Retirement does not always end a service member’s exposure to the Uniform Code of Military Justice. For some categories of retirees, court martial jurisdiction continues, and it has been used.
Where the Jurisdiction Comes From
This is the part that surprises people. Jurisdiction here does not turn on whether someone still wears a uniform. It turns on which retired list they are on and whether they are entitled to retired pay. The first question in a matter like this is a status question rather than a factual one. If a retiree does not fall within a UCMJ jurisdictional category, the government does not have a court martial case on that basis, which says nothing about exposure in a civilian forum. Mr. Jordan represents retirees as well as active duty members, and that status question is where a matter of this kind begins.
Article 2 of the UCMJ lists the persons subject to the Code. The list is not limited to those on active duty. Among others, it reaches:
- Retired members of a regular component who are entitled to pay
- Retired members of a reserve component who are receiving hospitalization from an armed force
- Members of the Fleet Reserve and Fleet Marine Corps Reserve
The category matters. A regular retiree drawing retired pay and a member of the Fleet Marine Corps Reserve are covered by different subsections, and the analysis is not identical for every retiree. If you are retired and have been contacted about an allegation, the first question your counsel should answer is which subsection the government says applies to you.
The Larrabee Case
For a retiree the case is less interesting as doctrine than as notice: this jurisdiction is not theoretical, and it has been exercised. Mr. Jordan has defended several retirees accused of sexual assault who were brought back to active duty for the purpose of trial, and won those trials. Past results do not guarantee future outcomes. Joseph L. Jordan, Attorney at Law represents retirees as well as active duty members in all six branches, and a retiree who is contacted about conduct occurring after retirement should treat that contact exactly as an active duty member would.
Steven Larrabee was a member of the Fleet Marine Corps Reserve. He was accused of sexually assaulting a civilian in Japan and pleaded guilty at a court martial.
He then challenged the jurisdiction collaterally in federal district court, arguing that subjecting Fleet Marine Corps Reservists to court martial exceeded Congress’s authority under the Make Rules Clause. The district court agreed with him.
The D.C. Circuit reversed. In Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022), the court held that amenability to court martial turns on the military status of the accused, and that a person has military status where there is a formal relationship with the armed forces that carries a duty to obey military orders. As a Fleet Marine Corps Reservist, Larrabee met that description. The court also held that the Fifth Amendment’s Grand Jury Clause did not separately bar his court martial.
The Supreme Court denied certiorari in 2023. The D.C. Circuit’s decision stands.
Correcting an Attribution
Material discussing this case has quoted Justice Kagan as saying that Larrabee and others in his position receive procedural protections effectively identical to those in state and federal criminal courts. That attribution does not hold up.
The statement comes from Ortiz v. United States, 585 U.S. 427 (2018), a different case. The name Larrabee does not appear in the Ortiz opinion. What Justice Kagan wrote is that “[t]he procedural protections afforded to a service member are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal.” The phrase in internal quotation marks is not the Court’s own characterization; it is quoted from a treatise, Schlueter, Military Criminal Justice: Practice and Procedure, cited in the opinion.
The distinction is worth keeping straight. “Virtually the same” and “effectively identical” are close in ordinary speech, but a court martial and a civilian trial differ in ways that matter to a defendant, including panel size, the vote required to convict, and the route an appeal takes.
What This Means If You Are Retired
A retiree contacted by investigators has the same Article 31(b) protection an active duty member has, and the same reasons to use it. Mr. Jordan represents service members and retirees in the Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force, and what is said in a first interview can narrow what remains available to argue later.
Three points follow from the current state of the law.
Retired status is not a jurisdictional defense by itself. The government does not have to show that you were recalled to duty. It has to show that you fall within a category listed in Article 2.
The forum question is separate from the merits. Larrabee pleaded guilty and then litigated jurisdiction for years. Raising the jurisdictional question early, before a plea, preserves options that a later collateral attack may not.
Where the conduct occurred can matter, but not in the way people assume. Larrabee’s offense occurred in Japan. Overseas conduct by a person subject to the UCMJ does not automatically go to the host nation’s courts; status of forces arrangements and the exercise of military jurisdiction interact in ways that require specific advice about your case.
Speak With a Court Martial Attorney
Joseph L. Jordan, Attorney at Law is a former Army JAG officer who served as an Army prosecutor at Fort Hood, Texas, and with the 2nd Infantry Division in South Korea. He represents service members and retirees in all branches, at installations in the United States and overseas, and has successfully defended retirees recalled to active duty to face sexual assault charges at court-martial. Past results do not guarantee future outcomes.
If you are retired and have been notified of an investigation or charges, call (888) 643-6254.