Can Military Retirees Be Court Martialed?

Navy retirement shadow box with folded flag, sword and insignia — A Navy retirement shadow box in Philadelphia on 18 October 2019. The photo is illustrative and is not connected to any case. (U.S. Navy photo by Petty Officer 1st Class Diana Quinlan.) The appearance of U.S. Department of War (DoW) visual information does not imply or constitute DoW endorsement.

Yes, for many retirees. Retirement does not end UCMJ jurisdiction for everyone who leaves active duty. Retirees of a regular component who are entitled to pay, and members of the Fleet Reserve and Fleet Marine Corps Reserve, remain subject to the UCMJ. Challenges to that rule went to the federal courts and failed, and the Supreme Court declined to take them up.

Who remains subject to the UCMJ

Article 2 of the UCMJ lists three groups of retirees: (10 U.S.C. 802(a))

Article 2	Who it covers
(a)(4)	Retired members of a regular component who are entitled to pay
(a)(5)	Retired members of a reserve component who are receiving hospitalization from an armed force
(a)(6)	Members of the Fleet Reserve and the Fleet Marine Corps Reserve

How the challenges came out

United States v. Begani (2021). The Court of Appeals for the Armed Forces held that court martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, and that treating Fleet Reservists differently from reserve retirees does not violate equal protection. (Begani) The Supreme Court denied review on 13 December 2021. (Docket 21-335)

Larrabee v. Del Toro (2022). A federal district court had held jurisdiction over Fleet Marine Corps Reserve members unconstitutional. The D.C. Circuit reversed on 2 August 2022 and upheld the court martial. (Larrabee) The Supreme Court denied review on 10 October 2023. (Docket 22-1082)

The question the 2020 version of this post asked is answered for now. Courts martial of retirees in these groups are lawful.

What it means in practice

A retiree in one of these groups who is investigated by CID, NCIS or OSI has the same Article 31(b) rights as an active duty member. Under Article 31b of the UCMJ you have the right to remain silent. The Military Rules of Evidence also give you the right to a lawyer before and during questioning in custody.
Many retirees who face this live and work overseas near U.S. bases, where a host nation case may run at the same time.
A conviction can carry the punishments any court martial can impose, and it can follow a retiree into civilian life.

If a host nation case is also open, it is separate. Bilecki Law Group advises on the UCMJ and military administrative action. We do not advise on the law of the host nation, and we cannot tell you whether to speak with host nation police or prosecutors. For advice on the host nation case, talk to a lawyer licensed in that country.

How Bilecki Law Group helps

Military defense is all we do. Tim Bilecki has taken more than 250 courts martial to verdict, and the firm has represented more than 500 clients. Tim Bilecki travels to Japan, Korea and other overseas locations to defend the court martial and the administrative case. Call 813-669-3500 or contact the firm for a confidential consultation.

Frequently asked questions

Can a military retiree be court martialed?

Yes, if the retiree is a regular component retiree entitled to pay, a reserve retiree receiving hospitalization from an armed force, or a member of the Fleet Reserve or Fleet Marine Corps Reserve.

Did the courts strike down retiree jurisdiction?

No. The Court of Appeals for the Armed Forces upheld it in Begani (2021), the D.C. Circuit upheld it in Larrabee (2022), and the Supreme Court declined to review both.

Do retirees have Article 31(b) rights?

Yes. A retiree who is subject to the UCMJ and suspected of an offense has the same right to be warned before questioning.