Retirees Can Be Court-Martialed for Crimes Committed After Service 

| February 23, 2019

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.

I can think of a few people we have exposed over the years that should face charges under the UCMJ.  The ruling does have some odd implications that I found interesting.

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” are subject to court-martial jurisdiction.

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.

 

He cited one provision in the UCMJ that makes “contemptuous words” used by a commissioned officer “against the president, the vice president, Congress” and others as punishable by court-martial.

“From Adm. Bill McRaven to Gen. Michael Hayden and Gen. Martin Dempsey, some of President Donald Trump’s more visible critics of late have been retired military officers. And a provision of federal law … makes it a crime, triable by court-martial,” he wrote in a blog post on Lawfare. “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 whilethey are retired?”

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

Retired Maj. Gen. Charles Dunlap, former deputy judge advocate general of the Air Force, concurs.

In a Feb. 16 post on Duke University School of Law’s Lawfire blog, Dunlap said Congress explicitly states that the UCMJ applies to retirees and that Vladeck’s arguments about the impropriety of senior officers speaking out against the president, as well as the “anachronistic” idea that retirees can be recalled to active duty, aren’t valid.

He added that the very act of receiving retired pay means that retired personnel are choosing to keep a relationship with the military and accept all that goes with the choice not to terminate their commission or request a discharge.

“As a retired service member subject to military jurisdiction, count me among those of my comrades-in-arms who believe it a small price to pay to maintain the connection with the armed forces,” Dunlap wrote.

My understanding is that even Class III retirees could, in theory, be recalled to active duty and therefore are still subject to the UCMJ.  This would be useful in prosecuting cases of embellished service and awards by those who are retired.  I find it odd that it could be used to muzzle the voice of dissent from retired officers.  Regardless of who is POTUS,  officers should and I submit are obligated to voice dissent.  I remember a certain General calling our previous President a pussy.  I agreed and still do.   Should he be subject to a court-martial?

Silencing the voice of dissent by using the UCMJ is not acceptable.  I remember when goose-stepping goons were witch-hunting any Marines that were involved with certain Facebook groups that had pictures of women posted on it.   There were not many of us that stood up and told them to GFTS.  I did, still do, always will.  I do not agree with the views of many fellow veterans but I will fight for their right to express them.

We will start to hear people say  “I was not going to risk my retirement” when we ask why they didn’t speak up earlier to right a wrong.  If they are going to use the UCMJ to silence dissent then I demand they use it to take rank and honorable status away from Valor Vultures.

John McCain used some “contemptuous words against the president, the vice president, and Congress” over the years.  How will any retired military officer run for POTUS without saying anything “contemptuous”?

Source: Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service | Military.com

Category: Government Incompetence, Legal, Politics, SCOTUS

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AW1Ed

IANAL, but it seems to me there is a large difference between dissent and contemptuous speech. Officers, retired or active, should be able to disagree with the President or his policies, in fact it should be encouraged. Of course in the real world voicing dissent means the end of the active duty officer’s position or even service, so it rarely happens. This breeds a bunch of bobble-heads at the top of the armed forces which… Read more »

AnotherPat

Well, this is intersting. Look what happened to this Army Major General who retired in 2005: “Trial Date Set For Retired Army General Charged In Virginia Rape Case”: https://www.stripes.com/news/veterans/trial-date-set-for-retired-army-general-charged-in-virginia-rape-case-1.562481 “The Army was planning to court-martial Grazioplene, 69, in the spring of 2018, but the charges were dismissed in March after a ruling by the U.S. Court of Appeals for the Armed Forces in another case effectively limited the statute of limitations in the case to… Read more »

AnotherPat

And we have this case of an Air Force General Officer who retired in 2010:

“Air Force Busts Retired Four-Star General Down Two Ranks For Coerced Sex”:

https://www.usatoday.com/story/news/politics/2017/02/01/air-force-busts-retired-four-star-general-down-two-ranks-coerced-sex/97356020/

“…James suggested Lichte, who is married, would have been court-martialed but that the statute of limitations of five years had lapsed. Lichte retired in 2010, but the Air Force began conducting an investigation in 2016 after it had received a complaint from the woman…”

Devtun

Court Martial an air force general? Laughable. The USAF in it’s 71 year history has never court martialed a general officer – not even an article 32 hearing. Former SECAF James is full of crapola. Air Force does what it always does w/ misbehaving GOs, a slap on the wrist & retirement (at reduced rank if especially egregious).

Roh-Dog

Always read the fine print.
All Retired Service Members’ are subject to recall up to age 60.
You’ve been warned, Uncle Sam owns your ass!
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/135201_dodi_2016.pdf

Poetrooper

It’s in Section 3.3 Mobilization. They got you by the nuts–can recall to AD for the purposes of Court Martial.

MSG Eric

US Code says something similar about all US Citizens too.

