Author: M-VETS

Written By Summer 2021 M-VETS Student Advisor Megan Huppee.

Introduction – What is Supported Decision-Making?

Supported Decision-Making (“SDM”) is an informal or formal way individuals can have trustworthy people help them make decisions. SDM has evolved as one alternative to guardianship.[1] Guardianship is the legal process in which a court determines when a person can no longer make his/her own decisions about his/her person or property.[2] Under a guardianship, certain rights are taken away and exercised by another person.[3] For example, a guardian may decide where an individual can live, what medical treatment he/she receives, with whom that individual associates with, and more.[4] In contrast, SDM allows individuals to make their own choices with the level of support they need and allows individuals to choose a person or people they know to be a part of their support team.

SDM Agreements

SDM agreements are a way to formally document SDM arrangements in writing.[5] An SDM agreement identifies the person or persons who will support an individual with his/her decisions.[6] Agreements may include the roles of the supporters and details about the scope of their assistance, authority, and duties. SDM agreements also outline which information a supporter will have access to.[7] However, not all SDM agreements are the same, and SDM may be used informally or formally.[8] While SDM agreements do not require a written agreement per se, individuals can formalize SDM through an SDM agreement.

While there are different ways to recognize SDM agreements, SDM always (1) recognizes that individuals have the right to make their own decisions; (2) acknowledges individuals enter into SDM agreements without relinquishing the right to make decisions; and (3) accepts that some individuals may need assistance with understanding information to make certain decisions.[9]

States Recognizing SDM Agreements

Only a few states recognize SDM agreements in their state laws. Other states continue to consider codifying SDM agreements or incorporating SDM into other laws without codifying an SDM agreement form.[10] For example, some states specifically require courts to consider and rule out SDM agreements before appointing a guardian.[11] In 2015, Texas became the first state to recognize SDM agreements.[12] Texas defines SDM as “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions.”[13]

A supporter may never make decisions for the principal decision-maker. Further, some states specify who supporters may not be, while other states do not codify such limitations. Some states prohibit supporters from being a person that provides paid support services unless they are an immediate family member to the principal.[14] Supporters in Alaska may not be an employer or employee of the principal, or someone whom the principal has a protective order or restraining order against.[15] The District of Columbia specifies in more detail who may not be a supporter, but is generally similar to other restrictions.[16] While restrictions and safeguards on who may be a supporter are meant to protect an individual, SDM legislation may also prevent an individual from choosing a supporter he/she prefers or trusts.

State SDM legislation place other safeguards that allow the agreement to be terminated when necessary. For example, in Wisconsin, the agreement is terminated if the supporter is responsible for neglect or abuse or if the supporter has a restraining order against them.[17] Indiana, North Dakota, Texas, Louisiana, and Wisconsin have similar termination triggers.[18]

Most states provide a form for an SDM agreement.[19] In contrast, Indiana does not have a template form but requires certain information to be included in the agreement to be presumed valid.[20] Some states require the agreement to be substantially similar to the codified or administrative form while other states allow more flexibility.[21]

Included in some state SDM forms are additional safeguards against abuse. Some states do not require third parties to honor the agreements if they suspect the supporter is abusing or neglecting the decision-maker. Further, in Texas the SDM agreement form provides a warning statement for third-parties to contact protective service agencies if they suspect a principal is being exploited or abused by their supporter.[22] Similarly, on D.C.’s form, the supporter must affirm he/she will not abuse, neglect, or exploit the principal.[23] Both Texas and D.C. provide contact information for protective services.[24] One caveat of the current safeguards for SDM is there is no ongoing oversight. Unlike guardianship proceedings, SDM agreements are designed to be extra-judicial. Further, third parties accepting the SDM agreement have no significant way of learning about a supporter’s background or treatment.

Recent Virginia SDM Agreement Legislation

In April 2020, Virginia enacted a bill that requires the Department of Health and Developmental Services to assemble stakeholders and study SDM agreements in Virginia. The Department’s research would include recommendations for the use of SDM agreements as a less restrictive alternative to guardianship.[25]

In March 2021, Virginia enacted a bill that directed the Virginia Department of Behavioral Health and Developmental Services to develop and implement a program to educate individuals with intellectual and developmental disabilities and others regarding the availability of SDM agreements and the rights and responsibilities of principals and supporters.[26] Virginia defines an SDM agreement as an agreement that includes the supporter: (1) helping the principal monitor and manage medical, financial, and other affairs; (2) assisting the principal in accessing, obtaining, and understanding information relevant to decision-making; (3) assisting the principal in understanding information, options, responsibilities, and consequences of decisions; and (4) ascertaining the decisions of the principal regarding affairs, assisting in communicating such decisions to other persons, and advocating to ensure the decisions of the principal are implemented.[27]

The Virginia Department of Behavioral Health and Developmental Services’ new program for SDM will include specific training for certain individuals involved in SDM agreements and the development of a model SDM agreement. The bill also requires the Virginia Department of Behavioral Health and Developmental Services to implement safeguards and protocols for addressing abuse and exploitation.[28]

Future Trends in SDM Legislation

While SDM is recognized and codified in many states for individuals with intellectual and other developmental disabilities, it is not limited to any specific disability or diagnosis. SDM also works for older adults with dementia and age-related cognitive decline. Older Veterans may fall into the latter category and may potentially benefit from SDM. Individuals should continue to advocate for states to adopt SDM agreement legislation. However, SDM agreement legislation is not required for SDM to be formally recognized in a state, as evidenced by state courts recognizing SDM. While SDM agreement legislation is not necessary to recognize SDM, legislation is important for advancing recognition of individuals’ power to make decisions. Legislation incorporates certain safeguards to protect principals from being abused or unduly influenced by supporters.

