Update: Legal Opinion

| August 12, 2019

There is a new ruling now regarding retirees and courts martial. The retirees will no longer be brought back from retirement to face those proceedings.

https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html

From the article:  A new legal opinion from the NavyMarine Corps Court of Criminal Appeals says court-martialing military retirees is unconstitutional — and the reason concerns the issue of retirement pay.

Chief Judge Navy Capt. James Crisfield delivered the opinion last week, joined by Senior Judges Navy Capt. Marcus Fulton and Marine Col. Jonathan Hitesman. The decision was made as a result of an appeal from retired Chief Petty Officer Stephen Begani, who was court-martialed after leaving the Navy on charges of attempted sexual abuse of a child. – article

The opinion was based on the 5th Amendment’s Due Process clause – the guarantee of equal protection under the law.

From the article: “Congress has determined that some, but not all, military retirees should remain subject to the Uniform Code of Military Justice (UCMJ) while they are retired,” Crisfield wrote. “… Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional.” – article

Category: "The Floggings Will Continue Until Morale Improves", Legal

Comments (54)

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  1. Charles says:

    So the Army can’t bring up charges in connection with certain “surplus” parachutes that became property of the Fort Campbell Sport Parachute Club in 1973? 🙂

    Actually, getting recalled to active duty with full pay and allowances for a while would be cool. But would that have meant a new uniform allowance? Or I would report in BDU’s and dress greens.

    • Claw says:

      Charges – No. Report of Survey – Maybe/smile Not quite sure if an ROS has a statute of limitations.

      I was at Campbell in 73, but only as the lowly Battalion PLL Parts Clerk in the 1/3d ADA motor pool. Not yet the hardcore Mechanized Infantry oriented 76Y S-4 Supply Weenie that the Army eventually turned me into.

    • Sapper3307 says:

      Or the (alleged) Sport parachute jumping from the pods on a Cobra helicopter at Fort Bragg, asking for friend?

    • Charles says:

      The Fort Bragg Cobra jumper has already been identified and punished, along with the AH-1 pilot. The ride up wasn’t on the pod, it was on the ammo access door. And that’s a shame, because putting a soldier on the ammo access door was an authorized emergency means of evacuation/rescue. Those boys were just practicing.

      Hey Claw: If you looked out at Son DZ on most Saturday’s / Sunday’s in 1973 and saw a Red, White and Blue competition Paracommander (or a Black and Gold Delta II Parawing) … it was me.

      Also on any of the exhibition jumps by the Sceaming Eagle Parachute Team during that year.

      Hey, it’s not too late to ask me for an autograph. 🙂

    • timactual says:

      Wear whatever still fits.

  2. New ‘Bombshell’ Legal Opinion Says Military Retirees Can’t Be Court-Martialed

    2016 Manual for Courts-Martial. (U.S. Air Force/SrA Van Syoc)
    2016 Manual for Courts-Martial. (U.S. Air Force/SrA Van Syoc)
    9 Aug 2019
    Military.com | By Gina Harkins

    A new legal opinion from the Navy-Marine Corps Court of Criminal Appeals says court-martialing military retirees is unconstitutional — and the reason concerns the issue of retirement pay.

    Chief Judge Navy Capt. James Crisfield delivered the opinion last week, joined by Senior Judges Navy Capt. Marcus Fulton and Marine Col. Jonathan Hitesman. The decision was made as a result of an appeal from retired Chief Petty Officer Stephen Begani, who was court-martialed after leaving the Navy on charges of attempted sexual abuse of a child.

    Begani was picked up by Naval Criminal Investigative Service agents on Aug. 5, 2017, a little over a month after he left active duty and was transferred to the Fleet Reserve. He was arrested when he arrived at a residence at Marine Corps Air Station Iwakuni, Japan, where he was employed as a contractor. Begani had been communicating with someone who he believed to be a 15-year-old girl, but who was actually an undercover NCIS agent.

    He was sentenced to 18 months confinement and a bad-conduct discharge.

