In United States v. Christopher, No. 201500066 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.), writ-appeal filed, __ M.J. __ (C.A.A.F. May 8, 2015), the NMCCA denied the accused’s petition for a writ of mandamus that would order the charges dismissed on the basis that a court-martial does not have personal jurisdiction over the accused. The petitioner is on the Permanent Disability Retirement List (PDRL), and he is charged with offenses that allegedly occurred before his transfer.

The CCA’s analysis is brief:

In ruling on the defense’s Motion to Dismiss for Lack of Jurisdiction, the military judge assumed arguendo that the petitioner’s transfer to the PDRL was valid and, citing Article 2(a)(4), UCMJ, found that as a “[r]etired member[] of a regular component of the armed services who [is] entitled to pay,” he is subject to UCMJ jurisdiction. She is correct: Article 2(a)(4), UCMJ, confers in personam jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. See also Pearson v. Bloss, 28 M.J. 376, 377-78 (C.M.A. 1989).

Slip op. at 5.

25 Responses to “The NMCCA denies extraordinary relief to a medical retiree who was recalled for court-martial for pre-separation offenses”

  1. Dew_Process says:

    The real (and underlying) question would seem to be, is Art. 2(a)(4) constitutional or not as applied to enlisted members? 

  2. RKincaid3 (RK3PO) says:

    Dew_Process:  Would the unconstitutionality you mention, as applied to enlisted members, be due to their lack of an indefinite federal commission as possessed by officers and as such, enlisted are simply “out” of the military at retirement altogether despite their pay status? 
     
    Or would the counter argument essentially be that when enlisted personnel agree to retire from Active Duty and then agree to accept retirement pay–especially in light of the clear notice in Art.2(a)(4)–they agree to an indefinite enlistment, albeit in the retired ranks?
     
    The primary argument does seem to fly in the face of the plain language of the Art., but perhaps the drafters of that language were unaware of the significant legal distinction between the legal status of officers holding presidentially-nominated and senate-approved federal commissions and enlisted personnel who are only subject to contractually finite terms or periods of service.  But I do see the government argument that the transfer to the retired rolls and the acceptance of retired pay arguably constitutes a voluntary agreement by and between the parties that gives rise to a new “contract” of sorts–but that also raises issues dealing with the fact that “past consideration/performance is not consideration” in a new contract.  Then again, the consideration could simply be the enlisted service member’s agreement to remain in retired status–subject to recall–in exchange for the retired pay.  
     
    This appears to be an “all or none” issue–with both parties wanting it both ways.  The the government wants retired enlisted personnel on the rolls along with the ability to hold them accountable under the UCMJ while the Defense (on behalf of the Accused) wanting to collect retired pay but also while not being accountable.
     
    This could be a fun issue to discuss….thanks for raising it.

  3. John O'Connor says:

    I also have grave doubts about the constitutionality of court-martialing retirees.  I also am quite confident that the CCA is following existing precedent in finding jurisdiction.  I just think the precedent is wrong (or no longer viable).

  4. (Former) ArmyTC says:

    In my experience, most enlisted members will re-enlist in an indefinite enlistment status at their next re-enlistment once they make E-6 (and reach a 20+ year retention control point) allowing them to stay until 20. So once they do retire, they ARE in an indefinite status.

  5. stewie says:

    If the statute covers them, then what exactly is the constitutional problem with court-martialing retirees?
     
    It seems to me the statute covers anyone receiving retired pay (amongst others). If you don’t want to be court-martialed, don’t accept retired pay. Heck, if you know you got away with something, or if you plan on doing something while receiving retired pay, then decline it, and you are home free, at least from military prosecution.
     
    This isn’t something that’s particularly abused either.  It tends to be reserved for folks who have committed sexual assault offenses in my experience (or other similarly serious allegations).

  6. (Former) ArmyTC says:

    MSG Hennis knows.

