Never Relieved of That Oath
Oh God, is that a Major on the Lawn?
I have great respect for military veterans. I have a number of them in my extended friend zone, and a number of them in my family. My family has members that have served in wars going back to the Revolution, and I’m proud of that service. I say that because I’m going to tackle a meme that goes around Facebook among veterans, and I wanted to make clear that it is only against a meme that I believe is incorrect rather than against anyone’s service.
So, with that disclaimer out of the way: Of course you were relieved of your oath to fight enemies both foreign and domestic.
The above meme is one that goes around on Facebook from time to time among veterans of a certain political bent, not infrequently after events like the shootings in Colorado and California or the attacks in Paris. It sounds decent enough, right? Nice and patriotic, and a reminder that there is something about military service that stays with a veteran for the rest of their lives. You also see it phrased as “I am a Veteran. My Oath of Enlistment has no expiration date,” such as the shirt at http://www.cafepress.com/mf/75586877/i-am-a-veteran-my-oath-of-enlistment-has-no-expira_tshirt?utm_content=ChannelAdvisor_US_shopping&utm_medium=productfeed&utm_source=CSE&productId=1441259092.
The problem being that it is completely wrong, and demonstrably so within the structure and nature of the military oath.
The Military Oath
The current U.S. Oath of Enlistment is as follows:
“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
10 U.S.C. 502.
Officers instead swear the United States Uniformed Services Oath of Office:
“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
5 U.S.C. 3331.
Now, the meme is correct up to a point—there is no time frame referenced in the oath. That taken in a vacuum could imply that the oath is meant to be a lifetime commitment, especially when combined with the fact that there is no accompanying “de-enlistment” oath. There is also the fact that within the Enlisted oath, as opposed to the Officer oath, there is no reference to discharging the duties of any office or position; rather it refers only to the person defending, bearing true faith and allegiance, and following orders.
But a statutory requirement is often taken not just in its own words but in the context it occurs in, and this one is no different. One of the ways that we can find the intent of a regulation is how it is applied by the agency responsible for applying it, and whether or not that application has been challenged. In this instance, then, we need to look at how the agencies in question—the U.S. Military services—apply the regulation.
If it was the expectation of the Army, Air Force, Navy, or Marines that the Oath of Enlistment be eternal and binding then there would be no reason to ever swear it again. If there was no mechanism for its removal then all that would be required is to swear it at the time of your enlistment (or commission) and it would be good for the remainder of your earthly existence.
But of course, that isn’t the case. The re-swearing of the Oath of Enlistment is ubiquitously depicted in culture, from actual depictions of the military to fictional ones. Here are pictures of soldiers reenlisting in the U.S. Army:
That image even pervades depictions of the military in the future; see, for example, Marko Kloos’ Terms of Enlistment, which features the main character re-swearing his own future country’s oath multiple times across his career.
This is borne out even in the paperwork that is signed upon reenlistment. U.S. Army DD Form 4 (http://www.dtic.mil/whs/directives/forms/eforms/dd0004.pdf, also available as a sample in Army Regulation 601-280) is the Enlistment/Reenlistment form, which is filled out at the appropriate time. Section E of that form is the Confirmation of Enlistment or Reenlistment, and it contains in it the whole Oath of Enlistment with space for the service member’s name. After filling that in it is signed, and then there is a section for an Officer to sign that “The above oath was administered, subscribed, and duly sworn (or affirmed) before me this date.”
So this tells us very plainly that it is the expectation of the U.S. Army, at the very least, that your Oath of Enlistment has an expiration date: The expiration of your enlistment. And that it is considered to be a vital part of remaining in the service that it must be done every time. If you have not sworn your Oath of Enlistment/Reenlistment, that means that you are not officially a soldier (or sailor, airman, or marine). In Part C of the DD 4, it explains: “My enlistment/reenlistment agreement is more than an employment agreement. It effects a change in status from civilian to military member of the Armed Forces.” The oath is a sine qua non of that agreement and therefore of being a member of the military. Remember those pictures—many of them were in war zones. If it was anything less than a fundamental requirement, surely they would have waited.
But this also works in reverse. When you are no longer bound by that agreement, you are no longer bound by the status of being a military member of the Armed Forces, of which a vital part is the Oath. By no longer being a military member of the Armed Forces, whether through honorable or less than honorable circumstances, you are no longer bound by the oath that you swore to become a military member of the Armed Forces. There is no other logical schema in which the requirement of re-swearing the oath makes sense as a requirement for reenlistment, and the emphasis placed upon it.
