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
What is Article 88 of the UCMJ?
Contempt toward officials under Article 88 of the UCMJ takes place when a commissioned officer of the United States Armed Forces uses contemptuous words against officials of any branch of the U.S. government or any state government.
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. That is precisely what the UCMJ intends it to be. What is more important to note is that the UCMJ makes no distinction whether those words were spoken in a public or private setting.
The UCMJ goes on to define “contemptuous” as words used against an official in either their official or private capacity, which are insulting, rude, and disdainful conduct, or which otherwise disrespectfully attribute to another a quality of meanness, disreputableness, or worthlessness. The truth or falsity of the statement(s) is immaterial.
What Must Be Proven To Find Guilt Under Article 88, UCMJ?
First of all, even the novice law enthusiast can quickly see the incredibly low bar that is set to prove a word contemptuous. Rude, mean, and insulting are very much in the eye of the beholder and relative truths not often used as evidence in a traditional court of law. In other words, the military justice system has rigged the game to find you guilty if they feel like it under Article 88. Now, there are a few core components that they will have to prove along the way. These elements that the government must prove include the following:
- That the accused was a commissioned officer of the United States armed forces
- That (state the time and place alleged), the accused (used orally and publicly) (caused to be published or circulated writings containing) certain words against the:
(a) (President) (Vice President) (Congress) (Secretary of _______)
(b) (Governor) (legislature) of the (State of ______) (Commonwealth of _______) (_______ a possession of the United States), a (State) (Commonwealth) (possession) in which the accused was then (on duty) (present);
- That these words were (state the words alleged) or words to that effect
- That, by an act of the accused, these words came to knowledge of a person other than the accused; and
- That the words used were contemptuous (in themselves) (or) (by virtue of the circumstances under which they were used).
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 that served and the impact of this strategic loss was felt by both officers and enlisted alike. For one particular Marine officer, the trauma was more than he could bear in silence and he subsequently set the internet ablaze with his words.
Lt. Stuart Colonel Scheller took to social media on August 26, 2021 and demanded accountability from senior leaders for their perceived failures in Afghanistan. This includes the deaths of 14 service members during a suicide bombing attack at the Hamid Karzai Airport in Kabul. Now, for those with any military experience watching the video, they knew he was screwed from the moment he began to speak in uniform. They may not have known what Article of the UCMJ he was breaking, but they knew he couldn’t do that.
Scheller didn’t help his case by making subsequent videos, one in which he said, “follow me and will burn this whole system down.” The Marine Corps, as expected, removed him from his command, preferred charges, and subsequently placed him in the brig when he continued to speak out. The nature of the allegations took a decidedly partisan turn and though Scheller had become an instant folk hero to some, others felt he was in the midst of a mental health breakdown.
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The highly public nature of the court martial meant that the Marine Corps was going to have a public relations nightmare on their hands, regardless of how the case proceeded. The “off ramp” that the Corps took was to allow Scheller to plead guilty to lesser charges, which included contempt toward officials. In this case, the core elements to prove guilt were met.
Scheller was indeed a commissioned officer and he even wore the rank in his video. He did indeed speak contemptuous words to senior civilian officials regarding their handling of the Afghanistan withdrawal. His words were not in doubt as he recorded them and that others heard them, well, the viral internet video took care of that. That the words were contemptuous could be up for debate in a partisan society, but not in the realm of military justice.
How to Fight and Beat Article 88 Charges Under the UCMJ
It is important to note that the case of Lt. Colonel Scheller could be considered a victory in that he was originally charged with violating six articles of the UCMJ. He wound up pleading guilty to contempt toward officials, dereliction of duty, and conduct unbecoming an officer and a gentleman. He was given an official reprimand and will be separated under either an honorable or other than honorable discharge. He will also have his pay docked by $5,000, but for a man who raised over $2.5 million as a result of his viral efforts, that’s not too shabby.
We feel that our first and best piece of advice on how to beat Article 88 charges is not to take the Lt. Colonel Scheller approach. Do not plead your grievances to the internet and hope that the internet will come to save you. Scheller’s brazen approach almost took the military command structure off guard and the escalating public nature of the case forced them to look for an easy off ramp. The next time it happens, the military justice system will seek to make an example out of you, if for no other reason than the fact that they could not with Scheller.
That being said, there are some traditional defenses that, when put together and delivered in an aggressive manner, will equally cause the military justice system to look for an easy off ramp. They want/need to make an example out of someone and if you present yourself a harder target, they will move on to the next guy. Here are a few of the approaches we can take:
Constructive Criticism – Officers are allowed to engage in the political process, though not while in uniform. 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 non-verbal 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 8th grade education. The prosecution will try to paint your comment as more the latter, while we will show that you are merely passionate about the land you have sworn to defend.
Make The Prosecution Read Article 88 – The prosecution often has no shame and wants to secure a guilty verdict against an easy target. 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 because you offended a member of Congress’ distant third cousin, twice removed. As a uniformed officer, you can’t say the President is a criminal or traitor. However, as a uniformed officer, you can “lol” online when the President’s son goes on T.V. and says he smoked parmesan cheese, because he thought it was crack. Either your words were contemptuous to a person or persons listed in Article 88 or not. The prosecution will try to get away with an easy one and get you to admit guilt for a crime that didn’t actually happen.
Private Conversations – While the UCMJ makes no distinction between public and private comments, opinions expressed in a purely private conversation are rarely charged under Article 88. Remember, legendary Marine General Mattis once famously called the President an “unwiped ass” in private. Meanwhile, General Stanley McChrystal was removed from command in Afghanistan after making disparaging comments about President Obama to Rolling Stones magazine reporters. It is not difficult to make a case that you never intended for your words to reach others, that is, as long as you don’t post them in a viral video.
What’s At Stake If Found Guilty Under Article 88
The maximum possible sentence under Article 88 includes forfeiture of all pay and allowances, confinement for 1 year, and dismissal from the U.S. Armed Forces. However, you must keep in mind that these charges rarely come alone. Much as was the case with Lt. Co Scheller, Article 88 charges come in a shotgun style package of everything the prosecution can throw at you. At times, defeating even one single charge in that package can give you your life back and rescue it from the brink of personal and professional destruction.
An experienced aggressive military defense attorney is going to concede no easy wins to the prosecution. The military justice system exists to preserve order and that means they need their guilty verdicts. That’s why the system boasts a 90% conviction rate. If you want to flip the script, you have to give them the fight they were hoping to avoid. You have to fight them at every turn and force them to make an example out of the next guy.
If you don’t fight they will make an example out of you and the average officer can’t count on viral internet fame to save them. Once again, Scheller got off relatively easy as the first guy to try viral shaming of officials. Don’t be the second guy to try as it will likely not end as well for you. 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.