  7. Phil Cave says:

    Who would have guessed that his retirement might be the death of him.

  8. Advocaat says:

    Was this accused truly ever retired?

  9. wowzers says:

    I wonder if Petraeus still fits into his uniform. Good idea to look sharp in front of the panel. 

  10. John O'Connor says:

    What’s the constitutional basis for subjecting retirees to a court-martial process that does not provide all Fifth and Sixth Amendment rights?  Are they members of the land and naval forces just because they get a check?  How often are retirees mobilized except for the purpose of court-martialing them?  
     
    In in my mind, the Constitution tolerates subjection of service members to court-martial procedures because of the need to control the good order and discipline of the military force.  And the courts rightly stay mostly out of Congress’s way as it decides how to meet that objective.  What’s the military imperative for controlling retiree conduct?

  11. stewie says:

    How often do they have to be mobilized to make it constitutional? Because its already happened more than once in history.  Retirees can be and are called back to serve, particularly officers.

  12. Zachary D Spilman says:

    Who would have guessed that his retirement might be the death of him.

    For those who don’t get it, meet Timothy Hennis, our #2 military justice story of 2010:

    The Hennis case arises from a truly horrific crime.  Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.

    Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders. In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death. The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage. State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented. Id. at 528-31. In 1989, Hennis was retried by the State of North Carolina and acquitted.

    Hennis then chose to stay in the Army until retirement. Bad move. . . .

    Read the rest here

  13. Tom Booker says:

    I cannot pull up the decision, but doesn’t United States v. Allen, 33 M.J. 209 (C.M.A. 1989, I think), answer a lot of the questions about exercising jurisdiction over retirees?  RMCS Allen was retired and living in the Philippines when he was recalled to active duty to face trial for allegations of wrongfully disposing of national security material and for espionage.
     
    Respectfully, LTB

  14. Phil Cave says:

    Tom,
    The retirement issue in Allen related to his pay and rank, not the jurisdiction to prosecute.  This might be helpful:
     

    Putting his contention in perspective, appellant forth-rightly acknowledges in his brief in this Court that “the issue involved here is not whether jurisdiction exists to try retireesat courts-martial; that issue has consistently been resolved in the affirmative by the Court of Military Appeals,” citing Pearson v. Bloss, 28 M.J. 376 (CMA 1989), and United States v. Overton, 24 M.J. 309 (CMA), cert. denied, 484 U.S. 976, 108 S. Ct. 487, 98 L. Ed. 2d 485 (1987). Instead, he argues that, via Army regulation and policy, “Armyretirees have an additional protection not afforded the retirees from the other services. Without the approval of HQDA [Headquarters, Department of the Army], the convening authority . . . had no authority to refer appellant’s case to court-martial.” Final Brief at 11-12. We disagree.United States v. Sloan, 35 M.J. 4, 7 (C.MA. 1992)

     
    NMCCA cites Pearson.
    As an aside, I usually refer to Allen, in line with a number of cases related to UCI.  Remember  United States v. Mabe,  33 M.J. 209 (1991), United States v. Lewis, 63 M.J. 405 (2006), and most recently United States v. Salyer, 72 M.J. 415 (2103), for the issues of messing with the military judge.

  15. RKincaid3 (RK3PO) says:

    Stewie: just because something happens often doesn’t make it constitutional.
     
    The Courts only rule on what is in front of them–narrowly.  If a point is not argued–or is argued incorrectly–amd in the wrong case factually–the courts will not adjudicate beyond that which is front of them.  So, yes, many cases may be legally sufficient simply because they weren’t the correct cases or the correct arguments weren’t or were poorly made.
     
    So, with the right case and the right legal argument, what has been done thousands of times for years may suddenly be unconstitutional, Hennis, et al, notwithstanding.

  16. (Former) ArmyTC says:

    wowzers, what would Petraeus be subject to court martial for that he wasn’t already subject to federal criminal jurisdiction for based on his guilty plea? Adultery? I’ll take that panel case. Good luck finding 5 4-stars senior to my client who can sit on it. 

