Saturday, January 30, 2021

Exam question

(20 minutes) Read this article from The Columbus Dispatch. What offenses, if any, has this officer committed? Is he punishable under the UCMJ, the Ohio Code of Military Justice, both, or neither? What action, if any, should be taken against him? Should his ecclesiastical endorsing organization be involved?


  1. Some quick thoughts.

    1. Was he on Title 10 orders at the time—it matters. I note that the Ohio Code requires the act(s) to be while in a duty status and those placed on the “state retired list.”

    2. Article 133, UCMJ, as does the Ohio Code, makes it a crime to act in a manner unbecoming an officer and gentleperson.

    3. No as to Article 88, UCMJ, because the JCS as a group or a member of it is not a listed “victim” under either the UCMJ or Ohio Code.

    4. But yes, as to Article 88, UCMJ, if he is on Title 10 orders but no under the Ohio Code. The UCMJ includes “the Congress” as a victim(s). Of course, he might argue that he referred to “politicians” in general and not specifically to Congress.

    5. If on Title 10 orders, then I think disrespect to a superior commissioned officer under Article 89 lies. While Ohio provides a similar offense, I think it is a little harder to argue if not on Title 10 orders. I would avoid any reference to the President because the evidence he intended to disrespect him is scant.

    6. I would avoid using Article 94, UCMJ, or the Ohio equivalent. Arguably, he is in some way counseling sedition or mutiny.
    All that said, as a staff judge advocate, I would focus on Article 133 and use all the other “evidence” as relevant to the charge and aggravation in sentencing if convicted.

    7. Expect him to assert that he was not “in a duty status” as defined by the Ohio Code when he made his comments, thus no jurisdiction. (Ohio defines being in a duty status as (J) "Duty status other than state active duty" means any other types of duty and while going to and returning from such duty.”) Different if on Title 10 orders even though he is posting in a “private” capacity.

    8. He would, of course, assert the First Amendment as a defense. Frankly, on the “facts” presented (and assuming their truth and more adverse evidence not yet available), his First Amendment claim fails. While service-members retain most of their First Amendment rights, they can be limited. There are long-standing rules and regulations of political speech by service-members that have been upheld as valid to maintain good order and discipline and the service’s reputation. Plus, there is the general principle of non-involvement of the military in political affairs. “Stay in your lane” might the appropriate comment to him.

    9. Yes, I think this is a matter for the appropriate military department that approves applicants for a military chaplaincy and who further regulates them—like medical providers. For me, I view the chaplain’s “parish” as everyone within the organization regardless of their faith. So whether the person should remain a chaplain depends not on whether the church would approve but whether the person can minister to all. For example, what if a parishioner had personal and moral issues about being called to duty to protect the Congress? How would the chaplain deal with that? Would the chaplain counsel the person to refuse orders because it is a matter of faith or politics or supporting those who are seditious? If the chaplain does counsel disobedience, is that not wrong?

    10. Clearly and as a staff judge advocate, I think I would counsel administrative separation from the Guard. Administrative separation is especially appropriate if there is no court-martial jurisdiction. Otherwise, I would advise court-martial pour encourager les autres.

    1. Phil - as far as we can tell, he wasn't on any type of duty status unless it was a weekend drill status. Ohio NG wouldn't say. But, he's a Probationary Officer, and probably soon, a civilian.

    2. Probationary officers being easier to separate.

  2. For a fuller discussion of the First Amendment and the military, friend and colleague Dwight "ML" Sullivan has summarized the law in a presentation to the DoD Joint Proceedings Panel, here:


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