In a published issued yesterday, in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affirms a concept that I last noted here: Military retirement isn’t really retirement, it’s merely a change in duty status-

Notwithstanding Barker [v. Kansas, 503 U.S. 594, 605 (1992)] and its implications regarding the tax status of retired pay, we are firmly convinced that those in a retired status remain “members” of the land and Naval forces who may face court-martial. As the appellant was in a retired status during the offenses and the proceedings, he was validly subject to court-martial.

Slip op. at 8.

The appellant, Gunnery Sergeant Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ.

All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

Writing for the panel Judge Rugh explains that:

By act of Congress, the appellant was subject to the UCMJ when he committed the offenses. Art. 2(a), UCMJ (“The following persons are subject to this chapter . . . . Retired members of a regular component of the armed forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and Fleet Marine Corps Reserve.”).

Slip op. at 4 (link to Article 2).

The CCA considers arguments that “the receipt of retired pay is neither wholly necessary, nor solely sufficient, to justify court-martial jurisdiction.” Slip op. at 5. But Dinger’s relationship with the military – like all persons who retire from an active component – involved more than just receipt of retired pay:

The appellant had a closer relationship with the military than the pre-induction draftee, whom the Supreme Court has repeatedly suggested is subject to court-martial jurisdiction. Unlike the wholly discharged veteran in Toth whose connection with the military had been severed, a “retired member of the . . . Regular Marine Corps” and a “member of the . . . Fleet Marine Corps Reserve” may be “ordered to active duty by the Secretary of the military department concerned at any time.” “[I]n both of our wars with Iraq, retired personnel of all services were actually recalled,” demonstrating Congress’ continued interest in enforcing good order and discipline amongst those in a retired status.
As the Court stated in Tyler:

It is impossible to hold that [retirees] who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, . . . are still not in the military service.

105 U.S. at 246.

Slip op. at 7-8.

Having confirmed that Dinger was subject to court-martial for his purely post-retirement offenses, the CCA then considers whether a dishonorable discharge may be adjudged under such circumstances. This question is based on 10 U.S.C. § 6332 which provides, in part, that transfer to retired status “is conclusive for all purposes.” But Judge Rugh finds that:

Neither Congress—through the UCMJ—nor the President—through the RULES FOR COURTS-MARTIAL— has directly limited the authority of a court-martial to adjudge a discharge for a member in a retired status.

For this reason, we decline to override long-standing, military justice-specific provisions in the MCM subjecting those in a retired status to courts-martial and broadly authorizing those courts-martial to adjudge a punitive discharge. We make this decision particularly in light of the fact that Congress expressly exempted other classes of personnel from dismissal or dishonorable discharge within the UCMJ, but not retirees.

Slip op. at 11 (emphasis in original). The reference to “other classes of personnel,” however, seems to be an error, as the opinion discusses types of courts-martial not authorized to adjudge dismissal or dishonorable discharge (summary and special courts), but not individuals who are exempt from such punishment.

39 Responses to “The NMCCA affirms that retired service members are still in the military and still subject to the UCMJ”

  1. a. hernandez says:

    The issue of military retirees receiving their pensions while incarcerated comes up in the news from time to time.  Was this a conscious policy decision to take away the pension of a servicemember? Have to wonder whether this will become a new trend and based on the crime the military may decide to go to a court martial (may even become part of negotiations as an incentive to plead guilty with civilian authorities rather than risk losing the pension forever).

  2. stewie says:

    It’s one thing to recall someone back to active duty to try them for offenses done on active duty, it’s quite another to try them for offenses after they have already retired.
     
    When you retire, you go into the “retired reserves.”  The NMCCA acknowledges this explicitly in their third footnote. You are patently not on active duty. If a regular reservist, committed a crime, while in a reserve status (i.e. not even a drill status, and certainly not an active status), we wouldn’t try them for that offense by bringing them back on active duty.  If that same reservists committed a crime while on active duty and then went into the reserves that person certainly could be called back onto active duty in that case.
     
    I get that they can cite a few examples/cases/precedent for the proposition of trying reservists for acts as reservists, but I find it interesting that the vast majority of them are 100 years or longer ago, and to me that’s a sign that you are on shaky ground. That’s not to say I think CAAF will overturn, I suspect they won’t, but I think there’s a real delineation between the idea of being able to call a retiree back to active duty, and being able to court-martial a retiree for something they did while not even on active duty.
     
    I don’t think this is the right result, even if there’s a foundation for it under past precedent.

