Retirees Can Be Court-Martialed For Crimes Committed After Service

[Robert]

I had never heard this before and in fact I had never even thought something like this was possible. To me this sounds like once you serve you still belong to the government. I would not like to go in front of a military court for a crime committed while I dont serve. I would wonder when the military would pick up the charge instead of the local law.

Could be good for some of our Congress though.



The U.S. Supreme Court has upheld the Defense Department’s authority to prosecute retired service members for crimes they commit, even after retirement.

The court on Tuesday chose not to hear the case of a retired Marine who was court-martialed for a sexual assault he committed three months after leaving the service in August 2015. By not accepting the case, Larrabee v. the United States, the court upheld the status quo: that military retirees are subject to the Uniform Code of Military Justice

https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html?utm_source=Sailthru&utm_medium=email&utm_campaign=ebb%2025.02.19&utm_term=Editorial%20-%20Military%20-%20Early%20Bird%20Brief

"But does the Constitution really allow the government to subject to military trial those who have retired from active duty -- in some cases, long ago -- even for offenses committed while they are retired?"

Yes, it does, according to the Supreme Court, in its denial of Larrabee's and Dinger's writs of certiorari.

[Chrisj CMA]

I too have never even considered that. The worst part of that premise is that under the UCMJ there are things that are prosecutable that are totally legal for civilians. 

On the other hand I have never heard of a retired member taken to a courts martial.

Surely the military is too busy to start this stupidity.

[Jess from VA]

First, when the Court declines to hear a case, that is not an affirmance of the lower court decision.  It may have that affect practically, but a denial of certiorari is not a ruling on the merits of the appeal, and is not a precedent for any future cases.  The article says the Court has upheld the military action, and that is not true.  All it did was decline to hear the appeal.

Second, he had been retired -- but technically, placed on the Fleet Marine Corps Reserve status list.  The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" remain subject to court-martial jurisdiction. And  they may be subject to recall (subject to national emergency, needs of the service, age limitations); retirement secures lifetime G pension and health benefits.  Retirees and reservists can always be recalled to active duty for purposes of court martial.  It may not often be done, when civilian authorities take up the prosecution, but it can be done.   [Note that the active duty Coast Guard Lt is being tried in civilian Fed Ct, but I think it likely that had he been in any other branch of service, he would be facing military court martial.]

The article refers to the offense as non military, but the accused sexually assaulted the wife of a serving Marine in Japan (and that is always a case where the military has a genuine interest in the case and prosecution) (we always protected military wives and children with great enthusiasm).  And would a civilian US federal prosecutor pick up a case from Japan (would there be personal jurisdiction issues)?  Pure military offenses exist (like failure to follow orders, or disrespect to Sr officers or noncoms), but the UCMJ has every offense in the book that Federal Criminal law has as well.

IMHO, an accused has more rights in a military trial than in a civilian trial.  Right off the bat, he gets a free defense lawyer, regardless of any ability to pay for private counsel (which would not be the case in any civilian trial).  There are other examples, but it gets pretty technical/procedural.

In the vast majority of post-retirement criminal misconduct, the military would have little interest in taking jurisdiction and prosecuting.  Especially when all of the investigation and evidence collection and interrogation has already been done by civilian authorities.  And the military cannot force civilian authorities to give over jurisdiction of criminal cases.  But there are cases where it is in the interest of the military to take jurisdiction, in furtherance of the best interests of the military, and to enforce good order and discipline of the armed services.

I did not retire, but my separation from service with a regular officer commission (later changed to a reserve commission), required me to remain in the inactive reserve for 17 1/2 additional years, and I was subject to UCMJ military jurisdiction for that entire period.  In fact, HQ USAF personnel lost track of me, and I did not get my final Honorable Discharge certificate until 2012 (20 1/2 years inactive reserve).  I knew they had forgotten me, but took no action because I thought it would be fun to be a military reservist until my 80s or 90s, if I lived that long (I was not receiving any military pay benefits).

You hand the military gate guard your reserve ID, and he looks at your old bald head and white face hair and he wonders what in the hell is going on.    

[Rams]

I too have never even considered that. The worst part of that premise is that under the UCMJ there are things that are prosecutable that are totally legal for civilians.  

