The Uniform Code of Military Justice (UCMJ) has defined and punished military crimes since its inception in 1950. It’s usually reserved for charging active-duty service members, but the code also allows certain retirees to be court-martialed. Now, certain legal cases are challenging the longstanding rules, which could have significant ramifications for military veterans.
Who Does the UCMJ Apply To?
In addition to outlining court-martial rules and procedures, the UCMJ defines military jurisdiction. Unlike most civilian jurisdictions, the UCMJ has no territorial boundaries. Instead, jurisdiction is predicated upon a person’s relationship to the military.
As you might expect, the UCMJ applies to:
Active-duty service members
Students at military academies
Prisoners of war
Anyone serving a court-martial-imposed sentence
Reservists and national guardsmen who are on active duty or inactive duty training
Certain civilians who interact closely with the military
The UCMJ normally does not apply to veterans. Specifically, veterans cannot be court-martialed if they were discharged from active duty before they reached 20 years of service or retired from the reserves and aren’t entitled to retirement pay until age 60. However, the following two groups of retirees are treated like active-duty members and can be charged under the UCMJ:
Active-duty veterans who retired from the Army, Navy, Marines, Air Force, Space Force, or Coast Guard and are entitled to immediate retirement pay
Navy-Marine Corps Fleet Reservists (those who retired from the Navy or Marine Corps between 20 and 30 years of service)
Because certain military retirees continue to receive a sort of “retainer pay,” and Fleet Reserve members can be called back to service at any time, government prosecutors argue they are subject to the UCMJ. Prosecutors also say court-martial power is necessary because it gives the government authority to prosecute any who refuse to return to service.
Court-martialed defendants don’t have the right to a trial by a jury of their peers. Instead, they are tried before a smaller “member panel” selected by a high-ranking officer.
Military law allows for split verdicts in many criminal trials. This means a three-fourths majority is enough to convict in all but the most egregious cases where a death sentence is possible.
A conviction under the UCMJ could result in a bad conduct discharge or dishonorable discharge, affecting future military benefits, employment opportunities, and other aspects of civilian life. Conversely, convictions in civilian court don’t affect discharge status.
Recent Cases Involving Retired Service Members
While it wasn’t common practice in the past, more and more veterans are now being pulled back to active duty to face charges under the UCMJ. It’s as if there’s been a culture change among military prosecutors to expand jurisdiction. Consider these examples of veterans who were court-martialed in recent years and are fighting back against the UCMJ’s longstanding rules.
United States v. Begani
Retired Navy Chief Petty Officer Stephen Begani was arrested in 2017 for communications he had with an undercover Naval Criminal Investigative Service (NCIS) agent, who he thought was a 15-year-old girl. He was ultimately convicted and sentenced to 18 months of confinement and given a bad conduct discharge.
Begani, who had transferred to inactive status in the Fleet Reserve after 24 years of service, appealed the decision. He hoped to challenge whether an active-duty retiree like himself could be charged under the UCMJ when retired reservists were not subject to court-martial.
In August 2019, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed with Begani in a “bombshell” ruling, overturning his 18 months of confinement and bad conduct discharge.
The victory, however, was short-lived. The appeals court withdrew its opinion in October 2019, and the ruling was overturned four months later. This decision was based in part on Begani’s Fleet Reserve membership, which entitled him to receive “retainer pay” and base privileges. Two of the court’s judges also took issue with the fact that Begani only claimed his court-martial was improper after pleading guilty and beginning the appeals process.
United States v. Dinger
Marine Gunnery Sgt. Derek Dinger had been retired for nearly a decade when the NCIS arrested him on child p*rnography charges. Dinger was convicted but appealed the decision to the NMCCA in 2018. The appeals court concluded his conviction under the UCMJ was permissible.
Dinger appealed his case again, this time to the U.S. Court of Appeals for the Armed Forces (CAAF)—the highest military appellate court—which affirmed the NMCCA’s decision. When Dinger tried to petition for certiorari with the Supreme Court, his request was denied. This case shows how military courts consistently defend the extension of UCMJ jurisdiction to retirees.
