Is Wearing a Military Uniform Legal on Halloween?

Wearing Military Uniforms

little soldier Halloween
••• Sondra Marie/Flickr

On October 31st of each year, small children (and some not-so-small "children") dress up in costumes and go door-to-door begging strangers for candy. 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?

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.

Section 771 states:

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:

(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.

(i) Under such regulations as the Secretary of the Air Force may prescribe, a citizen of a foreign country who graduates from an Air Force school may wear the appropriate aviation badges of the Air Force.

(j) A person in any of the following categories may wear the uniform prescribed for that category:

  • (1) Members of the Boy Scouts of America.
  • (2) Members of any other organization designated by the Secretary of a military department

It would seem, on the surface, that the law is pretty plain, right? 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 this case, the court said:

Our previous cases would seem to make it clear that 18 U.S.C. 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on its face. See, e. g., United States v. O'Brien, 391 U.S. 367 (1968). But the general prohibition of 18 U.S.C. 702 cannot always stand alone in view of 10 U.S.C. 772, which authorizes the wearing of military uniforms under certain conditions and circumstances including the circumstance of an actor portraying a member of the armed services in a "theatrical production." 10 U.S.C. 772 (f). The Government's argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a "theatrical production" within the meaning of 772 (f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area such as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam war. Supra, at 60 and this page. It may be that the performances were crude and [398 U.S. 58, 62] amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays. Of course, we need not decide here all the questions concerning what is and what is not within the scope of 772 (f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a "theatrical production" within the meaning of that section.

By the way, in making this decision, the Supreme Court also struck the words, "if the portrayal does not tend to discredit that armed force," from the statute as unconstitutional. The court said:

This brings us to petitioner's complaint that giving force and effect to the last clause of 772 (f) would impose an unconstitutional restraint on his right of free speech. We agree. This clause on its face simply restricts 772 (f)'s authorization to those dramatic portrayals that do not "tend to discredit" the military, but, when this restriction is read together with 18 U.S.C. 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or [398 U.S. 58, 63] policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance. The last clause of 772 (f) denies this constitutional right to an actor who is wearing a military uniform by making it a crime for him to say things that tend to bring the military into discredit and disrepute. In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but under the final clause of 772 (f) he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it. In light of our earlier finding that the skit in which Schacht participated was a "theatrical production" within the meaning of 772 (f), it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of 772 (f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of 772 (f) that final clause must be stricken from the section.

So, in the above 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.

So, is it illegal for your kid to dress up as an Air Force officer for Halloween? Unknown for sure, but very probably not.

Separate from technical legality is whether or not it really matters. If your kid wears the uniform, would that result in arrest and prosecution? Almost certainly not. Under our legal system, district attorneys have are given a wide latitude of what law violations to prosecute and which ones to ignore.

Sodomy is still illegal in many states. But, unless there are special circumstances involved, you will be hard-pressed to find a DA who would prosecute this offense.

Several years ago, there was long-haired-hippie-type living in our neighborhood, whose habit it was to (loudly) criticize the military. Any time you would see him, at any function, or event (or, just taking a walk), he would spew anti-military doctrine at anyone who was foolish enough to pause long enough to listen. As this was in a town where the majority of the population was active duty or retired military, you can imagine that he was not well-liked in the community.

Then one day, he started wearing an Army Field Jacket that he had obtained from a military surplus store. The jacket had all the adornments, including the "U.S. Army" tape, unit badges, a "Ranger Tab," and the grade insignia of a Staff Sergeant. Obviously, this did not set well with several members of the community. We contacted the police department, and even went so far as to print 10 USC, Sections 771 and 772 for them. The police consulted with the local district attorney, then told us that the DA's office had absolutely no interest in prosecuting the case.

Therefore, the police department had absolutely no interest in arresting the individual, or citing him with a crime.

A few years later, I was working for an online computer internet company (CompuServe), as part of their online chat team. We had a frequent user there who said he was an O-6 (captain) Navy Test Pilot. This person had actually shown up at several Chat Events, wearing the uniform of a Naval Officer. I personally met him (twice), and had no reason to doubt him. He had extensive Navy knowledge, and talked the lingo almost perfectly.

Imagine my surprise when I later learned that this person was not in the Navy -- in fact, he was a Canadian citizen (in the U.S. illegally), and had never served in the United States Military. When he was caught (in the act of wearing the uniform, on a Naval installation), he was prosecuted (and given a prison term) for violation of 10 USC 771.

In the first case, the prosecutor had no interest in pursuing criminal charges. In the second case, the prosecutor was more than happy to pursue the case to the maximum extent of the law.

But, what about the military services? Do they care if civilians wear the uniform or parts of the uniform, and might they be willing to persuade a DA to prosecute? It seems so. 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, paragraph 1-4 states:

d. In accordance with chapter 45, section 771, title 10, United States Code (10 USC 771), no person except a member of the U.S. Army may wear the uniform, or a distinctive part of the uniform of the U.S. Army unless otherwise authorized by law. Additionally, no person except a member of the U.S. Army may wear a uniform, any part of which is similar to a distinctive part of the U.S. Army uniform. This includes the distinctive uniforms and uniform items listed in paragraph 1–12 of this regulation.

Paragraph 1–12 goes on to define "Distinctive uniforms and uniform items:"

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? Stay away from "distinctive" items such as insignia, badges, and tabs, and I'll bet you three bags of left-over Halloween candy that the answer would be "no."