On the other hand I have never heard of a retired member taken to a courts martial.

Surely the military is too busy to start this stupidity.

I whole heartedly agree.   Those that have served, retired and returned to civilian life should not still be subjected to military rules and guidelines (UCMJ).    That is not to suggest they should be treated any differently than any other civilian but, as equals.    

I am retired and receiving small retirement pensions from a couple of different industries, such rulings would suggest that I am still responsible to follow their rules.   I also served (though not retired) 13 years in the military, I totally reject the idea that the military has any authority over a retired member with the exception of possible crimes committed during their service or crimes committed while on federal property even while in a retired status.

Edited: Though I do understand the explanation Jess provided and agree to a certain extent, I still do not believe the military should be allowed to prosecute retired members with the exception noted above.    In this case, the individual should have been prosecuted by the Japaneese judicial system.
Rams

[The emperor has no clothes]

First, when the Court declines to hear a case, that is not an affirmance of the lower court decision.  It may have that affect practically, but a denial of certiorari is not a ruling on the merits of the appeal, and is not a precedent for any future cases.  The article says the Court has upheld the military action, and that is not true.  All it did was decline to hear the appeal.

Second, he had been retired -- but technically, placed on the Fleet Marine Corps Reserve status list.  The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" remain subject to court-martial jurisdiction. And  they may be subject to recall (subject to national emergency, needs of the service, age limitations); retirement secures lifetime G pension and health benefits.  Retirees and reservists can always be recalled to active duty for purposes of court martial.  It may not often be done, when civilian authorities take up the prosecution, but it can be done.   [Note that the active duty Coast Guard Lt is being tried in civilian Fed Ct, but I think it likely that had he been in any other branch of service, he would be facing military court martial.]

The article refers to the offense as non military, but the accused sexually assaulted the wife of a serving Marine in Japan (and that is always a case where the military has a genuine interest in the case and prosecution) (we always protected military wives and children with great enthusiasm).  And would a civilian US federal prosecutor pick up a case from Japan (would there be personal jurisdiction issues)?  Pure military offenses exist (like failure to follow orders, or disrespect to Sr officers or noncoms), but the UCMJ has every offense in the book that Federal Criminal law has as well.

IMHO, an accused has more rights in a military trial than in a civilian trial.  Right off the bat, he gets a free defense lawyer, regardless of any ability to pay for private counsel (which would not be the case in any civilian trial).  There are other examples, but it gets pretty technical/procedural.

In the vast majority of post-retirement criminal misconduct, the military would have little interest in taking jurisdiction and prosecuting.  Especially when all of the investigation and evidence collection and interrogation has already been done by civilian authorities.  And the military cannot force civilian authorities to give over jurisdiction of criminal cases.  But there are cases where it is in the interest of the military to take jurisdiction, in furtherance of the best interests of the military, and to enforce good order and discipline of the armed services.

I did not retire, but my separation from service with a regular officer commission (later changed to a reserve commission), required me to remain in the inactive reserve for 17 1/2 additional years, and I was subject to UCMJ military jurisdiction for that entire period.  In fact, HQ USAF personnel lost track of me, and I did not get my final Honorable Discharge certificate until 2012 (20 1/2 years inactive reserve).  I knew they had forgotten me, but took no action because I thought it would be fun to be a military reservist until my 80s or 90s, if I lived that long.

You hand the military gate guard your reserve ID, and he looks at your old bald head and white face hair and he wonders what in the hell is going on.    

It's been a long time ago and my memory isn't the best. But I think when I discharged from the Navy I was in the Reserves for 2 years afterwards. I didn't have to go anywhere or do anything. Never had any dealings with the military at all in those 2 years. Theoretically though I guess had I done something during that time I could have been court martialed ?

[Jess from VA]

Theoretically though I guess had I done something during that time I could have been court martialed ?

Yes.  Though in practice, the only thing they might have taken an interest in was you going to a Soviet embassy and trying to sell them classified Navy material (or something of that nature).

