Last week Maj. Gen. Charles Dunlap, USAF (Ret.), who served as the Deputy JAG of the Air Force, published this article defending court-martial jurisdiction over retired members of the active components.

He writes:

Put simply, in the case of retired personnel voluntarily collecting retired pay, to include those in the Fleet Marine Reserve, they have chosen to keep a relationship with the military.

And indeed it’s true that nobody forces retired members to retire rather than separate at the end of a military career. Certainly there are financial and social benefits to retirement – retired pay, retired benefits, and retired status – but those benefits come with the costs of court-martial jurisdiction and the possibility of involuntary recall to active duty. That’s the deal.

Maj. Gen. Dunlap’s article also responds to many of the arguments made in the cert. petition in Larrabee (that was denied today), including the observation that Larrabee (who pleaded guilty to sexual assault at a general court-martial convened in Japan):

may now regret transferring to the Fleet Marine Reserve given the outcome of his trial, but my bet – based on literally everyone I know – is that the overwhelming majority of retired military personnel are proud of their service, and would hardly be pleased to have it downgraded to some lesser “connection” simply so that a rogue vet might not be held accountable in the military justice system.

That system, by the way, was recently characterized as a fair one by Justice Kagan in Ortiz. She noted it handles its cases “in strict accordance with a body of federal law (of course including the Constitution),” and offers “procedural protections… to a service member [that] are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal.” What, really, is wrong with judging military retirees in such forum? Would Larrabee have seriously preferred trial in Japanese court?

Undoubtedly Larrabee would have preferred a pardon. But considering that he pleaded guilty to sexual assault, it’s hard to see injustice in court-martial jurisdiction when he willingly (and almost-certainly eagerly) accepted that jurisdiction in exchange for the privileges and benefits of an active duty military retirement.

Of course, Larrabee wasn’t fully retired at the time of his court-martial. In the Navy and Marine Corps, an enlisted member with between 20 and 30 years of active duty service (like Larrabee) can separate, continue to serve, or be transferred to the Fleet Reserve (Sailors) or Fleet Marine Corps Reserve (Marines), where the member will receive retainer pay until he or she reaches 30 years of service and eligibility for regular retirement. Nevertheless, members of the Fleet Reserve and Fleet Marine Corps Reserve are in a status that – like regular retired members – includes court-martial jurisdiction. See 10 U.S.C. § 802(a)(6).

It’s also worth mentioning that enlisted members are not entitled to transfer to the retired list until they complete 30 years of active duty service. Compare, for example, 10 U.S.C. § 7314 (soldier with 20 years may be retired), with 10 U.S.C. § 7317 (solder with 30 years shall be retired). So Larrabee’s status was doubly-voluntary; very much like an ordinary enlistment.

15 Responses to “A retiree’s perspective on court-martial jurisdiction over retired members”

  1. David A. says:

    Larrabee cert. denied without any dissent or additional comment. Could have been denied based on issue not having been raised before the CAAF or, if raised as an issue, review not granted on that issue.

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

    The military justice system used to provide protections similar to the civilian sector, but not anymore.  As far as whether Larrabee would’ve preferred trial in a Japanese court, yeah, probably.  He probably would’ve gotten a much lighter sentence.

  3. Vulture says:

    And another Supreme Court justice called the whole thing a costume party.

  4. stewie says:

    “offers “procedural protections… to a service member [that] are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal.”
     
    Boy Vulture, we sure read words differently.

  5. Vulture says:

    Maybe so stewie.  It’s hard to tell when you leave a quote unclosed. 
    Yet the ideologue (your word) Alito didn’t verbatim say “The whole thing is a costume party.”  So you are correct; we probably read his words differently.  They are, in Ortiz:
     
    Or suppose Madison had convened an Executive Branch committee to make an initial determination. Suppose that this entity was labeled the “Court of Commission Review.” Suppose that the members wore robes and were called judges, held their meeting in a courthouse, and adopted court-like procedures. With all these adornments, would Madison’s decision have fallen within our appellate jurisdiction? 
     
    Seemingly drawing he on this as a basis for assessing the UCMJ as not courts in the legal sense.  So it’s not a costume party stewie.  It’s just you, wearing a dunce cap.