  17. stewie says:

    RK3 I was simply answering this question:
     
    “How often are retirees mobilized except for the purpose of court-martialing them”asked by John O’Connor.  He asked that question because his argument was that the Constitution can only be bent, as it is for military members, when GO&D are involved, as they are with active duty personnel.  Thus, because retirees are rarely mobilized, that need does not exist, and thus the Constitution should not be bent.
     
    My reply was to ask, well, how often do retirees have to be recalled before that concern is lifted?  Once? Most of the time? Some of the time?  Or is the mere fact that they can be recalled enough?
     
    I don’t think the right answer is all of the time, or even most of the time. I don’t think that’s required. I personally think simply being subject to recall is enough, provided the offense is significant enough (and that’s at least what AR 27-10 says, and why there is therein the requirement that the SA sign off on any confinement time).
     
    But it happens at least sometimes, particularly for officers.  So my question was a probe of his position.  How often is enough to reduce the constitutional concern?

  18. Dew_Process says:

    @ (RK3PO): Yes, in part.  As you surmised, when an Officer is “commissioned,” s/he remains commissioned until you either resign your commission and it is accepted, or you are Dismissed – provided that your MSO is over.  Even in retirement, one’s commission remains, so that (arguably) provides the necessary Fifth Amendment nexus for jurisdiction. But, there is a question regarding Retired Reserve Officers and perhaps (and I haven’t thought this through – just commenting) an “equal protection” type of argument regarding the jurisdictional differences.
     
    But, with respect to Enlisted members, there are two arguments. First, They enlist by contract and when the contract has expired, jurisdiction ceases.  See, e.g., U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 14-15 (1955), where the Court held:
     

     For given its natural meaning, the power granted Congress ‘To make Rules’ to regulate ‘the land and naval Forces’ would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals. [emphasis added].
     

    Toth also interestingly noted that:
     

    A statute authorizing court-martial trial of inmates of the Soldiers’ Home has been ruled unconstitutional by the Judge Advocate General of the Army. Dig.Op.J.A.G. (1912), pp. 1010, 1012. It was declared that ‘such inmates are not a part of the Army of the United States, but are civilians.’ Id., at 1012. Col. Winthrop, concededly a leading authority on military law, expressed the view that “this class of statutes, which in terms or inferentially subject persons formerly in the army, but become finally and legally separated from it, to trial by court-martial, are all necessarily and alike unconstitutional. . . .”  Id. Note 8, at 14.
     

    See also, U.S. ex rel. Hirshberg v. Cooke, 336 U.S. 210 (1949), discussing this in the context of a Navy EM and crimes alleged in a prior enlistment.
     
    The other issue is that rather than being “uniform,” both the Army and AF require Secretarial approval to activate and try retired enlisted members, and (at least the last time I researched this) the Sea Services did not. That’s probably a weaker argument, but there is that added level of discretion via the “Secretary concerned” that is a small bit of insulation.
     
    Allen (mentioned above) is a tricky case, with a lot of “loose” language, but one of the issues involved the forfeiture of his retired pay. But there, the forfeiture was not done via the court-martial conviction, but by a little-known statute, 5 USC Sec. 8312, the Federal Forfeiture Act for convictions of certain enumerated offenses.
     
    Hennis (also discussed above) is even more tricky, but because I was (very briefly) involved in the jurisdictional litigation and the case is still-ongoing, I’ll defer commentary or thoughts.
     
    Finally, the entire jurisdictional issue has become somewhat clouded imho thanks to the extensive GTMO habeas corpus litigation over jurisdictional issues surrounding trials by Military Commission.  The impact of that litigation on military justice vis-à-vis court-martialing retired military EM’s, remains to be seen.

