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View Full Version : You Can Be Court-Martialed Even AFTER Leaving Service



Doc Safari
02-25-19, 09:51
https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html?


The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

The court on Tuesday chose not to hear the case of a retired Marine who was court-martialed for a sexual assault he committed three months after leaving the service in August 2015. By not accepting the case, Larrabee v. the United States, the court upheld the status quo: that military retirees are subject to the Uniform Code of Military Justice.


The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" are subject to court-martial jurisdiction.

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.


there are articles in the UCMJ that could place many military retirees at risk for arrest, and the U.S. Supreme Court has an interest in weighing in on how cases involving retirees are handled.

He cited one provision in the UCMJ that makes "contemptuous words" used by a commissioned officer "against the president, the vice president, Congress" and others as punishable by court-martial.

"From Adm. Bill McRaven to Gen. Michael Hayden and Gen. Martin Dempsey, some of President Donald Trump's more visible critics of late have been retired military officers. And a provision of federal law ... makes it a crime, triable by court-martial," he wrote in a blog post on Lawfare. "But does the Constitution really allow the government to subject to military trial those who have retired from active duty -- in some cases, long ago -- even for offenses committed while they are retired?"

Yes, it does, according to the Supreme Court, in its denial of Larrabee's and Dinger's writs of certiorari.

Retired Maj. Gen. Charles Dunlap, former deputy judge advocate general of the Air Force, concurs.

In a Feb. 16 post on Duke University School of Law's Lawfire blog, Dunlap said Congress explicitly states that the UCMJ applies to retirees and that Vladeck's arguments about the impropriety of senior officers speaking out against the president, as well as the "anachronistic" idea that retirees can be recalled to active duty, aren't valid.

He added that the very act of receiving retired pay means that retired personnel are choosing to keep a relationship with the military and accept all that goes with the choice not to terminate their commission or request a discharge.

"As a retired service member subject to military jurisdiction, count me among those of my comrades-in-arms who believe it a small price to pay to maintain the connection with the armed forces," Dunlap wrote.

My take: I'm going to refrain from comment on this one, other than to say I don't condone criminal behavior regardless of who has jurisdiction over it.

jack crab
02-25-19, 10:48
As you first quoted block says, this is the status quo.

Back in the day when Clark and Subic Bay were major bases, and retirees stayed on in the PI, it was a relatively ordinary occurrence for retired members to be recalled and prosecuted by military authorities rather than leave them to PI civilian courts.

rero360
02-25-19, 11:03
Makes sense to me, and being that some day in the future (2+ years) I will be a retiree, I am not at all concerned about it.

soulezoo
02-25-19, 11:30
I was given the option to retire or Medically separate. I took the latter. This issue was just one reason why.

BoringGuy45
02-25-19, 12:59
So, if I were a vet, and I walked off a civilian job without notice, could I get a dishonorable discharge for desertion? :D

ABNAK
02-25-19, 13:15
Seems that most of this applies to commissioned officers, unless it is assumed it also applies to retired enlisted guys.

Also, where is the line drawn? Are retirees subject to piss tests too?

I'm not sure if I agree with the part about not being able to bad-mouth a POTUS or Congress. Sure, I'd LOVE to see some of those smarmy ex-Generals/Admirals get their shit packed in but I don't agree in principle.

soulezoo
02-25-19, 14:31
This applies to enlisted. In fact, few officers have been charged this way. Most have been NCOs.

glocktogo
02-25-19, 15:02
Am I wrong in getting the impression that this "tool" would be used sparingly and based on unique circumstances? Both of the test cases involve sex crimes perpetrated overseas by guys who were recently separated.

If they were technically still on inactive reserve I can see changing their discharges to dishonorable. I wouldn't agree to this process if the retiree in question is subject to a U.S. court jurisdiction and has fully completed the separation process to full retirement. If you served a full career and are fully retired, I think going in and retroactively rescinding an honorable discharge is uncalled for. Prosecute them to the fullest extent of the law and if prison is called for then imprison them. Taking something they spent decades earning for something done completely outside the service is wrong. One has nothing to do with the other.

SteyrAUG
02-25-19, 15:10
So when does that John Kerry court martial happen?

jack crab
02-25-19, 16:00
Am I wrong in getting the impression that this "tool" would be used sparingly and based on unique circumstances? Both of the test cases involve sex crimes perpetrated overseas by guys who were recently separated.