[1] Other alternatives to guardianship include advance directives such as a health care power of attorney, living will or durable power of attorney. Supported Decision-Making, The Arc of Virginia, https://www.thearcofva.org/supported-decision-making.

[2] Id.

[3] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 108-09 (2015).

[4] National Guardianship Association, Position Statement on Guardianship, Surrogate Decision-Making, and Supported Decision-Making (2016), https://www.guardianship.org/wp-content/uploads/2018/09/SupportedDecision _Making_PositionStatement.pdf.

[5] See Zachary Allen & Dari Pogach, More States Pass Supported Decision-Making Agreement Laws, Bifocal, Vol. 41, Issue 1, (Oct. 1, 2019), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/where-states-stand-on-supported-decision-making/#:~:text=Supported%20decision%2Dmaking%20is%20often,members%2C%20professonals%2C%20and%20others.

[6] Id.

[7] Id.

[8] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 109 (2015).

[9] Id. at 109-10.

[10] Some states formally recognize SDM in organ transplantation. See, e.g., S. 792, 435th Gen. Assem., Reg. Sess. (Md. 2015); H.B. 21, 149th Gen. Assem., 1st Year (Del. 2017); H.B. 2343, 87th Leg., Reg. Sess. (Kan. 2017); H.B. 332, 132nd Gen. Assem., Reg. Sess. (Ohio 2017); H.B. 143, 2019 Reg. Leg. Sess. (La. 2019); S.B. 257, 84th Leg., 2nd Reg. Sess. (W.Va. 2020); H.B. 1273, Va. 2020 Sess. (Va. 2020) (Prohibiting discrimination against people based on certain disabilities in the medical context of organ transplantation and identifies SDM services as auxiliary aids and services).

[11] See S.F. 3357, 91st Leg., Reg. Sess. (Minn. 2020); S.B. 806, 99th Gen. Assem., 2nd Reg. Sess. (Mo. 2018); see e.g., Matter of Guardianship of Capurso., 98 N.Y.S.3d 381, 384 (N.Y. Sur. Ct., Westchester Cty. 2019) (granting petition to terminate guardianship in favor of SDM); Matter of Eli T., 89 N.Y.S.3d 844, 849 (N.Y. Sur. Ct., Kings Cty. 2018) (denying petition for appointment of co-guardians in part because SDM was an available option).

[12] Tex. Est. Code Ann. § 1357.002 (West 2017).

[13] Id.

[14] See Alaska Stat. § 13.56.020 (2018); Del. Code Ann. tit. 16 § 9406.

[15] Alaska Stat. § 13.56.020 (2018). See also Del. Code Ann. tit. 16 § 9406; 33 R.I. Gen. Laws § 33-15.3-6(b) (2019).

[16] D.C. Code § 7–2132. D.C. was one of the first to specifically set forth certain crimes that make a person ineligible to be a supporter.

[17] Wis. Stat. Ann. § 52.14(2).

[18] See Ind. Code Ann. § 29-3-14-9 (West 2019); N.D. Cent. Code § 30.2-36.01 (2019); Tex. Est. Code Ann. § 1357.053 (West 2017); Wis. Stat. Ann. § 52.01(6) (2019).

[19] See e.g., Tex. Est. Code Ann. § 1357.056.

[20] Ind. Code Ann. §§ 29-3-14-7(a), 29-3-14-10.

[21] See e.g., Alaska Stat. § 13.56.180 (2018) (stating form must be “substantially similar”); Nev. Rev. Stat. § 162C.200 (listing required elements for a legal agreement rather than a form).

[22] Tex. Est. Code Ann. § 1357.056.

[23] D.C. Code § 7–2132.

[24] D.C. Code § 7–2132; Tex. Est. Code Ann. § 1357.056.

[25] S.B. 585, Va. 2020 Sess. (Va. 2020). Following the first Virginia court order to recognize SDM as an alternative to permanent guardianship, Virginia first ordered a study of SDM within the context of developmental disabilities in 2014. H.R.J. Res. 190, 2014 Leg., Reg. Sess. (Va. 2014) (Requesting the Secretary of Health and Human Resources to examine the use of SDM).

[26] H.B. 2230, Va. 2020 Sess. (Va. 2021).

[27] Id.

[28] Id.

 

Written By Summer 2021 M-VETS Student Advisor David Zhang.

This blog post is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any transaction.

Military members and their families have life events that may affect their tax situation. This blog post discusses some of the tax law issues active and reserve military personnel may encounter.  Specifically, the post aims to explain federal tax benefits related to combat pay and sale of home, under IRC §§112 and 121, respectively.

• What Is Income:

Since these tax breaks either allow taxpayers to exclude or deduct certain items from gross income, the blog post first discusses gross income. The Sixteenth Amendment to the United States Constitution gives Congress the power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states and without regard to any census or enumeration” (emphasis added). Similarly, Section 61 of the Internal Revenue Code (IRC) provides:

Except as otherwise provided in this subtitle, gross income means all income from whatever source derived… (emphasis added).

This Section then provides a non-exclusive list of gross income items. Apparently, in defining gross income as “all income from whatever source derived,” Congress states its intention to exercise the full measure of the power granted to it by the Sixteenth Amendment. See Glenshaw Glass Co., 348 U.S. 426 (1955).

• What is Not Income:

After briefly discussing what is income, the blog post moves on to a much more interesting topic—what is not income. Despite that Congress has the power to tax “incomes from whatever source derived,” in some situations, Congress excludes what may otherwise be accessions to wealth that are clearly within the scope of IRC § 61. The Internal Revenue Code has a series of sections providing such exclusions. Here, the post provides two examples of exclusions that may be available to active and reserve military members.      

