About 8,000 US troops are deploying to secure evacuations from Kabul

[Jarhead0331]

LTC has balls of steel. Semper Fi.

[Silent Disapproval Robot]

Hopefully someone appreciates the integrity and hires him on if he gets the axe.

[Gusington]

Holy crap.

[z1812]

Wow..........an impressive fellow. Let's hope he does not become a casualty to speaking the truth.

I wonder is there any way to send a message of support.

[steve58]

He put a lot on the line.  Hopefully his video goes viral and the higher ups join him in asking for accountability.

[z1812]

I just found the video on you tube. So if anyone wants to send a message of support, here is the link. https://youtu.be/Q3Qie2oZKW0

[steve58]

Damn, he's already been relieved.

Marine Lt. Col. Stuart Scheller was relieved for cause after demanding that senior U.S. leaders hold themselves accountable for actions made during the U.S. military's withdrawal from Afghanistan that led to the deaths of 13 service members.

https://www.foxnews.com/us/marine-afghanistan-senior-leaders-accountability

[GDS_Starfury]

pretty sure serving officers arent supposed to openly question political leadership.
I also found his "message" to be a bit rambling and something I dont agree with.
I think that the things the US and its allies have done in Afghanistan were good and worthwhile and served a valuable purpose.
I dont think that whats happening now negates any of that.  any blame for whats going on can be put mostly on the shoulders of the Afghan army and government.  they were given every possible chance and THEY blew it.  I also think we can sit here all day long and armchair quarterback whats going on but it was always going to end is some kind of shit show.
this guy lost his focus and should have been fired.  its not his job to question the strategic decisions in public, its his job to train people.  and if hes training people with this mentality then hes hurting the force as a whole.

[Sir Slash]

I seem to recall lots of people urging military officers to openly question the last Political Leadership we had and certain people thought that was Heroic when they did. Just once I'd like to see the military get on the planes and leave a bunch of State Dept. Bureaucrats and EPA Administrators to hold the line in a F-'ed-Up mission like this one.  :clap:

[al_infierno]

Careful Slash.  Let's not turn this into R&P Lite.

[Jarhead0331]

I wrote this for my law blog several years ago...

A heated, emotional and bellicose climate is certainly not new to U.S. politics, but constant connectivity to a never-ending news cycle, combined with new forms of communication technology by way of social media presents new challenges for active duty and reserve service members.

As any Soldier, Airman, Sailor or Marine knows, the Uniform Code of Military Justice ("UCMJ") sets forth various rules and standards of etiquette and decorum when publicly expressing opinions, views and political affiliation and/or ideology. Violations of these rules and standards can result in a court martial proceeding with quite severe penalties, including but not limited to confinement, forfeiture of pay and even dishonorable separation from the service.

In particular, military personnel must be especially careful in how they publicly express their views of various elected and appointed civilian leaders, including but not limited to the President, Vice President, members of Congress and the Secretary of Defense.

Men and women who serve their country in the armed forces do not check their First Amendment rights at the door when they take the Oath to support and defend the Constitution of the United States. However, service does impose a set of very specific standards that do not otherwise apply when in the civilian world.

If you are presently serving in the U.S. military, reading this article before your next "Tweet" or "Facebook" posting could be the only thing separating you from a promotion, and a bad conduct discharge.

The Law for Commissioned Officers
There are primarily two (2) provisions of the UCMJ that relate to contemptuous statements against leaders, the first, 10 U.S.C. Section 888, Article 88, titled "Contempt Toward Officials" applies only to Commissioned Officers. The second, 10 U.S.C. Section 934, Article 134 is a General Article that will apply to enlisted personnel.

Article 88 provides:
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

The elements of this Article are as follows:
(1)       That the accused was a commissioned officer of the United States armed forces;
(2)       That the accused used certain words against an official or legislature named in the article;
(3)       That by an act of the accused these words came to the knowledge of a person other than the accused; and
(4)       That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used. Note: If the words were against a Governor or legislature, add the following element
(5)       That the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned.

Unfortunately, the Manual for Courts-Martial provides only limited guidance in defining what constitutes "contemptuous words". However, Colonel Winthrop, in his Work, Military Law and Precedents, offered some examples, which include, "abusive epithets, denunciatory or contumelious expressions, and intemperate or malevolent comments..." The legislative history is sparse on explanations, as well, but it is clear that "contemptuous words" includes "disrespectful" speech. In addition, the Military Judges' Benchbook suggests that contemptuous means "insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness disreputableness, or worthlessness."

