Can A Military Retiree Be Court-Martialed? (2024)

Can A Military Retiree Be Court-Martialed?

Philip D. Cave 2022-06-16 06:50:13

It’s a fine morning at the office when in walks retired Senior Chief Bill Budd. He’s your first client meeting of the day. He’s there to talk about his upcoming trial in Fairfax for a hit-and-run where a person was injured.

Budd: Counselor, I just got this recall to active- duty order — can they do that?

You: Did they say why?

Budd: They are going to court-martial me for the hit-and-run. I’m retired. Can they do that?

You: In short, yes, they can.

Prospective client Budd would be one of about 780,000 military retirees living in Virginia and about 3.5 million worldwide.1 In exchange for Budd receiving a monthly check and medical benefits, he does not commit to doing anything for the military except to report for duty if recalled to active service. Congress believes retirees make up a pool of trained and experienced people to call upon in the event of war or a national emergency. Therefore, Congress and the Department of Defense assert that court-martial jurisdiction is necessary to ensure continued good order and discipline.2

There are fewer protections at court-martial than in a civilian prosecution.

All Regular Component retirees, Fleet Reserve retirees, and sometimes Reserve Component retirees are subject to court-martial jurisdiction until they die.3 They can be prosecuted for any crime anywhere in the world.4 Jurisdiction is based on the person’s military status, not because there is any service connection between the crime and the military.

Yet, like active-duty service members, the retiree faces restraints on their speech, even if it is political speech during a presidential election.5 Moreover, there are fewer protections at court-martial than in a civilian prosecution. For example, the military commander selects a court-martial “jury.” Selection is not done by an independent person and is not done randomly.6 Since Ramos v. Louisiana, the military is now the only jurisdiction in the United States where the jury needs just three-fourths of the members to vote for guilt.7 Unlike a federal judge, the military judge does not have judicial independence because they have no fixed term of office. And a direct appeal to a court-martial conviction is limited, especially in petitioning the Supreme Court of the United States.

The assertion of court-martial jurisdiction over retirees was not the case until 1861. The Second Continental Congress had adopted the British Articles of War for the Colonial Army in 1775. Nothing was said then about the court-martial of retirees because there were none. It was not until 1778 for officers and 1818 for enlisted persons that a “pension” was given as a reward for service. Yet still, no court-martial jurisdiction existed.8 President Lincoln signed the first Congressional enactment creating a retirement system and court-martial jurisdiction of retirees in 1861. The retiree was, from then on, “subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles.”9

In 1950, President Truman signed the Uniform Code of Military Justice (UCMJ) into law, bringing the present court-martial jurisdiction over retirees. 10 In 1955, retired Chief Petty Officer Andrew Gagnon was the first retiree convicted under the UCMJ for crimes while a civilian employee of the Navy. He had wrongfully disposed of government property.11 And in 1958, Rear Admiral Selden Hooper became the first retired senior officer to be convicted at court-martial for hom*osexual relations with enlisted sailors.12 Since then, at least 32 other retirees have been convicted at court-martial.13

You may remember in 2021 the calls to have Lieutenant General Michael Flynn court-martialed for sedition, treason, and a host of other alleged federal crimes.14 One military law expert explained that treason is prosecuted in federal court. They also argued that the facts do not support a sedition charge, and creative lawyering on other court-martial charges would not satisfy anyone.15 Conversely, two Army judge advocates suggested a “clever lawyer” could get a conviction for making Disloyal Statements under Article 134, Uniform Code of Military Justice (UCMJ).16 You may also remember calls for the court-martial of Lieutenant Colonel Larry Brock after being arrested for involvement in the illegal entering of the US Senate Chamber on January 6.17 The media has photos and videos of him acting out on the senate floor.18 But Brock is a Reserve Component retiree (who is not receiving military medical care), so he is not subject to court-martial jurisdiction.19

There have been many calls to prosecute mostly senior officer retirees at court-martial. Some will remember calls for General David H. Petraeus to be court-martialed for mishandling classified documents by giving them to his biographer, who was not authorized access or possession.20 In addition, there have been calls to hold other senior officers to account — mainly for their speeches or public comments.21

Both Flynn and Brock’s alleged crimes happened while in retirement. Major General James Grazioplene, on the other hand, is a Regular Component retiree who committed child sex abuse crimes while he was on active duty in Virginia, North Carolina, and New York. He initially faced a court-martial which was aborted because of a new statute of limitations decision by the Court of Appeals for the Armed Forces.22 Virginia then took up his case and convicted Grazioplene in Fairfax court for offenses in the Commonwealth.23 Last year, the Secretary of the Army administratively reduced him in rank (and pay) from major general to a second lieutenant based on his conviction.24

But Back to Budd

Budd: But I’m in the Navy Fleet Reserve. Does that matter?

