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NEWS | Jan. 15, 2021

Guidance details dos and don'ts for participation in political demonstrations

By 72nd Air Base Wing Judge Advocate 72nd Air Base Wing Judge Advocate

According to the FBI, individuals have planned “armed protests” to take place at all 50 state capitols and the U.S. Capitol in Washington leading up to and in the days following the upcoming presidential inauguration.

In light of this information, and considering the violence that transpired at the Capitol on Jan. 6, Department of Defense and Air Force military and civilian personnel must ensure they understand legal parameters for off-base demonstrations, thereby preventing inadvertent violations of standards while also honoring individuals’ constitutional rights of free expression.

First and foremost, military members and DOD employees may attend peaceful political meetings or rallies only as spectators and cannot appear in uniform. Military members are not permitted to make public political speeches, serve in any official capacity in partisan groups or participate in partisan political campaigns or conventions.

Per DOD Instruction 1325.06, Handling Dissident and Protest Activities Among Members of the Armed Forces, and Air Force Instruction 51-508, Political Activities, Free Speech and Freedom of Assembly of AF Personnel, service members are prohibited from participating in off-base demonstrations under any of the following circumstances: 1) they are on duty; 2) they are in a foreign country; 3) the activities constitute a breach of law and order (for example, local curfew violations, active participation in organizations that advocate or espouse supremacist, extremist or criminal gang doctrine, ideology or causes); 4) where violence is likely to result; and 5) in uniform.

Military members who fail to adhere to these requirements are subject to punishment under Article 92 of the Uniform Code of Military Justice, with a maximum sentence of dishonorable discharge, two years of confinement and total forfeitures of all pay and allowances. Additionally, failure to obey local, state or federal law subjects military members to UCMJ action or civilian criminal liability with follow-on adverse administrative action by the Air Force that could result in a discharge under other than honorable conditions.

Civilian employees may participate in a peaceful protest or peaceful demonstration as long as they are off duty and not wearing insignia that makes it appear that they are participating in an official government capacity. However, per AFI 36-704, Discipline and Adverse Actions of Civilian Employees, civilian employees may not engage in off-duty misconduct of such major import that makes them unable to fulfill job responsibilities or engage in misconduct that has an adverse effect upon the Air Force. Such misconduct will subject a civilian employee to potential discipline that could result in them being removed from their employment with the Air Force.

Employees with a security clearance should be especially careful to follow instructions given by law enforcement officers while attending a peaceful protest or peaceful demonstration. An arrest, even one in which charges are later dropped, is required to be reported to the employee’s security office and could cause complications during a clearance investigation.