Amendment rights granted by the Constitution. The exact words of the Uniform Code of Military Justice Article 88 - Contempt Toward Public Officials states: “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.”

The main reason for this regulation is to keep military members who have access to major weapons of war to ever get involved in politics. Once they are retired or resigned their commission and a civilian citizen, they may partake in such political arguments in both written or spoken word. With the advent of social media is can be a slippery slope for military members to discuss such matters and could even be subject to UCMJ violations. That is why you will find military members refrain from that activity or have incognito social media accounts.

Prior to the UCMJ creation in the 1950's, this particular rule was required by military officers even before America was officially a country. In fact, the British had originally adopted it hundreds of years before America was even discovered to keep order and discipline amongst the troops against senior leaders, whether military or civilian government organizations.

What Determines Contempt Toward Officials

(1) That the accused was a commissioned officer of the United States armed forces;

(2) That the accused used certain words against an official or legislature named in the article;

(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and

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(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used. Note: If the words were against a Governor or legislature, add the following element

(5) That the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned.

A commissioned officer of the United States Armed Forces cannot use contemptuous words against officials of any branch of the U.S. government or any State government. If a military officer does so, he/she could be punished as a court-martial may direct under the officer could face dismissal as a commissioned officer and if you do not get kicked out of the military, you will for sure never make a higher rank in the future. Also, you could be imprisoned for up to a year along with a forfeiture of all pay. 

Such a discharge from the military is equivalent to a dishonorable discharge especially if you have to spend a year in jail simply by speaking your mind to a politician.

It is best to stay impartial. Such a breach of this protocol can jeopardize the military’s standing as an unbiased, non-political entity. Because of this, sentencing for Article 88 can be used as a deterrent for others to observe since they are extremely harsh when handed down. 

Explanation

The official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense. Neither “Congress” nor “legislature” includes its members individually. “Governor” does not include “lieutenant governor.” It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article.

Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.

Maximum Punishment

Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

Article 89-Disrespect toward a superior commissioned officer