    Begani was court-martialed because of a federal law that leaves some troops subject to the Uniform Code of Military Justice long after they hang up the uniform. Marines and sailors who leave active duty after more than 20 years in uniform but less than 30 and who want to collect retiree pay move into the Fleet Reserve or Fleet Marine Corps Reserve.

    There they receive what is essentially retainer pay and can be summoned back to active duty without their consent in the event of war or a national emergency. After 30 years of active or inactive service, retirees are then transferred to the Regular Retired List and they’re no longer subject to the UCMJ.

    None of this is true for retired reservists, though, which is why Crisfield argued in his written opinion that treating one group of retirees different than another is unconstitutional.

    — Patricia Kime contributed to this report.

    The rest of the article may be viewed here: Military.com

    Jeff, this is the way to post up articles. A few opening paragraphs to generate interest, credit to the author(s) which you have done, and a link to the article. This keeps copyright violations at bay.
    AW1Ed

    • gitarcarver says:

      Jeff LPH 3, 63-66,

      Copying an entire copyrighted article is not “fair use.”

      Your post should be removed by the moderators.

    • AW1Ed;
      Thanks for the heads up on the article I put up. I was always under the impression that one could not copy and post a copyrighted article for monetary gain without the authors permission. I went back to the article and tried to print it so I could compare it with the edited copy you put up and for some reason, the printer only printed the line from A new legal opinion to After 30 years of, and that’s all it printed.

      • AW1Ed says:

        No harm no foul, Jeff. You haven’t been through the Perry Gaskill School of Copyright Violations. I have and still bear the scars.

        It may be an abundance of caution, but stick to the format I posted and you should be fine.

      • Ex-PH2 says:

        Let’s do recall that a deceased lawer put a copyright on everything he stole from other people so that he could sue them for copyright violation, some time back.

  3. 26Limabeans says:

    “court-martialing military retirees is unconstitutional”

    Well, I guess that lets Les off the hook.
    Wait…what?
    Never mind.

    • Roh-Dog says:

      Burn!
      Les Brown-stain SHOULD be called back to serve as rocksplitter at Leavenworth.

      • 5th/77th FA says:

        If they did call Brown Stain back, would he draw his E-8 and jump pay? If so he could SAVE UP enough for a new vest…and a bowl of chili. Assign him to Leavenworth for as long as it takes to “get his 20 in.”

  4. Roh-Dog says:

    General Dunlap is correct. If you don’t want the title and pay, GTFO.
    I am a proud member of the Retired List, subject to callback until 60 years old.
    If my country comes a’callin’, so long as I can get my hands on a M2010, I’m answering.

    • Comm Center Rat says:

      I’m with you Roh-Dog. Last year I even volunteered for the Army’s Retiree Recall Program but couldn’t get a slot at Fort Benning because my PMOS (PSYOP) wasn’t needed. I’m still at my fighting weight of 170 and can run forever. I’m ready for immediate recall. In a couple years I’ll reach 60 and if the Army needs me then I’ll do a voluntary recall to active duty.

      I’m Old but Not Broken!

    • USMC Steve says:

      No, he isn’t, and neither are you. Not certain how it works for commissioned officers, but the title and the pay were earned through one’s service. The pay is nothing more than a financial contract – work for a certain period rewarded by retirement pay, as in any job. The military cannot legitimately then say, if you want what you already earned through a legal contract, you have to remain under our thumb. And as I have said elsewhere, at no time was I told that if I retired, I was on the military’s hook for the rest of my life, and under their bullshit UCMJ as well. No amount of money is worth that. And I like my civil rights, which I had to surrender to be a military member. No one told me it was irrevocable if I went career. But no one told me the part about life time medical was a lie either. Lot of fraud in the inducement on their part.

      • Comm Center Rat says:

        USMC Steve – Not sure what you mean “no one old me the part about life time medical was a lie either.” My father retired from the Air Force in 1974 and died earlier this year. For those intervening 45 years he received life time medical (CHAMPUS then TRICARE, some care from VA). His widow, my mother, now in her mid 80s still receives Tricare For Life (TFL). As an Army retiree I’m eligible for TRICARE Select then TFL when I turn 65 (no premium). I can also get medical care at military treatment facilities (MTFs) on a space available basis. Prescriptions are filled for free at MTF pharmacies.