  3. Neal says:

    I wonder what role the fact that this occurred in Japan played in this?  If he committed these offenses CONUS he could be prosecuted by state officials or the US attorney.  In japan, the UCMJ was likely the only tool that we had available, though I suppose we could allow him to face the Japanese criminal justice system.

  4. Zachary D Spilman says:

    Well, stewie, Article 2(a)(4) specifically provides for continuing UCMJ jurisdiction over:

    Retired members of a regular component of the armed forces who are entitled to pay.

    Whether you call it the retired reserves or something else, the statute is clear. Members who don’t like it can take a discharge instead of a retirement. 

    The fact that such people are not often prosecuted doesn’t mean that they can’t be prosecuted. 

    A regular reservist is, however, only subject to the UCMJ under limited circumstances, none of which include your hypothetical of “a crime, while in a reserve status (i.e. not even a drill status, and certainly not an active status).”

  5. Anon says:

    I find an interesting intersect of how criminal law treats a retiree vice civil law.  Congress, seemingly, wants its cake and to eat it too as it allows retirement pay to be treated as a vested asset in divorce cases under the USFSPA; but under the UCMJ, retirement pay seems to be compensation for remaining on the retiree rolls.  Is it compensation or a divisible asset?

  6. anon says:

    To advocate for Stewie (who probably doesn’t want or seek my advocacy), the NMCAA framed the issue as a question of personal jurisdiction but from my perspective this is really a question of subject matter jurisdiction.  For offenses committed while in regular reserve, I’m guessing the government established that the actual offenses occurred while in military status (be it AD, INACDUTRA, or ACDUTRA) because otherwise isn’t this a Morita issue? In terms of retired reserve, is it really that settled law that the subject matter jurisdiction continues for retirees for offenses committed after they retired? Cases like Bowie discuss continued personal jurisdiction over retirees but I can’t recall from memory cases where the retiree who was convicted of offenses under the UCMJ that occur after retirement.

  7. Cloudesley Shovell says:

    The result is correct.  The reasoning in the opinion is awful.  Awful.  Awful.
    Analysis of jurisdiction of military courts is a two-step process.  First, is it constitutional?  The Court went on and on regarding this point.  Could’ve been covered in one page at most.  The second step is whether Congress, by statute, authorizes the exercise of jurisdiction.  The Court never really discussed this in any detail, blowing a beautiful opportunity to restate the standard (it’s black letter law) and analyze Art. 2 as applied to the facts of the case.  Why not?  Who knows. 
     
    Missing entirely, as far as I can tell, is a discussion of the actual standard of review for the question of jurisdiction of an Article I court, which is what courts-martial and all appellate courts created under the UCMJ are.  Article I courts are creatures of statute, thus the statute setting forth jurisdiction controls.  Statutory jurisdiction is strictly construed.  The court could have at least spilled a few drops of ink discussing this matter.  They brush up against it in their discussion of whether military retired pay is pay or not, but never cite to the applicable standard.  Nor do they, as Stewie points out, cite many cases younger than 100 years.  At least they managed to cite Hooper, which is right on point.
     
    Given that statutory jurisdiction is strictly construed, one next looks to the plain text of the statute.  First, Art. 2(a)(6) authorizes jurisdiction over member of the Fleet Marine Corps Reserve.  Appellent loses on that point.  Second, Art. 2(a)(4) authorizes jurisdiction over retired members of a regular armed force entitled to pay.  There are two clauses.  Appellant is clearly a retiree of a regular armed force.  Is he entitled to pay?  At least the court discussed that part. 
     
    A final rant — Art. 2 needs to be cleaned up a bit.  The phrase “entitled to pay” needs clarification in light of Barker.  It also needs to clarify whether persons retired for disability are subject to court-martial jurisdiction, and whether disability compensation is pay.  I don’t think it is, but military courts have disagreed.  Is a first-term enlistee who loses a limb in combat and is subsequently retired with 100% disability compensation paid by the VA still subject to lifetime court-martial jurisdiction?  Is such exercise of jurisdiction, even if authorized by statute, even constitutional?  How is the exercise of such jurisdiction in furtherance of the power to regulate the land and naval forces?  It’s a question for another day because this case doesn’t reach it, but in light of the events of the last 16 years, together with a seemingly renewed interest in bringing retirees before courts-martial, it deserves consideration.
     