1. Combat Zone Tax Exclusions:

First, under IRC § 112, a member of the United States Armed Forces who served in a combat zone can exclude income from taxation. IRC § 112(a) provides that gross income does not include “compensation received for active service” as a member below the grade of commissioned officer in the Armed Forces of the United States for any month during any part of which the member “served in a combat zone.” IRC § 112(b) provides that “gross income does not include so much of the compensation as does not exceed the maximum enlisted amount received for active service as commissioned officer in the Armed Forces of the United States” for any part of which the member “served in a combat zone.” For the purposes of this Section, the term “commissioned officer” does not include a commissioned warrant officer. Id.

In addition, IRC § 112(c)(2) provides that the term “combat zone” means any area which the President of the United States by Executive order designates for purposes of this section as an area in which Armed Forces of the United States are or have engaged in combat. Executive Order 12744 designates the following locations (including airspace above) as combat zone:

Arabian Sea (North of 10 degrees North Latitude and West of 68 degrees East Longitude); Bahrain, Gulf of Aden; Gulf of Oman; Persian Gulf; Iraq; Kuwait; Qatar; Oman; Red Sea; Saudi Arabia; and United Arab Emirate.

Executive Order 13119 designates the following locations (including airspace above) as combat zone:

Albania; The Adriatic Sea; The Federal Republic of Yugoslavia (Serbia/Montenegro); and The Ionian Sea north of the 39^th parallel.

Further, Executive Order 13239 designates Afghanistan as combat zone. Under the 2017 Tax Cuts and Jobs Act (TCJA), military members who performed services in the Sinai Peninsula can also claim combat zone tax benefits. In addition to these locations, the Department of Defense (DoD) also certified several other countries for combat zone tax benefits due to their direct support of military operations in combat zones.

In short, under IRC § 112, enlisted members and commissioned warrant officers can exclude all military pay for each month present in a combat zone while commissioned officers are limited to the highest rate of enlisted pay for each month present in any of the combat zones mentioned above.

• Capital Gain Exclusion from Sale of Principal Residence:

Second, IRC § 121 excludes the recognized gain on the sale of a taxpayer’s principal residence in an amount not to exceed $250,000 or $500,000 for joint returns. This exclusion—one of the most widely used tax breaks in the Code—is even more favorable to military members and spouses because the Section gives them the ability to take advantage of the exclusion for longer periods of time. In addition, the exclusion is especially important to military families since they often sell their houses in permanent change of station (PCS) moves.

This exclusion is available to a taxpayer once every two years, but the taxpayer must have used the property as a principal residence for a total of two years during the prior five-year period ending on the date of the disposition. IRC § 121(a). For a military member, the running of the five-year period is suspended during any period that the military member is serving on qualified official extended duty. IRC § 121(d)(9)(A). However, the five-year period cannot be extended more than 10 years. IRC § 121(d)(9)(B). For the purposes of this Section, an individual is on qualified official extended duty if for more than 90 days or for an indefinite period, the individual is either (1) at a duty station that is at least 50 miles from his or her main home, (2) or residing under government orders in government housing. IRC § 121(d)(9)(C).

To summarize, if a taxpayer makes a profit in the sale of his or her home, the taxpayer can generally avoid paying capital gains taxes on up to $250,000 of that profit, or $500,000 if married filing jointly, as long as the taxpayer has lived in that home for at least two of the last five years. IRC § 121. If the taxpayer is a military member on “qualified extended duty,” the five-year-period can be suspended (but a suspension period cannot be more than 10 years). IRC § 121(d).

 

 

 

Written By Spring 2021 M-VETS Student Advisor Anne Cotter.

On April 7, 2021, the Department of Defense (“DoD”) announced that it had formed the Discharge Appeal Review Board (“DARB”).[1] The DoD established the DARB pursuant to 10 U.S.C. § 1553a to conduct a final review of a veteran’s request for a discharge upgrade. The DARB gives veterans, who were separated on or after December 20, 2019 and have exhausted all available appeals, a final opportunity to upgrade their discharges.[2]

Prior to applying to the DARB, eligible veterans must go through the standard discharge upgrade process. First, a veteran must apply to the Discharge Review Boards (“DRBs”) of his or her respective branch of service within fifteen years of discharge.[3] The DRBs have jurisdiction to review and modify discharge characterizations and narrative reasons if there is evidence of impropriety or inequity.[4] After filing a motion or request for review, a veteran has two options on how to proceed.[5] A veteran may request a record review, or the veteran may request a hearing where he or she may personally appear with or without counsel, or counsel may appear in the veteran’s place.[6] If a veteran selects a record review and the DRB denies the discharge upgrade, the veteran may request a personal appearance; however, the veteran may not request a record review after personally appearing.[7]

If a veteran is unsuccessful before the DRB, the veteran may appeal the decision to the Boards for Corrections of Military or Naval Records (“BCM/NRs”).[8] BCM/NRs have the authority to upgrade discharge characterizations and change any reason for a discharge on the basis of error or injustice.[9] A veteran appealing from a DRB must apply to the BCM/NR within three years of the DRB’s decision.[10] Additionally, a veteran who is outside the fifteen-year window to apply to the DRB may apply directly to the BCM/NR.[11] A veteran must apply to the BCM/NR within three years of discovering an error or injustice that caused his or her discharge.[12] The three-year window begins when the veteran has actual knowledge of the error or injustice.[13] The BCM/NR may waive the three-year time limit in the interest of justice.[14] Unlike the DRBs, the BCM/NRs rarely grant personal appearances. If the BCM/NR denies a veteran’s discharge upgrade, the veteran may submit a request for reconsideration. The Army BCMR has a one year time limit for reconsideration,[15] but other branches do not specify if there is a time limit.[16] Generally, if the veteran submits new evidence that was not previously reviewed by the BCM/NR, the BCM/NR will reconsider the decision.[17] If the BCM/NR declines to reconsider or denies the second claim, the veteran may appeal the decision in federal court under the Administrative Procedure Act within six years of the BCM/NR’s decision.[18]

