Article 88 of the Uniform Code of Military Justice punishes contempt toward officials. It is one of the most distinctive offenses in military law because it applies only to commissioned officers and only to contemptuous words against a defined list of high officials. Because Article 88 is a punitive article like any other, a charge under it moves through the same court-martial machinery that applies to other UCMJ offenses. This article describes the procedural steps involved in initiating an Article 88 case, with attention to the features that make this particular charge unusual.
First, confirm the charge fits Article 88
Before any process begins, the threshold question is whether the alleged conduct can even be charged under Article 88. The article applies only to a commissioned officer. An enlisted member cannot commit this offense. The article also protects only specific officials: the President, the Vice President, Congress, the Secretary of Defense, a Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Territory, Commonwealth, or possession in which the officer is on duty or present. Important limits apply. Neither “Congress” nor “legislature” includes its individual members, and “Governor” does not include a lieutenant governor. If the words were not contemptuous, were not against a covered official, or were spoken by someone who is not a commissioned officer, the conduct does not fit Article 88 and a different charge or no charge would be appropriate.
The elements that frame the investigation
Any process is built around proving the elements. For Article 88 the government must establish 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 were contemptuous, either in themselves or by virtue of the circumstances. Two practical points flow from these elements. The truth or falsity of the statement is immaterial, and it does not matter whether the words were used in an official or a private capacity. The publication element, that the words reached someone other than the accused, shapes what investigators look for.
Step one: reporting and preliminary inquiry
An Article 88 matter typically begins when alleged contemptuous words are reported to the chain of command, often because they were communicated to others, circulated in writing, or posted publicly. The commander conducts or directs a preliminary inquiry into the allegation. The purpose is to determine what was said, to whom, in what context, and whether the officer’s statements meet the elements. Because the Manual for Courts-Martial indicates that expressions made in a purely private conversation should not ordinarily be charged, while statements made to subordinates or given wide circulation through writing or social media are more likely to be prosecuted, the inquiry pays close attention to how and to whom the words were communicated.
Step two: preferral of charges
If the inquiry supports going forward, the next step is preferral. Preferral is the formal act of accusing the officer. A person subject to the UCMJ who has personal knowledge of or has investigated the matter signs the charges and specifications under oath before a commissioned officer authorized to administer oaths. The charge sheet identifies the offense as a violation of Article 88 and sets out a specification describing the contemptuous words, the covered official, and the circumstances. The accused must then be informed of the charges.
Step three: forwarding and the commander’s disposition decision
Once charges are preferred, they are forwarded to a commander with authority to dispose of them. That commander considers how to handle the matter and has a range of options, including taking no action, resolving it administratively, imposing nonjudicial punishment if appropriate and accepted, or referring the case to a court-martial. The commander weighs the seriousness of the conduct, the strength of the evidence, and the interests of justice and good order. Given the speech related nature of Article 88, this disposition decision often involves careful judgment about whether the words crossed from protected expression into punishable contempt.
Step four: the Article 32 preliminary hearing for serious referrals
If the command is considering trial by general court-martial, the case must first go through a preliminary hearing under Article 32 of the UCMJ, unless that hearing is waived. A preliminary hearing officer examines whether there is probable cause to believe an offense was committed and that the accused committed it, considers whether the convening authority has jurisdiction, and makes recommendations about disposition. The accused has rights at this hearing, including representation by counsel and the opportunity to present matters. The hearing is a meaningful screening step before the most serious form of court-martial.
Step five: referral to court-martial
After considering the preliminary hearing and the advice of the staff judge advocate, the convening authority decides whether to refer the charges to a court-martial and at what level. Referral is the formal order that sends the charges to trial. For an Article 88 charge, as for others, the level of court-martial selected reflects the seriousness of the case and the punishment being contemplated. Once referred, the case proceeds to arraignment and trial, where the same protections apply that govern any court-martial, including the presumption of innocence and the requirement of proof beyond a reasonable doubt.
Procedural protections specific to a speech offense
Throughout these steps, the unusual character of Article 88 shapes the process. Because the offense punishes words, those involved in the inquiry, preferral, and disposition must distinguish contemptuous statements against covered officials from criticism, opinion, or private remarks that the article does not reach. The narrowness of the protected official list, the exclusion of individual legislators and lieutenant governors, and the guidance disfavoring charges based on purely private conversations all serve as built in filters. An officer facing an Article 88 inquiry retains the right to consult counsel, to be informed of the charges, and to challenge the sufficiency of the allegation at the preliminary hearing and at trial.
Bottom line
Initiating Article 88 proceedings follows the standard court-martial sequence: report and preliminary inquiry, preferral of sworn charges, forwarding to a commander for a disposition decision, an Article 32 preliminary hearing when general court-martial is contemplated, and referral to trial. What sets Article 88 apart is the front end screening, where the command must confirm the accused is a commissioned officer, that the words targeted a covered official, that the words were contemptuous, and that they were communicated to someone other than the accused, before the case is allowed to move forward.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.