    Kind regards,
    CS

  8. Zachary D Spilman says:

    You raise many good issues Cloudesley Shovell, but I think they’re mostly questions of policy and not law. 

  9. Matt says:

    Maybe a divorced retiree whose spouse receives half his pay should only be subject to half the code?  :)

  10. Dwight Sullivan says:

    [Standard disclaimer:  I offer these comments solely in my private capacity; they shouldn’t be imputed to anyone or anything else]  Anon 4:01 PM:  actually, it is settled law that active component retirees entitled to pay are subject to court-martial jurisdiction for post-retirement offenses.  Please note the following exemplary cases:  Pearson v. Bloss, 28 M.J. 376 (C.M.A. 1989) (rejecting petition for extraordinary relief by retired Air Force E-7 challenging court-martial for both pre- and post-retirement offenses; CMA rejected, among other arguments, a claim that Article 2(a)(4) doesn’t apply to retired enlisted members); United States v. Allen, 31 M.J. 572, 636 (N.M.C.M.R. 1990) (en banc) (upholding Article 92 conviction of retired Navy E-8 for post-retirement offenses), aff’d on other grounds, 33 M.J. 209 (C.M.A. 1991), cert. denied, 503 U.S. 936 (1992); United States v. Overton, 24 M.J. 309 (C.M.A.) (upholding court-martial conviction of retired Marine E-7 for offenses occurring five years after retirement), cert. denied, 484 U.S. 976 (1987); Sands v. Colby, 35 M.J. 620, 621 (A.C.M.R.) (rejecting jurisdictional challenge to court-martial of retired Army sergeant major for allegedly killing his wife in Saudi Arabia seven years after he retired, observing that “jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces” and that “[r]etired members of the regular component entitled to pay are specifically included among those subject to trial by court-martial and may be recalled to active duty for that purpose”), writ appeal petition denied, 36 M.J. 63 (C.M.A. 1992).

  11. anon says:

    Folks, appreciate the correction and knowledge.  I’m wrong in two respects: one factual since I misread the decision that some of the offenses were committed prior to retirement; and one legal (Hooper that the NMCAA cited in footnote and cases that Mr. Sullivan cited).   

  12. das says:

    So did they recall him to active duty for this?

  13. Abe Froman says:

    To Hernandez’s point above, in the most recent NDAA the power to drop someone from the rolls has been delegated down to SECDEF.  With all of the Navy GDMA issues still floating around, I can see this power being utilized more than it has in the past, and it is one that doesn’t require the imprecise court martial tool. 

  14. stewie says:

    I always appreciate being told what the law says even after I’ve already acknowledged that the law says there is precedent here. ;)
     
    I’m saying the result is wrong, it’s nonsensical to me, and there’s a reason why it rarely happens. CS is absolutely spot on about what he raises about disability retirements but the “black letter” says those folks count too because they are “retired receiving pay” which leads to the ridiculous legal fiction that those folks too are subject to recall.
     
    Yes, it is indeed a public policy problem…which is why I didn’t attack the court for it’s decision, but lamented the result.

  15. Vulture says:

    Does a retiree exist in a realm of ‘cases arising from the land and naval forces’ enough to argue that the 32 process has been gutted to a point that it no longer fits the definition of a Grand Jury?

  16. stewie says:

    If a retiree commits a crime in a forest, and there’s no one around to see it, did it happen?

  17. John O'Connor says:

    I agree with Stewie (which probably weakens his position).  I don’t think court-martialing retirees can be squared with the constitutional principle announced by the Supreme Court in United States ex rel. Toth v. Quarles, Reid v. Covert, Kinsella v. Singleton, etc., that court-martial jurisdiction constitutionally must be confined to the narrowest scope necessary for the ends to be achieved.  The military mission doesn’t require an ability to court-martial retirees; Congress should create federal court jurisdiction if it wants to have criminal jurisdiction over retirees.  That said, I also have little doubt that CAAF will affirm the conviction.  I think somebody ought to at least say we’re going to disregard all those Supreme Court precedents as outliers from the Warren Court rather than just trying to sidestep them.   

  18. Zachary D Spilman says:

    The military mission doesn’t require an ability to court-martial retirees

    Citation needed.

  19. Vulture says:

    I am not disagreeing with you Zach.  But I once had an opportunity to tell a prominent defense attorney that all crime involves money.  If the military courts are in the business now of court martialing people to justify a peace time cost center, we have a problem.  The military serves the people in time a war.  Placing on them the burden of an expense for their own little rice bowl isn’t in their mission.

