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On Friday the en banc Navy-Marine Corps CCA issued this opinion on reconsideration in United States v. Begani, __ M.J. __, No. 201800082, splitting 4-3 to affirm the validity of Articles 2(a)(4) and 2(a)(6), which apply court-martial jurisdiction to retired members of the regular components and to members of the Fleet Reserve (Navy) and Fleet Marine Corps Reserve.

The decision is a dramatic (but not unexpected) reversal of the decision of a three-judge panel of the court issued back in July and discussed here. If you’re not familiar with this case then you should probably read that post before continuing.

The panel had held that Articles 2(a)(4) and 2(a)(6) violate the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists. I wrote in this second post that the panel’s decision was fundamentally flawed because the panel overlooked the fact that reserve retirees need not have any current connection to the service to receive their reserve retired pay. Citing numerous statutes, regulations, and court decisions, I explained that reserve retired service and reserve retired pay are mutually exclusive statuses, while regular retired pay is a direct consequence of regular retired service. That is a significant distinction between reserve and regular retirees that eliminates any equal protection argument (and if you’re not familiar with reserve retirement then you should also read that second post before continuing).

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The Air Force Times reports here about an Air Force Judge Advocate who was convicted of attempted larceny and making a false official statement at a general court-martial, and sentenced to be dismissed. The report states that Lt. Col. Deric Prescott – who formerly served as the staff judge advocate for Minot Air Force Base – “was convicted of one count and one specification of making a false official statement, a violation of Article 107 of the Uniform Code of Military Justice, and one count and one specification of attempted larceny of an amount greater than $500 from the moving company Total Moving Management, a violation of Article 80 of the UCMJ.”

The Los Angeles Times published this report about the recently completed review of the Navy and Marine Corps legal communities, with the observation that while “the review mentions Gallagher once in its 273 pages, the timing of it leaves little doubt that Gallagher’s case, and Trump’s anger at the Navy over it, was a factor in the report.” The report also notes that the review “found systemic problems relating to other military law cases in addition to Gallagher’s.” But:

The Navy’s review did not address what a senior Navy official described as a crippling morale hit suffered by the Navy JAG Corps — and the Navy at large — after the president’s actions.

“Both the president’s and Richardson’s interventions impacted morale and people’s belief in themselves,” said the senior officer, who was not authorized to comment. “There is no certainty that leadership would have their backs. There was significant concern in the Navy, from (lieutenants to admirals), about Trump’s involvement and whether it would affect careers and how it would impact the military justice system.”

Adm. Robert Burke, vice chief of naval operations, declined to answer questions about the JAG morale issue when asked by the Union-Tribune during a Q&A session with reporters Friday.

He said that the Navy JAGs are “talented individuals.”

Finally, Stars and Stripes published this story about tomorrow’s oral argument at CAAF in United States v. Washington, No. 19-0252/AR (CAAFlog case page).

The prosecution of Navy Special Operations Chief Edward Gallagher began in September 2018, when Gallagher was charged with numerous offenses including premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134. Gallagher was also placed into pretrial confinement based on accusations that he was intimidating witnesses.

The charges against Gallagher were serious, and the Navy acted like it was taking the case seriously. An experienced judge advocate – Navy Commander Chris Czaplak – was assigned to prosecute the case, and he was quoted by the New York Times in November, 2018, as taking a hard line approach:

In the hearing Thursday, a Navy prosecutor, Chris Czaplak, said the chief had done damage beyond murder.

“Does the public still believe we are the good guys, because Chief Gallagher decided to act like the monster the terrorists accuse us of being?” he said. “He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are.”

Those tables would turn dramatically before the case was over.

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That’s the title of this report in the San Diego Union Tribune about the fallout from the public, mass-apprehension of 16 Marines accused of human smuggling that was recently ruled to be unlawful (noted here). As a result of the ruling, “the Marines’ cases will be dealt with administratively, outside the military court system, according to a 1st Marine Division statement.”

