UCMJ Article 88: Contempt Toward Officials
At Bilecki Law Group, we defend commissioned officers of the United States Armed Forces against abuse and misuse of Article 88 of the UCMJ.
Facing an Article 88 charge? See how our court martial defense lawyers handle these cases. Related result: Bilecki Defends Army Captain’s Private Political Posts; Verbal Counseling Only. Past results do not guarantee a similar outcome.
What Is Article 88 of the UCMJ?
Article 88 prohibits a commissioned officer’s contemptuous words against the officials and legislatures specifically named in the statute: the President, Vice President, Congress, Secretary of Defense, a service secretary, Secretary of Homeland Security, or the governor or legislature of the State, Commonwealth, or possession where the officer is on duty or present. It does not cover every official in every branch of government. The person must hold the covered office at the time of the alleged offense.
THE OFFICIALS AND LEGISLATURES NAMED IN ARTICLE 88
Not every official in every branch of government · Must hold the covered office at the time of the alleged offense
To the average person looking at Article 88 from outside of the armed services, that definition comes across as a broad restriction on an officer’s ability to criticize his or her own government. But criticism and criminal contempt are not interchangeable. The Manual for Courts-Martial says that adverse criticism in a political discussion, even emphatic criticism, may not be charged under Article 88 if it is not personally contemptuous. It also says that opinions expressed in a purely private conversation should not ordinarily be charged. The words, their audience and their context matter.
ADVERSE CRITICISM
In a political discussion, even emphatic
May not be charged under Article 88 if it is not personally contemptuous
CRIMINAL CONTEMPT
Contemptuous words
In themselves or because of the circumstances in which they were used
Criticism ≠ contempt · The words, their audience and their context matter
The government must prove that the words were contemptuous in themselves or because of the circumstances in which they were used. Insulting or disdainful language can raise that issue, but the defense must examine the actual statement rather than accept the command’s label. The truth or falsity of a contemptuous statement is immaterial. Proving that an accusation against an official was true does not, by itself, defeat an Article 88 charge.
How to Fight and Beat Article 88 Charges Under the UCMJ
There are defenses that must be examined and, where the facts support them, delivered in an aggressive manner. We are going to make the prosecution prove the case it actually charged. Here are a few of the approaches we can take:
Constructive Criticism
If one is willing to die for their country in a far off foreign land, they likely care about the course of this nation. Passionate political discussions can sometimes come across as contemptuous, especially on the internet where body language and other nonverbal communication is absent. To say that the President should take an alternative approach to border security is not the same thing as saying the President is a fool with an eighth-grade education.
We examine whether the statement was adverse political criticism rather than personal contempt. Being out of uniform does not by itself take an officer outside Article 88, and separate rules govern political activity. The defense has to address the words and circumstances, not rely on the clothing worn when they were spoken.
Make the Prosecution Read Article 88
Thankfully, Article 88 is fairly specific regarding the titles of officials that warrant a charge of contempt under Article 88. Prosecutors don’t get to charge you under this article because you offended a member of Congress’ distant third cousin, twice removed. The Manual also makes clear that Congress and a legislature mean those institutions, not their individual members, and that a lieutenant governor is not a governor for this purpose.
NOT COVERED SIMPLY BY THE TITLE OR RELATIONSHIP
Individual members
Congress and a legislature mean those institutions
A lieutenant governor
Is not a governor for this purpose
An official’s relative
Not covered simply because of that relationship
Other misconduct rules may still matter
Either your words were contemptuous toward an official or legislature covered by Article 88 or they were not. An official’s relative is not covered simply because of that relationship. Other misconduct rules may still matter, so we examine the actual charge instead of promising immunity from every possible consequence.
Private Conversations
The Manual says that opinions expressed in a purely private conversation should not ordinarily be charged under Article 88. That is a meaningful protection. It is not the same as saying that a private message can never lead to a charge. We examine who received the words, how they were shared and whether the conversation was actually private. Broad circulation and statements in the presence of military subordinates can aggravate the offense.
WHAT WE EXAMINE
CAN AGGRAVATE THE OFFENSE
Purely private conversation: should not ordinarily be charged · Not the same as “never”
General Stanley McChrystal’s departure from command in Afghanistan in 2010 illustrates a different distinction. President Obama accepted his resignation after the controversy surrounding a published magazine article. The President’s statement addressed command standards, trust and civilian control. That command decision is not proof of an Article 88 conviction. Administrative consequences and criminal guilt must not be treated as the same thing.
ADMINISTRATIVE CONSEQUENCES
A command decision
Command standards, trust and civilian control
CRIMINAL GUILT
An Article 88 conviction
Requires proof of the charged offense
Not the same thing: a command decision is not proof of an Article 88 conviction
An experienced, aggressive military defense attorney is going to concede no easy wins to the prosecution. If you want to flip the script, you have to give them the fight they were hoping to avoid. That means investigating the complete exchange, identifying the limits of the statute and making the government prove every required element.