  20. Zachary D Spilman says:

    My point being that jurisdiction over retired regulars, for purely post-retirement misconduct, is nothing new:

    That retired officers are a part of the army and so triable by court-martial – a fact indeed never admitting of question – is adjudged in Tyler v. U. S., 16 Ct. CI., 223; Id., 105 U. S. 244; Runkle v. U.S., 19 Ct. Cl., 396. And see Hill v. Territory, 2 Wash. Ter., 147. By the Act of Feb. 14, 1885, enlisted men of the army and marine corps were made eligible to retirement after thirty years’ service.

    W. Winthrop, Military Law and Precedents at 87 n.27 (2d ed. 1920 Reprint) (emphasis added).

    Continuation of such jurisdiction in the UCMJ was defended by Felix Larkin as follows:

    Senator KEFAUVER: While we are on that subject, Mr. Larkin, why do you want retired personnel to continue under the code of military justice ?

    Mr. LARKIN: Well, retired personnel-the Articles of War and the Articles for the Government of the Navy have traditionally had retired personnel of a Regular component subject to the Articles of War and subject to the Articles for the Government of the Navy. That, I concede is no reason why they should continue.

    However, they are, or they continue to be, when they are retired officers of the armed services, they are carried as such on the official registers. They are free to wear their uniforms; they continue to maintain their titles, and the general idea, I believe, has been that they are to be expected while receiving retired pay, to comport themselves in the same manner as they did when they were on active duty, because they still continue to be officers of the United States.

    I say it is a provision of long tradition, but in addition to that, it involves those specific considerations, that they are and continue to be officers of the United States and are receiving retired pay.

    Now, Colonel Maas [President, Marine Corps Reserve Officers Association; who opposed the provision] suggested that the retired pay is compensation for what they had-for the active service they had performed. There is a difference of opinion about that, I believe. I believe some construe the retired pay as a continued compensation in this retired state. They are subject to recall at any time to active duty, and so forth and so on.

    Senator KEFAUVER: Thank you very much, Mr. Larkin.

    Uniform Code of Military Justice: Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the S. Comm. on Armed Servs., 81st Cong. 115-156 (May 4, 1949), reprinted in Index and Legislative History: Uniform Code of Military Justice (1950) (testimony of Mr. Larkin, Assistant General Counsel, Office of the Secretary of Defense) (direct link).

     

  21. jagaf says:

    Interesting discussion. In my current. non-MilJus, job, I have gotten questions from providers about TDRL (temporary retired/disabled list) individuals. These are folks that have a medical issue that gets them retired, but with the proviso that if the issue resolves, they would return to AD. Typically, they will come in for an annual exam for a period of years until the issue resolves or a decision is made to permanently retire them. Day to day though, they are basically civilians. Due to their medical issues, some have resorted to medical marijuana use which is then relayed to the provider and creates interesting questions. My view has been, and this seems to support it, that they remain subject to the UCMJ and thus action could be taken though I would disfavor that.

  22. stewie says:

    When you are citing the majority of your cases Zach from pre-1920 as “nothing new” but not a whole lot from “the modern era” does that not perhaps suggest something?
     
    From what you cited:
     
    “Now, Colonel Maas [President, Marine Corps Reserve Officers Association; who opposed the provision] suggested that the retired pay is compensation for what they had-for the active service they had performed. There is a difference of opinion about that, I believe. I believe some construe the retired pay as a continued compensation in this retired state.”
     
    Well we know what the Supreme Court has said in Barker, it’s not continued compensation at all.  We also know that retirement is currently and for as long as any of us can remember has been presented as a standard pension, that is, a reward for a certain, long (and completed) period of service. The idea that keeping the title or being allowed to wear the uniform (but not the current duty uniform by the way, that you specifically aren’t allowed to do) is somehow meaningful is a pretty silly argument.
     
    I think John O’Connor said it much more eloquently than I did…there is no military necessity to govern the conduct of retirees while retired through a court-martial process as opposed to the civilian system. Reservists can be called to active duty just liked “retired” reservists can be called to active duty…yet the actions of one while on reserve status are treated differently than the other for no adequate or expressed reason I can think of other than, well, they are receiving pay.
     
    JAGAF, I think the difference with your scenario is those folks are not fully retired or fully separated, it’s a temporary status that could revert to AD status pretty quickly, it’s not permanent retirement.  I don’t have nearly as much of an issue in that scenario.

