CAAF decided the Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on February 28, 2020. Hennis is a capital case and CAAF’s review is mandatory. Reviewing 40 issues raised by Hennis’ defense counsel and three issues raised by Hennis personally – but discussing only the five issues on which the court granted oral argument – CAAF affirms the findings, the sentence to death, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

The court-martial conviction and sentencing of Master Sergeant (E-8) Hennis, U.S. Army (Retired) was our #2 military justice story of 2010. That year a general court-martial convicted Hennis of three specifications of premeditated murder and sentenced him to death. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, all of which occurred 25 years earlier, in 1985.

Hennis was tried three times for those crimes: twice by North Carolina and then finally by a court-martial. The first trial resulted in a conviction and death sentence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989, after which Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – he remained subject to the UCMJ. Advances in DNA during the following years allowed investigators to determine that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death. The Army CCA affirmed the findings and sentence in 2016 (discussed here), 75 M.J. 796.

Hennis’ brief to CAAF raised dozens of challenges to his convictions and capital sentence, but CAAF heard oral argument on only five issues:

I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction.

II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial.

III. Whether the court-martial had personal jurisdiction over Appellant.

IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense.

V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause.

The court concludes that none of the issues in this case – not those heard at oral argument nor any of the others – provides a basis for relief, and it affirms Hennis’ convictions and sentence to death. As a result, Hennis remains one of only four people on military death row. The others are Gray and Akbar (whose convictions and sentence were affirmed by CAAF), and Hasan (whose case is still pending initial review by the Army CCA).

Chief Judge Stucky’s 29-page opinion considers the five argued issues in three groups. The Chief Judge first addresses the three jurisdictional challenges, then the evidentiary rulings by the military judge, and finally the voir dire and challenges for cause.

Hennis’ first jurisdictional challenge arose from the fact that after he was acquitted by a North Carolina jury and reinstated in the Army, he was discharged (due to expiration of his enlistment) and immediately reenlisted (at his own request) over the course of two days in June 1989. Today such a discharge would not prevent court-martial jurisdiction because under Article 3(a) any person who is currently subject to court-martial is also subject to court-martial for conduct during prior service (unless barred by the statute of limitations). But Article 3(a) said something slightly different in 1989. At that time the statute limited continuing jurisdiction to serious offenses that could not be tried in the civil court:

Subject to section 843 of this title (article 43) [statute of limitations], no person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.

Article 3(a) (1950). Congress removed the requirements that the offense be punishable for five years and not triable in the civil courts in 1992, after Hennis was discharged and reenlisted.

At trial, Hennis claimed that he briefly left military service during the two-day reenlistment process in 1989, and that the break in service terminated court-martial jurisdiction for offenses committed before the break. The military judge disagreed, holding that there was no break in service and that even if there was then Article 3(a) provided continuing jurisdiction. The Army CCA disagreed with the military judge’s first holding and found that there was a break in service, but it agreed that Article 3(a) provided jurisdiction nonetheless because the Double Jeopardy Clause barred further prosecution of Hennis by North Carolina. Hennis’ brief to CAAF railed against that decision, casting it as a “radically misguided conclusion” that “celebrates an absurdity,” App. Br. at 21, as “so strained, so aberrant, and so offensive to the spirit of the Double Jeopardy Clause and Article 44, UCMJ that Congress could not have foreseen it, let alone discussed or desired it,” App. Br. at 35, and as “tone deaf literalism [compounded] with inconsistency,” App. Br. at 40.

CAAF, however, agrees with the CCA that the double jeopardy prohibition on further state prosecution of Hennis triggers jurisdiction under (the old version of) Article 3(a). Chief Judge Stucky writes:

Based on the plain language of the statute, we reject Appellant’s interpretation of Article 3(a). The issue is not whether another jurisdiction could have ever tried Appellant, but rather whether there was any court that could try him at the time charges were preferred. At the time of preferral of charges, Appellant “[could not] be tried in the courts of the United States or any State” because, at that time, double jeopardy barred North Carolina from prosecuting and no federal statute under Title 18, triable in a U.S. district court, covered Appellant’s conduct. As no other jurisdiction could have tried Appellant at the time charges were preferred, the prosecution met its burden of establishing jurisdiction by a preponderance of evidence.

