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Watch what you say — Don't violate UCMJ

  • Published
  • By Senior Airman Danielle Johnson
  • 305th Air Mobility Wing Public Affairs
MCGUIRE AIR FORCE BASE, NJ. --  In recent years, as in other times of war, there has been much debate about servicemembers' First Amendment right to free speech. 

The First Amendment to the Constitution of the United States provides, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble ..." 

Like all Americans, members of the Armed Forces have the right to free speech, but they also have a responsibility to protect the nation and to understand there are times when right and responsibility may not go hand-in-hand. 

Federal courts have recognized the uniqueness of the military and the need to limit these freedoms. In Parker v. Levy, 417 US 733, in 1974 the court said: "The different character of the military community and of the military mission requires a different application of (First Amendment) protections." 

A servicemember's right to free speech is limited to protect the national interest. To define these limits, there are regulations requiring the review and clearance of information to be released by a military member and prior approval of written material to be distributed or posted on a military installation. 

Even though a servicemember's right to free speech is not limitless, all servicemembers have a right to protected communication. 

Protected communications are lawful communications regarding fraud, waste or abuse, violations of directives or other wrong-doings made to Congress, the inspector general or staff, DoD audit, Law Enforcement Investigation Agency, Military Equal Opportunity, Family Advocacy, commanders and others in the chain of command as defined in AFI 90-301 Inspector General Complaints. 

"A key goal of the Inspector General Complaints Resolution program is to facilitate a complaints resolution environment that promotes confidence in Air Force leadership," said Master Sgt. Steven Sundell, 305th Air Mobility Wing IG superintendent. "We safeguard a member's privacy and identity seeking assistance to the maximum extent practicable. While this does not mean that communications made to an IG are privileged or confidential, it does mean that disclosure of those communications will be kept strictly to an official need-to-know basis." 

"Of course, any criminal activity communicated to the IG would be referred to the Office of Special Investigations or Security Forces," Sergeant Sundell added. 

Any Air Force military member who reasonably believes a personnel action (including the withholding of an action) was taken or threatened in reprisal for making a protected communication may file a complaint with the IG under provisions of Title 10, United States Code Section 1034. 

"It is also important that all military members understand they can receive whistleblower protection under 10 USC 1034 when submitting a complaint with any IG," said Sergeant Sundell. "IGs at any level can extend such protection." 

To qualify as a protected communication, and therefore qualify for whistleblower protection, the statement must be made to the agencies mentioned above. Statements to the press are not considered protected communications, so military members may be disciplined for statements that violate an article of the Uniformed Code of Military Justice and Air Force regulations. 

Possible UCMJ violations include Article 88 -- Contemptuous words by commissioned officers against certain officials, Article 92 -- Failure to obey an order or regulation, and Article 134 -- Uttering a disloyal statement, criminal libel, communicating a threat, soliciting another to commit an offense. 

Properly-aired grievances to the press are often not prohibited under the UCMJ, especially if the servicemember speaks out of uniform, if the issue is not strictly partisan and if it is clear the statements do not necessarily reflect the Air Force's position. 

"It is always a good idea to get some professional advice before making a statement to the media," said Christine Sullivan, 305th AMW Public Affairs Civic Outreach Division chief. "Whether it's a letter to the editor or a stand-up interview, if you have any questions about what you want to say, just ask public affairs or the legal office to ensure you won't violate regulations." 

For more information on protected communications, contact the 305 AMW/IG at (609) 754-8719. For legal advice, call (609) 754-2010. For advice on speaking with the media, contact the 305 AMW/PA at (609) 754-2104.