  23. Cloudesley Shovell says:

    jagaf– Is a person on the TDRL is subject to continued UCMJ jurisdiction while on TDRL?  Art. 2(a)(4) asserts jurisdiction over “Retired members of a regular component of the armed forces who are entitled to pay.”  TDRL is a type of retirement.  Note that the plain language of the phrase “retired members” includes all classes of retirees, whether retired after years of service, or medically retired, or temporarily retired for disability.
     
    The second clause of Art. 2(a)(4) requires an entitlement to pay.  Is a person on TDRL entitled to pay?  I don’t know offhand.  But if TDRL is a non-pay status, then no, there is no jurisdiction, in my opinion.  But military courts, which have a habit of broadly construing their jurisdiction, may disagree.   See, for example, Goldsmith and Denedo at the Supreme Court.

  24. Cloudesley Shovell says:

    Zachary Spilman or others,
     
    Does anyone know the back story to this case?  The NMCCA opinion says Dinger was a retired gunny still living in Okinawa with his family.  It also says there was an NCIS investigation. There’s got to be more here.  I have difficulty imagining the USMC going after a retiree in a foreign country without some hook to the military.  Also, why would NCIS be investigating without some nexus to the military?  Was his spouse still on active duty? (That’s my guess).  Was he working as a civilian employee of the USMC or US Gov’t in Okinawa?  Does anyone know?
     
    Kind regards,
    CS

  25. Sheila M Lundlee says:

    Cloud and others:
    This is a great discussion and, for once, it could apply to me.  I had AD Army and then join the Air Guard.  I was a “Guard Bum” – they put me on series of various types of orders – so when my disability became symptomatic, I had been on a set of orders for over 30 days.  Over the course of the 10 years I fought for my retirement, it came down to:  childbirth was probably the cause and I had both of my kids on AD and/or it became symptomatic while I was on a locally-performed set of extended orders.  Either way, I met the qualification for disability processing and ended up with a 30% (although 100% with the VA) and retirement from the AF, even though I never did AF AD except for training.  I don’t get retirement because of the VA disability money, but qualified for a small AF retirement check.  I have the blue ID card and my husband and I use/pay for Tricare based on my retirement.  I would not be deployable; can’t wear the uniform (without being specific and gross); and my local travel is severely curtailed, so I seriously doubt (but can’t cite for sure) that they can recall me.  So if I buy pot in Washington, I’m subject to UCMJ?  I can’t commit adultery?  What if I get arrested at a resistance protest (that could happen to me, although I’m careful to act lawfully)?

  26. Vulture says:

    Oh, c’mon now Cloudesley, don’t be looking backward.  Keep your eyes on the future.  The Navy needs to be able to keep jurisdiction over retirees so that it can retroactively promote those that go on a rabid badger hunt for the squirrel that goes whistleblower.  See here: Ugly.  Yes, that is the same WAPO that did the Major Thompson story.  So keep your eyes on the horizon and not on the 20 Trillion dollar pussy grabbing cleptocracy.  The future is so bright and I, again, have said too much for a Sunday.

  27. Cloudesley Shovell says:

    Sheila M Lundee —  Unfortunately I cannot answer your question without a thorough and painstaking review of your service record and your present status.  You can read the jurisdictional statute yourself, it’s 10 USC section 802.  See here.  https://www.law.cornell.edu/uscode/text/10/802
     
    The biggest and most critical distinction is whether you’re a retiree of a regular armed force or a retiree of a reserve armed force.  If a retired reservist, then generally, there is no jurisdiction (but there are exceptions).  If you are a retiree of a regular armed force, generally there is jurisdiction (but there are exceptions).  You’ll have to find a lawyer well schooled in military law to help you determine whether you are subject to continued jurisdiction under the UCMJ.  I cannot be your lawyer, whatever my knowledge of military law, or lack thereof, because I am an old dead English admiral, memorialized in Westminster Abbey after perishing upon the shoals of the Scilly Islands hundreds of years ago. 
     
