Court-martial jurisdiction for retired members is a big topic in military justice. For instance, it was the #1 Military Justice Story of 2017 and the #6 Military Justice Story of 2018.

Now, with an astonishing opinion in United States v. Begani, __ M.J. __, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals holds that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.

Chief Judge Crisfield writes for the court, joined by Senior Judges Fulton and Hitesman.

In June 2017, Chief Petty Officer Begani, U.S. Navy, completed 24 years of active duty service and transferred to the Fleet Reserve. The Fleet Reserve (and the associated Fleet Marine Corps Reserve) is not regular retirement, but rather is an intermediate status for enlisted members in the Department of the Navy who have completed at least 20 but less than 30 years of service (because enlisted members are not actually entitled to retirement until they complete 30 years of service; compare, for example, 10 U.S.C. § 7314 (may be retired upon request after 20 years) with 10 U.S.C. § 7317 (shall be retired upon request after 30 years)). While in the Fleet Reserve, Begani received retainer pay and was subject to court-martial under Article 2(a)(6).

36 days after his transfer to the Fleet Reserve, Begani was apprehended by Naval Criminal Investigative Service (NCIS) agents when he went to an on-base residence on Marine Corps Air Station Iwakuni, Japan (Begani’s duty station at the time of his transfer). Begani was there for a sexual encounter with someone he believed was a 15-year-old female, but was actually an undercover NCIS agent. As a result, Begani eventually pleaded guilty at a general court-martial to one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Articles 80 and 120b. The approved sentence was confinement for 18 months and a bad-conduct discharge.

Begani did not challenge jurisdiction at trial, but he did challenge it on appeal, arguing “that the UCMJ’s jurisdictional scheme, whereby he, as a retired regular component member, is subject to the UCMJ, while retired Navy Reserve members are not, violates the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws.” Slip op. at 3. Begani’s argument turned on the claim that members of the Fleet Reserve (and Fleet Marine Corps Reserve) receiving retainer pay (like him), regular retirees, and reserve retirees, are all similarly situated.

The CCA agrees that those three disparate categories are indeed similarly situated:

There is little case law to guide our determination of whether these two groups of retirees are “similarly situated” for equal protection purposes. We nonetheless feel confident determining that members of the Fleet Reserve, regular component retirees, and reserve component retirees are similarly situated because there is no meaningful distinction, legally or factually, between the groups that is relevant to good order and discipline in the armed forces.

Slip op. 5. It then finds that Article 2 – which Congress recently amended

is not narrowly tailored to the achievement of a compelling government interest. Instead, it appears that Article 2’s retiree jurisdiction structure is an anachronistic vestige of Congress’ effort to create a uniform code of military justice for military services that traditionally had different administrative needs. Article 2’s retiree jurisdiction rules reflect an administrative compromise that has outlived its necessity and is not tailored to current governmental interests.

It is clear to us that Congress could lawfully subject all retirees of the armed forces to UCMJ jurisdiction. Conversely, it could subject no retirees of the armed forces to jurisdiction. It could also narrowly tailor retiree jurisdiction in such a way to satisfy the compelling interest in maintaining good order and discipline in the armed forces. Article 2 as structured, however, is not narrowly tailored to that interest. Accordingly, we find that the UCMJ’s jurisdictional structure for retirees violates the right of equal protection imputed to the Fifth Amendment.

Slip op. at 16 (emphases omitted).

The decision is a radical departure from everyone’s jurisprudence involving retiree jurisdiction, least of all the NMCCA’s own jurisprudence. For instance, just two years ago, in United States v. Dinger, 76 M.J. 552, 557 (N-M Ct. Crim. App. 2017), aff’d, 77 M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018) (CAAFlog case page), the NMCCA rejected a similar challenge because it was “firmly convinced that those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Shortly after it decided Dinger, the NMCCA summarily rejected a similar challenge in United States v. Larrabee, No. 201700075, 2017 CCA LEXIS 723 (N-M Ct. Crim. App. Nov. 28, 2017) (unpub.) (link to slip op.), aff’d, 78 M.J. 107 (C.A.A.F. 2018) (sum. disp.), cert. denied, 139 S. Ct. 1164 (2019) (CAAFlog news page).