        Personally, I don’t feel lied to in any way. One third of my career was spent enlisted and the remainder as a commissioned officer. I assure you that my title(s) and pay were earned through my service on both sides of the fence.

        During OIF/OEF I met Vietnam veteran warrant officers in their 60s flying helicopters and physicians in their 70s doing 90 day rotations at Combat Support Hospitals. So if I ever have the chance to wear the uniform again in my 60s I’m gonna jump at the chance to do it. I like my civil rights too and have never had to sacrifice them as a retiree. The only thumb I’m under is that of my Spousal Unit and I don’t think she’ll mind if I get recalled (voluntary or involuntary).

        • USMC Steve says:

          By free health care, it means the right to go to any base hospital and be treated. Without having to fuck about with the nonsense that is Tricare. I do get the meds, all one of them, free at the base, but that is it. They won’t touch me as a retiree. And that is exactly how they fraudulently described it to me. VA has nothing to do with it. Totally different governmental element, funded differently, hard to get shit out of at all, and utterly useless. Tricare is also run by civilian contractors thus has nothing to do at all with that medical. If you think you have your civil rights just get caught calling the pres a mothafucka in the wrong company and you might find yourself back on active being read your article 31 rights. If you are good with it, good for you.

      • O-4E says:

        Like many people USMC Steve you confuse “military retirement pay” with being the equivalent of a civilian pension

        It isn’t

        It is retainer pay aka “half pay” in the old days

        • USMC Steve says:

          In legal reality that is precisely what it is. Don’t know what you do or if you retired from it, but can that job call you back involuntarily at any time without your permission for the rest of your life. The definitions are bullshit. I earned that pay through service. It was a basic contractual obligation, nothing more. And With none of my five enlistments was I told anything about being their vassal for the rest of my life if I accepted what I earned contractually. But what is another repeated lie of omission from the federal government and DOD? It is the only thing they do well.

          • timactual says:

            “The definitions are bullshit. ”

            That statement is BS.

            ” being their vassal for the rest of my life if I accepted what I earned contractually”

            It’s pretty obvious you never read that contract. It is not, nor has it ever been, lifetime vassalage.

            “For Navy and Marine Corps members, you are considered to be a “retired member” for classification purposes if you are an enlisted member with over 30 years service, or a warrant or commissioned officer.

            Enlisted Navy and Marine Corps members with less than 30 years service are transferred to the Fleet Reserve/Fleet Marine Corps Reserve and their pay is referred to as “retainer pay”.

            Air Force and Army members with over 20 years service are all classified as retired and receive retired pay.

            When a Navy or Marine Corps member completes 30 years, including time on the retired rolls in receipt of retainer pay, the Fleet Reserve status is changed to retired status, and they begin receiving retired pay. The law treats retired pay and retainer pay exactly the same way.”

            https://www.thebalancecareers.com/understanding-military-retirement-pay-3332633

      • timactual says:

        You should have read the fine print on that enlistment contract. The obligation to abide by the rules in place for active, retired, and reserve when you enlisted doesn’t change after 20 years.

  5. Daisy Cutter says:

    I think they should account for people that are found to have their retirement based on their rank, and their rank based on fraud while they were in.

    Recall Ken Woerheide: https://valorguardians.com/blog/?p=88185

  6. ninja says:

    Ex-PH2:

    You wrote “There is a new ruling now regarding retirees and courts martial. The retirees will no longer be brought back from retirement to face those proceedings”.

    Isnt’ that ruling just a US Navy/Marine Corps Legal Opinion that is not set in stone yet?

    Does their opinion/ruling apply to the US Army, US Air Force and US Coast Guard as well or only to the US Navy and Marine Corps?

    Also, didn’t the Supreme Court affirm this past February that Military Retirees Can still be Court Martialed?

    https://www.militarytimes.com/news/your-military/2019/02/25/military-retirees-can-still-be-court-martialed-supreme-court-affirms/

    • ninja says:

      Also: Isn’t there a difference between “Ruling” and “Legal Opinion”?