  19. Dew_Process says:

    PS – There is one other thing that I forgot to include in my prior post, and that is the concept that military “retirement pay” is not really “retirement” pay:
     

       By some quirk of history, however, Tafoya’s retirement pay is actually not “retirement pay”; it is, instead, “current pay” designed in part to compensate Tafoya for his continuing readiness to return to duty should his country have need to call upon him. 51 Comp.Gen. 303;see also McCarty v. McCarty, 453 U.S. 210, 222-23, 101 S.Ct. 2728, 2736, 69 L.Ed.2d 589 (1981).
     

    United States v. Tafoya, 803 F.2d 140, 142 (5th Cir. 1986).  Tafoya and McCarty provide a comprehensive analysis of this.  This of course does not address the issue of where a person is medically disqualified from potentially returning to duty.

  20. stewie says:

    Another point.  We all agree that those who are in the reserves can be called back onto active duty don’t we? Well, when you retire, you go into the reserves.  Yes, it’s the “retired reserves” but it is nevertheless, a component of the reserves.

  21. RKincaid3 (RK3PO) says:

    Stewie: Roger.  Understand.  Thanks.
     
    D.P.:  Excellent.  Thanks so much.  I will indeed be following up on these jurisdictional thoughts at my next job.  Finally returning to court!  Also, I thought Hennis’s appeals were finished and that he was now filing pro se appeals with the SCOTUS.  Not sure where I heard that, but it must have been untrue since you are tracking other pending action–and you are certainly more credible than the source I don’t recall.  It will be interesting to see how that plays out.
     
    Thanks again, all!

  22. Dew_Process says:

    @Stewie – There are legal differences in status and retired pay.  One who retires from Active Duty [“Regular” status] receives retired pay based upon his last active duty “base pay/month” if one entered AD before 1980 – after 1980, there are different computations. A “retired regular” is a status and falls under the umbrella of the Reserve Component. But one who retires from the Reserves, is a “retired reserve” member [except in the Navy] and that retirement is based upon a complex formula quite different from the AD folks. They too fall under the umbrella of the Reserve Component, just as current Reservists and National Guard members do.”
     
    There used to be one exception (and I don’t know if that even still exists) and that involved commissioned officers who declined to accept a Regular Commission – in the AF at least, they could stay on AD for retirement purposes, but they were always statutorily the first to go if there was a RIF. When they retired however, they reverted to “Retired Reserve” status.
     
    Then of course, there is disability retirement, another “status” with its own rules.  In short, an almost incomprehensible scenario for the average GI Joe.

  23. MM says:

    I am surprised the NM court would even write on the issue. My question is, and the opinion isn’t clear, how can the GCMCA court martial a retiree without going to SecNavy?  A retiree is no longer a member of that command, right?  I hope CAAF takes a look at this. 

  24. Dew_Process says:

    @ (RK3PO):  Hennis’s writ appeals (to include a habeas) have all been denied by CAAF.  Since it is a death case, it’s moving slowly, but I believe that they have or are about to file the merits Brief for him at ACCA – someone working in that Court, please enlighten us. But his direct appeals are alive and well.
     
    He also has a federal habeas action concurrently pending in the US District Court in Kansas where the DB is, and last I heard, a federal public defender from one of their Death Penalty units assigned as primary counsel.  I haven’t seen the actual pleadings there, but legally it is intriguing because he’s exhausted his military habeas rights, so arguably then there’s no abstention issue, which was one (of many) problems pertaining to his prior federal habeas in NC, which was denied by the USDC and slammed by the 4th Cir on abstention grounds, and cert. denied by SCOTUS.

  25. Tami a/k/a Princess Leia says:

    I don’t see what the issue is.  This guy was still on active duty, and he was “flagged” for disciplinary action, which was supposed to prevent him from retiring.  Personnel Command dropped the ball (not a shock).  His retirement was void because he was flagged prior to being placed on the PDRL.  Happens frequently, which is disturbing on its own, but can be remedied as they did in this case.