Military Retirees Can Be Court-Martialed After All, Appeals Court Decides

Poetrooper sends us an interesting article on how Navy and Marine retirees, who actually aren’t retired in the true sense of the word until they reach the 30 year mark, may still be Court- Martialed for criminal offenses. Fair? I think so, and y’all may as well when you read the article.

By Hope Hodge Seck

In the latest turn of a dramatic and winding court saga, a naval appeals court has released a split decision finding that a Navy retiree was properly court-martialed and convicted for a crime committed after he had left active duty.

The en banc decision was published Jan. 24 by the Navy-Marine Corps Court of Criminal Appeals, with four judges agreeing with the final decision and three others dissenting. The matter concerns retired Chief Petty Officer Stephen Begani, who pleaded guilty to attempted sexual assault and attempted sexual abuse of a child in December 2017, after corresponding and making plans with a Naval Criminal Investigative Service undercover agent pretending to be a 15-year-old girl.

Begani had already transferred to inactive status in the Fleet Reserve following 24 years on active duty at the time of the crime, and appealed his conviction on the grounds that it was unconstitutional to court-martial active-duty retirees like him when retired reservists were not subject to court-martial.

In an Aug. 9, 2019, decision described as a “bombshell,” the NMCCA agreed with Begani, overturning his sentence of 18 months’ confinement and a bad-conduct discharge.

Related: New ‘Bombshell’ Legal Opinion Says Military Retirees Can’t Be Court-Martialed

The victory, however, would be short-lived.

In October, the appeals court withdrew its opinion, setting up conditions for reconsideration and an overturn, which came four months later.

Begani’s attorney, Navy Lt. Daniel Rosinski, did not immediately respond to a request for comment on the development and whether he plans to appeal the reaffirmation of his client’s sentence.

Delivering the majority opinion of the court, NMCCA Judge Navy Capt. Jonathan T. Stephens wrote that the decision was based in part on Begani’s membership in the Fleet Reserve, where, although functionally retired, he continued to receive some “retainer pay” and base privileges.

Members of the Fleet Reserve and the Marine Corps equivalent are enlisted and have more than 20, but less than 30, years of service; they are transferred to the retired list and receive retired pay when they hit the 30-year mark. The Air Force and the Army don’t have comparable retired Reserve contingents.

The Defense Department’s interest in maintaining authority over this group is tied to its need to be ready to fight in case of a major crisis or catastrophe, Stephens wrote.

“It appears plain that Congress intended for Fleet Reservists to be among the first ‘retired’ Service Members to be drawn from,” he said. “No declaration of war or national emergency is required by Congress. No other legal precursors are required. The Secretary of the Navy can return Appellant, and any other members of the Fleet Reserve, to active duty with a mere signature.”

I recall a whole lot of Chiefs and PO1s on Fleet Reserve were recalled to active duty when four Iowa-class fast battleships originally built during World War II— USS Iowa, Missouri, New Jersey and Wisconsin—were taken out of mothballs and returned to active duty in the 1980s. Can’t imagine they were real happy about it, but read the fine print before you sign on the line and raise your right hand. In a way, its a compliment- your country needs your skill set, now turn to, Sailor!

Read the entire article here: Military Daily News

Thanks, Poe!

Category: Guest Link, Marines, Navy