Written By Spring 2021 M-VETS Student Advisor Brady Clapp.
The Uniform Code of Military Justice (“UCMJ”) is the Congressionally enacted set of federal laws that governs criminal law for the military.[1] Beyond simply listing the various crimes punishable by military law, the UCMJ also sets forth the scope and jurisdiction of military law. Broadly speaking, the UCMJ can apply to individuals connected to the armed forces regardless of their physical location. It depends entirely on the specific individual and their relationship with the military.[2]
First, and most obviously, the UCMJ applies to those who are currently serving on active duty in the armed forces, students enrolled in a federal service academy, and prisoners of war.[3] It applies both reservists and national guardsmen engaged in inactive duty training.[4] After an amendment in the 2010s, the UCMJ also applies with equal force to contractors or other individuals “serving with or accompanying an armed force in the field.”[5]
However, things get more complicated when examining UCMJ applicability as it relates to individuals who are no longer service on active duty. The UCMJ does not apply to “veterans who were discharged before reaching 20 years of service,” those who are not eligible for retirement.[6] The UCMJ also does not apply to retired reservists.[7] However, it explicitly does apply to servicemembers who retired from active-duty service. This is because “[m]arines and sailors who leave active duty after more than 20 years in uniform but less than 30 and who want to collect retiree pay move into the Fleet Reserve or Fleet Marine Corps Reserve.”[8] While these individuals may be summoned back to active duty service involuntarily, there is no evidence of this occurring, and certainly not in meaningful numbers.[9]
This distinction may seem insignificant, but it has enormous consequences for servicemembers who retired from active duty service and may potentially be subject to prosecution under the UCMJ years after they have rejoined civilian life. “A court-martial for a retiree is very rare,” wrote Zachary Spilman, a lawyer who specializes in military justice, “but the threat of a court-martial is very real.”[10] The outstanding potential for court martial exposes retirees to military justice for any criminal violations, in addition to any exposure to state and local law. Additionally, trial under the UCMJ is distinctly different than a civilian trial, even for the same offense. The finder of fact is not made up of a jury of one’s peers, as in a civilian case, but rather by other servicemembers who are equal to or senior in rank than the accused, who collectively make up a “member panel.”[11] While civilian courts require that the verdict be handed down by a unanimous jury, a verdict under the UCMJ only requires three fourths of the panel to vote to convict. Finally, and perhaps most tangibly, a civilian trial cannot lead to the forfeiture of the retiree’s military pension, unlike a trial under the UCMJ.[12]
In a recent brief before the Court of Appeals for the Armed Forces, the appellant briefly summarized the basis for this distinction, as well as why it makes little sense in the modern day.[13] This distinction emerged because the Army and the Navy previously took two significantly different organizational and bureaucratic approaches to how they handled retirees under military law.[14] However, in the modern day each service branch administers retirees under the same general framework. Additionally, “other reforms to the UCMJ (and to Department of Defense regulations promulgated thereunder) have effectively collapsed the relevant distinctions between active-duty retirees (including members of the Fleet Reserve) and reserve retirees with respect to their duties and obligations while retired and their amenability to involuntary recall.”[15]
Despite this disparity, “military courts have consistently found that the Constitution allows Congress to extend UCMJ jurisdiction to retirees.”[16] However, several recent cases have arisen to challenge this longstanding doctrine. In Larrabee v. Braithwaite, a retired Marine staff sergeant was accused of sexual assault and was tried and convicted by a general court martial.[17] In his appeal, Larrabee alleged that trying retired servicemembers under the UCMJ for offenses that they committed while retired is in excess of the UCMJ’s jurisdiction.[18] In 2020 opinion from the DC District Court, the judge wrote that “court-martial jurisdiction must be narrowly limited” and should only be applied where necessary to ensure that the armed forces maintain order, discipline, and effectiveness.[19] Any expansion beyond that is an encroachment into the proper realm of the civil courts.[20]
In another case, United States v. Begani, the defendant was an active-duty retiree from the Navy who was accused of attempted sexual assault of a minor after his retirement.[21] He alleged on appeal that that “being subjected to the UCMJ as a retired regular component member while retired Navy Reserve members are not”[22] was a violation of his Equal Protection rights. Active duty retirees and reserve retirees are “similarly situated” individuals, he argues, since they are “all out of uniform, none are subject to military duties on a day-to-day basis, and they can all be recalled to active duty.”[23] Since these two groups are so similar, he argues that the government does not have an adequate basis for treating those two similar groups so drastically different.[24] While the Navy and Marine Corps Court of Criminal Appeals originally appeared to agree with Begani, the Court later withdrew their opinion[25] and reversed several months later, holding that Begani was properly court martialed.[26]
Both the Begani and Larrabee cases are headed for further appeals,[27] and this issue is one that has generated significant debate in the military legal community. Any change from the current status quo, however, would have significant and wide-reaching repercussions for some of the approximately nineteen million veterans in the United States today.[28] It is, as Zachary Spillman said, a “a huge deal.”[29]
[1] https://www.military.com/join-armed-forces/the-uniform-code-of-military-justice-ucmj.html
[2] https://fedsoc.org/commentary/fedsoc-blog/the-prosecution-of-military-retirees-under-the-uniform-code-of-military-justice
[3] 10 U.S. Code § 802
[4] https://fedsoc.org/commentary/fedsoc-blog/the-prosecution-of-military-retirees-under-the-uniform-code-of-military-justice
[5] https://www.huffpost.com/entry/ahem-about-that-great-cha_b_778024
[6] https://www.militarytimes.com/news/your-military/2021/01/14/can-the-pentagon-prosecute-military-retirees-under-the-ucmj-maybe-it-depends/
[7] https://www.military.com/daily-news/2020/07/07/militarys-top-appeals-court-consider-whether-retirees-can-be-court-martialed.html
[8] https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html
[9] United States v. Begani, No. 20-0217 (appellant’s brief) (CAAF)
[10] https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html
[11] 10 U.S.C. § 825(d).
[12] United States v. Begani, No. 20-0217 (appellant’s brief) (CAAF).
[13] Id.
[14] Id.
[15] Id.
[16] https://fedsoc.org/commentary/fedsoc-blog/the-prosecution-of-military-retirees-under-the-uniform-code-of-military-justice
[17] Larrabee v. Braithwaite, No. 19-654-RJL (D.D.C.)
[18] Id.
[19] Id.
[20] Id.
[21] https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html
[22] Id.
[23] https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html
[24] United States v. Begani, No. 20-0217 (appellant’s brief) (CAAF).
[25] https://www.military.com/daily-news/2019/10/08/court-withdraws-opinion-saying-military-retirees-shouldnt-be-court-martialed.html
[26] https://www.military.com/daily-news/2020/01/29/military-retirees-can-be-court-martialed-after-all-appeals-court-decides.html
[27] https://www.military.com/daily-news/2020/09/02/court-martialing-military-retirees-should-be-stopped-until-congress-acts-lawyers-say.html
[28] https://www.pewresearch.org/fact-tank/2021/04/05/the-changing-face-of-americas-veteran-population/
[29] https://www.military.com/daily-news/2019/08/09/new-bombshell-legal-opinion-says-military-retirees-cant-be-court-martialed.html