The decision also suffers from some serious flaws.

One such flaw is that the opinion glosses over the significant differences between retainer pay (received by members of the Fleet Reserve, like Begani), regular retired pay (received by members who retire from a regular component after 20 or more years of service), and reserve retired pay (received by reserve retirees). There are at least two such differences: purpose and amount.

First, the opinion acknowledges that retainer pay carries with it a special obligation: “maintain[ing] readiness for active service in event of war or national emergency.” Slip op. at 5 (quoting Naval Military Personnel Manual, Art. 1830-040 (Ch-38, 19 Dec 2011)). That’s hardly an insignificant obligation; maintaining readiness for active service – while not a particular specific demand – undoubtedly requires a person to remain ordered and disciplined, the maintenance of which is the very reason for a military justice system. Furthermore, the federal courts have recognized that the Fleet Reserve was established for that specific purpose:

The purpose of establishing and maintaining the Fleet Reserve was to provide the Government with a trained body of men subject to recall to active duty when needed.

Murphy v. United States, 165 Ct. Cl. 156, 160 (Ct. Cl. 1964) (citation omitted), cert. denied, 379 U.S. 922 (1964). If that is not a special status that sets Begani (and others in the Fleet Reserve) apart as differently situated from regular and reserve retired members, then the existence of the Fleet Reserve is wholly superfluous. Such an interpretation, however, violates the canon against surplusage. See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (“We resist a reading . . . that would render superfluous an entire provision passed in proximity as part of the same Act.”).

Second, the opinion acknowledges that reserve retirees are paid very differently from regular retirees and members receiving retainer pay:

Retirees from an active component, including the Navy’s Fleet Reserve, begin earning retired pay (‘retainer pay’ for the Fleet Reserve) immediately upon retirement. Retirees from a reserve component generally begin receiving retired pay at age 60.

Slip op. at 6. That alone is a significant distinction between a reserve retirement and regular retirement/retainer pay. A reserve retirement that doesn’t begin to pay until age 60 is a classic pension-type arrangement. Retired pay that begins immediately, however, and without regard to other employment, is – as the Supreme Court observed not too long ago – “reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981) (discussing military retired pay). That distinction is a big way that reserve retirees are not similarly situated to regular retirees, but there’s more. Based on the way retired pay is calculated, reserve retirees also receive a dramatically smaller monthly retirement pay amount than a regular retiree (clearly reflecting, it seems, that reservists were not on continuous active duty and are not continuously subject to the UCMJ).

Another flaw is that the opinion takes only the slightest notice of the fact that Begani voluntarily subjected himself to UCMJ jurisdiction in exchange for retainer pay. “Enlisted Sailors of the Navy who have completed at least 20 years of active service will be transferred to the Fleet Reserve at their request,” notes the opinion, but that’s it. Slip op. at 5 (citing 10 U.S.C. § 6330(b)). There isn’t even the slightest consideration of the fact that nothing forced Begani to request a transfer to the Fleet Reserve, nor did anything force him to accept a lifetime of military pay and benefits in exchange for what the CCA – disparagingly, I think – characterizes as “no military duties other than to maintain readiness for active service in event of war or national emergency.” Slip op. at 5 (marks omitted). Continued pay for continued readiness while subject to court-martial was the deal, the nation sleeps better when rough men and women accept that deal, and Begani accepted it. The NMCCA, however, tears it up.

Somewhat comically, the CCA imagines that court-martial jurisdiction over retirees focuses on the “elderly and infirm active component retiree” who is “less likely to be able to contribute to the accomplishment of military missions” than a reservist who is not subject to court-martial. Slip op. at 15. The CCA seems to wring its hands over the possibility of an aging, wheelchair-bound war veteran will be rolled into a court-martial for wrongfully using marijuana to relieve glaucoma (perhaps with his great-grandchildren trailing behind to testify to his defense in sentencing, their teddy bears dragging on the floor). But that’s not Begani. Begani transferred to the Fleet Reserve – not the disabled retired list – on June 30, 2017, where he was paid to maintain readiness for active service. He then “remained in the area of his final duty station, Marine Corps Air Station Iwakuni, Japan, and found employment with a contractor performing aircraft maintenance work for the U.S. military.” Slip op. at 2. His arrest – on the Air Station – followed soon after, on August 5, 2017.

