NMCCA Reverses Decision Regarding Court-Martial Jurisdiction of Fleet Reservists

In a not so surprising turn, the en banc Navy-Marine Corps Court of Criminal Appeals (NMCCA) reversed a previous decision that stated that Articles 2(a)(4) and 2(a)(6) violate the due process clause of the Fifth Amendment. The current ruling finds that the jurisdictional schemes of the Uniform Code of Military Justice (UCMJ) apply differently to Fleet Reservists and retired reservists because of specific distinctions between the two, and a court-martial can be used in cases involving Fleet Reservists.

Background of the Case that Led to the Initial Ruling

In July of 2019, a three-judge panel of the NMCCA ruled that having different court-martial jurisdictions for Fleet Reservists, regular component retirees, and reserve component retirees was a violation of constitutional protections because the three were similar. The decision came after Chief Petty Officer Begani appealed his conviction for attempted sexual assault of a child and attempted sexual abuse of a child.

Begani served in active duty for 24 years before voluntarily transferring to the Fleet Reserve, where he received retainer pay. Just over a month after his transfer, he was apprehended by the Naval Criminal Investigative Service (NCIS) when he tried to meet up with who he believed was a 15-year-old female (it was actually an undercover agent posing as a teen). Begani pleaded guilty to the charges, and his penalties included 18 months of confinement and discharge for bad conduct.

On appeal, Begani challenged the court-martial jurisdiction of Article 2(a)(6), stating that it should not apply to him as a Fleet Reservist because it did not equally apply to retired reservists. The NMCCA agreed.

Affirming Court-Martial Jurisdiction of Retirees

The en banc NMCCA reconsidered United States v. Begani. In January of 2020, it asserted that because there are differences between obligations and requirements of Fleet Reservists and Navy Reservists during and after service, Articles of the UCMJ are differently applied.

First, a Navy Reservist is not continuously on active duty, and therefore not continuously subjected to the UCMJ. To state that the UCMJ should be continuously applied after they have retired would be absurd because this was not the case while they were serving.

Second, transferring to the Fleet Reserves is a continuity of service. Fleet reservists are required to maintain readiness for service and are able to be recalled. A retired reservist is not subject to the same requirements and is less likely to be recalled. If Article 2 applied equally to each (and neither was subject to court-martial jurisdiction), any challenge of return to service would all be handled in civilian courts, which would slow down the process.

According to the NMCCA, because Fleet Reservists and retired reservists are not similarly situated, Articles 2(a)(4) and 2(a)(6) do not violate due process protections.

Implications of the NMCCA’s Reversal

The recent decision coming from the NMCCA is significant in that it recognizes the distinctions between Fleet Reservists and retired reservists. Jurisdiction schemes do not apply equally to both, and a Fleet Reservist facing criminal allegations will be subject to court-martial processes.

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