Slip op. at 8-9 (modification in original). Chief Judge Stucky also writes that “this analysis is consistent with our decision in Willenbring [v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998),” a decision that CAAF partially reversed in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018). “In Willenbring, we held that the fact the appellant could waive his statute of limitations defense did not mean that the federal civilian authorities could try him, because the statute of limitations, although waivable, is ‘a limitation on the power of a prosecutor to bring charges and on the power of a court to try a case.'” Slip op. at 9 (quoting 48 M.J. at 176).

Hennis’ second jurisdictional challenge is an attempt to revive the service-connection requirement of O’Callahan v. Parker, 395 U.S. 258 (1969), that was abandoned in Solorio v. United States, 483 U.S. 435 (1987). Hennis argued that Solorio does not necessarily apply to capital cases and that the circumstances of his case fail the service-connection test. CAAF rejects both arguments:

Justice Stevens’s suggestion in Loving that Solorio may not apply to capital cases is unfounded. The Fifth Amendment’s exclusion of “cases arising in the land or naval Forces” from its ambit makes no distinction between the treatment of capital cases and that of infamous crimes. Although Solorio itself was an “infamous crime” case, the Supreme Court did not qualify its conclusion that “military jurisdiction has always been based on the status of the accused, rather than on the nature of the offense.” 483 U.S. at 439 (internal quotation marks omitted) (citation omitted). In fact, the majority cited military capital cases in support of its position. Id. at 449 n.14. We hold that Solorio applies to capital cases.

. . .

In United States v. Solorio, the C.M.A. held that the appellant’s off-base sexual abuse of the dependents of Coast Guardsmen was service connected. 21 M.J. 251, 255-56 (1986). It relied on the trauma to the parents, which diminished their ability to perform their duties, and the limitations on the appellant’s future assignments because of “the tensions that his presence would create in an organization.” Id. at 256. Moreover, Justice Stevens, upon whom Appellant’s argument relies, would have found Solorio’s offenses serviceconnected. Solorio, 483 U.S. at 451 (Stevens, J., concurring in the judgment). We have no doubt Justice Stevens would have reached the same conclusion in this case, where Appellant slaughtered the wife and two children of a military member.

Slip op. at 11-12.

Hennis’ third jurisdictional challenge was to personal jurisdiction. Personal jurisdiction over retired members has been a hot topic recently, as the #1 Military Justice Story of 2017, the #6 Military Justice Story of 2018, and the subject of a pair of remarkable published opinions from the NMCCA in United States v. Begani. Hennis’ challenge is unique, however, because he was not tried from retired status (under Article 2(a)(4)) but instead was recalled to active status and then tried as a regular (under Article 2(a)(1)). Hennis’ challenge to personal jurisdiction focused on the circumstances of that recall, which he claimed was improper. CAAF rejects that challenge, finding that Hennis was properly recalled to active duty:

the convening authority asked the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA (M&RA)) to order Appellant to active duty “to facilitate courts-martial action.” The Acting ASA (M&RA) ordered Appellant to active duty under the provisions of Article 2(a)(4), UCMJ, 10 U.S.C. § 802(a)(4), 10 U.S.C. § 688, and Dep’t of the Army, Reg. 27-10, Legal Services: Military Justice 5-2(b)(3) [hereinafter AR 27-10] (Secretary’s authorization to recall retired members for purposes of court-martial proceedings).

Once Appellant was properly recalled to active duty, he was subject to the UCMJ “from the date[] when [he was] required by the terms of the call or order to obey it.” Article 2(a)(l), UCMJ.

Slip op. at 12 (modifications in original) (paragraphing added). Yet Hennis also argued that he was part reservist because he was attached to a reserve unit in his retired status. CAAF rejects that argument outright, with a blunt explanation that regulars and reservists are not the same:

Appellant accepts that the Army could have tried him as a retiree but disputes that the Army had the ability to recall him to active duty. Appellant contends that, as he was assigned to a reserve unit, he was both a retiree and a reservist. He argues that a reservist cannot be recalled to active duty for any offense committed before 1987.

But Appellant was not a reservist, nor was he recalled from reserve status. He was recalled to active duty as a retired member of the Regular Army under regulations prescribed by the Secretary of Defense. See 10 U.S.C. § 688(a), (b)(l) (2000); Dep’t of Defense Dir. 1352.1, Management and Mobilization of Regular and Reserve Retired Military Members 4.1. (July 16, 2005); AR 27-10 5-2(b)(3). The fact that Appellant was attached to a reserve organization for accounting purposes did not make him a reservist.

