Chapter 13: Article 88, UCMJ contempt towards officials
§ 13:1
Elements
§ 13:2
Generally
§ 13:3
Practice Pointers
§ 13:4
Standard Instructions
§ 13:5
Maximum Punishment and Lesser Included Offenses
§ 13:1 – Elements
Note: If the words were against a Governor or legislature, add the following element.
§ 13:2 – Generally
Article 88 was intended to avoid the impairment of discipline and promotion of insubordination.[1] Howe is the only reported case analyzing the history and purpose of Article 88, UCMJ. The original British Article of War of 1765 provided for the court-martial of any officer or soldier who “presumed to use traitorous or disrespectful words against the ‘Sacred Person of his Majesty, or any of the Royal family’…or…behave himself with Contempt or Disrespect towards the General, or other Commander in Chief of Our Forces, or shall speak Words tending to his Hurt or Dishonour."[2] The Articles of War adopted by the Continental Congress in 1775 revised the language to punish contemptuous speech or disrespect towards general grade officers and the commanders in chief of the continental forces.
The official or legislature subject of the contemptuous speech must be occupying one of the offices or be one of the legislatures named in the article at the time of the offense. Those offices include the President, Vice President, Congress, the Secretary of Defense, the Secretary of any military department, the Secretary of the Treasury, or the governor or legislature of any state, territory, commonwealth, or possession in which the accused is on duty. The term legislature does not include members of Congress individually. The language must be personally contemptuous. Contemptuous means insulting, rude, and disdainful conduct, or otherwise disrespectfully attributing to another a quality of meanness, disreputableness, or worthlessness.[3]
Though Howe is the only reported case, Article 88 allegations tend to be resolved through administrative channels. The only Article 88 case that the authors are aware of during Operation Iraqi freedom involved an officer who edited a collection essays critical of President. The case was resolved through nonjudicial punishment. It should also be noted that Article 88 does not exclude potential prosecution of retired officers. Article 2(a)(4) creates jurisdiction over individuals receiving retirement pay.
§ 13:3 – Practice Pointers
In any case involving speech, counsel’s first instinct should be to examine first amendment issues – including whether the speech was political or religious in nature and not personally contemptuous towards individuals named in the statute. In Howe, the court rejected the view that contemptuous speech by military officers was absolutely protected by the First Amendment to the United States Constitution. The court, likewise, rejected the notion that Article 88 was void for vagueness.
Notwithstanding, in certain cases argument can be made whether the speech is, in fact, personally contemptuous, usually towards the President. During Operation Iraqi Freedom substantial numbers of reservists were activated. The authors received many phone calls involving particularly religious service members. Some of those members publicly questioned whether President Bush’s decision to use force was consistent with Catholic views on just war. Those kinds of distinctions between acts of personal conscience and actual contemptuous speech that promotes insubordination are helpful in negotiating the administrative disposition of a case rather than trial by court-martial.
§ 13:4 – Standard Instructions[DK1]
Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-12-1 – Contempt Towards Officials by Commissioned Officer
§ 13:5 – Maximum Punishments
The maximum punishment under Article 88 is dismissal, forfeiture of all pay and allowances, and confinement for 1 year.
The only lesser included offense is Article 80 attempts.
[1] United States v Howe, 17 U.S.C.M.A. 165, 174 (1967).
[2] United States v Howe, 17 U.S.C.M.A. 165 (1967).
[3] Benchbook Instruction 3-12-1.
Elements
§ 13:2
Generally
§ 13:3
Practice Pointers
§ 13:4
Standard Instructions
§ 13:5
Maximum Punishment and Lesser Included Offenses
§ 13:1 – Elements
- That the accused was a commissioned officer of the United States armed forces;
- That the accused used certain words against an official or legislature named in the article;
- That by an act of the accused these words came to the knowledge of a person other than the accused; and,
- 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.
- That the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned.
§ 13:2 – Generally
Article 88 was intended to avoid the impairment of discipline and promotion of insubordination.[1] Howe is the only reported case analyzing the history and purpose of Article 88, UCMJ. The original British Article of War of 1765 provided for the court-martial of any officer or soldier who “presumed to use traitorous or disrespectful words against the ‘Sacred Person of his Majesty, or any of the Royal family’…or…behave himself with Contempt or Disrespect towards the General, or other Commander in Chief of Our Forces, or shall speak Words tending to his Hurt or Dishonour."[2] The Articles of War adopted by the Continental Congress in 1775 revised the language to punish contemptuous speech or disrespect towards general grade officers and the commanders in chief of the continental forces.
The official or legislature subject of the contemptuous speech must be occupying one of the offices or be one of the legislatures named in the article at the time of the offense. Those offices include the President, Vice President, Congress, the Secretary of Defense, the Secretary of any military department, the Secretary of the Treasury, or the governor or legislature of any state, territory, commonwealth, or possession in which the accused is on duty. The term legislature does not include members of Congress individually. The language must be personally contemptuous. Contemptuous means insulting, rude, and disdainful conduct, or otherwise disrespectfully attributing to another a quality of meanness, disreputableness, or worthlessness.[3]
Though Howe is the only reported case, Article 88 allegations tend to be resolved through administrative channels. The only Article 88 case that the authors are aware of during Operation Iraqi freedom involved an officer who edited a collection essays critical of President. The case was resolved through nonjudicial punishment. It should also be noted that Article 88 does not exclude potential prosecution of retired officers. Article 2(a)(4) creates jurisdiction over individuals receiving retirement pay.
§ 13:3 – Practice Pointers
In any case involving speech, counsel’s first instinct should be to examine first amendment issues – including whether the speech was political or religious in nature and not personally contemptuous towards individuals named in the statute. In Howe, the court rejected the view that contemptuous speech by military officers was absolutely protected by the First Amendment to the United States Constitution. The court, likewise, rejected the notion that Article 88 was void for vagueness.
Notwithstanding, in certain cases argument can be made whether the speech is, in fact, personally contemptuous, usually towards the President. During Operation Iraqi Freedom substantial numbers of reservists were activated. The authors received many phone calls involving particularly religious service members. Some of those members publicly questioned whether President Bush’s decision to use force was consistent with Catholic views on just war. Those kinds of distinctions between acts of personal conscience and actual contemptuous speech that promotes insubordination are helpful in negotiating the administrative disposition of a case rather than trial by court-martial.
§ 13:4 – Standard Instructions[DK1]
Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-12-1 – Contempt Towards Officials by Commissioned Officer
§ 13:5 – Maximum Punishments
The maximum punishment under Article 88 is dismissal, forfeiture of all pay and allowances, and confinement for 1 year.
The only lesser included offense is Article 80 attempts.
[1] United States v Howe, 17 U.S.C.M.A. 165, 174 (1967).
[2] United States v Howe, 17 U.S.C.M.A. 165 (1967).
[3] Benchbook Instruction 3-12-1.