Records of prior courts-martial reveal that the element of contemptuousness is fairly easily satisfied. For instance, during the Civil War, convictions resulted for referring to President Lincoln as "a loafer," a "thief", a "damned tyrant", and a "damned black republican abolitionist." A conviction was even obtained for the statement, "Jeff Davis was as good a man as Abraham Lincoln." Convictions in subsequent periods continued to run the gambit and convictions were obtained for disrespectful statements accusing Presidents Wilson and Roosevelt during the World Wars of being "socialist" and there are even convictions for disrespectful statements made against President Clinton (use your imagination here) and President Obama.

One recent high profile case involved Marine Corps Sergeant Gary Stein, who was court martialed under Article 134 of the UCMJ (see below). SGT Stein created a Facebook page called the "Armed Forces Tea Party". On his page, SGT Stein called President Obama a "coward" and a "religious and economic enemy of the American people". On another Facebook page, SGT Stein vowed that he would not salute Obama, and he was also selling "Nobama" 2012 bumper stickers. As a result of his conduct, an Administrative Separation Board at Camp Pendleton voted 3-0 to recommend that Stein should be dismissed and given an other-than-honorable discharge for making comments "prejudicial to good order and discipline."  Various appeals of the decision were unsuccessful.

In addition to the above, the official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense. Neither "Congress" nor "legislature" includes its members individually. "Governor" does not include "lieutenant governor." Significantly, it is immaterial whether the words are used against the official in an official or private capacity.
While expressions of opinion made in a purely private conversation, or adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion that are not personally contemptuous, are typically not charged as a n offence, giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, will result in an offense with aggravating circumstances, and the truth or falsity of any contemptuous statement is always immaterial.

As noted above, dismissal, forfeiture of all pay and allowances, and confinement for up to one (1) year are the possible penalties for a violation of Article 88.

The Law for the Enlisted

Meanwhile, Article 134 provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

This article is peculiarly vague when compared to the vast majority of UCMJ provisions, and although extremely broad, it has survived several attacks on its constitutionality over the years since its inception to military law in 1775. In essence, Article 134 is a "catch-all" for any offenses that are not otherwise covered in any specific article of the UCMJ. Typically, an enlisted member of the armed forces will be charged with a violation of Article 134 for making disrespectful statements against civilian leaders or superiors on the ground that such statements are "disloyal".

In general, any individual subject to the UCMJ, who, at an alleged place and time, makes a statement on or about a particular subject or person, so as to encourage disaffection, disloyalty or both, or to interfere with or impair the loyalty and morale among the members of the armed forces, the civilian population or both, would be violating the Article 134 and shall be punished as deemed fit through a court martial. The statement made by the accused service member is considered an offense, if it is in anyway disloyal to the United States.

The elements of crime are as follows:
(1)       The accused person actually made the alleged statement;
(2)       The statement was made in public;
(3)       The statement was disloyal to the United States;
(4)       The statement promotes or encourages troops or the civilian populace to be disloyal, hostile or both towards the United States;
(5)       The statement impairs and/or interferes with the morale, the discipline or loyalty towards the United States, of a member or multiple members of the U.S. military; and
(6)       The nature of the statement was such that it brings upon discredit to the U.S. military, or disrupts the discipline and good order of the armed forces.

Under Article 134, a disloyal statement is a result of the accused person's conduct, which is prejudicial to the good order and discipline of the armed forces and which brings upon discredit to the armed forces. This means that the accused has acted or behaved in such a way as to distort the armed forces discipline and to harm the reputation of the service in general.

A service member is said to have "made" a statement only if it was spoken, written, published or printed, uttered, issued or put forth for circulation by him or her. The statement is made "public" only when it is made openly in the presence of others, who have the knowledge that the alleged statement was actually made by the accused.

The alleged statement made by the accused must incite disloyalty, where the term disloyalty implies being untrue or unfaithful to the United States as a whole. It is important to note that disloyalty to the armed forces, a government department, or any other organization need not necessarily be disloyalty towards the United States.

Similarly, the accused must have, by making the statement, promoted disaffection, which means disgust, ill will, or a hostile attitude towards the United States.

An individual found guilty of a violation of Article 134 is subject to a maximum punishment of no more than three years in confinement.

CONCLUSION
Commissioned officers and enlisted personnel may each be charged with violations of Articles 88 and 134, respectively, if they have used contemptuous, disrespectful, or disloyal words in content posted online. Servicemen and women who have made derogatory comments against various officials in Facebook posts, in Tweets, in forums and blogs, or any other social media outlet may be charged with violating these punitive articles. In effect, these articles limit the ability of officers and enlisted personnel to criticize certain officials verbally and in writing, both through hard copy and digitally.
Accordingly, when expressing your feelings about the President on the internet, think twice before you click on the "post" button, for sometimes discretion truly is the better part of valor.