Slip op. at 13.

The final two issues address rulings by the military judge.

First, Hennis asserted that the military judge denied him necessary witnesses and the funding and access to evidence for additional forensic testing. All assertions are rejected on the basis of relevance and necessity, with Chief Judge Stucky writing that mere speculation by the defense, slip op. at 16, and the mere possibility that additional forensic testing would be helpful, slip op. at 19, are insufficient to warrant reversal of the military judge’s rulings (or even to make the rulings wrong in the first instance).

Second, Hennis asserted that the military judge unfairly restricted his voir dire of the members and wrongly denied challenges for cause. CAAF affirms the restriction of voir dire with the observation that:

The military judge gave both parties considerable latitude in questioning the members. He was concerned, however, with defense attempts to get court members to express opinions as to whether the death penalty would be appropriate by referencing aggravating factors without reference to mitigation and extenuation.

. . .

The military judge did not prevent the defense from asking, whether, if the court found Appellant guilty of the murder of a woman and her two children, they would automatically sentence him to death. He permitted a scope of voir dire broad enough for Appellant to challenge members who would “not be able impartially to follow the court’s instructions and evaluate the evidence” and “to ascertain whether [the] prospective” panel members would impose the death penalty regardless of the facts and circumstances of the conviction. Morgan v. Illinois, 504 U.S. 719, 730, 735-36 (1992).

Slip op. at 20 (modification in original). The court also finds no error in the military judge’s denials of defense challenges of certain members, finding for each that “the military judge did not abuse his discretion in denying the challenge for actual bias” and that the challenged member’s “inclusion would not have caused the public to perceive Appellant’s panel as less than fair and impartial.” Slip op. at 24, 26, and 28-29.

CAAF’s affirmation of Hennis’ court-martial conviction and death sentence does not mean that he will soon be executed. Far from it. Hennis is entitled to petition the Supreme Court for certiorari, and he almost certainly will do so. After that, the death sentence must be approved by the President before it can be carried out. Even then, however, it’s likely that any execution will be stayed pending collateral attacks in the district courts.

The last President to approve a military death sentence was George W. Bush, who approved Ronald Gray’s sentence in 2008 (our #4 Military Justice Story of 2008). Gray was convicted and sentenced 20 years earlier, in 1988. Gray still lives on military death row, while habeas litigation continues. See Gray v. Hilton, Dkt. No. 5:18-cv-03305 (D. Kan.) (PACER link). See also United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam) (CAAFlog case page).

Nearly 60 years have passed since an execution as the result of a court-martial. The last was Army Private First Class John A. Bennett, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956). Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

Case Links:
ACCA opinion (75 M.J. 796)
Blog post: ACCA affirms death for Hennis
Blog post: Hennis docketed at CAAF
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio: Part 1 (wma)(mp3); Part 2 (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

30 Responses to “Opinion Analysis: CAAF affirms death in United States v. Hennis”

  1. Duderino says:

    Just going to say this.  IMP Retirement benefits are not worth the lifetime jurisdiction of such a dangerous justice system. By dangerous I mean so many things starting with not requiring unanimous verdicts.  

  2. TC says:

    I’ll take the pay and just not rape and murder anyone.

  3. Nathan Freeburg says:

    Do about 18 years of active duty.  Get out.  Go reserves.  Get your 20 year letter.  Retire.  Avoid UCMJ jurisdiction?

  4. Zachary D Spilman says:

    That’s one way, Nathan Freeburg. But there’s at least one other.

    The statute creating the entitlement to non-regular retirement (the pension at age 60 without any requirement for continuing military affiliation) is 10 U.S.C. § 12731. Section (a)(4) of that statute states that a person is eligible for non-regular retirement only if the person:

    is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

    But there’s an exception.

    10 U.S.C. § 12741 allows a person who has attained eligibility for regular retired pay (or retainer pay in the Fleet Reserve or the Fleet Marine Corps Reserve) to give up that entitlement (and its requirement of continuing military affiliation) in exchange for non-regular retirement by serving two satisfactory years in an active (drilling) status in the Selected Reserve of the Ready Reserve.

    The biggest disadvantage of doing that is that a non-regular retirement does not begin until age 60 (though there are ways to reduce that age to as low 50).