Kraven MooreHead

“retired” means your name is removed from active rolls and placed on retired rolls. You are not retired, but receiving reduced pay for reduced work

26Limabeans

What if the retiree is part of the presently ongoing coup? Will the new Junta forgive them?
Will they be paid while recalled to AD?

Hack Stone

So, if a service member is injured in the line of duty and subsequently receives a pension, he can not speak out against the President? If a retired service member is subject to the UCMJ, shouldn’t that person be afforded the same privileges as an active duty member, such as full pay, priority seating on AMC Space-A flights, and can charge active duty AND retired service members with Article 91 (disrespect) or Article 87 (missing… Read more »

Roh-Dog

Am I my own CO? If so, its relaxed grooming standards and no PT for this ‘Armeee of uno’.
Can I article 15 myself?
Can I put myself on jump status?!?!?!
Full Disclosure: It’s day 2,244 of ADONSAs

11B-Mailclerk

If I understand correctly Article 88 is aimed squarely at officers to ensure subordination to the office of President, thus it’s current occupant. It is one thing to say, “there might be a better way, sir”. Quite another to say ” you are insane!”. The latter might likely inspire disobedience in the ranks. That UCMJ shackle is the price of a Commission. If it is burdensome, it may be resigned. One chose that status. One… Read more »

2/17 Air Cav

I saw this issue at TAH earlier this morning. It was raised by HMC Ret in a comment last night. I don’t have a dog in this fight but I will say that there was no issue raised to the Supremes (or, in reality, their memo-writing law clerks) that would have qualified for cert. What hasn’t happened that I am aware of, the one issue that just might get the Supremes to visit this matter,… Read more »

jonp

I don’ think it would. You give up quite a number of your Constitutional Rights when you raise your right hand and the Courts have always acknowledged this. This is why the military has a separate judicial system that civilian courts pretty much steer clear of.

jonp

Dissent or criticizing the current or past Presidents, members of Congress etc is pretty standard and no-one really thinks much about it. I am sure you would have to go the extra mile to get the military to go after you such as calling for armed insurrection, death threats etc. I doubt calling the President a pussy or making fun of Pocahontas Warren counts.

Hate_me

Saying it would be an honor for the president to strip his security clearance is, to me, pretty contemptuous. I don’t have a particular dog in that fight, and it seems politically petty to pursue the matter – but, if that is the standard, it should be enforced without regard to celebrity or political considerations.

USAFRetired

“Regardless of who is POTUS, officers should and I submit are obligated to voice dissent. I remember a certain General calling our previous President a pussy.” I can and do voice dissent. If the only restriction is the use of “contemptuous words” It might be less entertaining/colorful but its still dissent. For instance advocating draining the swamp with regard to the executive and legislative branches of Government might be more colorful than opining nothing will… Read more »

USAFRetired

It would seem this decision based on 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” are subject to court-martial jurisdiction. The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise. might be grounds to challenge the constitutionality of the former… Read more »

Ret_25X

the courts are as psychotic on the FSPA as they are on whether the unborn are alive or not.

As they say, it depends. The FSPA will apply to retired pay no matter what else happens as long as it benefits lawmakers. Period.

MSG Eric

This goes into dangerous territory. Any retiree, medical, 20 years, etc., who gets out and starts an opinion blog is just bound to talk about the current POTUS. So what happens when they post or discuss something saying something negative about the current Pres? “Trump is a doodyhead!” Knock on the door from CID, “Hi we’re here to arrest you for being retired and saying something disparaging about POTUS. Come with us…..” If this were… Read more »

Dave Hardin

Pink card reservists lack a sense of commitment to do anything right.

I think they can still be found guilty but they only have to serve a small portion of the sentence every other weekend.

MSG Eric

But But But, I was told one weekend a month, two weeks a year! What’s this every other weekend stuff?!?!?!?!?”

Roh-Dog

I’m sure that the idea of using LEO and military to round up a bunch of fellow patriots would, *most likely*, put the order issuer in jeopardy.
Just a hunch.

Retired Grunt

This is coming from the man who was both enlisted and an officer. The officer’s oath is different than the enlisted oath specifically for the reason that an officer is expected to voice dissent even up to the highest office in the land if orders are immoral, illegal or unethical. In the past during my career I have voiced descent to those ranked above me for unethical orders bordering on illegal it almost cost me… Read more »

Retired Grunt

On the other hand this does put an end to the argument that I have with my family when I tell them that I am technically still in the army and they say no you’re not you’re retired, lol….

MSG Eric

I actually cringe when people talk about me being a “civilian” after I retire from the Army.

I’m NEVER going to be a “civilian” again, not ever. I’m a veteran, retired Soldier, etc. This definitely helps support that mindset.

