Writing under the Uniform Code of Military Justice

Disclaimer: I’m not a lawyer, military or otherwise. Do not consider this legal advice when a lawyer is more appropriate.

The day we signed our contract (you too, cadets and midshipmen), we became subject to the military justice system under the Uniform Code of Military Justice (UCMJ). Unfortunately, the only people that read it all the way through are lawyers and the nerdiest of nerds (yes, me). A poor understanding of the UCMJ can make us hesitant to write for publication, especially early in our careers. To alleviate some stress, I’ve collected a list of the punitive articles of UCMJ that, are worth consideration while you write.

But first, I’ll pass on some advice about engaging with the public. In 2022, I was asked to sit as a panelist at my grad school to discuss the U.S. withdrawal from Afghanistan. I was terrified of saying the wrong thing in a public forum and ending up on the chopping block. So I reached out to a mentor who gave me excellent advice, paraphrased here:

“Remember, disparaging means derogatory, not brainwashed, or the absence of academic criticism. Officers are meant to be critical thinkers, not the clone army or stormtroopers… Mindful alternatives laid out coherently are exactly why you are in the school.”

This advice was a foundational inspiration for The Sapper Scribe. Servicemembers need to actively and thoughtfully engage in public discourse, not shy away from it. We are citizens of this country and have much to offer regarding perspective and experience.

Below, I’ve summarized the offenses as they relate to writing. However, if you are writing in good faith about something important to you, you will rarely encounter a problem.

Article 82 – Soliciting commission of offenses. Trying to convince others to break laws or regulations is a crime under UCMJ. Your call to action (if you have one) should never be for the reader to commit a crime.

Article 88 – Contempt toward officials. Commissioned officers may not use “contemptuous words” against most elected officials. Critical to remember is the definition of contempt, which includes disdain, scorn, and disrespect. Opposing ideas and suggestions are not automatically contempt. However, when writing, it is best practice not to push the boundaries. For that reason, I’ve broadened the definition to “most elected officials” instead of listing the offices. You can look them up yourself if you are so inclined.

Article 89 – Disrespect toward a superior commissioned officer, assault of a superior commissioned officer. In a writing, context, this article of the UCMJ is similar to article 88. Therefore, writing disrespectfully about superior commissioned officers can violate this article and lead to punishment.

Article 90 – Willfully disobeying a superior commissioned officer. Though the title is self-explanatory, this may come into play if you, the servicemember, have been explicitly and lawfully ordered not to write or publish a piece about a topic.

Article 91 – Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. Similar to Articles 88 and 89, writing contemptuously or after being lawfully ordered not to by a warrant officer, noncommissioned officer, or petty officer can be considered a violation of Article 91.

Article 92 – Failure to obey order or regulation. Self-explanatory, if you have been lawfully ordered not to write about a topic and choose to do so, you may violate this article. If you believe the order is unlawful, consult a lawyer before making your decision.

Article 103 a, b, c – Spies, Espionage, Aiding the Enemy. This is possibly the most egregious offense here but the easiest to avoid. Don’t write or publish classified or otherwise confidential information. If you are commenting on anything that is not explicitly public information, make sure you have the permission and authority to do so. Luckily, every unit has a Public Affairs Officer somewhere nearby. Part of the PAO’s job is to clear writing for publication. Seek their assistance or a connection through your leadership to get your piece cleared through PAO.

Article 115 – Communicating threats. This should go without saying, but hey, you’re already reading, and I’d rather be thorough. Threatening to harm a person, their property, or reputation is illegal. Not only that, but it’s also bad writing and a giant red flag that your op-ed is off the rails.

Article 123 – Offenses concerning Government Computers. This article specifies offenses that include unlawful use of government computers. As a general best practice, do all your writing off of government networks. Firstly, you should be doing your job when you’re at work. Secondly, it’s a screening mechanism for privileged information. If you can only access your research on a government computer, you shouldn’t publish that information without explicit permission and authority to do so.

Article 133 – Conduct unbecoming of an officer. The “catch-all” article for commissioned officers, cadets, and midshipmen behaving in ways that bring discredit upon the profession. There is no specific crime to avoid. Instead, you must be especially aware of what you write and how you represent yourself and the armed forces. If you know the difference between right and wrong, this should never be a concern. But while you’re getting started, reach out to other officers to read your work and ensure you are not crossing any lines.

Article 134 – General article. The final, and broadest punitive article. The general article covers all acts not otherwise specified that are prejudicial to good order and discipline. Like article 133, if you know the difference between right and wrong, are truthful in your writing, and make every effort to get feedback and advice before publishing, you will not have to worry.

Only you, the writer, can assess your intentions, opinion, and circumstances well enough to decide if a piece is worth writing. When in doubt, seek outside opinions before pitching a piece. Find someone you trust with the necessary experience or knowledge and see if they think you are out of line, then make your decision.