Bottom line, I think he lost faith in his leadership and decided he didn't want to be a part of the military anymore. He got the result he expected, and most likely hoped for.

[Tripoli]

JH-Two unrelated points:
1) IRT  Lt. Col. Stuart Scheller having balls of steel.  Yes, he does.  While I understand that DoD has to remove him, I also appreciate what he did.
2) In an article today, the Office of Naval Intelligence (ONI) is claiming that military personnel, including retirees are subject to UCMJ Article 88. See  https://www.dailywire.com/news/exclusive-active-duty-retired-naval-intelligence-members-told-they-cannot-disrespect-biden-over-afghanistan-debacle
While technically they may have a very slight argument, based on the fact that retired officers are technically receiving retainer, not retirement pay, this seems like a considerable stretch to me. (Full disclosure: I'm a retired USNR).  I'm not sure what I think of ONI's analysis.  I think it is very weak IRT the retired aspect, and seriously doubt that they would actually try to go after a retired officer.  Do you have an opinion on this?

[Jarhead0331]

JH-Two unrelated points:
1) IRT  Lt. Col. Stuart Scheller having balls of steel.  Yes, he does.  While I understand that DoD has to remove him, I also appreciate what he did.
2) In an article today, the Office of Naval Intelligence (ONI) is claiming that military personnel, including retirees are subject to UCMJ Article 88. See  https://www.dailywire.com/news/exclusive-active-duty-retired-naval-intelligence-members-told-they-cannot-disrespect-biden-over-afghanistan-debacle
While technically they may have a very slight argument, based on the fact that retired officers are technically receiving retainer, not retirement pay, this seems like a considerable stretch to me. (Full disclosure: I'm a retired USNR).  I'm not sure what I think of ONI's analysis.  I think it is very weak IRT the retired aspect, and seriously doubt that they would actually try to go after a retired officer.  Do you have an opinion on this?

Actual prosecutions of retirees is rare, but the threat is very real.  Unlike civilian courts, UCMJ jurisdiction is not territorially bound. Instead, jurisdiction is predicated upon an individual's relationship to the military.

Article 2(a)(4) allows for the court-martial of regular component (Army, Navy, Marine, Air Force, Space Force, and Coast Guard) retirees who are entitled to pay, and Article 2(a)(6) allows for the court-martial of retirees who are part of the Fleet Reserve or Fleet Marine Corps Reserve. Moreover, despite their retiree status, these two groups are treated like active-duty members in that they are continuously subject to UCMJ jurisdiction.

Despite many challenges to these provisions, military courts have consistently found that the Constitution allows Congress to extend UCMJ jurisdiction to retirees. For instance, in the 2018 case United States v. Dinger, the Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that it was "firmly convinced that those in a retired status remain 'members' of the land and Naval forces who may face court-martial." Though the U.S. Court of Appeals for the Armed Forces (CAAF), the highest military appellate court, did not squarely address the jurisdictional question, it ultimately affirmed the CCA's decision, and the Supreme Court denied Dinger's petition for certiorari.

However, in the first break of this long standing precedent, check out LARRABEE v. BRAITHWAITE, et al, No. 1:2019cv00654 - Document 28 (D.D.C. 2020). The government has appealed this decision, but the lower court rejected the government's contention that Fleet Marine Corps Reservists' receipt of retainer pay and the ability of the Secretary of the Navy to recall them to active duty at any time necessitated jurisdiction. Instead, the court ruled that pay received by retirees constituted deferred pay from past services, not retainer pay. And it found that Fleet Marine Corps Reservists were "much less likely to be recalled to active-duty service than [r]eservists," rendering Congress's distinction between Fleet Marine Corps Reservists and inactive reservists "arbitrary at best." In consequence, the court found that Congress failed to demonstrate why the application of UCMJ jurisdiction to Fleet Marine Corps Reservists was necessary to the promotion of good order and discipline, which is a standard based on a decision in 1955, United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

[Tripoli]

JH-Two unrelated points:
1) IRT  Lt. Col. Stuart Scheller having balls of steel.  Yes, he does.  While I understand that DoD has to remove him, I also appreciate what he did.
2) In an article today, the Office of Naval Intelligence (ONI) is claiming that military personnel, including retirees are subject to UCMJ Article 88. See  https://www.dailywire.com/news/exclusive-active-duty-retired-naval-intelligence-members-told-they-cannot-disrespect-biden-over-afghanistan-debacle
While technically they may have a very slight argument, based on the fact that retired officers are technically receiving retainer, not retirement pay, this seems like a considerable stretch to me. (Full disclosure: I'm a retired USNR).  I'm not sure what I think of ONI's analysis.  I think it is very weak IRT the retired aspect, and seriously doubt that they would actually try to go after a retired officer.  Do you have an opinion on this?

