Article 88 of the Uniform Code of Military Justice, codified at 10 U.S.C. 888, is among the most unusual punitive articles because it applies to a narrow class of people and targets a narrow kind of conduct: a commissioned officer who uses contemptuous words against certain high government officials. The article reflects the principle that the armed forces remain firmly under civilian control and that officers, who hold positions of public trust, must not publicly hold the nation’s senior leaders in scorn. It is rarely charged, but it remains on the books and occasionally surfaces in public debate when an officer’s remarks draw attention.
What the Article Covers
Article 88 makes it an offense for a commissioned officer to use contemptuous words against a specifically listed group of officials. Those officials are the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. The list is exhaustive. Contemptuous words about officials not named in the article do not fall within Article 88, though they might raise concerns under other provisions depending on the circumstances.
The article protects the dignity and authority of these offices, not the personal feelings of the individuals who hold them. The concern is institutional. When an officer publicly expresses scorn for the civilian leaders who command the military, it undermines the subordination of the armed forces to civilian authority that lies at the heart of the constitutional order.
Who Can Be Charged
A defining limitation of Article 88 is that only commissioned officers can commit the offense. Enlisted members, warrant officers, and cadets or midshipmen who have not been commissioned are not subject to it. This narrowing reflects the special obligations of commissioned rank. An officer holds a commission from the President and occupies a position of leadership and example, so the law holds officers to a heightened standard regarding public expressions of contempt toward civilian leadership. Misconduct by enlisted members or others that resembles this behavior would have to be addressed under different articles.
The Elements
To obtain a conviction under Article 88, the government must prove three elements. First, that the accused was a commissioned officer of the United States armed forces. Second, that the accused used certain words against an official or legislature named in the article. Third, that by an act of the accused these words came to the knowledge of a person other than the accused, and that the words were contemptuous, either in themselves or by the circumstances under which they were used.
The third element carries two important components. The words must have been communicated to someone else; private thoughts or remarks known only to the speaker are not enough. And the words must be genuinely contemptuous rather than merely critical.
The Meaning of Contemptuous Words
Words are contemptuous when they are scornful, disrespectful, or express disdain for the official or office. The line between contempt and criticism is central to the article. Mere criticism, even sharp or harsh criticism, of policy or of an official’s decisions is not necessarily contemptuous. An officer may disagree with a policy and say so without violating Article 88. The offense lies in scorn and disdain directed at the office or official, not in honest disagreement. Whether particular words cross that line depends heavily on their content and on the circumstances in which they were spoken or written.
Defenses
Defenses to an Article 88 charge usually center on the elements. The defense may argue that the words at issue were criticism rather than contempt, emphasizing that disagreement with policy does not amount to the scorn the article requires. It may contest whether the statement was communicated to anyone other than the accused, since publication to a third party is required. It may also challenge whether the official named falls within the protected list, or, for a Governor or state legislature, whether the officer was on duty or present in that jurisdiction as the article requires. Context matters greatly, so the defense often focuses on what was actually said, in what setting, and what was reasonably understood.
Maximum Punishment
The maximum punishment for a violation of Article 88 is dismissal from the service, forfeiture of all pay and allowances, and confinement for one year. Dismissal is the officer equivalent of a punitive discharge and ends the officer’s career with lasting consequences. The relatively serious maximum reflects the gravity with which the military views public contempt by officers toward civilian leadership, even though actual prosecutions are infrequent.
How It Works in Practice
Article 88 is seldom prosecuted. Many incidents that might fall within its scope are handled instead through administrative measures, counseling, or other articles, and commanders often weigh the practical and institutional consequences of bringing such a charge. The article tends to draw public attention when a senior or visible officer makes pointed remarks about civilian leaders, prompting discussion about where criticism ends and contempt begins. In day-to-day military life, its main function is as a standard of conduct: a reminder to officers that the tradition of civilian control of the military requires restraint in how they publicly speak of the nation’s senior elected and appointed leaders. The narrow elements and the critical distinction between criticism and contempt make it a difficult charge to prove, which is one reason it remains rare.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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