The apprehension occurred in July and was big news at the time. Reuters, for example, reported that it “stemmed from a separate investigation of two other Marines arrested earlier this month on human trafficking charges filed by federal prosecutors in San Diego.” The apprehension was captured on video (available here).

The Union Tribune previously reported that a military law enforcement agent testified during an Article 32 preliminary hearing that the Marines apprehended en masse were not accused of actually transporting migrants across the border, but rather were allegedly “part of a conspiracy to transport the immigrants across the county.”

Audio of the recent oral argument at the Navy-Marine Corps CCA in United States v. Begani, No. 201800082 (reconsideration) is available on the CCA’s website (here) and on our oral argument audio podcast.

Prior coverage:
Oral argument audio
NMCCA opinion (withdrawn)
Blog post: The NMCCA torpedoes Article 2
Blog post: The fundamental flaw in the NMCCA’s decision in Begani
Blog post: NMCCA withdraws opinion, grants reconsideration
Oral argument audio (reconsideration)

Richard Spencer was – until five days ago – the 76th Secretary of the Navy. He was nominated for the position by President Trump on D-Day, 2017, and quickly confirmed. He was fired this past Sunday by Secretary of Defense Mark Esper – another rapidly-confirmed appointee of President Trump – for loss of trust and confidence in connection with the Gallagher case.

More specifically, as this DoD press statement explains:

Secretary of Defense Mark T. Esper has asked for the resignation of Secretary of the Navy Richard Spencer after losing trust and confidence in him regarding his lack of candor over conversations with the White House involving the handling of Navy SEAL Eddie Gallagher.

After Secretary Esper and Chairman Milley spoke with the Commander in Chief on Friday regarding the case of Gallagher, Secretary Esper learned that Secretary Spencer had previously and privately proposed to the White House – contrary to Spencer’s public position – to restore Gallagher’s rank and allow him to retire with his Trident pin. When recently asked by Secretary Esper, Secretary Spencer confirmed that despite multiple conversations on the Gallagher matter, Secretary Esper was never informed by Secretary Spencer of his private proposal.

The Gallagher case is an unprecedented, unmitigated, and ongoing disaster for the Navy. That, however, doesn’t seem to matter to Spencer.

In a piece published by the Washington Post (alternative link), Spencer disputes the official report of a private deal with the White House and claims, instead, that:

I tried to find a way that would prevent the president from further involvement while trying all avenues to get Gallagher’s file in front of a peer-review board. Why? The Naval Special Warfare community owns the Trident pin, not the secretary of the Navy, not the defense secretary, not even the president. If the review board concluded that Gallagher deserved to keep it, so be it.

. . .

[T]he Navy established a review board to decide the status of Gallagher’s Trident pin. According to long-standing procedure, a group of four senior enlisted SEALs would rule on the question. This was critical: it would be Gallagher’s peers managing their own community. The senior enlisted ranks in our services are the foundation of good order and discipline.

Lack of candor indeed.

The Navy Times has published this strongly-worded opinion piece by Sean Gallagher, the brother of Navy Special Operations Chief Edward Gallagher. It begins:

In this partisan environment, people were quick to judge President Donald J. Trump’s reinstatement of anchors to my brother, Special Warfare Operator Chief Edward “Eddie” Gallagher.

Out of the woodwork came former military attorneys, indignant Pentagon officials and your typical Washington establishment types.

Their views were mainly the same. The president’s actions were a moral hazard! What message will it send our troops? What of good order and discipline?

I have one question for these people: Where in the hell were you the past year and a half?

Sean Gallagher then excoriates the Naval Criminal Investigative Service for it’s mishandling of the case, Navy prosecutors for their prosecutorial misconduct (including spying on the defense), and Navy leadership for its lack thereof.

The piece includes a link to this 16-page complaint filed last week with the DoD Inspector General that makes seven specific complaints of “severe misconduct committed by the investigators, prosecutors, and the command before, during, and after the trial.”

Sean Gallagher concludes:

And don’t think for a second the bureaucracy ever admits it got everything wrong. Quite the opposite.

