Article 88: Contempt Toward Officials Under the UCMJ

4 min read

Only a commissioned officer can violate Article 88, and only by using contemptuous words against one of the officials or legislatures the statute names. Criticism of policy, even sharp criticism, is not the offense. Contempt is. The maximum punishment is dismissal, total forfeitures, and one year of confinement.

Who is protected

10 U.S.C. § 888 lists the targets: “the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present.”

The Manual for Courts-Martial narrows the list further (MCM 2024, Part IV, ¶ 14.c):

  • The official must hold one of the named offices at the time of the offense.
  • “Neither ‘Congress’ nor ‘legislature’ includes its members individually.” Words against a single senator or state legislator are not Article 88.
  • “‘Governor’ does not include ‘lieutenant governor.'”
  • For a governor or legislature, the officer must be present in that state, commonwealth, or possession at the time (¶ 14.b(5)).
  • It does not matter whether the words target the official “in an official or private capacity.”

Officials not on the list, such as other cabinet secretaries, military leaders, or foreign officials, are outside Article 88 altogether.

Who can commit it

The accused must be “a commissioned officer of the United States armed forces” (¶ 14.b(1)). Title 10 defines that term to include a commissioned warrant officer: “The term ‘commissioned officer’ includes a commissioned warrant officer” (10 U.S.C. § 101(b)(2)). Under 10 U.S.C. § 571(b), appointments in the regular chief warrant officer grades (CW2 through CW5) are made by commission, while W-1 appointments are made by warrant unless the service Secretary provides by regulation for appointment by commission. A chief warrant officer can therefore be charged under Article 88; whether a W-1 can depends on how that officer was appointed.

Enlisted members are outside Article 88. Whether their speech can be charged under another article, such as Article 134, depends on the elements of that article, not on Article 88.

What the government proves

  1. The accused was a commissioned officer of the U.S. armed forces.
  2. The accused used certain words against an official or legislature named in the article.
  3. By an act of the accused, the words came to the knowledge of a person other than the accused.
  4. The words were contemptuous, either in themselves or by virtue of the circumstances in which they were used.
  5. For a governor or legislature: the accused was present in that state, commonwealth, or possession.

There is no element about “protected expression.” The Manual’s limits on what may be charged (below) do that work.

Criticism versus contempt

The Manual draws three lines (¶ 14.c):

  • Political criticism. “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.”
  • Private conversation. “Expressions of opinion made in a purely private conversation should not ordinarily be charged.”
  • Truth. “The truth or falsity of the statements is immaterial.” An accurate statement can still be contemptuous; a false one is not contempt for that reason alone.

The Manual names two aggravating circumstances: giving “broad circulation to a written publication containing contemptuous words,” and uttering such words “in the presence of military subordinates.” A post shared widely, or remarks made in front of troops, sit on the aggravating side of that description.

A recent case: the 2021 Scheller court-martial

Marine Lt. Col. Stuart Scheller posted social media videos beginning August 26, 2021, demanding accountability from senior leaders over the Afghanistan withdrawal. At a special court-martial at Camp Lejeune, North Carolina, he pleaded guilty under a plea agreement and was convicted of violating Article 88 along with Articles 89, 90, 92, and 27 specifications of Article 133, according to Military Times reporting from the October 2021 proceedings. The military judge imposed a punitive letter of reprimand and forfeiture of $5,000 of pay for one month, crediting nine days the officer had spent in the brig. The same reporting says the agreement provided for him to resign his commission, with the characterization of discharge left to the Secretary of the Navy.

In that case the same course of statements and conduct also supported charges of disrespect, disobedience, order violations, and conduct unbecoming. The neighboring offenses that protect superior commissioned officers are Article 89, disrespect toward a superior commissioned officer, and Article 90, willfully disobeying a superior commissioned officer, which apply to any accused, not only officers.

Dismissal and one year

Dismissal, forfeiture of all pay and allowances, and confinement for 1 year (¶ 14.d). Dismissal is the officer’s punitive separation; under R.C.M. 1003(b)(8)(A) it applies to commissioned officers, commissioned warrant officers, cadets, and midshipmen and may be adjudged only by a general court-martial.

Sources

  • 10 U.S.C. § 888 (Article 88): statute text at Cornell LII
  • 10 U.S.C. § 101(b)(2) (definition of commissioned officer): statute text at Cornell LII
  • 10 U.S.C. § 571(b) (warrant officer appointments): statute text at Cornell LII
  • Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 14 (Contempt toward officials); R.C.M. 1003(b)(8)
  • Military Times, “Day 1 of outspoken Marine’s trial brings guilty plea and political sideshow” (Oct. 2021): article
  • Military Times, “‘Accountability’ Marine gets light sentence; judge blasts command” (Oct. 2021): article

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.