The CCA also doesn’t consider how its decision will affect jurisdiction under Article 3(a), which provides that a person who is discharged but later re-joins the military is subject to court-martial for misconduct prior to the discharge. That provision is at the heart of the re-conviction and death sentence for Army Master Sergeant Timothy Hennis, our #2 Military Justice Story of 2010. Hennis was in a retired status when he was convicted by a general court-martial for offenses he committed before retirement (and also before a break in service): the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of the Eastburns’ two daughters. Hennis was sentenced to death and the Army CCA unanimously affirmed the findings and sentence in 2016 (discussed here). If the NMCCA’s decision in Begani is correct – and CAAF will undoubtedly be asked to decide if it is – then Hennis may well be set free (and, of course, receive sizeable back pay and be returned to retired status).

Chief Petty Officer Begani will likely not go free, however, because his “employment with that contractor performing aircraft maintenance work for the U.S. military,” slip op. at 2, subjects him to prosecution under the Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261, if, indeed, he is not subject to court-martial jurisdiction. See also 10 U.S.C. § 3267 (defining terms). That fact is not stated in the CCA’s decision, but it is reflected in the CCA’s decretal action that reverses Begani’s convictions and dismisses the charges, but does not dismiss them with prejudice. Slip op. at 17.

Finally, the CCA’s ultimate conclusion creates at least as many questions as it answers. Chief Judge Crisfield writes:

It is clear to us that Congress could lawfully subject all retirees of the armed forces to UCMJ jurisdiction. Conversely, it could subject no retirees of the armed forces to jurisdiction. It could also narrowly tailor retiree jurisdiction in such a way to satisfy the compelling interest in maintaining good order and discipline in the armed forces. Article 2 as structured, however, is not narrowly tailored to that interest.

Slip op. at 16 (emphases in original). There is, however, no hint as to how Congress might so narrowly tailor the statute beyond its deliberate decision – affirmed so many times but now deemed inadequate – to subject only some retirees to court-martial jurisdiction.

19 Responses to “The NMCCA torpedoes Article 2; holds that court-martial jurisdiction over retirees is unconstitutional”

  1. Former DC says:

    Zack:

    Interesting opinion. Two questions:

    Conceding that this particular case is not the “great-grandfather in the wheelchair”, what in the precedents prior to this opinion prevented that from happening? One of the cardinal rules of an appellate court is they must always consider the larger ramifications for the law, that is, what will they say today which may effect the next case? I can see how that might inform this opinion and the heartburn of CCA.

    Second, am I mistaken in saying that there is never going to be a situation where a retiree will not be subject to some form of jurisdiction of a criminal court? In CONUS, it would be state or federal jurisdiction. OCONUS, it depends on the location, but as you point out, there is MEJA jurisdiction here, and possibly jurisdiction to the host nation (which in some places might be a worse deal for the accused). Thus, what need, if any, is there to create UCMJ jurisdiction over someone who, to the view of anyone who is not as schooled in the law as CAAFLog readers, is “out of the military” (I concede this is legally incorrect).

    That brings me to this point: the opinion seems to be practically based. Because it seems so strange for people who have retired to still be in the service for UCMJ purposes, I can see how that causes heartburn, precedent or not.

    Overall, interesting opinion. Will be curious to see what happens next. I predict a certification to CAAF comes next.

  2. Zachary D Spilman says:

    what in the precedents prior to this opinion prevented that from happening?

