In July 2019, in an unusual opinion by the Navy-Marine Corps Court of Criminal Appeals (NMCCA), it decided that court-martialing all military retirees was unconstitutional. 

In 2017, retired Navy Chief Petty Officer Stephen Begani was charged with attempted sexual abuse of a child shortly after retiring from the Navy. Begani apparently thought he was chatting online with a 15-year old girl. Instead, Begani was chatting with an investigator from the Naval Criminal Investigation Service (NCIS). At trial, Begani was convicted, and the court martial sentenced him to 18 months confinement and a bad-conduct discharge. 

When Begani committed his crimes, he was a member of the “Fleet Reserve”, which – based on prior precedent – meant that he was still subject to the UCMJ. As a retiree, Begani was receiving “retainer pay”, and as a result, he was expected to maintain readiness in the event of war. It is important to understand that the legal precedent for subjecting military retirees to court martial jurisdiction is long. As far back as 1881 in United States v. Tyler, the United States Supreme Court has recognized that because retirees receive retirement pay, they are subject to court martial under the UCMJ. 

However, the NMCCA’s decision in Begani is creative. It found that recalling Begani from retirement was unconstitutional because the Uniform Code of Military Justice is not, well, uniform because it allows retirees from active duty to be recalled for court martial but does not allow the recall of retirees from the reserves to be treated the same way. Because of this, the NMCCA said that the law fails to afford Begani “due process” as it treats some retirees – who could be guilty of the same crimes – very differently (i.e. no charges at all).

When the NMCCA issued its opinion, the Government immediately challenged the decision. Based on that challenge, NMCAA – in a move even more unusual than its opinion – has decided to withdraw this opinion and reconsider the case. That reconsideration is now pending.

I expect the NMCAA to reconsider end reverse its decision, concluding that the UCMJ does still apply to retirees. First, once again the precedent is quite long. Second, reading between the lines for a second – many of these cases involve retirees who live abroad in places where sexual assault and attempted sexual assault are not prosecuted as aggressively as they are in the United States (e.g. Many of these recent cases arise in Japan.) Third, even in its decision in Begani the NMCCA recognizes that at worst the law is not uniform. The NMCCA emphasizes that Congress can easily make the law more uniform by cleaning up the language in Article 2 of the UCMJ. Finally, this year, the United States Supreme Court refused to review a very similar case, Larabee v. United States, where another retired member living in Japan committed sexual assault. By refusing to hear the case, the Supreme Court is saying that the lower courts (also the NMCCA and the Court of Appeals for the Armed Forces) got it right.

What every retiree needs to know is that by retiring you must assume that the military can court martial you not only for crimes that you may have committed years before while on active duty, but it may also court martial you for crimes committed years after leaving active duty.