Now, the DARB allows a veteran another administrative opportunity for review before filing in federal court. Additionally, a deceased or incapacitated veteran’s next of kin may appeal on behalf of the veteran before the DARB.[19] The DARB only reviews documents and there are no provisions for personal appearances.[20] The DARB also only reviews records previously reviewed by the BCM/NR, so a veteran looking to present new evidence must first request that the BCM/NR reconsider the veteran’s application and receive a decision from the BCM/NR before going to the DARB.[21] Lastly, the DARB may consider any request for review filed more than 365 days after the BCM/NR decision untimely and deny it on that basis.[22]

The Air Force is tasked with executing and operating the DARB process for all military branches.[23] The DARB has not issued any public decisions yet, but it presents a promising final opportunity for veterans unfairly discharged. This is especially true for veterans suffering from Post-Traumatic Stress Order (“PTSD”) or other conditions that may warrant special consideration before the DRBs and BCM/NRs. Specifically, the Hagel and Kurta Memos instruct DRBs and BCM/NRs to give “liberal consideration” to “veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [Post-Traumatic Stress Disorder]; TBI [Traumatic Brain Injury]; sexual assault; or sexual harassment.”[24] Additionally, the Wilkie Memo emphasizes fundamental fairness and instructs the DRBs and BCM/NRs to consider numerous factors, including PTSD and other mental health conditions.[25] Thus, the additional guidance to DRBs and BCM/NRs provided in these memos may warrant granting a veteran’s request for a discharge upgrade. Veterans seeking relief now have another opportunity with the DARB for review of mitigating factors related to their discharge. While the DARB will not review any new evidence, the complexity of issues involved in some veterans’ discharge upgrade requests warrants additional consideration if denied by the BCM/NRs. Time will tell how the DARB benefits veterans, but it provides additional hope for veterans unfairly discharged and seeking relief.

[1] United States Department of Defense, DOD Announces New Discharge Appeal Review Board Option, https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/.

[2] Id.

[3] 10 U.S.C § 1553(a).

[4] Id.

[5] 32 C.F.R. § 865.109(b).

[6] 32 C.F.R. § 865.109(k).

[7] Id.

[8] 10 U.S.C. § 1552.

[9] Id.

[10] Id.

[11] Id. at §§ 1553(a) & 1552.

[12] Id. at § 1552(b).

[13] See Ridgely v. Marsh, 866 F.2d 1526, 1529 (D.C. Cir. 1989).

[14] 10 U.S.C. § 1552(b).

[15] Army Review Boards Agency, Applicant’s Guide to Applying to the Army Board for Correction of 

Military Records 13 (2008), available at https://arba.army.pentagon.mil/abcmr-overview.cfm.

[16] See 32 C.F.R. § 723.9; Lipsman v. Secretary of the Army, 335 F, Supp.2d 48 (D.D.C. 2004); Board for Correction of Naval Records, Key Information for Applicants, https://www.secnav.navy.mil.

[17] Id.

[18] 28 U.S.C. § 2401.

[19] 10 U.S.C. § 1553a.

[20] Id.

[21] Id.

[22] Air Force Review Boards Agency, Department of Defense (DoD) Discharge Appeal Review Board (DARB), https://afrba-portal.cce.af.mil/#board-info/darb/navbar.

[23] United States Department of Defense, supra note 1.

[24] Memorandum from Chuck Hagel, Sec’t of Def. to Secretaries of the Military Dep’ts, (Sept. 3, 2014), https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.prf; A.M. Kurta, Acting under Sec’y of Def. for Personnel and Readiness, to Secretaries of the Military Dep’ts, (Aug. 25, 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf.

[25] Robert Wilkie, Memorandum for Secretaries of the Military Departments, (July 25, 2018), https://www.statesidelegal.org/sites/default/files/2018-07/Yale%20Page/Wilkie%20Memo.pdf.

 

Written By Spring 2021 M-VETS Student Advisor Raphael Johnson.

The Department of Defense reaffirmed its commitment to protecting and supporting victims of domestic violence by extending Special Victim Counsel services to military-connected victims of domestic violence. The Fiscal Year 2020 National Defense Authorization Act directed the Department of Defense to extend Special Victim Counsel services to personnel previously not authorized assistance from military attorneys, uniformed and civilian.[i] Ordinarily, only servicemembers, retirees, and their family members are authorized to receive legal assistance from judge advocates and civilian attorneys. While victims of crime have always received support from judge advocates in their role as prosecutors and legal assistance attorneys, victims were not the judge advocate’s “client.”

The establishment of the Special Victim Counsel program several years ago changed the way legal assistance is provided to victims of sexual assault. Special Victims Counsel are uniformed military attorneys (judge advocates) and civilian attorneys that have received specialized training on advising victims of sexual assault in order to better assist victims in navigating the military justice process.[ii] The military culture presents barriers that lead to underreporting of crimes that undermine the tenets of military service, degrade good order and discipline, and negatively impact victims’ ability to seek justice. The military’s structure, jargon, and traditions present communication challenges for unfamiliar personnel in their attempts to conduct simple business transactions on military installations. Reporting crimes on military installations is a difficult task.