In this case, the individual should have been prosecuted by the Japanese judicial system.
Rams

Perhaps so.  But you should know that the US military does it's level best to avoid it's members being subject to foreign criminal jurisdiction (and prisons).  In Turkey, we several times took quick action to head off the Turks from likely taking much harsher action.  We once put a guy on the plane that night because the Turks were coming in the morning.  All his criminal evidence went with him, and action was taken stateside, and you better believe the guy was happy as hell with how we protected him.  He was still punished, but not in a Turkish courtroom and prison.  (Turk criminal trials could take two years (done piecemeal), all during which you stayed locked up, and if convicted maybe no credit for time served, and the whole thing is in Turkish, which you don't understand.)

The Turks were great allies, but to be honest, If I was facing a criminal trial over there, I would desert and swim for Greece (and somehow get back to the US and turn myself in).  And I suspect it would be the same in much of the world.

[Reb]

First, when the Court declines to hear a case, that is not an affirmance of the lower court decision.  It may have that affect practically, but a denial of certiorari is not a ruling on the merits of the appeal, and is not a precedent for any future cases.  The article says the Court has upheld the military action, and that is not true.  All it did was decline to hear the appeal.

Second, he had been retired -- but technically, placed on the Fleet Marine Corps Reserve status list.  The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" remain subject to court-martial jurisdiction. And  they may be subject to recall (subject to national emergency, needs of the service, age limitations); retirement secures lifetime G pension and health benefits.  Retirees and reservists can always be recalled to active duty for purposes of court martial.  It may not often be done, when civilian authorities take up the prosecution, but it can be done.   [Note that the active duty Coast Guard Lt is being tried in civilian Fed Ct, but I think it likely that had he been in any other branch of service, he would be facing military court martial.]

The article refers to the offense as non military, but the accused sexually assaulted the wife of a serving Marine in Japan (and that is always a case where the military has a genuine interest in the case and prosecution) (we always protected military wives and children with great enthusiasm).  And would a civilian US federal prosecutor pick up a case from Japan (would there be personal jurisdiction issues)?  Pure military offenses exist (like failure to follow orders, or disrespect to Sr officers or noncoms), but the UCMJ has every offense in the book that Federal Criminal law has as well.

IMHO, an accused has more rights in a military trial than in a civilian trial.  Right off the bat, he gets a free defense lawyer, regardless of any ability to pay for private counsel (which would not be the case in any civilian trial).  There are other examples, but it gets pretty technical/procedural.

In the vast majority of post-retirement criminal misconduct, the military would have little interest in taking jurisdiction and prosecuting.  Especially when all of the investigation and evidence collection and interrogation has already been done by civilian authorities.  And the military cannot force civilian authorities to give over jurisdiction of criminal cases.  But there are cases where it is in the interest of the military to take jurisdiction, in furtherance of the best interests of the military, and to enforce good order and discipline of the armed services.

I did not retire, but my separation from service with a regular officer commission (later changed to a reserve commission), required me to remain in the inactive reserve for 17 1/2 additional years, and I was subject to UCMJ military jurisdiction for that entire period.  In fact, HQ USAF personnel lost track of me, and I did not get my final Honorable Discharge certificate until 2012 (20 1/2 years inactive reserve).  I knew they had forgotten me, but took no action because I thought it would be fun to be a military reservist until my 80s or 90s, if I lived that long.

You hand the military gate guard your reserve ID, and he looks at your old bald head and white face hair and he wonders what in the hell is going on.    

It's been a long time ago and my memory isn't the best. But I think when I discharged from the Navy I was in the Reserves for 2 years afterwards. I didn't have to go anywhere or do anything. Never had any dealings with the military at all in those 2 years. Theoretically though I guess had I done something during that time I could have been court martialed ?

When I was honorably discharged from the Navy after 4 years 2005-2009, I was discharged into the inactive reserves until 2013. I think 4 inactive reserves after active duty is the standard now, may be different from branch to branch.

[Chrisj CMA]

Meathead makes an interesting point. Ones commitment to the military doesn't automatically end at retirement.  I believe once you retire your commitment goes until you would have had thirty years in.  I'm beyond that point but it's besides the point. The point is was I subject to the UCMJ till the thirty years point? Was that different than after the thirty year point?

Not that I break any UCMJ laws. But my big question would be.  If I am still subject to the UCMJ, am I the same rank I was when I retired. Do I have to obey orders from officers above me. Do those of lesser rank have to obey lawful orders from me. That all sound like bull crap but interesting to think about.

