CAAFlog » Court-Martial News » MG Grazioplene

Back in August, in this post, I noted that the Army held an Article 32 preliminary hearing in a case involving allegations that now-retired Major General James J. Grazioplene committed rape on six occasions while on active duty in 1983-1989.

Those allegations were referred for trial and the Washington Post recently reported here that:

Retired Maj. Gen. James J. Grazioplene appeared Tuesday at Fort Belvoir, Va., for his first hearing following an Army general’s decision last month to send the case to a court-martial. Grazioplene, 68, is accused of repeatedly raping a young girl between 1983 and 1989.

The allegations have put the Army in highly unusual territory. The pending trial will mark one of only a few cases since World War II in which a general officer has been prosecuted in open court.

Grazioplene was a major serving at Fort Leavenworth in Kansas when the alleged rapes began, according to court documents. He has not entered a plea.

Continuing court-martial jurisdiction over people who retire from a regular component of the armed forces – which isn’t retirement in the ordinary meaning of the term, but rather is merely a change in military status – has been a hot topic since the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

The Grazioplene case also raises issues of the statute of limitations and due process for an accused brought to trial decades after an alleged offense. CAAF is considering similar concerns in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page).

An Article 32 preliminary hearing was held over the weekend to consider allegations of rape of a child by retired Army Major General James J. Grazioplene. According to this associated press report:

The Washington Post obtained charging documents under the Freedom of Information Act that show Grazioplene is accused of committing rape on six occasions between 1983 and 1989 while stationed in the United States and Germany.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

But the Grazioplene case raises a different issue: whether the prosecution is barred by the statute of limitations. Article 43 contains a broad, five-year statute of limitations, and the exception for child abuse offenses wasn’t added until 2003. In United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), CAAF held that the change was prospective only:

Considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively to cases such as this, the general presumption against retrospective legislation in the absence of such an indication and the general presumption of liberal construction of criminal statutes of limitation in favor of repose, we decline to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.

Update / Correction: Except that in 1986 Congress amended Article 43 to eliminate any statute of limitations for “any offense punishable by death,” and rape was at the time a capital offense.

News reports about the Grazioplene case (including this military.com story and this Washington Post story) provide little additional detail about the facts of the case.