Victims of sexual assault were not provided the required assistance, and the military responded by ensuring each victim was entitled to a Special Victim Counsel. Additionally, Congress directed the military to provide Special Victim Counsel support to requesting victims within 72 hours of the request.[iii] Each military branch has implemented the Congressional guidance uniquely, but the common result is that victims of sexual assault, and now, domestic violence, will have the option to be represented by an experienced attorney that will explain the military justice process and advocate for the victims’ rights. Special Victim Counsel services extend to child victims, non-Department of Defense affiliated personnel, and non-U.S. citizens.

The military has increased its accountability for the crimes of its servicemembers which has led to an overall increase of unrestricted reports of sexual assault. This does not indicate an increase of sexual assaults throughout the military. The “unrestricted” report refers to the military’s ability to prosecute perpetrators for their crimes. A victim’s ability to leverage the expertise of a Special Victim Counsel early in the potential military justice process is critical in deciding whether to pursue an unrestricted report.

The effectiveness of Special Victim Counsel services has achieved “proof of concept” and will be utilized to ensure victims of domestic violence have a voice. Victims will receive free legal assistance related to the domestic violence and related incidents, despite their Department of Defense affiliation, regardless of the disposition of their legal matter. While the overall goal is to eradicate sexual assault and domestic violence in our society and in the military, until that goal is reached, victims must be empowered throughout the process. Please contact your local installation legal office if you need a Special Victims Counsel.

[i] Fiscal Year 2020 National Defense Authorization Act.

[ii] Id.

[iii] Id.

Written By Spring 2021 M-VETS Student Advisor Alana Nielson.

“I wanted to believe in the Navy’s ability to properly handle cases of sexual assault. However, after having been through the process, it became clear that while step one [reporting the assault] is for the victim, all else is done explicitly for the image of the Navy, and the process caters to the perpetrators.” –Navy Veteran, victim of sexual assault

When most parents are informed that their children are joining the military, their first—and often biggest—fear is that their child will be sent off to war and killed. Most parents don’t think that their children will face the same fears of personal safety from within their own units. Most parents can’t imagine that their children could face more harrowing conditions on their own bases, within the United States and abroad, than they will in combat. But this is the new normal for many servicemembers, veterans, and their families.

This new normal includes 20,500 servicemembers who were sexually assaulted or raped in 2018, a 7% increase from 2016.[1] Sexual harassment complaints have also steadily increased—in 2019, the DoD received 1,021 formal sexual harassment complaints, a 55% increase since 2015.[2] In addition to the 1,021 formal complaints, the DoD received 591 informal harassment complaints and 28 anonymous complaints.[3]

These numbers show that efforts made by the Department of Defense to mitigate instances of sexual assault and sexual harassment are failing to be effective. A 2019 “Call to Action” by the Secretary of Defense, aimed at training leaders to prevent and adequately respond to sexual assault and harassment, has not been proven to be effective. Previous efforts to respond to the crisis have been equally ineffective, as the number of sexual assaults continues to grow, year after year, for the past decade.[4]

While the military touts that reporting rates have increased[5], the Sexual Assault Prevention and Response (SAPR) team, who provided these data, provided no indication that the increase in reporting rates had any effect on the mitigation of sexual assault or harassment incidents during the same time period.

 “The entire process was a year of re-victimization. I was treated as if I were the one in the wrong during questioning. I was pressured against hiring a lawyer. I was told ‘You don’t want what happened to you to be in the media, do you?’ The prosecution, the Navy JAGs, were there to represent the Navy—not pursue justice for what was done to me. My character was under assault the entire time. It battered me down and created its own trauma.” –Navy Veteran, victim of sexual assault

Case disposition

Yet another troubling aspect of the Department of Defense’s handling of sexual assault and sexual harassment complaints is the case disposition. Of the 1,021 formal sexual harassment complaints lodged in 2019, 30% of the cases remained either pending or otherwise unresolved as of the publication of annual reporting.[6] Of the over 7,000 sexual assault reports received in 2019, 5,699 of which were unrestricted, 1,828 cases are still pending investigation.[7]

What is even more troubling about the SAPR-provided data is the outcome of Department of Defense Officer of the Inspector General (DOD OIG) investigations into reports of reprisal arising from sexual harassment and assault claims. Of the 85 reported claims of reprisal in 2018, 72% were dismissed.[8] Only two claims were substantiated in the entire Fiscal Year 2019.[9]

In just the past few days, the Department of Defense released sexual assault reporting data for 2020, and the results are even more devastating. Only 255 of 5,640 unrestricted reports resulted in offenders being sent to court martial. Of those, only 50 were convicted of a sex offense requiring registration as a sex offender.[10]

Effects

The effect of this pervasive culture of sexual impropriety in the military has led to over one million outpatient visits at Veterans Affairs (VA) medical facilities around the country for military sexual trauma (MST)-related care in 2015 alone.[11] These reported visits cannot begin to scratch the surface of the physical and psychological effects suffered by victims of military sexual trauma. Thousands of veterans have MST-related claims pending with the VA, representing potentially millions of dollars in back benefits to be paid to victims. Victims of MST are more likely to suffer from suicidal thoughts or actions, depression, sexually transmitted infections, post-traumatic stress disorder (PTSD), substance abuse, and homelessness than their counterparts who did not experience military sexual trauma.[12] Additionally, victims of MST are more likely than their counterparts to remain in abusive relationships, feel isolated from others, and experience difficulty maintaining professional relationships with employers and other authority figures.[13]

Help and Support

Despite the insufficient and often ineffectual handling of sexual assault and harassment by the Department of Defense, organizations outside the military are mobilized to support service members and veterans suffering from the effects of military sexual trauma. Organizations like Protect Our Defenders, a national organization dedicated to supporting victims of MST, and the Pink Berets, a Women Veterans Alliance organization devoted to addressing MST and PTSD, are available to give the necessary support service members and veterans seek, need, and deserve.

