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.
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.