[The emperor has no clothes]

Theoretically though I guess had I done something during that time I could have been court martialed ?

Yes.  Though in practice, the only thing they might have taken an interest in was you going to a Soviet embassy and trying to sell them classified Navy material (or something of that nature).

Although we could see Russia from our backyards, we had no Soviet embassy.   ( I doubt they'd be interested in a 1960's Univac computer system anyway)

I've never thought about it before, but what was the purpose of tacking on the 2 years of reserves anyway ? Just a quick way of a speedy build up in a war ?

[The emperor has no clothes]

First, when the Court declines to hear a case, that is not an affirmance of the lower court decision.  It may have that affect practically, but a denial of certiorari is not a ruling on the merits of the appeal, and is not a precedent for any future cases.  The article says the Court has upheld the military action, and that is not true.  All it did was decline to hear the appeal.

Second, he had been retired -- but technically, placed on the Fleet Marine Corps Reserve status list.  The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" remain subject to court-martial jurisdiction. And  they may be subject to recall (subject to national emergency, needs of the service, age limitations); retirement secures lifetime G pension and health benefits.  Retirees and reservists can always be recalled to active duty for purposes of court martial.  It may not often be done, when civilian authorities take up the prosecution, but it can be done.   [Note that the active duty Coast Guard Lt is being tried in civilian Fed Ct, but I think it likely that had he been in any other branch of service, he would be facing military court martial.]

The article refers to the offense as non military, but the accused sexually assaulted the wife of a serving Marine in Japan (and that is always a case where the military has a genuine interest in the case and prosecution) (we always protected military wives and children with great enthusiasm).  And would a civilian US federal prosecutor pick up a case from Japan (would there be personal jurisdiction issues)?  Pure military offenses exist (like failure to follow orders, or disrespect to Sr officers or noncoms), but the UCMJ has every offense in the book that Federal Criminal law has as well.

IMHO, an accused has more rights in a military trial than in a civilian trial.  Right off the bat, he gets a free defense lawyer, regardless of any ability to pay for private counsel (which would not be the case in any civilian trial).  There are other examples, but it gets pretty technical/procedural.

In the vast majority of post-retirement criminal misconduct, the military would have little interest in taking jurisdiction and prosecuting.  Especially when all of the investigation and evidence collection and interrogation has already been done by civilian authorities.  And the military cannot force civilian authorities to give over jurisdiction of criminal cases.  But there are cases where it is in the interest of the military to take jurisdiction, in furtherance of the best interests of the military, and to enforce good order and discipline of the armed services.

I did not retire, but my separation from service with a regular officer commission (later changed to a reserve commission), required me to remain in the inactive reserve for 17 1/2 additional years, and I was subject to UCMJ military jurisdiction for that entire period.  In fact, HQ USAF personnel lost track of me, and I did not get my final Honorable Discharge certificate until 2012 (20 1/2 years inactive reserve).  I knew they had forgotten me, but took no action because I thought it would be fun to be a military reservist until my 80s or 90s, if I lived that long.

You hand the military gate guard your reserve ID, and he looks at your old bald head and white face hair and he wonders what in the hell is going on.    

It's been a long time ago and my memory isn't the best. But I think when I discharged from the Navy I was in the Reserves for 2 years afterwards. I didn't have to go anywhere or do anything. Never had any dealings with the military at all in those 2 years. Theoretically though I guess had I done something during that time I could have been court martialed ?

When I was honorably discharged from the Navy after 4 years 2005-2009, I was discharged into the inactive reserves until 2013. I think 4 inactive reserves after active duty is the standard now, may be different from branch to branch.

Back in the Stone Age they must have felt we would only be good for an additional 2 years. You young guys took care of yourselves. 

[Jess from VA]

When I was honorably discharged from the Navy after 4 years 2005-2009, I was discharged into the inactive reserves until 2013. I think 4 inactive reserves after active duty is the standard now, may be different from branch to branch.

It's not so different between services, but it is different between officer and enlisted (and exactly how one is separated, and the rules in effect at that time).  I've been gone too many years to comment on what any norms are now.

