Interest Opinion

UCMJ Overreach into Social Media… Just How Far is TOO Far?

Written by AJ Powell

In recent months, the United States military has been going through further examinations of punitive articles of the Uniform Code of Military Justice that can potentially be applied to individual social media use. [1]

A LTC in the office of the JA recently released yet another Army wide UCMJ briefing covering its reach into the realm of Social Media.

The short presentation started off by explaining that: “Soldiers using social media must abide by the Uniform Code of Military Justice at all times. Commenting, posting, or linking to material that violates the UCMJ or basic rules of Soldier conduct is prohibited. Social media provides Soldiers the opportunity to talk about their interests and keep in touch with friends and family. However, Soldiers are subject to the Uniform Code of Military Justice even when off duty, so appropriate social media conduct is expected of all Soldiers. Talking negatively about supervisors or releasing sensitive information for example, is punishable under the UCMJ.” [3]

While we ALL understand the requirements for the protective provisions placed upon sensitive information – regardless if such information was needlessly classified (an illegal act in itself, but that is a conversation for another time) – we must also recognize that the above statements clearly attempt to force a narrowing of the scope of social media use and interactions while at the same time refusing to acknowledge the vast other number of aspect that are covered within the use of social media and its interactions. We must therefore ask ourselves, just how far is too far when considering the censorship of individual service members’ ability to vent and express negative feelings and emotions, consistent with already established social norms, and to which clearly serve to contribute to healthy mental states and well-being?

According to Department of Defense Directives, United States Code, and the Joint Ethics Regulation of the Department of Defense, Constitutional protections for the rights of freedom of expression, freedom of speech, and freedom of representation shall not be waived upon service members so long as service members are not representing the service, are not wearing the uniform, and are not in the performance of official duties. Individual rights and protections of the rights to freedom of expression, freedom of speech, and freedom of representation shall be maintained so long as such rights represent solely the individual and their own independent thoughts. [4] [5] [6] [7] [8]

As such, any attempt to apply broad overreaching UCMJ actions against any individual who is found to be within the scope of either federal law or DoD regulations or both, is now an immediate contradiction to higher level authorities. Therefore, in regards to the past several years worth of Department attempts to apply the UCMJ against service members in respect to social media platforms, the only proper conclusion would be such an attempt is beyond that authority, and as such, unlawful.

But some simply do not seem to care about those very protections. In a recent case just this past year, U.S. Marine Corps Sergeant Stein was discharged for negative personal comments he made about Obama on a Facebook page. The comments were his own, and were not representative of the service or the Department of Defense, and yet SGT Stein was still punished under the UCMJ for making them. SGT Stein, at the time, was already being looked at for possible punishment because he started the Facebook page “Armed Forces Tea Party”, yet SGT Stein even said himself in the story, “They said, ‘All we ask is that you write that the views are not that of the Marine Corps or the Department of Defense,’”, to which he complied (talking strictly about his Facebook page, the Armed Forces Tea Party). [2]

The problem with SGT Stein’s dismissal from the Marine Corps comes from the UCMJ’s direct contradictions to both several United States federal laws and Department of Defense regulations that strictly provide for the retention of Constitutional rights and protections to service members. One of those protections (out of many) is Department of Defense Directive 1344, which allows all service members to express personal opinions on political candidates, but not as representatives of the Armed Forces. The fact that Stein was dismissed from the Marines despite those protections, even after he complied with the disclaimer that his opinions were his own and not those of the service, highlights those very actions of broad overreach that could very well be considered abuse of authority, level, power, and/or position.

The fact remains that higher levels of authority established protections, which these service members fell well within, and yet are still being attacked regardless. Those protections remain at the Constitutional level, and the DoD regulations only serve to reinforce federal laws that provide for the protections of Constitutional rights for service members. SGT Stein was well within this scope, and therefore, well within his right to express himself freely so long as it was clear that his opinions were his own, and not those of the service. The fact that he was still punished regardless, clearly highlights such contradictions in both legal structure and protections to individual service members. It also shows a clear case of retaliation by senior leaders who were driven by emotional reactions, not legally binding ones. Therefore, their use of UCMJ action against SGT Stein was personally motivated, not professionally, and designed to make an example of him so as to keep the rest of the force under an implied iron-like grip of control. Since such contradictions against already previously establish protections come from a lower level of legal authority, they can not be considered lawful or with merit.