    Best of luck, and kind regards,
    CS

  28. anon2 says:

    Military prosecutions of retirees may run afoul of DoD Dir 5525.7, the DoD-DoJ MOU, which gives DoD primacy for cases “normally tried by court-martial” (retiree crimes usually are not) and deference to DoD if the crime involves “special factors relating to the administration and discipline of the Armed Forces” (retiree crimes usually do not). 
    Even when the choice is between military and state courts, are commanders evaluating all retiree criminal allegations consistently?
    The history of retiree prosecutions doesn’t inspire pride in our justice system. For example, retired Rear Admiral Selden Cooper was recalled to active duty in 1957, prosecuted, convicted, and lost his pension. His crime? Being gay.
    http://www.cncsandiego.org/sd-confidential-inside-a-lost-gay-past-of-fairy-dives-raids-and-a-fallen-admiral/

  29. John O'Connor says:

    Citation needed?  Cute, glib, but lazy and not very convincing.  A court applying the tests announced by the Warren Court for court-martial jurisdiction has to make a judgment on the legitimate needs of the military mission, just like courts make judgments regarding governmental needs based on common sense in a wide array of other areas (like equal protection and due process to name two).  I’m not convinced that the military has a legitimate need to court-martial retirees as opposed to providing a federal court forum to try such offenses.  But like I said about, I have little doubt that CAAF will affirm.  They’re not (usually) last because they are infallible.  They are infallible because they’re (usually) last. 

  30. stewie says:

    Bottom line: If MSG Snuffy retires today, moves to Colorado, and 20 years from now uses medical marijuana for cancer treatment, the idea that the Army could, in theory, call him back onto active duty for illegal drug use is patently ridiculous and should not happen. It serves no purpose.

  31. anon2 says:

    Keep it going, stewie. Are all possible 133s and 134s on the table? Absence and disrespect offenses? If not, how can retirees be sure? Do retirees get any notice? This is ripe for abuse and selective prosecution. Just the threat of prosecution on specious grounds can have enormous chilling effect.
     
    More about the retired admiral recalled for being gay in Professor Hillman’s book, http://press.princeton.edu/chapters/i8046.html. I welcome any counterpoints on how recalling retirees has improved military discipline or warfighting effectiveness.

  32. stewie says:

    I’m sure one can come up with a whole host of that can’t be right scenarios anon2.

  33. Mastercone says:

    One wonders when the appellant last received an Article 137 UCMJ briefing. Moreover, the distinct lack of a requirement to receive the briefing once placed on a retired list. Article 137 serves as a means to provide notice of existing laws that apply at a given time. How many revisions to the UCMJ have we seen over the years? How many retirees are given an Article 137 briefing?

  34. J.M. says:

    I reenlisted 3 times (4,7,11 year mark) and I’ve never heard of a 137 briefing being required until i just looked it up. I dimly recall a brief when I arrived at Basic listing the UCMJ articles, and some ROE briefs, but that’s it. 

  35. Isaac Kennen says:

    One might wonder whether a retired service member becoming a registered agent of a foreign power could have UCMJ implications for that retiree.  If not, then one might wonder whether active duty members are free to do the same.
    https://www.nytimes.com/2017/03/10/us/politics/michael-flynn-turkey.html
     

  36. Clubber says:

    Who as the answer? Servicemember “discharged” with 20yrs+ active duty naval service pursuant to 10 USC 1184\1186(b)(1), due to misconduct (OTH), BKM is not neither placed in a retired status, nor did he receive monthly pension, nor transferred to Fleet Reserves. Entitled to pension or retired pay? Subject to recall or not?   

  37. Zachary D Spilman says:

    1186(b)(1) is a retirement provision for officers, Clubber, while your hypothetical suggests a member who was not retired (or eligible for retirement). An officer who is eligible for retirement and processed for involuntary separation is, by operation of 1186(b)(1), involuntarily retired. 

    If separated (not retired), then no recall or retired pay.

  38. Clubber says:

    The operation of 1184\1186(b)(1) is voluntary retired. However, if voluntary retired is finalized as involuntary ADSEP (20yrs+ no lost time pursuant to 10 USC 972, type of separation discharged) prohibiting recall or retired pay, is this not theft, where the operation of the law states voluntary retirement?  Almost sounds Hobbish  

  39. Harrison says:

    Finding Mastercone’s comments regarding Article 137 intriguing. If a retiree were unaware of their responsibilities to adhere to specific UCMJ Articles, and somehow step on their lily, what then…would Article 134 be invoked? I smile as I ask, but which of the UCMJ Articles really cannot be applied service members on the permanent retired list? If the answer is none, would it then by deduction allow senior retirees a measure of authority over junior retirees? Where is the line drawn between lawful and unlawful orders that may be issued by active duty members to juniors on the retired list?

    It would seem to me that the gray area opens up the potential for disparate (capricious?)application of Courts-Martial authority.