If they were technically still on inactive reserve I can see changing their discharges to dishonorable. I wouldn't agree to this process if the retiree in question is subject to a U.S. court jurisdiction and has fully completed the separation process to full retirement. If you served a full career and are fully retired, I think going in and retroactively rescinding an honorable discharge is uncalled for. Prosecute them to the fullest extent of the law and if prison is called for then imprison them. Taking something they spent decades earning for something done completely outside the service is wrong. One has nothing to do with the other.

I think that is a reasonable inference. If the retiree commits the crime state side, the local DA or US attorney will prosecute in civilian courts.

In foreign countries, the US asserts jurisdiction to preserve diplomatic relations. Also, the retiree gets the benefit of US standards of due process. Plus, where would you rather be incarcerated, Leavenworth or some black hole?

Dishonorable discharges can only be awarded as punishment by general courts-martial.

One of the ironies here is that the retired pay that made one subject to prosecution can lead to reduction to E-1 with total forfeitures of all pay and allowances as well as the discharge. So now, when one finishes their confinement, there is no banked or future retired pay waiting for them.

Stickman
02-25-19, 16:37
Nothing new about this, I thought this was well known.

Doc Safari
02-25-19, 16:38
Nothing new about this, I thought this was well known.

This is why I refrained from comment. It was news to me but it doesn't surprise me. Even in my law enforcement career I signed an agreement that I would "never" do certain things even after leaving the agency.

ABNAK
02-25-19, 18:44
I think that is a reasonable inference. If the retiree commits the crime state side, the local DA or US attorney will prosecute in civilian courts.

In foreign countries, the US asserts jurisdiction to preserve diplomatic relations. Also, the retiree gets the benefit of US standards of due process. Plus, where would you rather be incarcerated, Leavenworth or some black hole?

Dishonorable discharges can only be awarded as punishment by general courts-martial.

One of the ironies here is that the retired pay that made one subject to prosecution can lead to reduction to E-1 with total forfeitures of all pay and allowances as well as the discharge. So now, when one finishes their confinement, there is no banked or future retired pay waiting for them.


Damn good point, I hadn't though of that! Of course this assumes a charge that is lesser enough (like not 1st degree murder) that they will eventually get out of jail.

ramairthree
02-26-19, 00:39
Dammit.

I spent all that time on active duty being respectable.

Now you’re saying if I bang that red headed horse loving nurse or stripper with esteem problems and daddy issues I can get hung up on conduct uncecoming or adultery?

docsherm
02-26-19, 06:58
So when does that John Kerry court martial happen?

As soon as HRC is on trial.......

docsherm
02-26-19, 07:01
Dammit.

I spent all that time on active duty being respectable.

Now you’re saying if I bang that red headed horse loving nurse or stripper with esteem problems and daddy issues I can get hung up on conduct uncecoming or adultery?

Well shit, if I am still under the UCMJ then I want my issed weapons back....... only fair.... right? ;)

chuckman
02-26-19, 11:34
The legal scope to do it is very narrow.

Averageman
02-26-19, 16:47
There's, I believe a Army General Officer now facing what might be life in prison for some invest stuff that happened Forty plus years ago.
Grazzioplne, I believe.

platoonDaddy
02-27-19, 07:03
---Deleted---

Disregard, should have read the previous posts more carefully.

Bitch getting old

Averageman
02-27-19, 08:39
Here we go;
https://www.armytimes.com/news/your-army/2017/11/09/retired-army-2-star-arraigned-on-child-rape-charges/
A retired Army major general was arraigned Thursday on six specifications related to the alleged rape of a minor over at least six years.

Retired Maj. Gen. James Grazioplene deferred entering a plea during the brief hearing at Fort Belvoir, Virginia, on Thursday. He was not placed in custody and a date has not yet been announced for the next proceedings in his court-martial.

The Army said in a statement in October that Grazioplene would be assigned a military judge and a date would then be set for his trial. He faces a maximum punishment of forfeiture of pay and allowances as well as confinement for life.

At Grazioplene’s Article 32 hearing in August at Fort Meade, Maryland, the alleged victim described in detail escalating abuse starting at age 3 and repeated rapes going back to the early 1980s until she turned 18.

At the time of the August hearing, she was 46 years old.