Actual prosecutions of retirees is rare, but the threat is very real.  Unlike civilian courts, UCMJ jurisdiction is not territorially bound. Instead, jurisdiction is predicated upon an individual's relationship to the military.

Article 2(a)(4) allows for the court-martial of regular component (Army, Navy, Marine, Air Force, Space Force, and Coast Guard) retirees who are entitled to pay, and Article 2(a)(6) allows for the court-martial of retirees who are part of the Fleet Reserve or Fleet Marine Corps Reserve. Moreover, despite their retiree status, these two groups are treated like active-duty members in that they are continuously subject to UCMJ jurisdiction.

Despite many challenges to these provisions, military courts have consistently found that the Constitution allows Congress to extend UCMJ jurisdiction to retirees. For instance, in the 2018 case United States v. Dinger, the Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that it was "firmly convinced that those in a retired status remain 'members' of the land and Naval forces who may face court-martial." Though the U.S. Court of Appeals for the Armed Forces (CAAF), the highest military appellate court, did not squarely address the jurisdictional question, it ultimately affirmed the CCA's decision, and the Supreme Court denied Dinger's petition for certiorari.

However, in the first break of this long standing precedent, check out LARRABEE v. BRAITHWAITE, et al, No. 1:2019cv00654 - Document 28 (D.D.C. 2020). The government has appealed this decision, but the lower court rejected the government's contention that Fleet Marine Corps Reservists' receipt of retainer pay and the ability of the Secretary of the Navy to recall them to active duty at any time necessitated jurisdiction. Instead, the court ruled that pay received by retirees constituted deferred pay from past services, not retainer pay. And it found that Fleet Marine Corps Reservists were "much less likely to be recalled to active-duty service than [r]eservists," rendering Congress's distinction between Fleet Marine Corps Reservists and inactive reservists "arbitrary at best." In consequence, the court found that Congress failed to demonstrate why the application of UCMJ jurisdiction to Fleet Marine Corps Reservists was necessary to the promotion of good order and discipline, which is a standard based on a decision in 1955, United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

Thanks for the Braithwaite citation.  Interesting analysis.  My gut feeling is that the  Braithwaite court's opinion is going to be upheld.  I believe the court is correct in narrowly construing the USMJ to  those necessary as part of Congress'  Art I, Section 8 responsibilities, especially in light of the Articles III and 5th and 6th Amendment protections granted to citizens.  As the Court points out in pages 16-17, the fact that reservists  not on active duty are treated differently from retirees pretty much forecloses the ability of the government to argue that the law is "narrowly tailored" to meet these competing constitutional interests. 

To the extent that retired personnel are on what is technically "retainer pay", the necessity to maintain good order and discipline among retirees can be met by other mechanisms short of court martial.  [as an aside, there may also be an equal protection argument in Braithwaite: I'd guess that few, if any, retirees  in CONUS are ever charged under the UCMJ for civilian criminal activities.  Braithwaite was probably charged because the Japanese were outraged by the incident].  The court's point that retired pay is based on past rank and service, not current obligation and duty performed points to it being more akin to retired pay (while acknowledging that as a condition for receiving the pay is maintaining a legal availability for mobilization).   The court's citation to the requirement in Ex parte Milligan that the individual must be in "actual service" before being subjected to the USMJ  indicates that the Congressional act in expanding UCMJ authority to retirees may be unconstitutional.  Despite the fact that retirees are potentially subject to recall, the fact that retirees have no requirement to meet training, health, PT or mental requirements to continue to remain on the retired list and receive pay indicate that the pay received is retired pay, not retainer pay. 

[Edit/Addendum: My wife, who was a USN JAG in Misawa took a look at my analysis and slapped me around a bit.  She thinks the victim in this case was probably a non-Japanese national, and that as a result the Japanese didn't pursue any charges.  Since the incident took place off base, the only way the victim could get justice was for the US to do a court martial on the guy.  She is probably right]

[Toonces]

Wow, the last few posts have been very interesting.

I just got to watching the video.  That took a lot of courage to do.  I wouldn't have done it.

He pretty much had to be relieved, but I'm not sure that he's necessarily going to be discharged via court martial.  A good lawyer could likely argue that he didn't say anything contemptuous, or that otherwise violates the Article 88 posted above.