Last week Marine Staff Sergeant (E-6) Larrabee filed this federal lawsuit seeking declaratory relief that his court-martial conviction is unconstitutional. The suit cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, as the basis for the relief requested.
Larrabee completed 20 years of active duty service in 2015 and requested transfer to the Fleet Marine Corps Reserve (FMCR). The FMCR accepts enlisted Marines with more than 20 but less than 30 years of active duty service, and its purpose is “to maintain a ready manpower pool of trained Marines for recall and mobilization.” MCO 1900.16, para 7001.2. A Marine in the FMCR receives retainer pay (computed at the same rate as retired pay) until the Marine achieves 30 years of service, at which point the Marine may actually retire (by transferring to the retired list). See 10 U.S.C. § 8326. Personnel on the retired list are, of course, subject to court-martial jurisdiction. So too are members of the FMCR. See Article 2(a)(6).
Larrabee transferred to the FMCR on August 1, 2015. At the time of his transfer he was stationed in Iwakuni, Japan, which is a deployed location. Larrabee remained in Iwakuni and got a job managing local bars. Just three months after his transfer to the FMCR, Larrabee video-recorded himself sexually assaulting a woman at one of the bars; a place named Teaserz that is approximately 1000 feet from the gate of the nearby Marine Corps Air Station. The woman worked as a bartender at the bar. She was also the wife of an active-duty Marine sergeant stationed at the nearby Marine Corps Air Station.
The woman reported the assault to military authorities. They interviewed Larrabee, he made a number of admissions, and he was eventually charged with numerous offenses. He pleaded guilty (pursuant to a pretrial agreement) at a general court-martial composed of a military judge alone to sexual assault and indecent recording in violation of Articles 120 and 120c, and was sentenced to confinement for eight years, a reprimand, and a dishonorable discharge.
On appeal, Larrabee challenged the existence of court-martial jurisdiction over him as a member of the FMCR. The NMCCA summarily rejected the challenge in an unpublished opinion available here, and CAAF summarily affirmed, 78 M.J. 107 (C.A.A.F. Aug. 22, 2018). Larrabee then petitioned for certiorari, the Solicitor General opposed cert. on numerous grounds, and the petition was denied last month. Larrabee’s federal suit follows.
The suit faces incredibly long odds of success, not just because the facts of Larrabee’s case raise uniquely military concerns and the Declaratory Judgment Act is an odd tool to try and win reversal of a court-martial conviction that is final and conclusive, but also because Larrabee’s complaint makes a number of remarkably dubious assertions.
For example, the first four factual assertions in Larrabee’s complaint are:
13. On August 1, 2015, after 20 years of service in the Marine Corps, plaintiff retired and was transferred, at his request, to the Fleet Marine Corps Reserve.
14. The Fleet Marine Corps Reserve is not a “reserve component” of the U.S. military, and is comprised exclusively of retired active-duty servicemembers.
15. Members of the Fleet Marine Corps Reserve receive a pension called “retainer pay,” but have no military duties unless and until they are recalled.
16. As a member of the Fleet Marine Corps Reserve, plaintiff was, for all practical purposes, a civilian.
As discussed above, the FMCR is different from the retired list and its specific purpose is to maintain a population of trained Marines for recall and mobilization. Accordingly, Larrabee’s assertion that the FMCR “is comprised exclusively of retired active duty servicemembers” and that its members are civilians “for all practical purposes” simply isn’t true (and even without the special mobilization potential, the fact that Congress specifically applies court-martial jurisdiction to personnel in the FMCR is a reason they are not civilians).
Furthermore, it seems that Larrabee’s transfer to the FMCR in 2015 was his only option other than complete separation from the armed forces. Marine Corps policy in August 2015 (available here) imposed a 20-year career service limit for staff sergeants. The policy (which is still in effect) exists to “ensure that Marines who have reached a certain year of service in their current grade without being selected for promotion are either separated from the active component at their EAS [end of active service date] or are required to transfer to the FMCR.” Larrabee wasn’t on the list for selection to gunnery sergeant in 2015, 2014, 2013, or 2012, so it’s safe to assume that he wasn’t selected and had to either actually separate or transfer to the FMCR (where he would receive retainer pay in exchange for possible reactivation and UCMJ jurisdiction). He chose transfer and took the retainer pay.
Yet while Larrabee’s options were transfer to the FMCR or complete separation, transfer to the FMCR wasn’t the only way from him to get paid. Enlisted Marines denied reenlistment due to high-year tenure policy (like Larrabee, for the reasons discussed above) are entitled to separation pay if not transferred to the FMCR or the retired list. See MCO 1900.16, para 1307.3. Separation pay is a lump-sum payment upon discharge that does not involve further service obligation. For Larrabee the amount would have been two full years of base pay: approximately $90,000. Larrabee could have chosen that instead of transfer to the FMCR, taken the money, and become a civilian. He didn’t do that.
Larrabee’s complaint also asserts:
21. Plaintiff’s offenses were committed on private property in Japan and had no connection to either the armed forces or his status as a retiree.
That’s just false. As discussed above, Larrabee videotaped himself sexually assaulting his employee who was the wife of a deployed active duty sergeant. The Solicitor General’s response in opposition to Larrabee’s cert. petition explains that Larrabee:
provided a voluntary sworn statement in which he admitted to “rubbing the outside of [KAH’s] vagina with [his] hand” and to “ha[ving] sex” with KAH while she was “bent over [a] bar stool,” but petitioner asserted that the acts were consensual. Prelim. Hr’g Ex. 5, at 8. Petitioner also admitted to recording himself “having sex [with KAH] on [his] iPhone” and provided his phone to investigators. Ibid. Contrary to petitioner’s “initial characterization of [KAH] as a willing participant, the video depicts [her] as being unresponsive and uncooperative.” Prelim. Hr’g Ex. 2, at 2.
Resp. at 6-7 (marks in original). The SG’s response also explains that in addition to managing bars, Larrabee “worked as a civilian employee of the Defense Commissary Agency.” Resp. at 5. And, of course, Larrabee pleaded guilty to sexual assault and indecent recording. Characterizing a commissary employee who admits to sexually assaulting the wife of a deployed service member in a deployed environment as having no connection to the armed forces is either woefully ignorant or wholly disingenuous.
But such characterization is a necessary predicate to Larrabee’s claim that:
48. Plaintiff’s conviction violated the Constitution because the court-martial lacked jurisdiction over both him and his offenses: as a retiree, he was not part of the “land and naval forces” at the time of either the offenses or the trial, and the case did not “aris[e] in the land or naval forces” because the offenses had no connection to the armed forces.
Triply false. First, Larrabee isn’t a regular retiree; he is in the FMCR (not on the retired list) and receiving retainer pay (not retired pay). Second, Larrabee was part of the naval forces at the time of both the offenses and of trial; he was in the FMCR and Congress specifically defines the FMCR as part of the Marine Corps. Third, Larrabee’s offenses are connected to the armed forces; not only was Larrabee a member of the armed forces at the time, but he was also an employee of the Defense Commissary Agency and his victim was the wife of a deployed active duty Marine.
These factors make Larrabee’s case an incredibly bad vehicle to challenge the constitutionality of court-martial jurisdiction over retired members. In many ways it’s actually a great example of why such jurisdiction is both necessary and appropriate. Larrabee chose to subject himself to court-martial jurisdiction, chose to remain in a deployed environment, chose to sexually assault the spouse of a deployed service member, and chose to plead guilty. There’s little reason for a federal judge in Washington, D.C. to save him from the consequences of those choices.