... Apart from the wisdom or prudence of retired military participation in politics, former members of the armed services occupy a legal status somewhat distinct from that of ordinary citizens. Even as retirees, they remain bound by codes of military behavior that restrict the political participation of service members.
Retired military officers are subject to the Uniform Code of Military Justice (UCMJ) under
Article 2 of the UCMJ,
which extends the jurisdiction of military law to “[r]etired members of a regular component of the armed forces who are entitled to pay.” (See the Army’s implementing regulation, AR 27-10, Military Justice,
here: “Retirees are subject to the UCMJ and may be tried by court-martial for violations ... that occurred ... while in a retired status.”) Service-specific
statutes and
rules also define the regular components of the armed forces expansively to include retired officers.
The most pertinent rules prohibit limited forms of contemptuous speech and require retirees to refrain from political advocacy that could be construed as an official endorsement on the part of the armed services.
Article 88 of the UCMJ criminalizes “
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 ...”
The Manual for Courts-Martial, pt. IV, ¶ 12(c), however, narrows the scope of the offense: “If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article ... even though emphatically expressed, may not be charged as a violation ...” Further, “
[t]he official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense.” ...