    Of course, to completely avoid jurisdiction the member must actually separate from the armed forces entirely. If they maintain military status – such as status as a reservist in the retired reserve awaiting pay (sometimes referred to as a gray area retiree) – they will be subject to recall. See 10 U.S.C § 12307 and 10 U.S.C § 688.

  5. slyjackalope says:

    Here’s looking forward to President Trump ordering a triple-header for Gray, Akbar, and Hennis in the very near future.

  6. Aflapr says:

    Or join the Coast Guard. 14 USC 2127 isnt as broad as 10 USC 688, so retired Coasties can only be involuntarily recalled during wartime or for national emergencies.

  7. Lone Bear says:

    I’d take the retirement, these prosecutions are extremely rare and only for pretty egregious offenses.

  8. Jake says:

    In regards to lifetime UCMJ jurisdiction,  this particular case looks like justice served by the DNA evidence. 
    That being said,  losing the constitutional rights to a jury trial is a big deal,  and a burden I  think unjustly imposed upon those who have served for twenty years.  Thanks for your service, we’re not giving you your rights back..
    I suppose retire in the reserves and then resign and become a former member. 

  9. Zachary D Spilman says:

    Nobody is forced to take regular retired pay, Jake. As illustrated here, you can’t denounce the UCMJ and keep the money.

    And the idea that regular retired pay is just a regular, ordinary retirement, is simply false. As I discussed here:

    “Retirement” in the context of the military is something of a misnomer–retired pay, unlike a typical pension, is not simply compensation for past services, but also “reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 221-22 (1981). To be retired is to be placed on the retired list, subject to recall to active duty. 10 U.S.C. §§ 688. A retired officer therefore remains a member of the armed forces and remains subject to the UCMJ. 10 U.S.C. § 802(a)(4); McCarty, 453 U.S. at 221-22.

    Loeh v. United States, 53 Fed. Cl. 2, 5 (2002).

  10. Vulture says:

    “You can’t denounce us next week.”
    But we can hang you any time we want.
    Maybe retirees should renegotiate.

  11. J.M. says:

    Zach, when was the last time a non flag officer retiree was recalled for anything other than a court martial? Retirees aren’t recalled to serve again anymore. It’s a antiquated law that completely ignores common sense and appears to be biased in it’s application towards retired enlisted and not retired officer, such as the dozen retired Captains and Admirals in the Fat Leonard case who got soft time at Prisons that are comparable with a mid-range Sandals resort.

  12. Zachary D Spilman says:

    I think it’s incredibly shortsighted, J.M., to focus on the possibility of mobilization as the reason for regular retired pay. When I look at the regular retirement system established by Congress, I see it as part of a larger system of manpower and skills management. Regular retirement is an incentive to remain in the military, it is not a pension or deferred compensation or some form of reparations for the relative costs of 20 years of military service (no matter how much some people like to pretend it is one of those things). Furthermore, regular retirement is just one of many incentives connected to one of many forms of continuing military status; it’s part of a holistic approach. It therefore reflects Congress’s considered judgment about how to fulfill its Article I, Section 8, Clause 14 responsibility.

    There may be strong arguments to limit Congress’s power in this area, but we haven’t heard them. The circumstances of Hennis, however, provide strong support for continuing the current system. Hennis – while in active service – raped a fellow servicemeber’s wife and murdered her and the servicemember’s two daughters. Those are heinous crimes that violate the core principles of military service, and they are richly deserving of a military prosecution and a military punishment. However, proof sufficient to convict Hennis did not become available until many years later, and but for his continuing military service (under the system Congress established), Hennis would have escaped justice.

    It’s easy to imagine similar situations where the late discovery of evidence (of war crimes, other misconduct in deployed locations, or serious crimes with service connection) provides a strong policy justification for Congress’s decision to tie continuing jurisdiction to continuing service. Even without such justification, however, the fundamental truth remains that Hennis (like Begani and Larrabee and Dinger and others) chose to remain in the military in exchange for military pay. They were not stripped of their constitutional rights; they voluntarily – perhaps eagerly – gave them up in exchange for things of value (money, for sure, but also status and benefits).

    In all the discussions of that issue, no cogent rationale has emerged to alter that deal and remove continuing jurisdiction regular retirement but keep everything else.

