Article 88 and retired officers: what to do?

Adm. William H. McRaven
U.S. Navy (Ret)

Captain Michael Junge, a respected scholar of naval discipline, writes here (in his personal capacity) in Defense One about retired Admiral William H. McRaven's open letter that was highly critical of President Donald J. Trump. He concludes:

Secretary [James] Mattis could, as a matter of law, recall Admiral McRaven and court-martial him for violations of the UCMJ including Article 88 (Contempt towards officials), Article 104 (Aiding the enemy), Article 117 (Provoking Speech of gestures), or Article 133 (Conduct unbecoming an officer and a gentleman). Convicting McRaven, or whether it’s even advisable to recall the retired admiral, is something else entirely. It’s also possible that he could recall McRaven and hold some form of non-judicial punishment. Or, as was done for officers involved in the Glenn Defense Marine Asia scandal, Secretary Mattis or Secretary [of the Navy Richard V.] Spencer could issue a letter of censure against Admiral McRaven.

Realistically, however, there is little precedent for bringing Admiral McRaven back on active duty for either judicial or non-judicial punishment. He is not accused of murder or child-pornography—two recent cases in which retirees were brought back to active duty for courts-martial. The only retired flag officer court-martialed was Adm. Selden Hooper, who was tried by general court-martial for sodomy, conduct of a nature to bring discredit upon the Armed Forces, and conduct unbecoming an officer and a gentleman—in other words, for being homosexual. While sodomy may have been against the UCMJ and civil law in 1958, Hooper retired in 1950, so one would think the offense would then be tried in civilian court. The other two offenses, however, have so far as I know, no compatible charges under civilian law. Hooper was found guilty and sentenced to dismissal. So, for actions outside the military, a retired officer was dismissed from the Navy and stripped of his pension. With only one known case of a purely military violation of the UCMJ, there is little precedent with which to work.

What might the remedy be? Something as simple as a press release, or even a tweet, from Secretary Mattis that says, “I spoke with Bill McRaven today and reiterated the standards of our profession, standards that we do not put away when we retired” would suffice. Conversely, remaining silent will only serve to lessen the efficacy of military discipline and place an unfortunate context around a memorandum not even seven days old.

The rest of us, active and retired, must remember that there are ways to disagree without being disagreeable. There are ways to condemn without personal contempt. This latter part is the example I wish McRaven had set. And seniors must also be careful to separate true contempt from language that is simply a cri de coeur or unpopular or personally inconvenient. That is an example I intend to follow, and quite honestly, hope my direct superiors do as well.