    Perhaps we should give great credit to Begani’s appellate defense counsel for making an argument that nobody made before. But by the same token we must be very concerned by the apparent fact that – prior to this – the NMCCA failed abide by the “Article 66(c), UCMJ, require[ment] that the CCAs conduct a plenary review.” United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (CAAFlog case page). See also United States v. Roach, 66 M.J. 410, 412 (C.A.A.F. 2008) (“[T]he scope of review by the [CCA] differs in significant respect from direct review in the civilian federal appellate courts.”).

    it seems so strange for people who have retired to still be in the service for UCMJ purposes

    That depends on the meaning of the word retired. As I wrote here, military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status.

  3. Former DC says:

    Zack,
     
    I’m not sure I follow on the precedent question.  I probably inartfully phrased my question.  What I mean is, prior to this case, was there anything in CAAF or CCA precedent that prevented the “grandfather in the wheelchair” scenario, which you so eloquently described, from being a reality?  To quote Justice Kennedy, what is the limiting principle?
     
    I concede that as a legal matter that military retirement is a change in status, not a retirement in the way that it is in the ordinary meaning of the term.  But that is legal hair-splitting to a layperson, which causes heartburn.  That heartburn seems to be at the center of this opinion.

  4. Zachary D Spilman says:

    Nothing prevented such a prosecution, Former DC, since the Supreme Court’s decision in Solorio v. United States, 483 U.S. 435, 439-441 (1987). I have, however, written about ways and reasons to change how the UCMJ is used.

    As for the layperson’s understanding, that seems quite irrelevant particularly since Article 137 requires that the UCMJ be explained to every servicemember (a particularly toothless provision as, quite ironically, is clear from this post, but a provision nonetheless).

  5. stewie says:

    It’s not true that “nothing” prevents it. It is certainly true that in theory anyone (who is retired or fits under one of these definitions) could be recalled and tried for any offense under the UCMJ based solely on the law itself. However, at least for the Army, AR 27-10 limits retiree recall and trial to serious offenses and is not something that you can do without higher approval. And, in my experience it is limited to things like rape, child molestation, murder and other serious offenses. I’ve tried multiple retirees, and the process, while not insurmountable at all, is certainly not easy either. I’m, perhaps wrongly, assuming the other services have similar restrictions/guidelines for the trial or recall and trial of retirees.
     
    That’s not to say the potential for abuse isn’t there. Obviously, it is. Let’s say a President or other senior leader REALLY wants to go after a retiree. (And no, this isn’t limited to Trump). Maybe they are being very vocal and notorious in criticizing someone in power, or doing something else that brings attention to them, and they are, say, smoking marijuana to alleviate illness or something like that. It’s possible an example could be made of such a person. So, it’s not without issue of course. Reasonable minds could make arguments about retirees and the UCMJ both ways.
     
    But overall, I concur this is a rather poorly reasoned opinion that I don’t think is going to sustain itself at CAAF.

  6. Jack says:

    Article 2 does not simply say “jurisdiction extends to the full scope of constitutional limits.”  In a number of ways, it refrains from imposing the maximum possible jurisdiction.  If this opinion is correct (which in my view it is not) every accused can object to UCMJ jurisdiction because other categories of people could have been subject to court martial but were not.  (That is, instead of framing the argument as “I am subject to jurisdiction as a retired regular, but a retired reservist who could be subject is exempt” the argument could be “I am subject to jurisdiction as a member of the land and naval forces, but some other member of the land and naval forces who could be subject is exempt.”)
    In addition, if the process by which a member of the land and naval forces is or is not subject to military trial is tested by strict scrutiny, then why wouldn’t prosecutorial decisions also be vulnerable to the argument; everyone tried in a court martial when they could have been prosecuted in a state court or federal civilian court seems to have a similar discrimination claim.
    Also, this case does not reflect how the Supreme Court has done fundamental rights analysis in the jury trial context.  They evaluate whether the proceeding (parole violation, misdemeanor with no chance of jail) warrants a jury.  If the answer is no, then they do not then apply strict scrutiny to its deprivation, even though some other defendants in other proceedings get juries; the right simply does not exist.  By the same token, the fact that some jurisdictions offer jury trials above the constitutional minimum for some offenses does not mean strict scrutiny applies to the denial of jury trials for other minor offenses.  