Instead of an apology to our family for the home raid, months of unjust imprisonment and enormous legal fees, the Navy actually rewarded the prosecutors who lost the case.

You heard me right. A team that spied, cheated, slandered and then lost a publicly humiliating case, received Navy and Marine Corps Achievement Medals.

Who, again, is ruining good order and discipline? You dare chide the commander in chief’s attempt to clean up this mess?

To any service member reading this: If it can happen to us, it can happen to you.

The message your brass and bureaucracy is sending you is clear. You are disposable. When it comes to their careers or their political motives, they’ll send you to war and then railroad you, drag you through the mud, and sing songs of sanctimony while you and your family hang.

In the wake of President Trump’s recent grants of clemency in military cases, pardoned Army First Lieutenant Clint Lorance appeared on Fox & Friends this morning. Video and a report are available on the Fox News website, here. Among other things, Lorance reacted to yestetrday’s tweet from former Vice President Joe Biden that said that the President’s pardon decision “betrays the rule of law, the values that make our country exceptional & the men and women who wear the uniform honorably.” Shortly before Biden’s tweet, the President tweeted that he would not have granted clemency to Private Manning, whose 35-year sentence was commuted by President Obama.

In other news, CNN reports here on the Supreme Court’s grant in Briggs, with the observation that “this will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.”

Additionally, the San Diego Union Tribune reports here that a military judge ruled that the public, mass apprehension of 16 Marines accused of human smuggling was unlawful command influence. The Union Tribune previously reported on a video of the apprehension, observing that:

On the morning of July 25, as 800 Marines stood in formation at the Camp San Mateo area of Marine Corps Base Camp Pendleton, 24 Marines’ names were called.

Fifteen were ordered to stand in a line in front of the battalion “to be recognized,” according to court filings in the case. The battalion sergeant major stood nearby, carrying a red folder that usually is associated with awards.

But these men weren’t awarded. The regiment sergeant major, Sgt. Major Matthew A. Dorsey pointed to the Marines in front and said, “NCIS, arrest these Marines.”

Three video clips of the incident are available here and also here. The Union Tribune reports that the military judge gave the prosecution “until next week to find a way to remedy what he said was actual and apparent unlawful command influence, or it could be devastating to their case.”

Finally, the Fayetteville Observer reports here on an interview with retired Army Lieutenant Colonel Kris Poppe, who was Major Hasan’s detailed military defense counsel.

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:


Briefs will be filed under Rule 25.

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

Last month – in advance of the NMCCA withdrawing its opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (decision analyzed here and here) – the Air Force CCA issued a published decision in United States v. Ballard, 79 M.J. 675, No. 39440 (A.F. Ct. Crim. App. Sep. 30, 2019) (link to slip op.), in which the CCA rejected a constitutional challenge to court-martial jurisdiction over retired members. Writing for a three-judge panel of the CCA, Judge Lewis explained:

We conclude Appellant was undoubtedly a retired member of the regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active duty. We note our superior court has repeatedly upheld the exercise of court-martial jurisdiction in the face of challenges similar to one Appellant makes in this case. See, e.g., United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); Pearson v. Bloss, 28 M.J. 376, 378–80 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417, 421–25 (C.M.A. 1958). We find the Congress acted well within the authority entrusted to them by the Constitution’s Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular component of the armed forces who are entitled to pay in Article 2(a)(4).

Slip op. at 7-8.

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On July 31, a three-judge panel of the NMCCA issued an astonishing opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), concluding 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.

I analyzed the decision in a pair of posts here and here, the latter of which called the opinion fundamentally flawed because reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees that justifies their different treatment under the UCMJ.

