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There was a story about a medically discharged Marine who staged a silent protest in his full dress uniform. Can anyone here provide the definitive answer on if he was violating the UCMJ and whether or not he could face punishment as well as the specific regulation he may have violated? There’s some who believe his being discharged makes him immune to punishment even if it’s a violation. Some say it applies to current and former service members.
There are some places and events where the uniform is prohibited to be worn by discharged and retired members of the military. These include:
At any meeting or demonstration which is anti-government in nature. During political activities, private employment or commercial interests, when an inference of official sponsorship for the activity could be drawn.
When appearing in civil or criminal court
However, who's going to enforce that? The cops? The military? I highly doubt they'll care if it's something 'noble' like George Floyd peaceful protests. However, for something like marching as part of a racist group? Who knows, I'm sure I've seen some military garb from veterans who are part of racist groups who march.
Any regulations or laws used to punish a non military member (regardless of whether said member is retired, discharged, or never served) for merely protesting in a military uniform is likely unenforceable as a violation of the first amendment. Think of why why the Stolen Valor Act had to be amended to tie in a puciniary interest requirement as merely prohibiting people from lying about their military service (in uniform or not) was ruled unconstitutional by the Supreme Court. The only way I could see any such regulation or law being enforced is if someone protesting in uniform (as a non member) was behaving in a way that threatened national security, such as trying to join a formation of MP brought in for crowd control or something similar. Merely protesting doesn't seem to cut it.
Now, retirees are still subject to certain aspects of the UCMJ, but I'm having a hard time seeing how such prohibitions would stop a retiree from protesting in uniform.
There was a story about a medically discharged Marine who staged a silent protest in his full dress uniform. Can anyone here provide the definitive answer on if he was violating the UCMJ and whether or not he could face punishment as well as the specific regulation he may have violated? There’s some who believe his being discharged makes him immune to punishment even if it’s a violation. Some say it applies to current and former service members.
He's seperated. He is no longer subject to the UCMJ so he can't violate it. If he was retired, it would be a violation. He may be violating stollen valor laws, because he no longer retains a military affiliation, depending on the laws of the state.
Any regulations or laws used to punish a non military member (regardless of whether said member is retired, discharged, or never served) for merely protesting in a military uniform is likely unenforceable as a violation of the first amendment. Think of why why the Stolen Valor Act had to be amended to tie in a puciniary interest requirement as merely prohibiting people from lying about their military service (in uniform or not) was ruled unconstitutional by the Supreme Court. The only way I could see any such regulation or law being enforced is if someone protesting in uniform (as a non member) was behaving in a way that threatened national security, such as trying to join a formation of MP brought in for crowd control or something similar. Merely protesting doesn't seem to cut it.
Now, retirees are still subject to certain aspects of the UCMJ, but I'm having a hard time seeing how such prohibitions would stop a retiree from protesting in uniform.
I should have been more nuanced.
Courts have upheld the notion of certain classes of military retirees still being subject to the UCMJ:
For the Navy and Marine Corps, courts have ruled that members of the Fleet Reserve (those sailors and marines retired and receiving a pension) are still subject ot the UCMJ. This is because the military pension isn't just retirement pay, but compensation to ensure that they remain ready and prepared to be recalled to active duty, which can legally happen.
This is keeping in line with Article 2 of the UCMJ, which holds that the following categories of people (among others) are still subject to the Code:
Quote:
-Retired members of a regular component of the armed forces who are entitled to pay.
-Retired members of a reserve component who are receiving hospitalization from an armed force.
-Members of the Fleet Reserve and Fleet Marine Corps Reserve.
So, most former military are not subject to the UCMJ. But those who officially retire and are receiving pay--among other classes--are.
So, I posted about this on the General Flynn thread. The case law is a bit muddled. I think technically DOD can prosecute some retirees under the UCMJ, but it turns out there are a lot of people, in and out of the military, who are uncomfortable with DOD dragging retirees out of retirement and prosecuting them under the UCMJ.
So, I posted about this on the General Flynn thread. The case law is a bit muddled. I think technically DOD can prosecute some retirees under the UCMJ, but it turns out there are a lot of people, in and out of the military, who are uncomfortable with DOD dragging retirees out of retirement and prosecuting them under the UCMJ.
Yep, good points. I definitely don't see this being done by DOD except in rare cases as it would be very controversial. Let's face it: while the legal ability is there to do so based on the justification (in part) that retirement pay is there in part to ensure military readiness in the event that you are recalled, much of that is crap as folks in retirement have zero physical fitness or other requirements for them to be "fit" to return to duty anyway.
As a general rule, I can see DOD taking such action against retirees who live overseas in areas with significant US military presence, if only as a way of calming the locals the locals that the US government hasn't just dumped their retirees (likely brought to the area during their active duty service) on the local community to watch and handle, such as the case in Japan I posted to.
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