  13. Vulture says:

    Measures that make jursidiction over retirees an unbalance in the UCMJ:
    1.  curtailing of jurisdiction at the appellate level
    2.  institution of UCMJ proceedings following failed civlilian prosecution
    3.  nonavailability of appellate review for certain classes of sentences
    4.  incongruency in classes of retirees
    5.  inability of  UCMJ structure to find its “core principles” sufficiently to petition Congress to protect the rights of the Accused

  14. Allan says:

    Just a question.  Did the recall of and prosecution of Hennis really promote good order and discipline?  Certainly, there is a criminal law reason for the prosecution, but the military is there to fight wars, not prosecute. 
    I guess the answer could be yes.  But I wonder if anyone brought up this issue to the GMCA or the SecDef, other than:  “he did it, he should be punished”

  15. Zachary D Spilman says:

    Accepting your list at face value, Vulture, I can’t help but point out that:

    1. While a trend towards narrower readings of jurisdiction was the #5 Military Justice Story of 2015, those narrow readings came with narrow facts, and the Military Justice Act of 2016 only expanded jurisdiction with the new Article 66(b) right of an accused to petition a CCA for review in a case that previously depended on JAG referral for jurisdiction. So, on balance, curtailed jurisdiction at the appellate level is largely an urban myth.

    2. Military prosecution after civilian prosecution is nothing new – and I previously wrote about it in unfavorable terms – but cases like Hennis illustrate why it’s sometimes a desirable possibility.

    3. As with curtailing of jurisdiction, nonavailability of appellate review is also an urban myth. See United States v. Hathorne, 71 M.J. 200 (C.A.A.F. Apr. 26, 2012) (CAAFlog case page), and my discussion outlining the opportunity for an impressive six levels of appellate review of a special court-martial (compared to only two levels of a typical federal criminal conviction).

    4. The gnashing of teeth and rendering of garments over a perceived incongruency in classes of retirees totally fails to to acknowledge (never mind appreciate) that the classes of retires are different. Fundamentally different, in fact.

    5. I won’t dispute the notion that our military justice system is failing in its core duty to protect the rights of the accused, but a voluntary retirement system established by Congress many decades ago isn’t to blame. Look elsewhere.


  16. J.M. says:

    Zach, you make good points, but IMO there is no modern reason to continue the legal fiction that ‘retainer pay’ aids in manpower and skill management. I’m all for recalling someone to active duty for a court martial for offenses committed while in uniform, but there’s no reason to maintain UCMJ authority over retirees for conduct that happens after they leave active duty and can easily be handled by other jurisdictions. Add in the subjective criteria for doing so as evidenced by the almost 3 dozen ‘retired’ officers who have federal convictions for conduct while in uniform yet not a single one was court martialed, thereby ensuring their retirement pay was untouched. 

  17. Zachary D Spilman says:

    there is no modern reason to continue the legal fiction that ‘retainer pay’ aids in manpower and skill management.

    I don’t agree. But if I did, I might ask why the answer must be to eliminate the retainer part of the equation, and not the pay part.

    Put differently, if I agreed that the armed forces don’t need to keep regular retirees in the service (and I don’t agree, in part because I doubt humanity has seen the end of conscript war), then I might ask why not transfer all regular retirees (not just future, but also current) to the non-regular retirement system with a pension that begins at age 60?

  18. Vulture says:

    Zach, you say the classes of retirees are fundamentally different but reject the arguments considering where particulars overlap in Begani.
    Myth?  Maybe, maybe not.  In looking at you paragraph e.
    Hennis is a poor excuse for a human being but that doesn’t justify double jeopardy.  TC is right; don’t rape and murder a woman and children.  But Rice is still fresh, so don’t say the arguments are old.
    You can mount an argument for more levels of review than in a civilian court.  Your graph in Hawthorn has circular references so don’t count as levels.   Also, the case that you are making is the same one that Crowder did in the hearings after the First World War.  But his words were “…in the nature of an appellate review…” not “…an appellate review.”  Just ask Ltc. Arness about that one.
    The pay issue, well, that’s a different story.

  19. Anonymous says:

    Unrelated by Lt Col Arness was my squadron flight doctor circa 2006-2010. I flew with him on an OEF sortie one time where he did the walk-around inspection of the jet with the pilot, kicked the tires, and told the crew chief it needed more air like he was buying a used car. We were aerial refueling a B-1 bomber over Afghanistan where he started talking on the radios to the B-1 telling them they needed to learn how to fly more stable. I reached over and turn off his comm panel and as tactfully as an E-5/E-6 could, told him to STFU the rest of the flight. Didn’t know he was court-martialed, but honestly not really surprised.