You: Well, most likely not, but . . .

. . . yes, according to one US District Court judge. Article 2 includes jurisdiction over those in the Navy or Marine Corps Fleet Reserve. The Court of Appeals for the Armed Forces (CAAF) has routinely rejected challenges to retiree jurisdiction.25 For several years, three such retirees have challenged the constitutionality of court-martial jurisdiction over them: Dinger, Begani, and Larrabee.26 They were living and working overseas when they committed severe sex-related offenses. Their appeals were unsuccessful in the military appellate courts, and they directly appealed to the US Supreme Court, which denied a petition for a writ of certiorari.

However, Fleet Marine Corps Reserve Retired Staff Sergeant Steven Larrabee has taken his case to the federal courts for collateral review. Larrabee persuaded Judge Richard J. Leon of the District Court for the District of Columbia that Article 2(a) (6) is unconstitutional.27

Judge Leon starts with the “baseline proposition that court-martial jurisdiction must be narrowly limited.”28 He notes that, “the Constitution created a delicate balance between the military’s need to preserve good order and discipline, on the one hand, and an individual’s right to due process when accused of crimes, on the other.” The District Court found no adequate and demonstrated need for jurisdiction over military retirees to maintain good order and discipline in the armed forces. Accordingly, Judge Leon held that, “Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circ*mscribed, I must conclude that in the absence of a principled basis promoting good order and discipline, Congress’s present exercise of courtmartial jurisdiction over all Fleet Marine Corps Reserve members is unconstitutional.”29 The case is now pending a decision in the US Court of Appeals for the District of Columbia.

The US Supreme Court has yet to say courtmartial jurisdiction over retirees is unconstitutional. 30 Over the years, the Court has established what many call a military deference doctrine. In Rosteker, 31 the Court accepted “that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.”32

Ultimately, any decision to change retiree court-martial jurisdiction will be for Congress to make. Several amendments could limit jurisdiction, for example, setting an age limit or imposing a military- connection test like that in effect before Solorio.33 The President can also change the Manual for Courts-Martial, setting similar limits on when it is appropriate to prosecute a retiree.34 But, until Congress acts to limit court-martial jurisdiction over retirees, the appellate courts are unlikely to grant relief to challengers. That is not to say the Supreme Court of the United States cannot find the jurisdictional law unconstitutional. On the contrary, we know that, since Marbury v. Madison, 35 the power of the Supreme Court to reject Congress’ unconstitutional acts is supreme. But we also know that the Court gives great deference to Congress in national defense and military affairs, even when it may lead to “rough justice.”36

Philip Cave is a retired Navy judge advocate with 42 years of military law experience in courts-martial, courts-martial appeal, and adverse administrative actions. He is a partner at Cave & Freeburg, LLP, a director of the National Institute of Military Justice, and a co-chair of the Military Law Committee, ABA Criminal Justice Section.

Endnotes

1 See generally, Statistical Report, Department of Defense, Office of the Actuary, Sept. 2020, https://perma.cc/FZT2-7EMY. US Department of Veterans Affairs. These numbers do include disabled retired people on the Temporary and Permanent Disabled Retired List. (https://perma.cc/KYV2-UZ69)

2 Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 325 (D.C.D.C. 2020).

3 Basically, any active duty service member who reaches at least 20 years of active duty service and retires is a Regular Component retiree as compared to Reserve Component retirees.

4 UCMJ art. 2(a), 10 USC. § 802(a). Jurisdiction is based on status, not the offense or any connection to the armed forces. See Solorio v. United States, 483 US 435 (1987).