If you are facing these charges as an officer, reach out to us. We’ll shoot you straight as to exactly what you are facing and if you are willing to fight, so are we. Becoming a commissioned officer was likely a childhood dream of yours and one off-hand comment prosecuted by a fickle command shouldn’t be the end of it. Fight for your career, family, and the benefits you rightfully deserve.
What Must Be Proven to Find Guilt Under Article 88?
Rude, mean and insulting are words people can use loosely. The government does not get a conviction merely because an official disliked what you said. At trial, the prosecution must prove every required element beyond a reasonable doubt. We make them identify the exact words, the covered official, the audience and the circumstances. The core elements are:
- The accused was a commissioned officer of the United States armed forces.
- The accused used certain words against an official or legislature named in Article 88.
- By an act of the accused, those words came to the knowledge of someone other than the accused.
- The words were contemptuous in themselves or because of the circumstances in which they were used.
For a charge involving a governor or state legislature, the government must also establish the geographic connection required by the statute. Article 88 refers to the State, Commonwealth or possession where the officer is on duty or present.
Though Article 88 was in existence long before the internet, the information age has greatly increased the risk that a moment of anger gets parlayed into serious charges. A post can spread far beyond the audience you expected. That makes it important to preserve the complete exchange and examine what was actually said.
Bilecki Law Group will help you fight back against charges under Article 88 UCMJ: Contempt Toward Officials.
Article 88 and Contempt Toward Officials in the Modern Era
To say that the 20-year war in Afghanistan did not end as the brave men and women who fought the war had hoped is an understatement. The weeks of watching the Taliban regain power in Kabul took a toll on those who served, and the impact of this strategic loss was felt by officers and enlisted members alike. One Marine officer subsequently set the internet ablaze with his demand for accountability.
Lt. Col. Stuart Scheller took to social media on 26 August 2021 and demanded accountability from senior leaders for their perceived failures in Afghanistan. His video followed the bombing at Hamid Karzai International Airport that killed 13 U.S. service members. Anyone watching an officer challenge senior leaders in uniform could recognize that his career was in jeopardy. The criminal questions still depended on what he said and did.
Scheller continued making public posts and videos after his command directed him to stop. The Marine Corps removed him from command, preferred charges and placed him in pretrial confinement. His case became a highly public dispute over accountability and military discipline.
In October 2021, Scheller pleaded guilty to the charged offenses. They included contempt toward officials under Article 88, disrespect under Article 89, willful disobedience under Article 90, two forms of misconduct under Article 92, and conduct unbecoming under Article 133. This was not a reduction to just three lesser charges.
- 26 August 2021 · Video demanding accountability from senior leaders
- Continued public posts and videos after his command directed him to stop
- Removed from command, charges preferred, pretrial confinement
- October 2021 · Pleaded guilty
The recordings made his words and their circulation central evidence. But publicity did not eliminate the requirement to establish the charged offenses. His guilty pleas and the sentence imposed under his agreement must be distinguished from what the government would have had to prove in a contested trial.
Scheller received a letter of reprimand and forfeiture of $5,000 in pay for one month. Contemporary reporting also described more than $2.5 million raised through a foundation for his defense and support needs. Those funds did not erase the convictions or the end of his Marine Corps career. A highly unusual public case is not a promise about what will happen in yours.
We feel that our first and best piece of advice on how to beat Article 88 charges is not to take the Lt. Col. Scheller approach. Do not plead your grievances to the internet and hope that the internet will come to save you. Additional posts can give the government more evidence or create a separate dispute over an order. Preserve the existing messages and speak with counsel before trying to defend the case in public.
What’s at Stake if Found Guilty Under Article 88
Sentencing Guidelines
The maximum punishment for Article 88 includes dismissal, forfeiture of all pay and allowances, and confinement for one year. Article 88 applies to commissioned officers. Its authorized punitive separation is dismissal; it does not authorize reduction to E-1.
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. Article 88 is Category 1, with a confinement range of zero to twelve months. The military judge must sentence within the applicable range unless specific facts justify a departure, with a written statement explaining the factual basis. The range does not replace the lawful maximum or the court-martial’s jurisdictional limits. A plea agreement may further limit the sentence. Earlier conduct must be assessed under the law applicable to it.
| Offense | Category | Category confinement range | Article 88 confinement maximum |
|---|---|---|---|
| Contempt toward officials | 1 | 0–12 months | 1 year |
Charges may arise under more than one article, as the Scheller case illustrates. The charges, findings, applicable sentencing rules and any plea agreement determine the actual exposure. Defeating a charge can materially change the case; it does not automatically dispose of the remaining allegations.