      Does a US Navy/Marine Court legal opinion overrule what the Supreme Court affirmed this past February?

      Not being sarcastic. I really want to know considering I am not a Lawyer and am confused by the article and how it was presented.

      • rgr769 says:

        Technically, a “ruling” is the result reached such as “the defendant’s appeal is dismissed.” A legal opinion is the written reasoning for the court’s decision or ruling. Also, at trial if the judge rejects your objection it is “overruled.” The U.S. Supreme Court is the final arbiter of all legal disputes within its jurisdiction. Thus, it likely has the power to overrule the subject decision of this lower court.

    • Ex-PH2 says:

      Technically, it’s an “opinion” now, but if it goes further, it will probably become a “ruling”.

      Now, they have to argue over that, of course, but it starts with something like this.

    • USMC Steve says:

      The supremes refused to hear the case, because they don’t have the stones (in some cases the literal truth). In point of fact, retirement pay is just that. Retirement pay. There is nothing in the law that mandates that because you fulfill a contract you must surrender your civil rights for the rest of your life. Add to that the fact that some, like me, were forced out at 20 years as unfit for further service due to grade/rank limitations, and they actually fired me. I gave them 20 years of my life and earned that retirement money. They rate and indeed deserve nothing more from me. That so called legal experts cannot grasp this simple truth is pretty pathetic. On top of the fact that at no point during my service or at any enlistment ceremony was I told that, or I would have told the Corps to fuck off and gotten out right then and there. As for that dick head Dunlap, forfeiting your rights is more than a little thing. But you go, girl.

      • AW1Ed says:

        Heh. I quit before they fired me- TERA was too good a deal to pass up.

      • Hondo says:

        There is nothing in the law that mandates that because you fulfill a contract you must surrender your civil rights for the rest of your life.

        No, but there is indeed a provision in US Code allowing recall of retirees to active duty “Under regulations prescribed by the Secretary of Defense”.

        https://www.law.cornell.edu/uscode/text/10/688

        If a retiree can be recalled to active duty, seems to me said retiree could be legitimately recalled to active duty and court-martialed for crimes committed while on prior periods of active duty – provided, of course, that the statute of limitations for the crime in question hasn’t run out.

        • USMC Steve says:

          And that provision clearly states “The Secretary concerned may, to the extent consistent with other provisions of law, assign a member ordered to active duty under this section to such duties as the Secretary considers necessary in the interests of national defense.” Based upon this, a legal defense would immediately exist for anyone forced to active duty for purpose of court martial. No way they could demonstrate that would be in the interests of national defense. It also says it must be in accordance with other provisions of other laws, so they cannot just do it when they feel like it, at least not without being assured of legal challenge. The premise of holding people under their yoke in the unlikely event of needing their expertise in fields that the vast majority of us didn’t have anything to do with for a couple of decades is just ludicrous.

      • timactual says:

        ” they actually fired me”

        Ah, that explains the bitterness.

  7. MustangCryppie says:

    “The retirees will no longer be brought back from retirement to face those proceedings.”

    Phew! Dodged ANOTHER bullet!

  8. USMC Steve says:

    Works just fine by me. I was not told when I first enlisted that if I retired and drew retirement pay, that I had to forfeit my civil rights for the rest of my life. The entire process of thinking of retirement pay as anything other than a financial contract earned through a certain number of years employment is stupid anyway. And in reality no different than any other job. By their logic, anyone who was ever enlisted in the military should have been in the same situation anyway. But they are not.

    • 11B-Mailclerk says:

      I think the key point is, unlike a discharge, you are transferred to the “retired reserve” , retaining rank, commission, etc.

      Civilians have no rank. Service people do. There is rank written on your retirement ID, correct sir?

      Still serving in reserve capacity, in other words. Thus the paycheck.

      That was what you signed up for, after all. It wasn’t “no strings” past retirement. Not disrespectful intended.