5 See Pavan S. Krishnamurthy & Javier Perez, Contemptuous Speech: Rethinking the Balance Between Good Order and Discipline and the Free Speech Rights of Retired Military Officers. 12 HARV. NAT’L SEC. REV. 288 (2021). Available at https://perma.cc/4SEW-GD7H.

6 See UCMJ art. 22, 10 USC. § 822. Available at https://perma.cc/3DJNWDEJ. I have two analogies: The Commonwealth’s Attorney picking the jury for a case one of her assistants will prosecute or the manager of the home baseball team baseball picking the other side’s pitcher.

7 There is ongoing litigation within the military appellate courts considering Ramos v. Louisiana, ___ US ___, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020).

8 National Archives and Recrd. Service, Revolutionary War Pension and Bounty- Land-Warrant Application Files, pg. 2, 1974, Act of March 18th, 1818, 15th Congress, Session 1 Ch. 19, 3 Stat. 410, 410-11. Available at https://perma.cc/E6VD-SQ2S.

9 An Act providing for the Better Organization of the Military Establishment. Act of August 3, 1861, ch. 42, 12 Stat. 287, 290. See also, Frank O. House, The Retired Officer: Status, Duties, and Responsibilities, 26 AF L. Rev. 111 (1987).

10 UCMJ art. 2(a)(4)-(6), 10 USC. § 802(a) (4)-(6). https://perma.cc/D6M4-PM55

11 United States v. Gagnon, 18 C.M.R. 243, 5 USC.M.A 619 (1955).

12 United States v. Hooper, 26 C.M.R. 417, 9 USC.M.A. 637 (1958). His efforts to appeal the constitutionality in federal courts were unrewarding. See Hooper v. Hartman, 247 F. 2d 429 (9th Cir. 1959); Hooper v. United States, 164 Ct. Cl. 151 (1964) certiorari den. 377 US 977 (1964).

13 The number is based on a review of publicly available appellate decisions. There may have been other prosecutions that did not result in a conviction or where the accused was not entitled to an appeal as of right.

14 Tom Boggioni, Mike Flynn should be recalled to active duty and immediately face court-martial: former Army prosecutor. Raw Story, March 12, 2022; Thomas Colson, A colonel fired by Trump offered to prosecute Michael Flynn by court-martial for calling for a military coup in the US, Insider, June 1, 2021. For earlier calls to court-martial retired generals and admirals see, e.g., Hannah A. Miller, Generals & General Elections: Legal Responses to Partisan Endorsem*nts by Retired Military Officers73 VANDERBILT L. REV. 1209 (2020); Rick Houghton, The Law of Retired Military Officers and Political Endorsem*nts: A Primer. LAWFARE, October 3, 2016, https://perma.cc/YN8X-4C6L; Fred Caplan, Could Rumsfeld Court-Martial the Retired Generals? SLATE, April 26, 2006, https://perma.cc/B527-M9KK; Joshua Kastenberg, The Crisis of June 2020: The Case of Retired Generals and Admirals and the Clarion Calls of Their Critics. 99 NEB. L. REV. 594 (2020).

15 https://perma.cc/CK8K-WFZV

16 https://perma.cc/PJ37-V9UN; UCMJ art. 134, 10 USC. § 934 https://perma.cc/83WZ-FPFM.

17 Oriana Pawlick, Retired Air Force Lieutenant Colonel Arrested, Charged in Capitol Riot. Military.com, January 10, 2021 [https://perma.cc/MH4K-LPH3]. CDR Philip D. Cave, Retired Servicemembers and Military Justice: Separating Fact from Myth. Naval Institute Proceedings, US Naval Institute, January 2021.

18 Ronan Farrow, An Air Force Combat Veteran Breached the Senate. The New Yorker, January 8, 2021. Available at https://perma.cc/M4P4-QBHV.

19 Both Flynn and Brock’s situation are where the Department of Justice and federal prosecutors would take sole responsibility for any federal prosecution.

20 Butch Bracknell, The Case Against the Case Against General Petraeus. Lawfare, January 22, 2016. Available at https://perma.cc/PE8N-W6ZG

21 For a survey for some cases see Rachel E. VanLandingham, American Democracy, Coups and Retried Generals. LAWFARE, July 1, 2021. Available at https://perma.cc/P94Y-PCPD; Fred Kaplan, Could Rumsfeld Court-Martial the Retired Generals. SLATE, April 26, 2006. Available at https://perma.cc/WG3Q-7P4E.