  6. Allan says:

    I propose adding an element to every punitive article in the UCMJ:  “The alleged conduct was prejudicial to good order and discipline.”  If that cannot be proven beyond a reasonable doubt, there should not be a court martial.  If it is a crime nevertheless, the civilian courts should have exclusive jurisdiction.

  7. slyjackalope says:

    The reason court-martial jurisdiction continues into retirement is to encourage retirees to keep their mouths shut and not rock the boat for the rest of their lives.  We already have clear lines for when Reserve and National Guard personnel are subject to court-martial and when they aren’t.  It wouldn’t be very hard to apply the same rules to retirees, if anyone actually wanted to.  Rather, we can’t have retirees being able to express their opinions and potentially make the Government look bad.  We might have something like this:  https://en.wikipedia.org/wiki/Bonus_Army

  8. Cloudesley Shovell says:

    I remain unpersuaded by Maj. Gen. Dunlap’s article. 
     
    One could argue until the cows come home about whether retirees were contemplated to be part of the “land and naval forces” in Art. 1, sec. 8 of the Constitution.  One could also, in the manner of angels dancing on the head of a pin, argue whether retiree jurisdiction is a necessary and proper exercise of the power to provide for the government and regulation of said land and naval forces.  I’d say that discussion is best had in a dimly lit bar, sitting in leather chairs, smoking cigars, and sipping some fine single malt scotch whisky, neat, with perhaps a few drops of water to really open it up.  Next time I’m in Raleigh-Durham, I’ll have to invite Gen. Dunlap (or does he now prefer Professor Dunlap?) to discuss the matter, or anything else that may arise.  But until then, a few comments.
     
    The matter of retiree jurisdiction is a pure policy choice.  It has nothing to do with the actual good order and discipline of the armed forces, and is exercised only in the rarest of circumstances, either to get a second bite and the apple after the “wrong” result in another forum (hello, Hennis), or in response serious felonies that offend the puritan sensibilities of the senior military leadership.  Sex crimes, that is.  (Gen. Grazioplene; Adm. Hooper way back in the day, 1956 or so (sodomy); Larrabee; etc.)  Disclosing classified info to your mistress ain’t enough (Petreaus), nor is fraud and bribery (Adm. Gilbeau convicted in federal court in the Fat Leonard case, retired and collects retired pay, as do other officers convicted in that matter).  Lying to the FBI is insufficient as well (Gen. Flynn).  
     
    So what arguments does Gen. Dunlap make in support of unfettered jurisdiction over retirees of a regular component of the armed forces entitled to pay?  Three things, apparently.  First, the voluntary nature of the continuing relationship between retiree and the armed forces.  Second, tied closely to the first, taking the money.  Third, a misty-eyed appeal to God Bless the USA patriotism, saying that regular component retirees would be insulted by a court ruling that they are no longer subject to the UCMJ. 
     
    UCMJ Art. 2(a)(4) authorizes the exercise of jurisdiction not only over those retired for years of service, but in fact over any retiree of a regular component, regardless of the basis for retirement.  A hypothetical–a draftee is inducted into a regular component of the armed forces, completes basic training, gets shipped off to a war zone, and is promptly severely injured and retired for medical reasons after less than six months of service.  Does the fact that he now “voluntarily” accepts retired pay due to his injuries sufficient for lifetime jurisdiction?  Really?  Let’s assume said draftee is injured alongside a young officer who was commissioned into a reserve component.  Said young officer also suffers a severe injury and is medically retired.  But hey, he’s in a reserve component, so no jurisdiction.  Why the distinction?  What is the policy reason? 
     
    Consider a regular component retiree who retires for years of service.  Consider a reserve component retiree who retires for years of service.  Both went through basic training at the same time (or were commissioned from the same source), served in the same units, the only difference being that regular guy went to 20, and reserve guy got out at 14 years, and finished his service in the reserves.  Both belong to the VFW, attend all the parades, cry when singing the National Anthem, and both would be insulted if a court considered retirees to no longer be part of the armed forces.  Heck, make them identical twins.  Why jurisdiction over regular guy, but not reserve guy?  Could it possibly be, at the time the UCMJ was drafted not long after WWII, that all those 90-day wonder reserve officers now serving in Congress or in important staff or government positions recoiled at the idea of lifetime UCMJ jurisdiction, as opposed to all those regular “ring-knocker” officers they encountered?  Who knows?  I sure don’t.  I’m just spit-balling (JFK, LBJ, Nixon, and Ford were all Navy reserve officers in WWII).
     
