The Uniform Code of Military Justice (UCMJ) has defined and punished military crimes since its inception in 1950. It’s usually reserved for charging active-duty service members, but the code also allows certain retirees to be court-martialed. Now, certain legal cases are challenging the longstanding rules, which could have significant ramifications for military veterans.
Who Does the UCMJ Apply To?
In addition to outlining court-martial rules and procedures, the UCMJ defines military jurisdiction. Unlike most civilian jurisdictions, the UCMJ has no territorial boundaries. Instead, jurisdiction is predicated upon a person’s relationship to the military.
As you might expect, the UCMJ applies to:
- Active-duty service members
- Students at military academies
- Prisoners of war
- Anyone serving a court-martial-imposed sentence
- Reservists and national guardsmen who are on active duty or inactive duty training
- Certain civilians who interact closely with the military
The UCMJ normally does not apply to veterans. Specifically, veterans cannot be court-martialed if they were discharged from active duty before they reached 20 years of service or retired from the reserves and aren’t entitled to retirement pay until age 60. However, the following two groups of retirees are treated like active-duty members and can be charged under the UCMJ:
- Active-duty veterans who retired from the Army, Navy, Marines, Air Force, Space Force, or Coast Guard and are entitled to immediate retirement pay
- Navy-Marine Corps Fleet Reservists (those who retired from the Navy or Marine Corps between 20 and 30 years of service)
Because certain military retirees continue to receive a sort of “retainer pay,” and Fleet Reserve members can be called back to service at any time, government prosecutors argue they are subject to the UCMJ. Prosecutors also say court-martial power is necessary because it gives the government authority to prosecute any who refuse to return to service.
Why Does UCMJ Jurisdiction Matter?
Courts-martial and civilian courts have significant differences. After all, courts-martial are not subject to many of the basic protections outlined in the Constitution and Bill of Rights. For example:
- Court-martialed defendants don’t have the right to a trial by a jury of their peers. Instead, they are tried before a smaller “member panel” selected by a high-ranking officer.
- Military law allows for split verdicts in many criminal trials. This means a three-fourths majority is enough to convict in all but the most egregious cases where a death sentence is possible.
- A conviction under the UCMJ could result in a bad conduct discharge or dishonorable discharge, affecting future military benefits, employment opportunities, and other aspects of civilian life. Conversely, convictions in civilian court don’t affect discharge status.
Recent Cases Involving Retired Service Members
While it wasn’t common practice in the past, more and more veterans are now being pulled back to active duty to face charges under the UCMJ. It’s as if there’s been a culture change among military prosecutors to expand jurisdiction. Consider these examples of veterans who were court-martialed in recent years and are fighting back against the UCMJ’s longstanding rules.
United States v. Begani
Retired Navy Chief Petty Officer Stephen Begani was arrested in 2017 for communications he had with an undercover Naval Criminal Investigative Service (NCIS) agent, who he thought was a 15-year-old girl. He was ultimately convicted and sentenced to 18 months of confinement and given a bad conduct discharge.
Begani, who had transferred to inactive status in the Fleet Reserve after 24 years of service, appealed the decision. He hoped to challenge whether an active-duty retiree like himself could be charged under the UCMJ when retired reservists were not subject to court-martial.
In August 2019, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed with Begani in a “bombshell” ruling, overturning his 18 months of confinement and bad conduct discharge.
The victory, however, was short-lived. The appeals court withdrew its opinion in October 2019, and the ruling was overturned four months later. This decision was based in part on Begani’s Fleet Reserve membership, which entitled him to receive “retainer pay” and base privileges. Two of the court’s judges also took issue with the fact that Begani only claimed his court-martial was improper after pleading guilty and beginning the appeals process.
United States v. Dinger
Marine Gunnery Sgt. Derek Dinger had been retired for nearly a decade when the NCIS arrested him on child pornography charges. Dinger was convicted but appealed the decision to the NMCCA in 2018. The appeals court concluded his conviction under the UCMJ was permissible.
Dinger appealed his case again, this time to the U.S. Court of Appeals for the Armed Forces (CAAF)—the highest military appellate court—which affirmed the NMCCA’s decision. When Dinger tried to petition for certiorari with the Supreme Court, his request was denied. This case shows how military courts consistently defend the extension of UCMJ jurisdiction to retirees.
Larrabee v. Braithwaite
Marine Staff Sgt. Steven Larrabee was accused of sexual assault, an event that took place in 2015, just three months after he had retired from the military. He pleaded guilty and was convicted in a court-martial. Larrabee later appealed his conviction to the Supreme Court, which declined to take up the case in early 2019. Not to be deterred, Larrabee sued the Secretary of the Navy, Kenneth Braithwaite, in the U.S. District Court for the District of Columbia in March 2019.
This court found the longstanding justifications for prosecuting retirees under the UCMJ to be insufficient. Specifically, the court argued the pay received by retirees is “deferred pay” from past services, not retainer pay to ensure retirees’ future readiness to serve. The court also determined that Fleet Reservists are less likely to be recalled to active-duty service than inactive reservists, rendering that argument “arbitrary at best.”
Consequently, the court found that applying UCMJ jurisdiction to Fleet Reserve members was not necessary to promote good order and discipline. This is the first time in the UCMJ’s history that a district court challenged the constitutionality of court-martialing certain military retirees.
In November 2020, District Judge Richard J. Leon ruled that using the UCMJ against retired service members was unconstitutional. He pointed out that active-duty retirees are treated radically differently than those who retire from the reserves.
Unfortunately, Leon’s ruling was appealed in January 2021. Despite this fleeting victory, the federal civil court ruling could offer another opportunity for Larrabee to settle the matter at the high court at a later date.
Defend Yourself with Help from a Military Lawyer
If you are a retired service member who has been charged under the UCMJ, you need expert legal representation to defend your rights and freedoms. Joseph L. Jordan, Attorney at Law, can assist you in obtaining a favorable outcome in your case. We have years of experience and an excellent track record for providing outstanding legal services to our military clients in their time of need.
To benefit from the unwavering support of Joseph L. Jordan, Attorney at Law, please contact us online or call us toll-free at 800-580-8034 or 254-221-6411. Mr. Jordan would be happy to speak with you about your case.