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Court-Martial for Retirees Under UCMJ Article 2 is Unconstitutional, Rules NMCCA

In a surprising decision that will send shockwaves throughout the military criminal justice system, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) has held that it is unconstitutional to use Uniform Code of Military Justice (UCMJ) Article 2 to court-martial a retired service member. Within Article 2, it specifically says that court-martial jurisdiction applies to “retired members of a regular component […] who are entitled to pay” and “retired members of a reserve component who are receiving hospitalization […].” Yet it does not apply to all retired or reserves members due to some niche distinctions, which the NMCCA has found to be a violation of the Fifth Amendment’s right to equal protection under the law.

U.S. v. Begani Challenges Article 2 Constitutionality

The dramatic NMCCA decision originates from the case of U.S. v. Begani. Chief Petty Officer Begani of the Navy completed his service after 24 years and transferred to the Fleet Reserve, which is decidedly not the same as full retirement from the Armed Forces. As a Fleet Reservist, Begani was entitled to retainer pay.

Shortly after becoming a Fleet Reservist, Begani was arrested and accused of sexual assault of a child. Naval Criminal Investigative Service (NCIS) agents had reportedly conducted a sting operation in which Begani attempted to have a sexual encounter with an undercover operative who was posing as an underage girl. Begani did not challenge the charges directly, underwent court-martial, pled guilty, and was subjected to penalties, including confinement and discharge.

However, Begani appealed the case on the grounds that he had not been guaranteed equal treatment under the law due to UCMJ Article 2. In his appeal, he noted that retired Navy Reserve members and Fleet Reservists are subjected to different criminal processes despite their statuses being similar, if not effectively identical.

NMCCA Agrees with Begani, Undermines Article 2

Presented with Begani’s appeal, the NMCCA actually agreed with his reasoning. It found that the distinctions between a Fleet Reservist, a retiree of regular components, and a reserve component retiree is mostly in title and on paper. To this end, holding that court-martial could be used to judge and potentially penalize one group of retired service members but not another did indeed break the rights guaranteed under the Fifth Amendment of the United States Constitution.

In the ruling majority opinion, the NMCCA explained that it would be acceptable if all reservists and retirees in any category could be subject to court-martial due to UCMJ Article 2. It also noted it would be legally valid if no reservists could be judged through court-martial. As it stands, though, Article 2 sits in a gray area, which is unenforceable, according to their decision.

Criticism Against the NMCCA Article 2 Findings

As is true with any major decision with the military criminal justice system, there are many who are critical of the NMCCA’s decision to weaken Article 2’s jurisdiction over retired and reserved service members. It has been argued that there are significant differences between a reservist and a retiree. Most notably, a reservist is expected to maintain themselves to be ready for service once more when faced with a crisis, emergency, or war, whereas this expectation is not placed upon retirees.

Some criticism has also been raised in regard to the differences in benefits earned by reservists and retirees. Furthermore, to become a Fleet Reservist, Begani had to request the transfer himself. It has been argued that Begani knew that part of being a Fleet Reservist is exchanging “continued readiness for continued pay” for continuing expectations set by the UCMJ, lest court-martial follow.

Major Takeaway from the NMCCA Article 2 Decision

At this time, the NMCCA decision has effectively undercut UCMJ Article 2’s ability to use court-martial processes against a retired or reserved service member. It is not known at this time if or when the case will be escalated to the U.S. Court of Appeals for the Armed Forces (CAAF), or potentially the United States Supreme Court. Until that time arrives, U.S. v. Begani may lend itself as a benefit to criminal defendants who are either retired from the military or in reserves. Challenging the authority of UCMJ Article 2 over these particular groups will likely displace any criminal charges they may face out of the circles of military criminal justice and into the same criminal justice system that processes and judges non-service members.

If you are being accused of a criminal violation and you are not sure how to defend yourself – or how to handle the situation given your status as a retiree or reservist – you can rely on Attorney Joseph L. Jordan for legal counsel and representation. With an extensive history as both a former Army JAG Officer and a civilian military criminal defense lawyer, he stands ready to guide you through any case, no matter its complexity, and protect your rights from start to finish. You have dedicated yourself to defending this country. Let Attorney Joseph Jordan show his appreciation by defending your rights when you face court-martial or trial.

Call (888) 616-6177 to connect with Joseph L. Jordan, Attorney at Law today.

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