Can Military Retirees Make Political Statements or Attend Protests?

America Protests Utah
Retired Marine Todd Winn protests in front of the Utah State Capitol Friday, June 5, 2020, in Salt Lake City. (AP Photo/Rick Bowmer)

You may have heard conflicting stories about whether retired military personnel are allowed to make political statements or are subject to the Uniform Code of Military Justice. Exactly what are the facts? Can retirees make political statements, publicly denounce a politician or cause, or wear their uniform while marching in protests?

The short answer is -- usually.

Retirees Are Subject to the UCMJ

You may remember the UCMJ from when you memorized it in boot camp. Article 2 says that retirees are subject to the rules contained in the regulations.

You may also know that active-duty military are prohibited from making political statements or participating in political activities in such a way that implies military support for their cause, brings discredit on the military or seeks to undermine the military's duty.

Read nextWhat Are the Free Speech Rules for Military Spouses?

So how can retired military members make public statements against a political candidate, a political cause or a sitting politician? The reason is that DoD Directive 1344.10 -- Political Activities by Members of the Armed Forces, which governs active-duty political participation, is limited to just that: active-duty members only.

DoD Directive 1325.06 -- Handling Dissident and Protest Activities Among Members of the Armed Forces is also limited to active-duty members only.

Since the rules contained in the DoD Directives explicitly state "a member of the Armed Forces on active duty" are subject to the regulation, any active-duty member who violates the rules contained in the directive may be charged under UCMJ Article 92 -- Disobeying a Lawful Order. The lawful orders, in these cases, apply only to active-duty members.

While retirees are technically subject to the UCMJ, they are usually only charged under it for serious crimes. In fact, Army Regulation 27-10 states, "Army policy provides that retired Soldiers ... will not be tried for any offense by courts-martial unless extraordinary circumstances are present."

The military can, and does, still court-martial retirees if the charges are serious enough. The military's legal authority and scope are being challenged in the courts at this time.

Contempt Toward Officials

Article 88 of the UCMJ states, "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."

Does this mean that a retiree who calls a politician a "dumb bunny" might be court-martialed? The answer, while not absolute, is "usually not." The only record of a retired military member being court-martialed for making "contemptuous statements" against elected officials occurred in 1918, when a retired Army musician was tried in a court-martial for stating that the president and "government [were] subservient to capitalists, and fools to think they can make a soldier out of a man in three months and an officer in six." That veteran was found innocent.

Our recent history with retired generals making political statements for and against politicians and political causes shows that the military and courts generally give retirees a lot of leeway. However, a retired officer calling for the violent overthrow of the government would probably be treated differently.

Protesting in Uniform

What about active-duty members or veterans who attend a political rally or protest in their military uniform? Do different rules apply to them? These rules are a bit stricter.

DoD Instruction 1344.01 -- Wearing of the Uniform prohibits active-duty members, prior service members and retirees from wearing their uniform "when participating in activities such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration" that might imply military support for the cause.

Further, they may not wear their uniform even if it doesn't imply military support for their cause at any meeting or demonstration that is organized by a group that the U.S. attorney general has designated as "totalitarian, fascist, communist, or subversive."

That's the rules for active-duty members and retirees, what about veterans?  They're not covered under the UCMJ.

They are, however, covered by Federal law, and may face civilian penalties. According to Federal law, veterans with an honorable discharge may wear their uniform when "authorized by the President." The penalty for unauthorized wearing of the uniform by a civilian is a fine and up to six months in jail

So, no, you probably shouldn't wear your uniform if you are attending a protest march. Will you be arrested, recalled to active duty and court-martialed for it? Probably not, nobody ever has been. This would probably be the easiest way to run afoul of the law, though. But if you feel strongly enough about a cause, it is your call to make. 

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