  20. Cloudesley Shovell says:

    Zach and others,
    I am on the side of curtailing retiree jurisdiction.  If not eliminated outright, it should certainly be curtailed to eliminate those cases that have nothing to do with the “Government and Regulation of the land and naval Forces” (also known as maintaining good order and discipline). 
    We already have a structure where a large number of retirees, those from a reserve armed force, are not subject to UCMJ jurisdiction.  Is there any harm to good order and discipline as a result?  None that I can see.  If someone out there has a good contrary argument, by all means make it. 
    On the other hand, there are a number of retirees who are subject to lifetime jurisdiction (depending on the interpretation of the words “entitled to pay” from Art. 2(a)(4)).  Those are persons retired from active duty for medical or other disability issues.  Why it is necessary for the military to exert court-martial discipline against a combat-wounded amputee from the Vietnam War 1, 10, 30, or 50 years after he was medically retired is beyond me.  If you have a contrary argument, based upon good order and discipline and not some arcane appeal to opaque pay and compensation statutes, please make it. 
    One may cite statutes all day long asserting what retired pay is, a retainer or a pension, or an incentive.  What pension system of any sort is not an incentive to continue in any position, military or otherwise?  Is not a reserve retirement also an incentive?  This ridiculous parsing of statutes is an awfully weak scaffold upon which to hang lifetime jurisdiction. 
    I am certainly open to the argument that a retiree from a regular armed force entitled to pay can be subject to court-martial for offenses that were committed while still on active duty before retirement, subject of course to appropriate statutes of limitation. (This includes Hennis and other idiots like him.) I could also be open to the argument that a retiree can be subject to court-martial for offenses that occur after retirement if such offense is directly and unmistakably contrary to good order and discipline.  I’m also completely open to an appropriate collateral consequence statute (assuming one doesn’t already exist), that provides for forfeiture of retired pay if said retiree is imprisoned following a conviction in state or federal court.  I’m also open to a statute that provides for permanent forfeiture of retired pay upon conviction of certain qualifying felonies (the serious ones, murder, rape, etc.).
    Kind regards,

  21. Zachary D Spilman says:

    If you have a contrary argument, based upon good order and discipline and not some arcane appeal to opaque pay and compensation statutes, please make it.

    My contrary argument is that regular retirees remain members of the armed forces, and that court-martial jurisdiction is an indispensable part of maintaining good order and discipline among members of the armed forces.

    Members of the retired reserve are also still members, of course, and they also remain subject to the UCMJ (in the exact same manner as they were subject to it while they were active status (drilling) reservists). See Article 2(d). See also 10 U.S.C. § 10141 and § 10154. And see Morgan v. Mahoney, Misc. Dkt. No. 99-03, 1999 CCA LEXIS 173 (A.F. Ct. Crim. App. Mar. 15, 1999) (holding that member of the retired reserve may be recalled under Article 2(d)(1)).

  22. Robert Lyons says:

    For J.M.  “when was the last time a non flag officer retiree was recalled for anything other than a court martial? Retirees aren’t recalled to serve again anymore.”  In the Army, as recently as 2010, the Army re-called Chaplains to fill key slots.  My boss in Germany was one.  I assisted in working his orders.  So it does happen, though I will concede it is rare.   As to the main point of maintaining jUCMJ urisdiction over retirees, I would be curious as to the effect of a “Commission,” which ostensibly remains in force “at the pleasure of the President,” as opposed to a contracted enlistment. I would argue jurisdiction remains for the former but not the latter.

  23. stewie says:

    I’ll fall somewhere in the middle. I agree with J.M. and others that there is not a lot of reason to try retirees by court-martial for conduct done after they retire. We have a civilian court system for that. I haven’t been retired very long, and I guarantee life has moved on for the rest of the JAG Corps, as it should be. They got schtuff to do, and lots of it.  So the good order and discipline argument is tenuous at best. Zach’s argument boils down to “it’s good order and discipline because the rules say retirees are still members of the military.” On paper, I suppose. In practice, no. If tomorrow I get a DUI, it’s pretty unlikely that anyone in the military will find out about it. And give it another year or two and hardly anyone will even recognize my name. If they do, they will say huh, that’s too bad, and move on. Good order and discipline will remain unaffected if the civilian courts handle the case vice recalling me.
    Having said that, for crimes committed while on active duty? I think there the link to good order and discipline is much clearer and for serious offenses I have no problem with, and have on multiple occasions, bringing people back onto active duty to try them. Again, for serious offenses, sex assault, murder, and other higher level crimes.