And for comparison, the Oath of Enlistment isn’t the only oath people swear without an ending. As pointed out above, Officers swear a similarly endless oath. But more than that, so do many other government officials. For example, every 4 years we have a man stand outside in January in Washington, D.C. and swear the following:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” U.S. Const. Art. 2, Sec. 1, Clause 8.
Note that the Presidential Oath also doesn’t have an expiration date listed. There is nothing in it about serving for the term elected to, or for stepping down peaceably. The rest of the clause only says “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation”. If it were not meant to expire with the end of his term in office (similar to the term of enlistment) then there would be no need to swear it for a second term. And if oaths without a definite ending are meant to be never ending then theoretically all Presidents are bound by it for their whole lives as well, with their own Facebook memes; perhaps the oldest living President, by that logic, is still bound to execute the office. For now that would be George H.W. Bush, but in a few years it would likely be Bill Clinton and then won’t half the country be thrilled (and the other half perhaps actually thrilled).
Clearly therefore the Oath of Enlistment is believed by the military and U.S. Government itself to expire with your military service, just based on logical interpretation. But that is ok, because veterans really shouldn’t want to still be bound to it…
The Other Part of the Oath
Because if the Oath of Enlistment really has no expiration date that applies to the whole oath, not just part of that. Let’s look at it again, with another section highlighted:
Now, I actually like President Obama. I voted for him not once but twice, and have never hidden that. I have certainly had some disappointments with him, largely in that I do not feel he has been effective enough at going for full on liberal ideals, but I am proud to have voted for him twice. But allow me to ask a question for you, and for this question you may substitute any President you want whether you like them or not:
Would you want to be required for life to follow any order the President of the United States gave you, or any order of a person he set over you?
Because if the oath lasts forever, then that is what can happen. President Obama (or any other President) could show up at a Veteran’s house and give him a lawful order—and they would not just be likely to follow it given it is the President, but be lawfully required to do so. And even more than that, President Obama could appoint some Major to go to your house and order you to Iraq even if you’ve been retired from the military since Vietnam. Or World War II.
Because remember, the Uniform Code of Military Justice looks dimly on not following orders:
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct. 10 U.S.C. 892 (UCMJ Art. 92): Failure to Obey Order or Regulation.
Now under normal circumstances it wouldn’t be lawful for a member of the U.S. Military to give orders to civilians; but under an interpretation of the eternal oath of enlistment, what impediment is there to make such an order unlawful? You cannot argue that one part of the oath is forever and another only applies to your time in the military, as they are both part of the same oath with the same lack of duration.
And as a side note to that: How happy would you be to have to follow the UCMJ for the rest of your life, even decades after you’ve been separated from the military? For example, let’s consider 10 U.S.C. 888 (UCMJ Art. 88):
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.
And for those who are non-commissioned, let us refer to Department of Defense Directive 1344.10 (February 19, 2008):
Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
So roughly that means that if you consider yourself to have never been released from your oath, that you are still bound by UCMJ Art. 88 or the DoDD 1344.10 (as it is a lawful order from an office designated by the Commander in Chief to issue regulations to soldiers). And that means that if your oath of enlistment is eternal and you have posted memes, pictures, updates, or articles against President Obama (such as calling him a traitor, calling to disobey laws he has signed, calling him a dictator) then you have violated still binding laws and regulations and should expect to be brought up on charges before a court martial you are still subject to.
And lest anyone think the DoD is not very serious about those regulations (instituted, I might point out, under President George W. Bush), allow me to share: http://usnews.nbcnews.com/_news/2012/04/25/11394219-marine-who-criticized-president-obama-on-facebook-to-be-discharged?lite
That’s the reality of an oath that never goes away, and doesn’t expire with your separation from the military. That’s the price of getting to say proudly no one ever released you from your oath, because you can’t have that cake and eat it too. If no one ever relieved you from defending us against enemies foreign and domestic, no one relieved you of any other part of that oath. And we may well interpret other oaths of other members of the government (which anyone who served in the military was, during their time) similarly. And violation of the rules which once bound you are damning, because they still bind you.
Or not. The other option is to live in the world we actually live in. The one where no military, government department, or court in the land will believe you are still bound by your Oath of Enlistment, because you aren’t. The one where you can criticize the government whenever you want because you are no longer a member of the military, and where you are not bound to follow the orders of the POTUS any more than any other civilian is. I can’t even say you get to choose, because you don’t.
Our veterans gave great service when they swore their oaths, and that deserves recognition. But if they have become veterans it means that time of active service came to an end, and that it also ended their obligations under the oaths they swore. And it doesn’t make any sense, nor would it be actually palatable to even veterans who like the current President, for it to be any other way.