If you have been a victim of military sexual trauma, you can apply for legal services at https://protectourdefenders.neworg.com; contact Stephanie Gattas at [email protected]; or call the Rape, Abuse, and Incest National Network (RAINN) at 1-800-656-4673. If you need immediate assistance, you can call the Veterans Crisis Line at 1-800-273-8255 (press 1 for veterans) or text at 838255.

[Please note: during the drafting of this blog post, the United States Department of Defense Sexual Assault Prevention and Response department issued its FY2020 reports. Not all figures in this post reflect the most recently available data. Please visit https://www.sapr.mil/?q=reports for information on FY19 and beyond sexual assault and harassment data and information.]

[1] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 3.

[2] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix F: Sexual Harassment Assessment, Figure 1.

[3] Id. at 4.

[4] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 1.

[5] Reports of sexual assault increased from 3,327 in 2010 to 7,825 in 2019, a 135% increase. Id.

[6] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix F: Sexual Harassment Assessment, Figure 2.

[7] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 6.

[8] Id. at Table 19.

[9] Id.

[10] Department of Defense Fiscal Year 2020 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 12.

[11] Department of Veterans Affairs, Patient Care Services, Mental Health Services, MST Support Team, FY 2015 Summary of MST-Related Outpatient Care (2016).

[12] Women Veterans and Homelessness: Homelessness Evidence & Research Roundtable Series, VA National Center On Homelessness Among Veterans (July 2016), https://www.va.gov/HOMELESS/nchav/resources/docs/veteran-populations/women/Women-Veterans-and-Homelessness-July-2016.pdf.

[13] Military Sexual Trauma, VA Mental Health (Nov. 1, 2020), https://www.mentalhealth.va.gov/docs/mst_general_factsheet.pdf.

Written By Spring 2021 M-VETS Student Advisor.

During his confirmation hearing Secretary Lloyd J. Austin III promised to “fight hard to stamp out sexual assault, to rid our ranks of racists and extremists, and to create a climate where everyone fit and willing has the opportunity to serve this country with dignity.”[1] Making good on that promise, one of the first orders given after Sec. Austin’s confirmation was a 60-day stand down for military leaders to conduct training and discussions that focused on rooting out extremism from the ranks of the military.[2] Secretary Austin did not stop with the 60-day stand down order, in April he directed “DOD officials to review and update the definition of extremism contained in DOO Instruction 1325.06.”[3] However, the Secretary’s reach can only go so far and where his reach stops militia groups start – with veterans.

Militia groups have come under the scrutiny of national media and government attention in the aftermath of the attempted insurrection to stop the certification of the electoral college on January 6, 2021.[4] One of the most prolific of these militias is the “Oath Keepers.”[5] While many militia groups are loose collections of individuals with little structure, the Oath Keepers have over 35,000 members, bylaws, and dues.[6] What’s more, the Oath Keepers have made “recruiting veterans and law enforcement officers central to its mission.”[7]

In the aftermath of the siege on the Capitol over 400 individuals have been charged with crimes relating to their actions on that day.[8] At least 43 of those individuals had military experience and over one-third of those with military experience were associated with a militia.[9] This is not significantly higher representation than veterans in the general population, but it is still a striking facet of the events.[10] One outlier in the data from that day is that Marines are overrepresented, 48% of the veterans arrested were Marines as opposed to just 13% of all veterans, and the Navy was underrepresented, with about 7% of arrestees being Navy veterans against 26% of the veteran population having served in the Navy.[11]

There are many reasons militias may want veterans to join their ranks. Veterans have operational training, such as weapons expertise.[12] Veterans bring with them a culture that can impact organizations.[13] They can also be conduits for further recruitment of other veterans.[14] But, perhaps most importantly, veterans can offer a fledging organization political legitimacy.[15] There is mounting evidence that many of those involved in the siege were emboldened by the presence of veterans in their ranks because of “the ‘force-multiplying’ effects of individuals with military experience both planning for and participating.”[16]

With the threat of militias targeting veterans identified, what is there to do about it? Many papers and academics call for better, more targeted training.[17] This will undoubtedly effect the numbers on the edges, however, it fails to meet the threat and danger that exists with the growing notoriety of these militia groups. In many efforts to reign in this type of activity the roadblock is the First Amendment protected freedom of association. However, there may be a creative way to protect individuals rights and allow for restrictions on veterans joining these types of groups.

Section 1045 of the National Defense Authorization Act for Fiscal Year 2018 provides an outline of restrictions on associations for those who exit military service.[18] This update changed the lobbying restrictions for retiring military and civilian Department of Defense members. The restrictions on lobbying include restrictions on behind-the-scenes research, advising of others, or strategizing with others, intended at the time engaged in to support any direct lobbying contact, even if by another.[19] The government can impose these restrictions on retiring individuals for their post-service lives. Surely, there is a way to work this framework in regards to militias.

[1] Eleanor Watson, Defense Secretary nominee vows to root out enemies who “lie within our own ranks”, CBS News (Jan. 19, 2021), https://www.cbsnews.com/news/lloyd-austin-defense-secretary-confirmation-watch-live-stream-today-01-19-2021/.

[2] Jim Garamone, Austin Orders Military Stand Down to Address Challenge of Extremism in the Ranks, DOD News (Feb. 3, 2021), https://www.defense.gov/Explore/News/Article/Article/2492530/austin-orders-military-stand-down-to-address-challenge-of-extremism-in-the-ranks/.

