You Can Be Court-Martialed Even AFTER Leaving Service

[Doc Safari]

https://www.military.com/daily-news/...-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]

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]

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]

I was given the option to retire or Medically separate. I took the latter. This issue was just one reason why.

[BoringGuy45]

So, if I were a vet, and I walked off a civilian job without notice, could I get a dishonorable discharge for desertion?

[ABNAK]

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]

This applies to enlisted. In fact, few officers have been charged this way. Most have been NCOs.

[glocktogo]

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]

So when does that John Kerry court martial happen?

[jack crab]

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.