Larrabee v. Braithwaite
Marine Staff Sgt. Steven Larrabee was accused of sexual assault, an event that took place in 2015, just three months after he had retired from the military. He pleaded guilty and was convicted in a court-martial. Larrabee later appealed his conviction to the Supreme Court, which declined to take up the case in early 2019. Not to be deterred, Larrabee sued the Secretary of the Navy, Kenneth Braithwaite, in the U.S. District Court for the District of Columbia in March 2019.
This court found the longstanding justifications for prosecuting retirees under the UCMJ to be insufficient. Specifically, the court argued the pay received by retirees is “deferred pay” from past services, not retainer pay to ensure retirees’ future readiness to serve. The court also determined that Fleet Reservists are less likely to be recalled to active-duty service than inactive reservists, rendering that argument “arbitrary at best.”
Consequently, the court found that applying UCMJ jurisdiction to Fleet Reserve members was not necessary to promote good order and discipline. This is the first time in the UCMJ’s history that a district court challenged the constitutionality of court-martialing certain military retirees.
In November 2020, District Judge Richard J. Leon ruled that using the UCMJ against retired service members was unconstitutional. He pointed out that active-duty retirees are treated radically differently than those who retire from the reserves.
Unfortunately, Leon’s ruling was appealed in January 2021. Despite this fleeting victory, the federal civil court ruling could offer another opportunity for Larrabee to settle the matter at the high court at a later date.
Defend Yourself with Help from a Military Lawyer
If you are a retired service member who has been charged under the UCMJ, you need expert legal representation to defend your rights and freedoms. Joseph L. Jordan, Attorney at Law, can assist you in obtaining a favorable outcome in your case. We have years of experience and an excellent track record for providing outstanding legal services to our military clients in their time of need.
To benefit from the unwavering support of Joseph L. Jordan, Attorney at Law, please contact us online or call us toll-free at 800-580-8034 or 254-221-6411. Mr. Jordan would be happy to speak with you about your case.
Specifically, veterans cannot be court-martialed if they were discharged
discharged
A military discharge is given when a member of the armed forces is released from their obligation to serve. Each country's military has different types of discharge. They are generally based on whether the persons completed their training and then fully and satisfactorily completed their term of service.
https://en.wikipedia.org › wiki › Military_discharge
Under a program known as "stop-loss," the military can keep you on active duty after your anticipated discharge date. This program has been around since 1984 and has been used a few times. While currently not in effect, stop-loss can be activated at any time.
For those currently serving on active duty, the UCMJ applies. The UCMJ does not apply to veterans who were discharged before reaching 20 years of service and qualifying for a retirement. For reservists, the UCMJ applies only while on active duty or inactive duty training.
The standard statute of limitations is five years. See UCMJ art. 43(a). Statute of limitations is tolled when the summary court-martial convening authority receives the sworn charges.
The UCMJ is federal law, enacted by Congress which applies to all active duty members as well as activated National Guard and Reserve members and military academy students. Some civilians serving in support of the military during wartime are also subject to the UCMJ.
The period of retention in a retired status cannot exceed 1 year from the member's retirement date, or in the case of a recalled member, from the date the member reports back to Active Duty.
10 U.S. Code § 688 - Retired members: authority to order to active duty; duties. Under regulations prescribed by the Secretary of Defense, a member described in subsection (b) may be ordered to active duty by the Secretary of the military department concerned at any time.
Members of the IRR are only subject to the UCMJ under the following circ*mstances:If called to active duty (AD). In the Navy, and potentially in other branches as well, this means that from the moment one leaves home, enroute to report for active duty, one is subject to the UCMJ.
May be adjudged by a general court-martial and by a special court-martial. It is less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature.
The critical thing is that the UCMJ—which was created by congress to standardize military punishment (prior to the creation of the IRR program)—does not specifically cover members of the IRR. The Army and Marines have made declarations in many places that they do have the right to take action against IRR resisters.
Can they do that? You: In short, yes, they can. 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.
Except in the case of a service member attached to or embarked in a vessel (normally Sailors assigned to ships or Marines/Sailors embarked on a ship for a deployment), the member can refuse non-judicial punishment (NJP) under Article 15, UCMJ and demand trial by court-martial.
No one subject to the Uniform Code of Military Justice may compel any person to incriminate himself or to answer any question the answer that may tend to incriminate him.