In this order issued last week, the NMCCA withdrew the opinion and announced en banc reconsideration:

Upon consideration of Appellee’s Motion for Reconsideration and Suggestion for En Banc Consideration, filed on 4 September 2019, it is, by the Court, this 1st day of October 2019,

1. That the Motion is GRANTED. The Court En Banc will consider the case.

2. That the Court’s 31 July 2019 decision is hereby WITHDRAWN.

3. That no briefs or arguments will be accepted unless required by further order of the Court.

Here’s a link to a Washington Times story about a military judge’s ruling in an Air Force general court-martial, dismissing sexual assault charges with prejudice because the convening authority (a 2-star) “directed the trial counsel not to enforce their subpoenas, [resulting in] the government abdicat[ing] its obligations to the justice system.” The military judge’s 13-page ruling is available here. Reportedly, the prosecution will not appeal the ruling.

Additionally, here’s a link to a story about the arrest of Coast Guard Seaman Ethan Tucker for the murder a fellow Coast Guardsman in Alaska.

In other news, the Solicitor General filed a reply brief in support of the Government’s petition for certiorari in Briggs. The brief is available here.

Finally, CAAF’s 2019 orientation for new attorneys (an annual event) will be on Tuesday, September 24, 2019 at 9:30 a.m. Additional details available here.

On Tuesday, in this post, I analyzed the NMCCA’s astonishing opinion in United States v. Begani, 79 M.J. 620, No. 201800082 (N-M. Ct. Crim. App. Jul 31, 2019), in which a three-judge panel of the court held 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 the UCMJ does not also apply court-martial jurisdiction to retired reservists.

The most important holding in Begani is about three classes of retirees in the Navy and Marine Corps: (1) regular enlisted members in the Fleet Reserve receiving retainer pay (like Begani), (2) regular members on the retired list receiving retired pay, and (3) people receiving reserve (also known as non-regular) retired pay (the CCA did not address disability retirees).

The CCA held that people in those three categories “are similarly situated for purposes of equal protection analysis.” Slip op. at 8. That holding made possible the subsequent equal protection analysis (that found Article 2 unconstitutional). Without that holding, the rest of the opinion collapses.

The holding is based on similarities between the three categories of retirees:

The members of all three groups are in an inactive status and no longer perform any uniformed military duties. They are all subject to recall to active duty. They are ineligible for further promotion. They are entitled to retired pay at some point in their retired years. . . . For all of them, once they are entitled to retired pay, the pay continues for the duration of their lives and increases according to a cost of living formula. Their retired pay is not contingent on their continued military usefulness. Their actual ability to contribute to the accomplishment of a military mission is completely irrelevant.

Slip op. at 6.

The CCA analyzed “each group’s current degree of connectedness to the armed forces—not to past connections.” Slip op. at 6 (emphases in original). In analyzing how each group is currently connected to the armed forces, the CCA considered “the official Department of Defense (DoD) policy on the utilization of retirees.” Slip op. at 6. That policy includes an instruction that “makes no distinction between retired members of the regular and reserve components,” and that “does not mention active or reserve component status as a criterion for mobilization.” Slip op. at 6-7 (quoting DODI 1352.01 in footnotes). The CCA also considered the fact that “retired members of both the active and reserve components are similarly—though not identically—subject to involuntary recall to active duty.” Slip op. at 7. Because all three categories of retirees are still members of the armed forces, and because the DoD treats all three categories roughly equally, the CCA held that they are similarly situated.

That holding is fundamentally flawed because (unlike regular retirees) reserve retirees need not have any current connection to the service to receive their reserve retired pay. Reserve retired service and reserve retired pay are mutually exclusive. Regular retired pay, however, requires regular retired service. Put differently, while regular retirees must actually be in the military to receive regular retired pay, reserve retirees need not be in the military to receive their reserve retired pay (nor does continued service in the retired reserve create an entitlement to reserve retired pay). That’s an enormous difference in situation.

The bottom line is found in the wording of the statute that creates reserve retired pay, 10 U.S.C. § 12731 (“person”; “entitled”; and no mention of the retired reserve), and in paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD FMR), which states:

Retired pay benefits authorized for non-regular members of the uniformed services in 10 U.S.C., Chapter 1223 are viewed as a pension and entitlement to retired pay under 10 U.S.C. § 12731 is not dependent on the continuation of military status.

(emphasis added). In other words, reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees.

Analysis follows after the jump.

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