[3] Jim Garamone, Austin Orders Immediate Changes to Combat Extremism in Military, DOD News (Apr. 9, 2021), https://www.defense.gov/Explore/News/Article/Article/2567179/austin-orders-immediate-changes-to-combat-extremism-in-military/.

[4] Alanna Durkin Richer, Oath Keeper, an Army veteran, charged in Capitol riot renounces militia group, The New York Times (February 28, 2021), https://www.militarytimes.com/news/your-military/2021/02/28/oath-keeper-an-army-veteran-charged-in-capitol-riot-renounces-militia-group/.

[5] Charlie Savage, ‘This Kettle Is Set to Boil’: New Evidence Points to Riot Conspiracy, The New York Times (Feb. 11, 2021), https://www.nytimes.com/2021/01/19/us/politics/oath-keepers-capitol-riot.html

[6] Id.

[7] Jennifer Steinhauer, Veterans Fortify the Ranks of Militias Aligned With Trump’s Views, The New York Times, (Jan. 20, 2021), https://www.nytimes.com/2020/09/11/us/politics/veterans-trump-protests-militias.html.

[8] Program on Extremism at The George Washington University, Capitol Hill Siege, https://extremism.gwu.edu/Capitol-Hill-Cases.

[9] Daniel Milton and Andrew Mines, “This is War”, Program on Extremism, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/This_is_War.pdf.

[10] Id.

[11] Id. at 20.

[12] Id. at 32.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 40.

[18] 115 P.L. 91, 131 Stat. 1283, 2017 Enacted H.R. 2810, 115 Enacted H.R. 2810.

[19] Wiley January 2018 Newsletter, Strict New DOD Revolving Door Prohibitions Effective Now, https://www.wiley.law/newsletter-January2018-ELN-StrictNewDODRevolvingDoorProhibitionsEffectiveNow.

Written By Spring 2021 M-VETS Student Advisor Alexandra Morgan.

For almost 10 years, the suicide rate among veterans has been 1.5 times higher than the rate for non-veteran adults.[1] Suicide is not an easy topic for anyone. Often times, the brave men and women who selflessly join the U.S. Armed Forces are portrayed and expected to be stronger than anything, even mental health. But as the statistics show, veterans may in fact be one of the most vulnerable populations. Awareness is the first step for any advocacy. It’s vital that U.S. citizens change the narrative surrounding the military, mental health, and veteran suicide. The tireless effort of advocacy groups, military families, and policy leaders has allowed the movement of veteran suicide awareness to drastically change the country from where it was a century ago. Until veteran suicide becomes a thing of the past, it is the responsibility of every U.S. citizen to spread awareness and continue the forward momentum.

History of Veteran Suicide Awareness & Prevention

Suicide among veterans is, unfortunately, not a new phenomenon. One study found reports from the Army Surgeon General as far back as 1843 that listed soldier and veteran deaths as “self-inflicted.”[2] However, awareness of the issue on a national scale has garnered attention only in recent decades. In fact, the United States did not see the opening of its first suicide prevention center until 1958 when a center was established in Los Angeles, California with funding from the U.S. Public Health Service.[3] Eight years later, the National Institute of Mental Health (NIMH) of the National Institutes of Health (NIH) established the Center for Studies of Suicide Prevention. Over the next 30 years, an increasing number of resources were allotted to study, understand, and combat suicide.

In the 1990s, suicide prevention became a central public policy issue. Both chambers of the U.S. Congress passed Congressional Resolutions that declared suicide to be a national priority and acknowledged that “no single suicide prevention program or effort will be appropriate for all populations or communities.”[4] It was not until 2007 that the first veteran-specific suicide prevention legislation made its way through Congress. The Joshua Omvig Veterans Suicide Prevention Act (JOVSPA) of 2007 emphasized the need for a comprehensive national strategy to combat the increasing numbers of veteran suicides.[5] The Act directed the Secretary of the Department of Veterans Affairs (VA) to establish a program providing education, counseling, and other resources to the veteran population.[6]

Since the enactment of JOVSPA, there have been a handful of federal initiatives aimed at meaningfully bolstering the country’s veteran-focused suicide prevention programs. In 2012, President Barack Obama signed Executive Order (EO) 13625, which was titled “Improving Access to Mental Health Services for Veterans, Service Members, and Military Families.”[7] Importantly, EO 13625 called for collaboration between the Department of Defense and the VA, including a year-long awareness and prevention campaign. Four years later, the VA launched REACH VET, a program that utilizes predictive modeling and medical record data to identify those veterans at highest risk for suicide.[8]

The VA published a 10-year National Strategy for Preventing Veteran Suicide in 2018 that laid out 14 goals relating to community involvement, improved healthcare options, and strengthened research and surveillance.[9] In 2019, President Donald Trump signed EO 13861, “National Roadmap to Empower Veterans and End Suicide,” which outlined a new Presidential taskforce charged with a number of researching and reporting duties.[10]

Current Status of the Crisis

In the short amount of time since veteran suicide prevention became a recognized national issue, resources available to veterans have increased exponentially. One of the most impactful developments in recent years was the creation of the Veterans Crisis Line (VCL), a free and confidential resource available to veterans whether or not they are enrolled with the VA.[11] Through the years, VCL has added online functionalities and text capabilities to increase access. To date, VCL reports that it has answered more than 5.4 million phone calls and dispatched emergency services to an individual in crisis over 184,000 times.[12] A number of other organizations—such as Suicide Prevention Lifeline, Vets 4 Warriors, and the American Foundation for Suicide Prevention—provide lifesaving resources to veterans and other U.S. citizens in need.

