...former members of the armed services occupy a legal status somewhat distinct from that of ordinary citizens. Even as retirees, they remain bound by codes of military behavior that restrict the political participation of service members......Article 88 of the UCMJ criminalizes “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 ...”
...Although the armed forces could employ this prohibition to restrain retirees’ political speech, the government has only initiated court-martial proceedings against one retired service member—nearly one hundred years ago in United States v. Salvagno. And the retiree in question—a former Army musician—was acquitted.
Moreover, military prosecutors have limited discretion to proffer charges against retirees for violations of the UCMJ. For example, AR 27-10, Military Justice, states, “Army policy provides that retired Soldiers ... will not be tried for any offense by courts-martial unless extraordinary circumstances are present. Prior to referral of courts-martial charges against retired Soldiers, approval will be obtained from the Criminal Law Division ... of the Assistant Secretary of the Army.”