Ask the Lawyer: Criticism vs. contempt. When comments cross the line - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Criticism vs. contempt. When comments cross the line

Q In light of the recent debacle involving Army Gen. Stanley McChrystal, what constitutes mere complaining compared with disrespectful comments that can land you in hot water?

The answer is not as clear-cut as service members, officers and even attorneys would like, but there are some standards. In such cases, actual comments as well as their setting greatly affect whether someone will be charged and eventually discharged.

Article 88 of the Uniform Code of Military Justice makes it a crime for a commissioned officer to use contemptuous words against the president, the vice president, Congress, the secretary of defense, the service secretaries and certain other government officials.

Active-duty officers charged under Article 88 face court-martial and maximum punishment of dismissal, up to one year in jail and forfeiture of all pay and allowances.

The line between “contemptuous words” and mere complaining is somewhat distinct. Army Lt. Col. Michael Davidson wrote in a law review article that contemptuous “means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.”

Often, disagreements in opinion are not held to the same standard as “contemptuous” unless those differences escalate into condescension.

As important as what is said is how it is said. Article 88 implies that the criticism was made in a public setting, including statements published in a newspaper. Conversations in a private setting among one’s close peers generally are not held to the same standard as overt criticism made in the mess hall or in the company of an officer’s subordinates.

Finally, interpretations of Article 88 exclude “political discussion.” Discussions that include the questioning of military policy, strategy or tactics, however, may not be considered “political.”

Although Article 88 covers only commissioned officers, Article 89 of the UCMJ allows any service member who behaves with disrespect toward his superior commissioned officer to face court-martial. This article is more straightforward than Article 88 and is meant to reinforce loyalty and respect among troops toward their superior officers.

The ambiguity of Article 88 leaves room for interpretation, but here’s a good rule of thumb: If you wouldn’t want your commander, let alone your commander in chief, sitting in on a conversation because of its disrespectful or insulting nature, then the conversation shouldn’t take place.

---

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. This column is not intended as legal advice.