You may be asking yourself by now, why is all this important to consider? Clearly, this assessment is not an attempt to convince others to revolting or subversive action. After all, there is much to be said on the very importance of maintaining good order and discipline within, and throughout the entirety of (at all levels), the services. However, at the same time, forcing individuals to remain silent without the ability to openly and freely express their inner most thoughts and feelings, has been directly linked to poor mental health and damaging to mental states that also directly impacts the entire individual on all other levels as a result.

The fact that service members are strictly forbidden from expressing openly their true feelings of anger, frustration, resentment, etc., in a manner normally socially consistent with venting of such feelings of anger, frustration, resentment, etc., is exactly why there is a great amount of distrust, disdain, hatred, frustration, anger, resentment, and more, directed expressly towards leaders at all levels (though especially at senior levels), and to which directly contributes to – and impacts the effects of – poor/low morale, retention rates, and individual performance while the member remains serving in uniform, and may even contribute to, and/or directly impact, lasting detrimental mental health issues. Service members are human beings, the same as all human beings, and because of this fact, lawful protections still remain in place to maintain their independent means of venting to provide for healthy mental states and well-being.

To attempt by any means to extend the UCMJ as a threat and/or set of restrictions, into even social media platforms, directly invades further aspects of individual lives both public and private while the individual is not maintaining representation of the service itself, themselves. This is a direct contradiction to both United States Code and the Joint Ethics Regulation which provide for the protection of an individuals freedoms of expression, speech, and representation while not representing the service, while not wearing the uniform, and while not in the performance of official duties. Therefore, attempting to extend broad overreaching restrictions through threat of UCMJ action against any individual, to become inclusive of any form of social media – regardless if whether such individual(s) defame any other individual (regardless of rank, status, or office) – is an act of tyranny and oppression, not an act of maintaining good order and discipline. Since such assumptions of overreach are contradicting to both federal laws and Department of Defense regulations, and due to their explicit intent to oppress Constitutional protections (therefore not waived), such actions shall rightfully be considered “Unlawful” and without merit.

As such, we must return to the original question… When it comes to an overreach of power and authority, enacted upon or enforced against, military service members… Just how far is TOO far? We all know there do exist bad apples out there who do need to be dealt with… and no, this does not address the provisions of OpSec – which must be maintained… But for all those out there who reserve the freedom to express themselves and only themselves, just how far is too far? Just how far until service members themselves grow sick of politics and personal toxic agendas from senior leaders destroying their lives for someone else’s personal gain? Just how far until the entirety of the forces move beyond the point of merely dealing with it?

References:

[1] http://www.army.mil/article/73367/Social_media_misuse_punishable_under_UCMJ/

[2] http://usnews.nbcnews.com/_news/2012/04/25/11396769-marine-who-criticized-obama-on-facebook-i-wish-i-could-take-it-back

[3] http://www.forthoodpresscenter.com/external/content/document/3439/1416867/1/5-Social%20Media%20and%20UCMJ.pdf

[4] DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces,” November 27, 2009

[5] Title 10, United States Code

[6] Title 18, United States Code

[7] DoD 5500.7-R, “Joint Ethics Regulation (JER),” August 1993

[8] DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005

About the author

AJ Powell

AJ is a retired U.S. Army NCO who served in both the U.S. Navy and U.S. Army. He is a combat veteran, and has participated in contingency operations around the world. AJ is the CEO of Veteran Leadership Solutions, the Founder and Editor in Chief of The Warfighter Journal, and the Director of Strategic Communications at Mountain Up Hat Company. He is a graduate of Pennsylvania State University with a focus on Sociology and a degree in Organizational Leadership, and is published in the field of sociology. AJ is an inductive analyst, writer of military and leadership articles, aviator, a certified advanced operational diver, professional mentor and adviser, snowboarder, motorcycle rider, world traveler, and enjoys long distance endurance events.