  24. Jack Burton says:

    Funny that no one in the JAG Corps gave a poo about this until they realized that North Carolina could no longer prosecute this case.  Where were they in 1985 when they deferred to the State to prosecute Hennis?  
    I always suspected the argument about separation from service during his NC confinement would be the best issue. But I also knew that CAAF would massage it into a fiction to uphold the UCMJ conviction.   
    With SCOTUS recent incorrect ruling in Gamble I seriously doubt that Hennis will get any love if / when the case ever makes it that high.  
    And before anyone gets too worked up, I do not support Hennis’ actions assuming he did them.  I simply don’t think a person should be prosecuted ad nauseam until we “get it right” as one current SJA believes.  To paraphrase a wise former MJ: when the OSJA/Army defer to the State to prosecute an offense/accused, that should be it for the Army, Navy, etc ever being able to exercise jurisdiction ever again.  You had your chance, you chose not to act, tough luck.  
    Imagine this was you, your spouse, your kid.  Don’t you think there should be finality at some point before the government gets its 10th bite at the apple to “get it right”?????
    JM has it right.  When, other than the Chaplain mentioned above, has anyone ever been recalled for actual duty?  
    This entire thing just disgusts me and is a snapshot of just how messed up the practice of criminal law is in the armed forces.  Maybe some aspiring person will recall Petraeus for prosecution of his offenses…

  25. Charlie Gittins says:

    Willenbring v. Neurater was a perfect example of CAAF making it up in order to allow the conviction in a horrific case to stand.  Once Willenbring was past his appeals, the CAAF decided they had wrongly decided the Willenbring case to start with — that nearly everyone who actually attended law school and paid attention knew.  

  26. Vulture says:

    The last published JAGC Directory shows a Major with DOR in 93 in the Criminal Law Division on Roslynn Ave.
    That may or may not have been a retiree returned to AD.  My bet is on Jag Corp trying to find experience to the Government’s benefit.  I am not waiting for the JAG Corp to find its moral compass by equitable assignment choices.
    I was in a unit around the same time with a LTC ADA officer returned to active duty after retirement.  But that unit had a heavy reserve component.
    So it’s not completely unheard of for a retiree to go back on active duty from more than the Chaplins branch or GO.  
    A round discussion of where pay meets reason for discharge wouldn’t be out of the question.  Government has prodded dollars and cents to equate to jurisdiction and the court after Nettles went to the purpose to discharge.  But me thinks that is too shallow a grave.

  27. Jack Burton says:

    I’ve been FTR a few days in the last couple of weeks to my post retirement job.  Jeez, I hope they don’t recall me for prosecution.

  28. John O'Connor says:

    I pretty much agree with Sir Cloudesley.
    1.  I have little doubt that the expansive court-martial jurisdiction over retirees will be affirmed by the courts and continued.
    2.  I won’t shed a tear for Hennis if he gets what he morally deserves.
    3.  No one is ever going to convince me that this is constitutional.  I think that the courts should just be honest and say that they’re not going to apply the constitutional framework mandated in cases like Toth v. Quarles and Reid v. Covert based on the tried-and-true legal doctrine that “those are wacky Warren Court decisions.”    

  29. stewie says:

    That it hasn’t been done recently is not really an argument. We haven’t had a reason. If some massive global war broke out, (unlikely but people were feeling pretty confident in the 30s we were one and done with World Wars, and we spent most of the 50s-80s ready for the next World War), you could see retiree recalls if they needed the bodies/experience.
    If someone wants to argue that recall to active duty for the purpose of court-martial is in and of itself inherently unconstitutional, that’s an argument to be made, not sure I agree but I’m listening…but to argue well because we don’t do it right now or for awhile isn’t really an argument. Are you saying you’d feel differently if we DID recall folks from retirement routinely? How often is enough to make you ok with it?

  30. Jack Burton says:

    I just remembered another retiree recall for a murder prosecution:  JACK REACHER 
    Reacher was recalled pursuant to Article 10.75 of the Military Code that allowed recall of those that possessed a security clearance at time of retirement.  Jeez, I hope the producers of that film didn’t pay their military tech advisors in anything other than Monopoly money.