Is Wearing a Military Uniform Legal on Halloween?

Wearing Military Uniforms

little soldier Halloween
••• Sondra Marie/Flickr

Can a civilian child or adult wear the military uniform legally? Even if for a one time event like Halloween or a costume party? Each year, small children (and some not-so-small "children") dress up in costumes. Some of these folks, both small and tall will be wearing replicas of United States Military Uniforms.

Is that legal? Can you dress up your little Rambo to look like a United States Army Officer? What about your big Rambo? What about impersonating someone in the military? This is typically where the line is drawn. In fact the Stolen Valor Act of 2013 addresses the worst offenders of this dilemma: The Stolen Valor Act of 2013 makes it illegal to impersonate a member of the military for any form of material personal gain, such as money or housing. Under U.S. federal law, it is a crime to falsely claim certain military honors.

Federal laws concerning the wear of the United States Military uniforms by people not on active duty are published in the United States Code (USC).

Specifically, 10 USC, Subtitle A, Part II, Chapter 45, Sections 771 and 772.

Except as otherwise provided by law, no person except a member of the Army, Navy, Air Force, or Marine Corps, as the case may be, may wear -

(1) the uniform, or a distinctive part of the uniform, of the Army, Navy, Air Force, or Marine Corps; or

(2) a uniform any part of which is similar to a distinctive part of the uniform of the Army, Navy, Air Force, or Marine Corps

Section 772 lists some exceptions mainly concerning Veterans and Reservists:

(a) A member of the Army National Guard or the Air National Guard may wear the uniform prescribed for the Army National Guard or the Air National Guard, as the case may be.

(b) A member of the Naval Militia may wear the uniform prescribed for the Naval Militia.

(c) A retired officer of the Army, Navy, Air Force, or Marine Corps may bear the title and wear the uniform of his retired grade.

(d) A person who is discharged honorably or under honorable conditions from the Army, Navy, Air Force, or Marine Corps may wear his uniform while going from the place of discharge to his home, within three months after his discharge.

(e) A person not on active duty who served honorably in time of war in the Army, Navy, Air Force, or Marine Corps may bear the title, and, when authorized by regulations prescribed by the President, wear the uniform, of the highest grade held by him during that war.

(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.

(g) An officer or resident of a veterans' home administered by the Department of Veterans Affairs may wear such uniform as the Secretary of the military department concerned may prescribe.

(h) While attending a course of military instruction conducted by the Army, Navy, Air Force, or Marine Corps, a civilian may wear the uniform prescribed by that armed force if the wear of such uniform is specifically authorized under regulations prescribed by the Secretary of the military department concerned.

Seems pretty clear, none of the above categories cover Halloween. Or, do they?

Section 772 (f) allows the uniform to be worn in a theatrical production. Is Trick or Treat a "theatrical production?" Nobody knows, because no court has ever defined this. The closest a court has come is the Supreme Court, who used a very liberal interpretation of "theatrical production" in SCHACHT v. UNITED STATES, 398 U.S. 58 (1970). In a nutshell, in the Supreme Court case, the court defined "theatrical production" very liberally, and struck out as unconstitutional the prohibition that the portrayal not intend to discredit the military.

Against The Law to Wear the Uniform as a Civilian?

Separate from technical legality is whether or not it really matters. Under our legal system, district attorneys have are given a wide latitude of what law violations to prosecute and which ones to ignore.

However, the Army cares if civilians wear the uniform or parts of the uniform, and might be willing to persuade a DA to prosecute. Some of the services have gone out of their way to include restrictions in their dress and appearance regulations (which are not enforceable against civilians, but tends to show that service's view on the subject). Army Regulation 670-1,

a. The following uniform items are distinctive and will not be sold to or worn by unauthorized personnel:

  • (1) All Army headgear, when worn with insignia.
  • (2) Badges and tabs (identification, marksmanship, combat, and special skill).
  • (3) Uniform buttons (U.S. Army or Corps of Engineers).
  • (4) Decorations, service medals, service and training ribbons, and other awards and their appurtenances.
  • (5) Insignia of any design or color that the Army has adopted.

This indicates that the Army would not be very happy if they learned that a civilian was wearing one of the items listed above.

So, is your kid (big or small) going to be arrested and sent to jail for wearing a military uniform on Halloween? That the answer would be "no."