According to data released annually by the VA, veteran suicide continues to be a very real national crisis. While there was not a significant increase in veteran suicide rate from 2017 to 2018 (the data released in the 2020 report), the VA still reports an average of 17.6 veteran suicides per day.[13] Since 2008, the annual number of reported veteran suicides has exceeded 6,300.[14] Of note, the highest rate of veteran suicide occurs among those aged 18-35 years old.[15]

The 2020 Report reflects that federal efforts to prevent veteran suicide are paying off, even if in incremental amounts. In fact, one of the significant themes identified by the 2020 Report is that Veterans Health Administration (VHA) care matters. The veteran suicide rate for those who engaged in VHA care decreased by 2.5% while the rate for those who did not get VHA care increased at the same rate.[16] The decreasing rate of veteran suicides remains even when broken down by age, race, and ethnicity.

Prospects for the Future

Each session of Congress, veteran-focused bills are introduced but—like most legislation—only rarely see passage. Nonetheless, the bills introduced give a snapshot of the evolving national strategy. In the four months since the start of the 117th Congress, there have already been seven bills introduced relating to veteran suicide and mental health. A majority of the bills propose strengthening current aspects of the veteran suicide prevention programs. For example, one bill directs the Secretary of the VA to update the Lethal Means Safety and Suicide Prevention training course run by the VA.[17] Another bill requires the addition of a pilot program focused on suicide prevention to the Transition Assistance Program, a Department of Defense-run initiative that helps servicemembers transition to post-active duty employment.[18]

Most notably, Representative Andrew Garbarino (NY) introduced a bill entitled the “Veteran Suicide Prevention Act.”[19] This bill directs the Secretary of the VA to conduct a review of all veteran suicides in the 5-year period proceeding enactment of the bill.[20] This review would be required to capture specific data such as medication use, medical diagnoses, and combat experience/trauma. Rep. Garbarino’s bill has great bipartisan support with 16 Democrats and 10 Republicans co-sponsoring the legislation.

However, this isn’t the first time this bill has been considered by Congress. The Veteran Suicide Prevention Act has been introduced in the past five Congressional sessions. Each time, the bill does not make it past committee review. This is the story for many of the ideas presented to support veterans, mental health, and veteran suicide prevention. Even with bipartisan support, these bills struggle to make it through the gauntlet.

Looking forward, two points should be emphasized. To start, the data shows that current efforts are making a difference. Of course, no national crisis reverses course overnight. The VA’s 2020 Report—while undoubtedly sobering—provides a glimmer of hope and optimism. It is imperative that the federal government continues to prioritize the programs currently in place. Not only will that require continued funding but also a renewed sense of commitment to expanding resources.

Second, the power of collaboration should not be underrated. As the VA emphasized in the 2018 National Strategy, it cannot combat veteran suicide alone.[21] It will take the power of every agency, organization, and community collectively to truly cut down on the number of veteran suicides. Not only should the VA and the Department of Defense bear the duty of reducing veteran suicide but also the Department of Health and Human Service, the Department of Education, or even the Department of Justice. As with any nationwide critical issue, it will take the effort of the whole federal government to make meaningful strides in furtherance of ending veteran suicide.

[1] U.S. Dept. of Veterans Affairs, 2020 National Veteran Suicide Prevention Annual Report at 5 (2020) (hereinafter “2020 Report”), https://www.mentalhealth.va.gov/docs/data-sheets/2020/2020-National-Veteran-Suicide-Prevention-Annual-Report-11-2020-508.pdf.

[2] See Leo Shane III, Historic data on military suicide shows no clear link with combat operations, MilitaryTimes (Dec. 13, 2019), https://www.militarytimes.com/news/pentagon-congress/2019/12/13/historic-data-on-military-suicide-shows-no-clear-link-with-combat-operations/.

[3] National Action Alliance for Suicide Prevention, 2012 National Strategy for Suicide Prevention: Goals and Objectives for Action, Appendix C (2012), https://www.ncbi.nlm.nih.gov/books/NBK109918/.

[4] S. Res. 84, 105th Cong. (1997); H. Res. 212, 105th Cong. (1997).

[5] H.R. 327, 110th Cong. (2007).

[6] Id.

[7] Exec. Order No. 13625, 77 Fed. Reg. 54783 (Aug. 31, 2012).

[8] See, e.g., Mike Richman, Crisis prevention: Study evaluates VA program that identifies Vets at highest risk for suicide, U.S. Dept. of Veterans Affairs (Sept. 20, 2018), https://www.research.va.gov/currents/0918-Study-evaluates-VA-program-that-identifies-Vets-at-highest-risk-for-suicide.cfm.

[9] U.S. Dept. of Veterans Affairs, National Strategy for Preventing Veteran Suicide at 12 (2018), https://www.mentalhealth.va.gov/suicide_prevention/docs/Office-of-Mental-Health-and-Suicide-Prevention-National-Strategy-for-Preventing-Veterans-Suicide.pdf.

[10] Exec. Order No. 13861, 84 Fed. Reg. 8585 (Mar. 5, 2019).

[11] What Is It, Veterans Crisis Line, https://www.veteranscrisisline.net/about/what-is-vcl (last accessed May 16, 2021).

[12] Id.

[13] 2020 Report at 4.

[14] Id. at 15.

[15] Id. at 19.

[16] Id. at 3.

[17] H.R. 2749, 117th Cong. (2021).

[18] S. 1296, 117th Cong. (2021).

[19] H.R. 1123, 117th Cong. (2021).

[20] Id.

[21] National Strategy for Preventing Veteran Suicide at 1.

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