    I found his appeal to patriotism particularly insulting to reserve retirees.  Does Gen. Dunlap still subscribe to the notion that the regular component and the reserve component are two different worlds?  I thought such notions had been put to rest after Sep 11 and the widespread recall of reservists.  Why would a regular retiree be insulted by the severing of UCMJ jurisdiction, but the many reserve component retirees are not?  Are not those in the reserves just as patriotic as their regular component brethren? 
     
    Once again, this is all policy.  There’s no inherent res ipsa basis for jurisdiction over retirees.  Voluntariness has nothing to do with it.  Patriotism has nothing to do with it.  The “subject to recall” thing is a total canard (how many regular component retirees were involuntarily recalled compared to reserve component involuntary recalls?)  It’s all a matter of “you’re taking our money, you play by our rules.”  If that’s all it is, why the regular/reserve distinction?
     
    I’m asking questions because I don’t know the answer.  I do know that as a policy matter, I’d terminate jurisdiction over retirees.  It’s got nothing to do with good order and discipline, and its exercise is subject to the pure unfettered discretion of some commander somewhere, and not any rational policy.  It’s also incredibly rare.  Existing federal and state jurisdiction over crimes is plenty sufficient.  If Congress is so concerned about military retirees collecting pensions after convictions for crimes, they can make forfeiture or reduction of said pension a collateral consequence of conviction of a qualifying crime.  UCMJ jurisdiction is unnecessary.
     
    For those vanishingly rare circumstances where a military retiree’s criminal acts do actually affect the good order and discipline of the armed forces, Congress can provide for limited UCMJ jurisdiction, and require actual proof of real and material prejudice to good order and discipline, established through admissible evidence at trial, as Allan suggests above.
     
    Kind regards,
    CS
     
     
     
     
     
     

  9. stewie says:

    “Seemingly drawing he on this as a basis for assessing the UCMJ as not courts in the legal sense.”
     
    Well, duh. He thinks it’s an executive branch entity and thus doesn’t qualify as a court in the sense of appellate review. It’s not a great argument, but it’s not calling courts-martial a costume party as if they are a joke either.
     
    You really should tone it down from 11 to maybe a 9 at least Anakin before you go off and kill some younglings.

  10. Anon says:

    Congratulations to CS for this excellent commentary. 
    A more accurate title for the article reviewed by CS would be “A General’s Perspective.” One does not become a JAG general by favoring individual rights over military prerogative. See here, here, and here
    Related to Zeke’s excellent recent post about International Human Rights Law, a bedrock prohibition in IHRL is the prosecution of civilians in military courts. Some nations have eked ought the narrowest exceptions to their ICCPR treaty obligations, such as for contractors accompanying forces during military operations. U.S. embassies regularly criticize other countries for their human rights records when civilians are subjected to military tribunals. 
    Stray thought: for an ambitious senior military officer, the quickest path to four stars may be to pursue charges against a retired general whose views have offended the President. Some system. 

  11. Zachary D Spilman says:

    Consider a regular component retiree who retires for years of service.  Consider a reserve component retiree who retires for years of service.  Both went through basic training at the same time (or were commissioned from the same source), served in the same units, the only difference being that regular guy went to 20, and reserve guy got out at 14 years, and finished his service in the reserves.  Both belong to the VFW, attend all the parades, cry when singing the National Anthem, and both would be insulted if a court considered retirees to no longer be part of the armed forces.  Heck, make them identical twins.  Why jurisdiction over regular guy, but not reserve guy? 

    Regular component guy gets paid all day, every day, from the day he started active duty until the day he dies.

    Reserve component guy only gets paid when he performs reserve duty, and in retirement only gets paid after he turns 60 (a classic pension).

    Fundamentally different situations.

    Also – I think – fundamentally different risks of post-retirement recall to active duty.

    Your points about it being a pure policy choice, however, are well said. Bravo.

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

    CS,
     
    Don’t forget MG(R) Hale.  You raise an interesting point–why are some retirees court-martial worthy but not others?  I think with Flynn and Petraeus, it would’ve been difficult to find panel members who were senior to them by DOR.  Your other points are well-taken.