22 See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). The government did not appeal that decision. However, later in United States v. Briggs, ___US ___, 141 S. Ct. 467, 208 L. Ed. 2d 318 (2020), the Supreme Court decided that the CAAF erred in Mangahas. Because of this, interestingly, Grazioplene is still subject to court-martial.

23 Dan Lamothe, Retired Army general set to be tried on charges of abusing his daughter. The Fayetteville Observer, December 17, 2018. Available at https://perma.cc/36V8-6F82.

24 https://perma.cc/5JAD-ZYJ4

25 Recent examples include United States v. Dinger, 76 M.J. 552, 557 (N-M Ct. Crim. App. 2017), aff’d on other grounds, 77 M.J. 447 (C.A.A.F. 2018), cert. denied, Dinger v. United States, 139 S.Ct. 492, 202 L. Ed. 2d 379 (2018); United States v. Larrabee, No. 201700075 (N-M. Ct. Crim. App. Nov. 28, 2017) (unpub. op.), aff’d 78 M.J. 107 (C.A.A.F. 2018) (summary disposition) cert. denied 1139 S. Ct. 1164, 203 L. Ed. 2d 196, 2019 US LEXIS 1231 (2019); United States v. Begani., 81 M.J. 273 (C.A.A.F. 2021), pet. pending.

26 See, United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018) certiorari den. 139 S. Ct. 492, 202 L. Ed. 2d 379 (2018) (Okinawa, Japan, nine years confinement for possession of unlawful child images); United States v. Begani, 81 M.J. 273 (C.A.A.F. 2021) certiorari den. 142 S. Ct. 711, 211 L. Ed. 2d 400 (2021) (Yokosuka, Japan, 18 months confinement for attempted sexual assault on child); United States v. Larrabee, 78 M.J. 107 (C.A.A.F. 2018) certiorari den. 139 S. Ct. 1164, 203 L. Ed. 2d 196 (2019) (Iwakuni, Japan, eight years confinement for sexual assault and indecent recording of an adult).

27 Larrabee v. Braithwaite, 502 F. Supp. 3d 322 (D.C.D.C. Nov. 20, 2020). See also, Daniel D. Maurer, Larrabee at the District Court: Misunderstanding Military Criminal Law by the Article III Judiciary is Far from Retired. 2021 Univ. Illinois L. Rev. Online 23. Available at https://perma.cc/453Y-9SQV.

28 502 F. Supp. 3d at 327.

29 Id. at 332.

30 President Lincoln signed into law An Act providing for the Better Organization of the Military Establishment. Act of August 3, 1861, ch. 42, 12 Stat. 287. https://perma.cc/5JAD-ZYJ4

31 Rostker v. Goldberg, 453 US 57 (1981). See also, Barney F. Bilello, Judicial Review and Soldier’s Rights: Is the Principle of Deference a Standard of Review? 17 HOFSTRA L. REV. 467 (1989) at 466, n. 13, collecting cases in which the Supreme Court has deferred to Congress or the military.

32 Id. at 70.

33 In Relford v. Commandant, 401 US 355 (1971), the Supreme Court set out a list of factors to be considered by courts to decide if court-martial charges were service-connected and triable at court-martial under O’Callahan v. Parker, 395 US 258 (196(.

34 Under UCMJ art. 36, 10 USC. § 836, Congress authorized the President to establish rules, procedures, and rules of evidence for court-martial. The rules are published in the Manual for Courtsmartial and are amended from time to time by executive order.

35 Marbury v. Madison, 5 US 137 (1803).

36 Rostker v. Goldberg, 453 US 57, 64-65 (1981) citing United States v. O’Brien, 391 US 367, 377 (1968); United States v. Denedo, 556 US 904, 918 (2009) (Roberts, C.J., and Scalia, Thomas, and Alito, JJ, concurring in part and dissenting in part). See also, Barney F. Bilello, Judicial Review and Soldier’s Rights: Is the Principle of Deference a Standard of Review? 17 HOFSTRA L. REV. 467 (1989) at 466, n. 13, listing cases in which the Supreme Court has deferred to Congress or the military.

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