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, 79 M.J. 620, 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.
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