SFC D

So, theoretically, if there was a retired CSM that I despise for a multitude of reasons, who lives in my area, and I was to tell her just exactly what I think of her and exactly why, would I be subject to the UCMJ for disrespecting a senior noncommissioned officer?

Retired Grunt

Technically, yes, practically, no

Ret_25X

No. She is not superior.

Particularly if it is who I think it is….LOL

MSG Eric

Technically, there’s no such thing as “Superior” NCO. It only stipulates Senior Non-Commissioned Officers or Warrant Officers. Only Superior Commissioned Officers are detailed in the UCMJ.

I know, I had an O3 I didn’t work for try to counsel me and stipulate “Superior Commissioned Officer” in the counseling which was scratched out because he wasn’t. Thankfully too, as much of a dirtbag as he was.

Comm Center Rat

A CWO5 once told me when I was a CPT, that although I was the ranking officer he would always be the superior officer. He spoke the truth and was the best mentor I ever had in the Army.

SFC D

25X, I hope I have not stepped on any toes (or anything else) with my comment, but I think we may be on the same page here.

Comm Center Rat

I’ve never committed an offense as a retired Army officer that could lead to my recall to face UCMJ action. I do breathe easier however, since the wear of reflective belts during daylight hours is no longer required on Army installations!

HMC Ret

Here is a small part of the article I posted on yesterday’s WOT about this. Also, the courts may be suggesting that retired military members could be subject to court martial b/c of the nexus of receiving retired pay. IDK. This individual might seek back pay as explained below: “Meanwhile, the Supreme Court’s refusal to hear the Larrabee case may not be the end of the legal road for the retired Marine. According to Vladeck,… Read more »

Retired Grunt

I believe only those drawing retired pay from the regular services. The system we now have was based on the old British system, I believe, where officers without assignments drew “half-pay”. Technially all retired personnel are in the retired reserves. If you want out you have to resign your commission or the equivalent in the enlisted ranks. If you resign, no more pay.

OWB

When was the last time they called someone over the age of 65 back to active duty for any reason? Same question about someone, even a surgeon, for instance, who had been retired for over 20 years?

Dill Fouts

Grace Hopper

Honor and Courage

The rules are change as the Demographics change. If you are a pilot or Doctor age makes no difference. If you are breathing they got you. Retire Recall must be signed by a GO. I was recalled at age 62!!!

FatCircles0311

Colonel Ralph Peters. He wasn’t a General and turns out he’s the pussy, just a smaller one than Obama. A legend in his own mind stuck on stupid part of the status quo globalist collective of asshats.

OWB

Well. As amusing as the thought of being prosecuted for an infraction of the UCMJ is, first they’d have to catch me. Then they’d have to deal with a buddy of mine who might make them understand that they want to completely forget how to spell either of our names. So, could they also prosecute my attorney if he or she happens also to be retired military? Would they pay per diem for the court… Read more »

Green Thumb

They should be.

Honor is honor.

If you are Honorable, 12 of your peers will side with you.

Period.

Honor and Courage

Its happened to several Service members in the Army. Its called a UCMJ order, and you are sent to the nearest military location that the offense took place. The request must have supporting documentation, and signed by the convening authority for the offense.

David R Murphy

While that all sounds good, I am a retiree, and 100% disabled, permanent and total, as decided by the VA. Since I am not eligible to be recalled to active duty because of my disabilities, am I still held accountable under the UCMJ? As sited in the above court case, retirees that are eligible for recall to active duty are still under the UCMJ, except for me.

rgr769

Maybe the powers that be could get to you in the case of an extreme emergency after they recall all the other a little less sick, lame and crazy retirees. Plus, after the crypto-communists/socialists take over and establish the dictatorship of the proletariat, even you will be fair game. Think Stalin left the anyone who was ambulatory out of the meat grinder. Hell, he made soldiers who only had the misfortune of being captured enemies… Read more »

NavCWO4Ret

I read this a little differently. The reason the court chose not to hear the case is because they believe they had no jurisdiction. They’re only allowed to hear portions that have been specifically decided by the CAAF. The issue of retirement eligibility for Courts Martial was not an issue decided by the CAAF. “1. This Court lacks jurisdiction to decide the question petitioner presents because that question was not resolved by the CAAF’s decision… Read more »

LCpl Rhodes

Good, don’t break the fucking law and you won’t have a problem.

USMC Steve

This is the most ignorant and ill informed crap I have heard spewed from the 9 old pussies on the Potomac since they fucked up Obamacare. the receipt of retirement pay is nothing more than a contractual obligation based upon service. YOu give them a certain amount of your life and they pay you a stipend in retirement pay. That is nothing more than a financial agreement. Nowhere does it imply or clearly state in… Read more »

jack burton

I was in the Navy Reserves when Clinton was president. I sure used many contemptuous words concerning him and his concepts of sexual morality in-between my monthly weekend drills.