  7. Vulture says:

    A new paradigm for jurisdiction was also the number four story of 2017.  Now a consideration as to why the discharge took effect is necessary.  To be able to say that the service is more ready than it was before Begani left regular service is not an adequate reason to maintain jurisdiction.  To be able to say that the service is still as ready as it was when Begani left is also not a reason to maintain jurisdiction.  To be able to say that Begani’s departure only moderately effected readiness because he is still able to be recalled is probably more debatable.  It’s not as cut and dried as it might appear.
     
    The chief judge might be in a position of trying to save the prosecution of retirees nuts from themselves.  Particularly where a class action is possible with “similarly situated individuals.”  Those kind of questions have some success getting to the Supreme Court.

  8. Zachary D Spilman says:

    I sure hope you mean a new paradigm for discharge, and the #4 story of 2018, Vulture.

    In any event, I don’t see any possibility of a (viable) class action.

  9. Anonymous says:

    People bring up the “Fleet Reserve” of the Navy and Marines, but that doesn’t exist in the Air Force. If you have over eight years active duty service, you’re not required to be in the IRR (Individual Ready Reserve). If an Enlisted military member retires at 20 years, they’re retired. They’re not in some kind of reserve status until 30 like the Navy and Marines. 

  10. Zachary D Spilman says:

    The Fleet Reserve and Fleet Marine Corps Reserve are not reserve components, Anonymous, but rather (as explained in the post above) are an intermediate status for enlisted members in the Department of the Navy who have completed at least 20 but less than 30 years of service.

    It exists because enlisted members are not actually entitled to retirement until they complete 30 years of service.

    The Army and Army Force don’t have a status similar to the Fleet Reserve and Fleet Marine Corps Reserve, but the statutory right to retirement is the same. For example, 10 U.S.C. § 7314 and 10 U.S.C. § 7317 (both cited in the post above) address voluntary retirement by enlisted members of the Army. Under § 7314, a member with 20 years of service may be retired upon request. Under § 7317, a member with 30 years of service shall be retired upon request.

  11. stewie says:

    Of by regulation in the Army, an enlisted member with 18 years is safe harbored and any attempt to administratively discharge his retirement away must be approved by the SecArmy. But yes, generally speaking, reaching 20 does not mean an enlisted person cannot lose their retirement via administrative action. But the difference here is, once they get that retirement, they got it. There’s no nebulous in between status like the Navy appears to have.
    Officers OTOH see their retirement vest at 20. You cannot take it away via admin action, only court-martial via dismissal.

  12. Former DC says:

    Does the different structure between the Army/Air Force and Navy/Marine Corps give rise to a equal protection claim?

  13. stewie says:

    Why would it? The burden of proof in Navy NJP is different from an Army/Air Force Article 15/NJP.
    All sorts of differences between the Services. And this is all administrative, so the protections are lowered.

  14. Vulture says:

    Zach.  Discharge is a change of status.  In so much that applies to Begani, yes, that is what I mean.  And there are certainly others that are similarly situated.
    It’s not in front of me, but E. Fidell’s CAAF practice does suggest that a class action might be considered by CAAF.
    So, you can now have a class action considered by CAAF.  Or it can be considered by a civilian court.  
    Which would you rather have?

  15. Nathan Freeburg says:

    the equal protection hook you’re looking for is the differential treatment between officers and enlisted and the corresponding disparate racial impact. 

  16. stewie says:

    The disparity between enlisted and Officer is certainly unfair.

  17. Anonymous says:

    Different spanks, for different ranks.

  18. Mike says:

    I’d be curious to see who brings Article 88 under similar scrutiny.

  19. Zachary D Spilman says:

    Article 88 is a bigger red herring than the geriatrics that the CCA imagines being prosecuted under Article 2(a)(4).

    Article 88 prosecutions are about as rare as Article 131f (formerly Article 98) prosecutions. Furthermore, there are 1st Amendment concerns unique to such a prosecution of a retired member.

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