  13. Cloudesley Shovell says:

    Anon, Zach, Tami,
     
    Thank you for the kind comments and the points you made.  It warms an old admiral’s heart to see that somebody reads his ramblings.
     
    Zach–“Paid all day, every day, until the day he dies.”  I personally know two naval officers who retired from the reserves at age 60.  These two gentlemen were both mustangs, and both started their navy careers as seaman recruits in the same recruit class!  Both retired as navy captains after very long careers with the Navy.  Both collected Navy paychecks from the day they enlisted. Both are still alive, as far as I know, though now both would be in their early 80s.  Yet no jurisdiction.  Is there actually any real connection to the constitutional regulation of the land and naval forces, or is it just a policy choice in this distinction between the regular and reserve forces? 
     
    Furthermore, I personally know more than one officer in the reserve component (not regular) who remained on active duty through 20 years, and retired with a normal active duty retirement.  However, once again, because these officers were not part of the regular component, there is no jurisdiction.  Why not?  Once again, a pure policy choice completely divorced from any real connection to the armed forces, the regulation thereof, or the maintenance of good order and discipline.   (One officer was married to a fellow officer.  His wife was regular component, he was reserve, but made it into sanctuary and got an active retirement.  It’s so silly one can only laugh.)
     
    Zach, you also mentioned the “fundamentally different risks of post-retirement recall to active duty.”  I don’t know the actual numbers, I only know of anecdotes from my own personal experience.  If you or someone out there knows the actual numbers, that would be a great addition to the discussion.  The United States has now been at war for nearly 18 years.  (The very real possibility exists that people will soon retire having served their entire armed forces career with the country at war.  Something to behold, and not in a good way.)  Anyway, how many retirees, of any stripe, were actually recalled to active duty involuntarily since Sep 11, 2001?  Now, how many reservists were involuntarily recalled?  I know of several.  I would say, anecdotally, that at least in the last 18 years, one was at far greater risk of involutary recall to active duty as a reservist rather than as an active duty retiree.  
     
    Yes, I understand that I’m comparing retired members to current reservists.  However, this continuous receipt of pay thing is a substantial component of the justification for continuing jurisdiction from Gen. Dunlap as well as some of the commenters.  I’ll use myself as an example.  I was notified that I was to be involuntarily recalled to active duty when I was 47 years old, and a reservist, and a so-called flex-driller, which meant that sometimes I went several months without drilling or getting paid, while other months I did multiple drills.  (My recall was subsequently cancelled).  Why me over an officer who retired from active duty last week or last month, and who was younger than me, and probably more qualified?  Policy choice.  So why the distinction on lifetime jurisdiction post-retirement?  I wish I knew.
     
    Tami–Yes, missed Gen. Hale.  I’m sure there are others.  I wonder why we have a system that makes it so difficult to prosecute senior officers under the UCMJ?  That is, once again, a pure policy choice.  Funny how that works.  What would George Orwell say?  Some more equal than others, or so I hear.
     
    This thread is soon to drop off the front page, and will soon be forgotten, but thanks to all for the very enjoyable discussion.
     
    Kind regards,CS
     
     
     
     
     
     

  14. MCPO_Ret says:

    Very interesting conversation and I’ve always wondered this. So, for the purposes of an enlisted service member with between 20.1 and 29.9 years of active duty service,  I believe the Navy typically transfers people off the Fleet Reserve to the retired list at the point at which a member would have hit the 30 year point from enlistment. So, once that happens, is the UCMJ still applicable even though on the retired list? 

  15. MCPO_Ret says:

    Very interesting conversation and I’ve always wondered this. So, for the purposes of an enlisted service member with between 20.1 and 29.9 years of active duty service,  it seems the UCMJ applies.  I believe the Navy typically transfers people off the Fleet Reserve to the retired list at the point at which a member would have hit the 30 year point from enlistment. So, once that happens, is the UCMJ still applicable even though on the retired list?
    The obvious case would be getting a DUI/DWI out in town and some officer on the base reads it in the paper and gets a wild hair to set an example. Can the officer haul a Fleet Reserve member onto the base and Article 15/Captain’s Mast them? How about a retired list member? Who would be the convening authority?
    (Reposted due to frag sentence…mods, please remove previous comment.)