Is Court-martialing Military Retirees Unconstitutional? Two Cases May Change UCMJ Jurisdiction.

It is a little known fact: only some military retirees remain subject to the UCMJ after leaving service. Enlisted Sailors and Marines who complete 20-29 years of active duty actually transfer to the Fleet Reserve or the Fleet Marine Corps Reserve instead of the Regular Retired List. Officers, Reservists, and other branches simply retire after 20 years.  

The Fleet Reserve was established in order to have a ready pool upon which to recall Sailors and Marines back to active duty in case of war or national emergency. While in this status, they are paid “retainer” pay and are obligated to maintain readiness for active service.  Additionally, they are still subject to the Uniform Code of Military Justice. After 30 years of active or inactive service, they are finally transferred to the Regular Retired List, receive retirement pay, and are no longer subject to the UCMJ.

This statute may face challenges from two cases claiming that the different rules for different types of military retirees violate the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws.

The case of retired Chief Petty Officer Stephen Begani is now before the U.S. Court of Appeals for the Armed Forces.  The court of appeals, known as CAAF, is the last stop before any military appeal makes it to the Supreme Court. Begani was arrested by NCIS in 2017 months after leaving active duty and transferring to the Fleet Reserve.  He was convicted at court-martial of attempted sexual abuse of a child and was sentenced to 18 months’ confinement with a bad-conduct discharge. Begani appealed and in August 2019, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) overturned his conviction sending shockwaves through the military justice system.

In the stunning opinion, Chief Judge Navy Captain James Crisfield wrote, “Congress has determined that some, but not all, military retirees should remain subject to the Uniform Code of Military Justice while they are retired,” and added, “…Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional.”

A retired military officer in uniform

In October 2019, in another shocking move, the NMCCA withdrew its opinion, setting up conditions for reconsideration.  Four months later, the court reversed itself with an en banc (full bench) split decision – four to three to uphold the conviction of Begani. 

Now, Begani’s petition is being reviewed by the CAAF and may be heard within a few months.  If the petition for grant of review is denied, all appeal options for the case are over, including the possibility of the Supreme Court considering the case.  If granted, the court will eventually issue an opinion on the case, either reversing or affirming the conviction.  If his conviction is affirmed, Begani will have 90 days to petition the Supreme Court. 

In 2019, the U.S. Supreme Court decided not to hear the case of Staff Sergeant Steven Larrabee, another case seeking to end the longstanding statute. Larrabee was court-martialed for sexual assault months after retiring from the military. Larrabee has since filed a federal lawsuit in the District of Columbia seeking to overturn his conviction based on the unconstitutional jurisdiction of the UCMJ over retirees.

Sources:  https://www.military.com/daily-news/2020/07/07/militarys-top-appeals-court-consider-whether-retirees-can-be-court-martialed.html

https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html

Tim Nettles is a contributing writer on military matters.  He is a retired Command Master Chief with over 27 years of active service. Bilecki Law Group has over 50 years of combined experience in military court-martial defense.  For a consultation regarding a court martial, adverse administrative action or military law matter, please contact Bilecki Law Group at (813) 669-3500.

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