      • USMC Steve says:

        But as enlisted, once you retire, you don’t retain shit. As a retired e-6, I have absolutely zero military authority. You have rank only so long as you hold a green ID card. After that you don’t. It is a title, which if you want, you can slap next to your name like some politicians put “Honorable” next to theirs. You are not “serving” in any capacity at all at that point, particularly after the 30 year mark.

  9. GDContractor says:

    “Equal protection under the law.”. Hmmm. That could be one big nasty Pandora’s Box. After all, why have the UCMJ at all?

    “And if the whole UCMJ system is guilty, then isn’t this an indictment of our DOD institutions in general? I put it to you, Greg – isn’t this an indictment of our entire American society? Well, you can do whatever you want to us, but I for one am not going to stand here and listen to you badmouth the United States of America. Gentlemen!”

    • USMC Steve says:

      The UCMJ is not totally screwed while one is in the military, or for crimes committed while in the military. But no one, particularly congress, can mandate its application against people who are no longer in.

  10. USMC Steve says:

    I went in and re-read what the zoomie general wrote. Dude makes no sense at all. “No one forced them to take retirement pay” was one comment. True dat. Because if you request retirement, they have to pay you. They have no choice, or they would find a way to screw people out of it. True, you can just get out, but if you gave them 20 or more, you EARNED AND DESERVE that pay, whether or not you ever do anything for them again or not. It is NOT “retainer pay since you perform no military duties, have no chain of command, don’t maintain grooming or uniform standards, etc. You are OUT. A finer point is that to require the recall of old retired service members mandates that the President invoke the War Powers Act, and certain conditions must be met before that can happen. And only certain retirees can then be forced back.

    • Ex-PH2 says:

      That’s an interesting aspect. I ran into someone during the Obama admin, who had been recalled after more than 10 years OUT of A/D and thought she was completely done with it. She didn’t say anything about the War Powers Act showing up in her recall letter.

      • USMC Steve says:

        That may be because the service member was not aware that he couldn’t. It could also depend on their MOS. Obama and his regime didn’t concern themselves with legality in their actions much either. The only people I ever heard of being mandatorily recalled to active were officers in the medical/psych field. Officers have different requirements though. Since I am not one, I don’t know specifics. If it were possible and that easy to just shanghai people, I think the Crotch would have done that to me, rather than ask me if I would like to come back on active in my MOS as a spook. Once you are past the 30 year mark having retired at 20, they cannot just arbitrarily force you back to active duty (for enlisted) without meeting specific requirements.

    • MT FAO says:

      Actually no. When I retired from the Army after 23 years I was specifically briefed on my eligibility for recall. For five years after retirement I could be recalled by the Secretary of the Army, and after that period by the Secretary of Defense. There was no mention of the war powers act and the only thing that would relieve me of that requirement was medical disability or attaining the age of 65.

  11. 11B-Mailclerk says:

    Prediction: overturned by SCOTUS. Congress is well within its authority to set up time-in and age requirements and recall/no-recall for how retirement works. (Over/under 30, active vs reserve)

    • Hondo says:

      I concur. And arguably, Congress already has granted the necessary statutory to DoD to do exactly that; see 10 USC 688 and my comment above for starters.

  12. Just Lurkin says:

    Ok-so if “you can’t treat one group of retirees differently from another” for legal purposes, does that mean that the other group of retirees (reservists) should get their pensions now instead of having to wait until age 60 (or whatever reduced age earned for service since 2008)? I anxiously await a court ruling applying this reasoning.

  13. Commissar says:

    This ruling seems to be in conflict with the SCOTUS decision not to hear a case back in February.

    I suspect this will be ultimately decided by SCOTUS since they can’t let two conflicting rulings stand.

    • ninja says:

      Commissar:

      I don’t think this was a Ruling.

      What I read was that it was a Legal Opinion by the Navy/Marine Corps.

      You are correct in your statement that the Supreme Court affirmed this past February that Military Retirees can still be Court Martialed.

  14. Hebert J Messkit says:

    There’s a guy on military death row who was recalled to face trial. He was convicted in civilian court in the 80’s and placed on North Carolina death row. Got his case thrown out went back on active duty and retired as an E 8.