If you are caught by the local civilian police, they may conduct much of the investigation of the case. However, you will be prosecuted in the military system for a violation of the UCMJ because the civilian authorities do not have the power to enforce the UCMJ.
The maximum punishment for a violation or failure to obey lawful general order or regulation is dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.
United States v. Morita, 74 M.J. 116 (there is no UCMJ jurisdiction over a reservist who commits an offense when not in a military status – i.e., on active duty, inactive duty training, or serving with the armed forces).
All branches of the military consider you to have a strong case for a discharge upgrade if you can show your discharge was connected to any of these categories: Mental health conditions, including posttraumatic stress disorder (PTSD) Traumatic brain injury (TBI)
Having a VA Disability Rating Doesn't Prevent You from Serving in the Military. There are many myths about having a Department of Veterans Affairs' disability rating and serving in the military. The most common is that, if you have a VA disability rating, you can never serve in the military again.
The maximum age to join the Army as an enlisted Soldier is 35, while Officers must accept their commission before age 31. However, the Army can lift some restrictions based on the need for certain roles to be filled. It's possible to receive an age waiver if you retire with 20 years of military service by age 55.
Service members must have served a minimum of 24 months of active duty to be considered a veteran. If the service member becomes disabled because of their time in the service, there is no minimum length of service to qualify for VA benefits.
More Info. The IRR stands for the Individual Ready Reserve. IRR members have an unfulfilled portion of their initial 8 year Military Service Obligation or other service commitment (separation pay election).
(a) Apprehension is the taking of a person into custody. ( b) Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. (
The separation authority is authorized to order discharge or direct retention in military service when disposition of a Soldier has been made by a domestic court of the United States or its territorial possessions.
(an Article 86, UCMJ, violation for failure to go to an appointed place of duty requires proof of the following elements: (1) that a certain authority appointed a certain time and place of duty for the accused; (2) that the accused knew of that time and place; and (3) that the accused, without authority, failed to go ...
Loss of the ability to legally own or possess firearms. Inability to qualify for bank loans or college financial aid. Difficulty in obtaining meaningful employment. A criminal record that will remain in all law enforcement data banks.
If you develop anxiety or depression while serving in the military, it may be grounds for a medical discharge or retirement. The outcome depends on factors including the severity of your symptoms and how they respond to treatment.
38 U.S.C. § 101(2) provides: The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.
Lying is a serious offense and breach of values. Depending on the circ*mstances you could be looking at full punishment under the UCMJ. If it is a Summary Article 15- 14 days restriction, 14 extra duty.
Making the mistake of lying to the NCO should be avoided in all instances and at all costs because it can lead to serious non-judicial punishment. Non-judicial punishment is a type of punishment that is provided under Article 15 of the Uniform Code of Military Justice.
Individuals assigned to the IRR receive no pay and are not obligated to drill, conduct annual training, or participate in any military activities (except for periodic Muster activities) until ordered by Presidential Authority.
The UCMJ does not distinguish between felonies and misdemeanors. The general rule is that a felony is an offense that carries a maximum punishment of one year or more confinement - regardless of the actual punishment imposed.
If you lose in the CCA, you have the right to petition the Court of Appeals for the Armed Forces, under Article 67, UCMJ. And from there is a limited possibility of an appeal to the Supreme Court of the United States.
While the debate about court martials and retired service members is still ongoing, both active and retired members of the military do have a right to fair representation in a military court. If you find yourself the subject of a court martial, you should not hesitate to contact a California military defense lawyer.
Some of the more common offenses covered by the UCMJ include adultery, assault, disobeying orders, and desertion. A number of articles also deal with specific offenses such as espionage and treason. Each violation has a corresponding punishment, ranging from a minor reprimand to more serious consequences.
(the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; similarly, Article 31(a), UCMJ, prohibits individuals subject to the UCMJ from compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him; ...
Federal law allows you to sue the U.S. government for payment of money as a result of the wrongful discharge, improper retirement, denial of promotion, service-related disability, and incorrect military records under some circ*mstances.
(Article 79, UCMJ, permits an accused to be found guilty of an offense necessarily included in the offense charged; this Article provides the statutory authority for a military judge to convict on, and an appellate court to affirm on, a lesser included offense).