Military personnel law is a living, breathing, changing thing (by Congress).

[Jess from VA]

I've never thought about it before, but what was the purpose of tacking on the 2 years of reserves anyway ? Just a quick way of a speedy build up in a war ?

Yes.  Look at our dismal state of the military before each of WWI, WWII, and Korea.  Keeping people in a reserve status for a few years after separation from active duty allows flexibility if needed in national emergency.  Or if needed for special skills.  

If I am still subject to the UCMJ, am I the same rank I was when I retired. Do I have to obey orders from officers above me. Do those of lesser rank have to obey lawful orders from me. That all sound like bull crap but interesting to think about.

Generally, you would be recalled to active duty in the status you separated in.  You would get a haircut and shave and wear today's uniform at that rank, and obey all the laws and regs applicable at present.

It's OK to think about, but I wouldn't worry about it.  

I was an old Capt when I served.  I was often asked if I was a Mustang.  If I went back today, I'd be a really old Capt. 

___________
You guys are all acting worried like you have something to be guilty about.  

[da prez]

  I left uncle Sam's employment in 1969 after a little over three years. I was in call back reserves for three years. Good thing they never caught up with me.

                                  da prez

[Jess from VA]

For me......... it was the best job I ever had.  (not the pay, but the job)


https://www.youtube.com/watch?v=yPWnipuKYAs

[The emperor has no clothes]

___________
You guys are all acting worried like you have something to be guilty about.  

Is there a statute of limitations in the USMCJ ? 

[Jess from VA]

___________
You guys are all acting worried like you have something to be guilty about.  

Is there a statute of limitations in the USMCJ (UCMJ)? 

Of course.  However, just like for States and Fed, there exist rules for tolling statutes of limitation, like when someone runs to Canada until they think it has passed (and other frauds).

And the statute never runs on murder, or other capital offenses, and now they are extending statutes of limitation on sex offenses all over.   

[The emperor has no clothes]

___________
You guys are all acting worried like you have something to be guilty about.  

Is there a statute of limitations in the USMCJ (UCMJ)? 

Of course.  However, just like for States and Fed, there exist rules for tolling statutes of limitation, like when someone runs to Canada until they think it has passed (and other frauds).

And the statute never runs on murder, or other capital offenses, and now they are extending statutes of limitation on sex offenses all over.   

I’m so old I don’t even remember the correct acronym.  ???

[Oldfishguy]

Officer and Enlisted time period commitments are different.

Enlisted are now required to serve 8 years total once you sign on the dotted line.  That means 8 years in some form total, meaning it may be 2 years active and 6 years in ready Reserve, or 6 years in Ready Reserve (this is the no drilling weekends most do).  And in Ready Reserve the military now keeps track of where you are to a certain degree; every few years one will receive a letter asking if there are changes to permanent residency. Although, I believe even during the last series of conflicts they never recalled anybody from the Ready Reserve list.   

It was a 6 year commitment but changed to 8 years in the 1980's at some point.

[Jess from VA]

Of course, that is a direct result of the decision to draw down all standing armies/branches of active duty service, and substitute a plan to go to war with reservists.   

[Reb]

[/quote]
You guys are all acting worried like you have something to be guilty about.  
[/quote]

Can you still fit into your uniform? I tried once about 3 years ago, anyone within a 10 foot circle was in the kill zone as those 13 buttons on my cracker jacks were under extreme tension.

[Jess from VA]

You guys are all acting worried like you have something to be guilty about.  
[/quote]

Can you still fit into your uniform? I tried once about 3 years ago, anyone within a 10 foot circle was in the kill zone as those 13 buttons on my cracker jacks were under extreme tension.

[/quote]

Sadly no.  But it's 27 years since it had to fit (it would fit for about 10 of those years).  I still have my Class A service dress with ribbons (and a few other things), but it only fits if I don't do any buttons or the zipper and fly.... and it looks really bad if you wear it around that way.  

The only thing I have that still fits is the unaltered OD field jacket (which is long gone from current use).  I kept a whole bag of uniforms, dress and BDU, because I was on inactive reserve for 17 years, but I knew they'd never call.  I had a twice worn expensive mess dress uniform (with all accessories, ) that I recently gave to a (very) young USAF officer neighbor who it fit perfectly (but pants hem) (except I kept my miniature medals).  Saved him a pile of money, as that one is still current.  Paying it forward.

