UCMJ Article 88: Contempt Toward Officials

Article 88 applies only to commissioned officers, and only to contemptuous words, not criticism, against a fixed list of civilian officials: the President, the Vice President, Congress, the Secretary of Defense, the secretaries of the military departments, the Secretary of Homeland Security, and the Governor or legislature of a State, Commonwealth, or possession where the officer is on duty or present. The maximum is dismissal, forfeiture of all pay and allowances, and 1 year of confinement.

Text of Article 88

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 Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Source: 10 U.S.C. § 888.

Enlisted members and warrant officers who are not commissioned are outside the article.

Four elements, and a fifth for governors

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 14.b:

The accused was a commissioned officer of the United States armed forces.
The accused used certain words against an official or legislature named in the article.
By an act of the accused, the words came to the knowledge of a person other than the accused.
The words were contemptuous, either in themselves or by virtue of the circumstances under which they were used.

When the words are against a Governor or legislature, a fifth element is added: the accused was then present in that State, Commonwealth, or possession.

The limits written into the Manual

Paragraph 14.c narrows what can be charged:

The official must hold one of the named offices, or the body must be one of the named legislatures, at the time of the offense.
“Neither ‘Congress’ nor ‘legislature’ includes its members individually.” Words about a particular senator or state legislator are not Article 88 contempt toward Congress or a legislature.
“‘Governor’ does not include ‘lieutenant governor.'”
“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.”
For private talk, the Manual says that “expressions of opinion made in a purely private conversation should not ordinarily be charged.”

Three further rules point the other way. It does not matter whether the words target the official in an official or a private capacity. “The truth or falsity of the statements is immaterial.” And giving broad circulation to a written publication with contemptuous words, or saying them in front of military subordinates, aggravates the offense.

Maximum punishment: dismissal and 1 year

Under ¶ 14.d, the maximum is dismissal, forfeiture of all pay and allowances, and confinement for 1 year. Dismissal is the punitive separation available for commissioned officers.

The Scheller prosecution, 2021

Marine Lt. Col. Stuart Scheller, who had used social media to demand accountability from senior leaders over failures in Afghanistan, was charged with Article 88 contempt toward officials along with offenses under Articles 89, 90, 92, and 133. In October 2021 he pleaded guilty to all six charges at a special court-martial at Camp Lejeune, North Carolina, under a plea agreement that included resigning his commission (Military Times, October 14, 2021).

That case shows how Article 88 travels with other charges. Disrespect toward a superior commissioned officer is Article 89; disobeying a superior’s order is Article 90; and conduct that dishonors the officer personally falls under Article 133, conduct unbecoming an officer.

Sources

10 U.S.C. § 888, Article 88, Contempt toward officials (Cornell LII)
Military Times, “Marine who took to social media to demand accountability pleads guilty to all charges,” October 14, 2021
Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 14

General information about military law, not legal advice for any individual case.