55. Cruel and unusual punishments prohibited. Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter.
35. Service of charges; commencement of trial. (a) In General . -Trial counsel detailed for a court-martial under section 827 of this title (article 27) shall cause to be served upon the accused a copy of the charges and specifications referred for trial.
In light of the Supreme Court's ruling in Lawrence, Article 125 of the UCMJ is unconstitutional, because it provides for criminal penalties for fully constitutionally protected conduct, that is, private, non-commercial sexual conduct between consenting adults.
Generally, military sexual assault cases have no statute of limitations. The Uniform Code of Military Justice – UCMJ states that a military crime punishable by death can be petitioned and convicted at any time without deadlines. The code was enacted in 1950.
The standard statute of limitations is five years. See UCMJ art. 43(a). Statute of limitations is tolled when the summary court-martial convening authority receives the sworn charges.
A General Court-Martial (i.e., felony-type, UCMJ offenses) takes from 5-8 months from the preferral of charges to the date of trial. Obviously, these are general time ranges that I have seen with the courts-martial I have taken part in. There are different circ*mstances in every case, but this is typically what I see.
Usually each base has an arrangement with local law enforcement about which organization will handle various types of crimes or circ*mstances. Depending on that arrangement you could be charged with a crime on a military base but face civilian court charges and civilian jail time.
United States v. Vela, 71 M.J. 283 (Article 77, UCMJ, imposes liability as a principal on one who (1) assists, encourages, advises, counsels, or commands another in the commission of the offense, and (2) shares in the criminal purpose of design).
Article 13 of the Uniform Code of Military Justice (UCMJ) prohibits the imposition of punishment or penalty upon an accused prior to trial, as well as pretrial arrest or confinement conditions which are more rigorous than “the circ*mstances required” to ensure the Soldier's presence at trial.
If you were discharged with fewer than eight years time in service, you are a member of the Inactive Ready Reserve and can be recalled. If you finished your eight years (any combination of active, reserve, National Guard, or IRR) but did not reach retirement age, no.
Depending on the exact conditions of your discharge, your veteran benefits, including education under the Montgomery G.I. Bill, may be affected. What's more, you will most likely not be allowed to reenlist or enter a different military branch.
The DD214 is issued by The Department of Defense to every veteran; your record will include important information, including your discharge status: Honorable, General Other Than Honorable (GOTH), Other Than Honorable (OTH), Dishonorable, or Bad Conduct.
Now, some soldiers are allowed to call home weekly. In Advanced Individual Training, cellphones are seen every day. While limited during the duty day, soldiers are immediately calling, texting and checking Facebook as soon as it is permitted—and sometimes, when it isn't.
Disclosing your military affiliation and military experience is pretty much required if you plan on using the experience for career progression. Whether you have four or 20+ years of service, your support for the country counts as career experience, and you should be proud of it.
The Supreme Court has not yet specifically ruled on the military status of retired servicemembers, though it has approvingly noted that they remain part of the Armed Forces and subject to the UCMJ.
38 U.S.C. § 101(2) provides: The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.
Wrongful discharge lawsuits occur when service members are released in violation of legislative requirements, service regulations, or when they are denied due process under the law. Involuntary retirement is also included.
You must apply for a discharge upgrade within 15 years of the date of your discharge-no exceptions to this time limit. Complete DD Form 293 and mail to the appropriate address for your branch of service.
Inaptitude, failure to adapt to the military environment, failure to progress satisfactorily in a required training program, lack of effort, psychological or stress-related symptoms, lack of self-discipline, or minor disciplinary infractions are all examples of grounds for this separation.
In general, you are eligible for enlistment in the U.S. Army if honorably discharged from another military branch. Along with a favorable separation from your prior service branch, you must meet the standard enlistment eligibility requirements for the Army.
Before a case goes to a general court martial, a pre-trial investigation under Article 32 of Uniform Code of Military Justice is to be performed, unless waived by the accused. Court Martials may appear in National Criminal Information Center (NCIC) searches via an FBI Fingerprint criminal history search.
The National Archives opens all records to the public 62 years after discharge. If the Veteran was discharged less than 62 years ago, you may be able to request limited information from their Military Personnel File.
A conditional discharge will stay on the person's criminal record for three years, compared to an absolute discharge which only stays on your record for one year.
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