EI INCUMBIT PROBATIO QUI DICIT.

Court-Martial Jurisdiction Does Apply to Retirees, Says Air Force CCA

The Air Force Court of Criminal Appeals (AFCCA) has affirmed that it is sometimes possible and necessary to bring a retired service member before court-martial for judgement and penalties relating to pending criminal accusations. To some, the decision contradicts the purpose and intent of court-martial, which is meant to exclude civilians from its jurisdiction. However, with the recent affirmation from the Air Force CCA, the purpose, description, and methods of court-martial have been further clarified to not only allow retirees to face court-martial, but to make it clearer that civilians cannot.

U.S. v. Begani Stirs Up Controversy & Questions

The decision to allow court-martial to apply to retired service members stems largely from the case of U.S. v. Begani, which was discussed in a previous blog entry. In this case, Fleet Reservist Begani was accused of sexually assault a child after he retired from active service. He had apparently fallen into a sting operation, catching him in the act of attempting to have sex with an undercover operative who claimed to be underage. He was summoned before court-martial despite his retired status. The case concluded with Begani pleading guilty and being penalized by confinement, forfeitures, rank reduction, and a dishonorable discharge.

The result was appealed with the argument that court-martial no longer applied to Begani since he was retired. Court-martial jurisdiction does not apply to civilians, and so it was said he was a civilian the moment he retired. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) actually agreed with this reasoning and held that it was unconstitutional to court-martial Begani, effectively undermining UCMJ Article 2 in the process.

U.S. v. Ballard Turns the Situation Around

Unexpectedly, the NMCCA would later retract its own opinion of U.S. v. Begani. The NMCCA found it did not possess the proper authority and totality of information required to leave the decision as-is.

With that ruling withdrawn, the Air Force CCA found itself needing to make the same decision in U.S. v. Ballard. The case shared similar details with Begani’s, including a defendant who was retired before being accused of sex crimes with a child. Ballard also entered a guilty plea and accepted various penalties, including dishonorable discharge.

In this case, the AFCCA determined that court-martial could verily apply given that under no circumstances did its application threaten the rights or protections granted to civilians. In different wording, it was concluded that there was enough about Ballard that described him as a military service member after retirement before being seen as a civilian.

AFCCA Reasoning for Allowing Court-Martial

The three-judge panel of the AFCCA released an extensive opinion on the matter to explain how Ballard – and Begani, had that case not already been concluded – was still subject to court-martial despite retiree or reservist status. The opinion first pointed to preexisting case laws that established civilian protections from court-martial so that the spouses of service members could not be brought before court-martial and would still be tried through civilian criminal court systems, such as in Reid v. Covert (1957). It also used Toth v. Quarles (1955) to clarify who does and does not constitute a retired service member “with no remaining connection to the military […].”

In Ballard’s case, he was not the spouse of a military service member when he was accused of his crimes, so Reid’s caselaw did not apply. He was also still connected to the military by a reasonable degree, the AFCCA found, since he was still receiving retirement pay. This point was further elucidated with a nod to Barker v. Kansas (1992), McCarty v. McCarty (1981), and United States v. Dinger, in which it is summarily and repeatedly expressed that “military retirees unquestionably remain in the service” of the military. That is to say, retirement is not the end of a military service member’s duties, but merely a significant reduction of them, which is also why they receive reduced pay through retirement benefits.

Lastly, the Air Force CCA acknowledged that Ballard could be described as a ‘military veteran.’ But it also deemed that this description did nothing to shield him from court-martial, untying an argument that veterans are civilians first and foremost. There is also no express language in the accepted military definition of a veteran that says a veteran cannot face court-martial.

Moving Forward with the Ballard Decision

For the time being, it is once again clear that a retired military service member still holds a duty to give a good name to the United States Armed Forces and the country Herself. The actions of a retiree or reservist can be seen as a reflection of the entire military, so it is argued. As such, criminal violations committed by the individual are an affront to the Armed Forces, requiring the accused to go before court-martial for judgement and penalty. As long as there is even a thread of tangible connection between the retired service member and their time in the military, this will hold true. It would take a Congressional shift – as unlikely as that may be – to break that thread.

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