I had a beautiful pair of Corcoran jump boots with a thousand spit polish jobs, but they just dried up and rotted away.

Oh, my hats still fit.      (as does the WWII helmet with woodland cover I acquired overseas and used to wear around the office on fatigue days)  

[¿spoom]

First, when the Court declines to hear a case, that is not an affirmance of the lower court decision.  It may have that affect practically, but a denial of certiorari is not a ruling on the merits of the appeal, and is not a precedent for any future cases.  The article says the Court has upheld the military action, and that is not true.  All it did was decline to hear the appeal.

Second, he had been retired -- but technically, placed on the Fleet Marine Corps Reserve status list.  The law stipulates that "retired members of a regular component of the armed forces who are entitled to pay" and "members of the Fleet Marine Corps Reserve" remain subject to court-martial jurisdiction. And  they may be subject to recall (subject to national emergency, needs of the service, age limitations); retirement secures lifetime G pension and health benefits.  Retirees and reservists can always be recalled to active duty for purposes of court martial.  It may not often be done, when civilian authorities take up the prosecution, but it can be done.   [Note that the active duty Coast Guard Lt is being tried in civilian Fed Ct, but I think it likely that had he been in any other branch of service, he would be facing military court martial.]

The article refers to the offense as non military, but the accused sexually assaulted the wife of a serving Marine in Japan (and that is always a case where the military has a genuine interest in the case and prosecution) (we always protected military wives and children with great enthusiasm).  And would a civilian US federal prosecutor pick up a case from Japan (would there be personal jurisdiction issues)?  Pure military offenses exist (like failure to follow orders, or disrespect to Sr officers or noncoms), but the UCMJ has every offense in the book that Federal Criminal law has as well.

IMHO, an accused has more rights in a military trial than in a civilian trial.  Right off the bat, he gets a free defense lawyer, regardless of any ability to pay for private counsel (which would not be the case in any civilian trial).  There are other examples, but it gets pretty technical/procedural.

In the vast majority of post-retirement criminal misconduct, the military would have little interest in taking jurisdiction and prosecuting.  Especially when all of the investigation and evidence collection and interrogation has already been done by civilian authorities.  And the military cannot force civilian authorities to give over jurisdiction of criminal cases.  But there are cases where it is in the interest of the military to take jurisdiction, in furtherance of the best interests of the military, and to enforce good order and discipline of the armed services.

I did not retire, but my separation from service with a regular officer commission (later changed to a reserve commission), required me to remain in the inactive reserve for 17 1/2 additional years, and I was subject to UCMJ military jurisdiction for that entire period.  In fact, HQ USAF personnel lost track of me, and I did not get my final Honorable Discharge certificate until 2012 (20 1/2 years inactive reserve).  I knew they had forgotten me, but took no action because I thought it would be fun to be a military reservist until my 80s or 90s, if I lived that long (I was not receiving any military pay benefits).

You hand the military gate guard your reserve ID, and he looks at your old bald head and white face hair and he wonders what in the hell is going on.    

Thanks, as always, for your wise council.

[Atl-Jerry]

June will be 25 years since I retired.  I stumbled upon my MA1 jacket a few months ago, I did get it zipped up but it was difficult to breath.  OK, impossible to breath.

[John Schmidt]

As I recall, the number of years in reserve following discharge had to do with your initial military obligation. Part of it had to do with your age upon enlistment and that determined whether you had a 6 or 8 year obligation. I joined the USAF(Jan. '57) just three months shy of my 19th b'day and had a 6 year obligation. Had I joined the previous Fall which I did try but was rejected due to an injury, I would have been at the 18 yr. 6 mo. age bracket or less and would have had an 8 year obligation. That's how it was explained to me prior to my discharge after serving 6 yrs. and 1 day. In other words, having served 6 years satisfied my obligation, I was cautioned to not burn my draft card just yet. It's most likely a lot different now but maybe that sheds some light on it for those of you that were on inactive reserve for a few years following discharge if you didn't serve out the full obligation period.