Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

15 Responses to “This Week in Military Justice – September 16, 2018”

  1. (Former) ArmyTC says:

    That Larabee  brief is a trip. Mentions Article 2(d)(6) ONE TIME in its 64 pages. So let’s ignore that Congress explicitly provided for jurisdiction over retirees and pretend there’s a bunch of other issues. What a joke. 

  2. Dew_Process says:

    @ (Former) ATC – The issue is not Article 2(a)(6)’s language, the issue is how far Congress can stretch court-martial jurisdiction under the “Make Rules” clause in Article 2(a)(6).
    I note that there are some “heavy hitters” on the Brief and it raises an interesting issue, especially in the Hennis case.

  3. Bill Cassara says:

    DP:  One thing that has caught my interest lately.  I see a number of retirees, officer and enlisted, putting very vocal opinions about President Trump on social media. Can they be court-martialed?

  4. DCGoneGalt says:

    Bill Cassara:  Everything I have read says they can.  I guess taking money from the government always means you have strings attached and have to live with the government’s rules.

  5. Philip D. Cave says:

    Brothers Bill and DP, Besides the issues raised in Larrabee, could there be a First Amendment challenge?  And if it gets to court, could an accused rely on some of the old “loss of status” cases in defense?

  6. Bill Cassara says:

    Interesting question. Do the “lowered” first amendment rights of service members apply to retirees?  One of many reasons I don’t discuss politics on social media.

  7. Tami a/k/a Princess says:

    Are officer retirees still “commissioned officers?”  If so, then they are still liable for contemptuous language under Article 88.  Much closer call for enlisted members, who are not included in Article 88, and whether contemptuous language would be PGOD or service-discrediting under Article 134 is highly debatable.  I would say a retiree also has more First Amendment protections than someone on active duty.  But also the focus is on “contemptuous” language–you can have opinions and criticize POTUS without being “contemptuous.”  You can also wait until Trump is no longer POTUS then be as contemptuous as you want.  And (most) individual Congress men and women are fair game for criticism and contemptuous language.

  8. Nathan Freeburg says:

    It seems to me that not being able to decline retired pay is a real problem for the government.  Who knew that they were signing up for lifetime UCMJ jurisdiction?

  9. law dog says:

    I think  the cert raises very good questions. To be honest, the courts have done mental gymnastics throughout the years to justify jurisdiction over retirees. What is the justification? Entitlement to pay? Being subject to recall to active duty? The Dinger Court has ruled that entitlement to pay is NOT what gives jurisdiction, but the fact that retirees are subject to be called to active duty. Ok…so what about selective service civilians? Why are they not subject to the UCMJ?  
    Also, if retirement benefits are considered “deferred pay for past services”(As per Barker) then how can they be justifiably taken away due to a subsequent dishonorable discharge AFTER retirement?
    And as Nathan Freeburg points out, Retirees are unable to decline retired pay or retirement status. So they are essentially involuntarily subject to the UCMJ for life. Lots of issues raised, and hopefully SCOTUS will grant a clean cohesive decision.
     

  10. Dew_Process says:

    Retired commissioned officers are in a special category — unless they have resigned their commissions and the resignation was accepted.  Otherwise, they are subject to recall and the UCMJ as the law now stands. But, I’ve litigated a half dozen cases where an officer completed their 8 (or however many) year MSO, and were quite surprised to get “recall orders” in the mail when we were preparing to invade Iraq. When they tendered their resignations the Army (all were Army) simply refused to process them. The federal courts thought otherwise in all but one case and that client had signed something agreeing to remain in the IRR beyond his MSO.
     
    As for Enlisted, their relationship is contractual (absent reviving the draft), so contract principles should govern in theory, e.g., as in Toth v. Quarles.  But, if one is receiving retired pay, is that an implied consent to continuing jurisdiction? 
     
    First Amendment issues abound — there are SCOTUS cases that hold reduced First Amendment protections in 4 categories:

    1. Parker v. Levy, 417 U.S. 733 (1974) [military];
     
    2. Holt v. Hobbs, 135 S.Ct. 853 (2015) [prisoners];
     
    3. Morse v. Frederick, 551 U.S. 393 (2007) [students – the “Bong HiTs 4 Jesus” case]; and
     
    4. Garcetti v. Ceballos, 547 U.S. 410 (2006) [public employees].
     

    But, none of those cases involved a retiree so Larrabee is obviously a “certworthy” case.  I think a better analogy might be cases involving Reservists who do something illegal while in a non-military setting, although it’s not a perfect analogy either.
     
    If one is referring to those males registered with the Selective Service System, the key from the old “draft-dodging” days would appear to be the failure to have ever taken the oath of office or Enlistment Oath.
     

  11. Philip D. Cave says:

    As a matter of policy, DoD limits involuntary recall to those under 60 I believe.  Does that alter the analysis/liability for those of us over 60?  If not, should it?
     
    http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/135201_dodi_2016.pdf

  12. stewie says:

    Don’t have a problem with retirees recalled to active duty for crimes committed while on active duty.
    Little more problematic to me when they are tried in their retiree status and not recalled to active duty.
    Very problematic to me if they are tried (recalled or not) for alleged crimes that happen WHILE they are in a retired status.

  13. Alfonso Decimo says:

    This case is also interesting for the allegation the SJA sought to have the MJ replaced as too lenient in sentencing. Especially after the conduct by the Navy DJAG in Barry, I think this type of interference happens in the smoke-filled backrooms where transparency doesn’t reach.

  14. Philip D. Cave says:

    The SG has declined the right to respond yesterday.

  15. CorsairF4U says:

    I think it is pretty mindless and stupid for retirees to be subject to the UCMJ AFTER they’ve retired, simply because they are receiving “retirement pay”, and the DoD merely says “you are subject to recall and retired means you are on a different status”.  I can maybe understand for offenses committed during active duty and they finally catch up to you (sketchy), but to yank someone back for a crime committed after active duty to be subject to the UCMJ?  Ridiculousness in the extreme.