Retired Servicemembers and Military Justice: Separating Facts from Myth

Retired Air Force Reserve Lieutenant Colonel Larry Brock was arrested this past Sunday in Texas after being identified as one of several who illegally entered the U.S. Senate Chamber on 6 January. When his military status became known, many in and out of the military probably wondered, “When will he be court-martialed?” The answer is never. Indeed, an Air Force spokesperson told the media that Brock will not be court-martialed because he is not subject to military jurisdiction under the Uniform Code of Military Justice (UCMJ).

The Air Force spokesperson is correct, but only because Brock is a military reserve retiree. Congress did not extend court-martial jurisdiction to reserve retirees unless they are “receiving hospitalization from an armed force.”¹ However, under the 1954 Hiss Act, Brock’s status as a military retiree could be affected following a federal conviction. He would forfeit his retired pay in the event he is “convicted of certain designated federal crimes relating to disloyalty or involving national security or national defense-related offenses against the United States.” At this point, Brock has only been charged with knowingly entering a restricted building without lawful authority and violent entry and disorderly conduct on Capitol grounds, but he may be eventually charged with more serious crimes, including insurrection (18 U.S.C. Section 2383) or a seditious conspiracy (18 U.S.C. Section 2384).

Brock’s situation could be different if he were retired from the regular component, because Congress did extend court-martial jurisdiction to “retired members of the regular component of the armed forces who are entitled to pay.”² However, recalling retired retirees to active duty for the purpose of a court-martial is done only in rare instances, usually when the civilian justice system is inadequate. In the case of any regular component retirees who took part in events at the Capitol, we may assume they will be prosecuted in the federal district court. The Fifth Amendment double jeopardy clause would bar court-martial on any charges of which he was to be convicted. However, the Fifth Amendment double jeopardy clause would not bar a court-martial for other offenses not charged in the federal proceeding, say, an Article 133, UCMJ (conduct unbecoming) offense. It is a discretionary decision of the service secretary to recall a retiree for court-martial prosecution.

If a regular component retiree were not prosecuted and convicted in federal district court, then recall to active duty on a variety of charges would appear appropriate for consideration. Under UCMJ Article 134, it is permitted to use the general article to incorporate federal “crimes and offenses not capital,” of which there seem several. For example, 18 U.S.C., Section 1361 prohibits willful injury or depredation against U.S. property and 18 U.S.C., Section 1752, prohibits the unlawful entries, the disruption of business, and physical violence.

Military lawyers divide retirees into two groups: those who have committed crimes while on active duty and those who have committed crimes after retirement. The first are far more likely to be prosecuted at a court-martial than the second. At least 30 active-duty retirees have been prosecuted under the UCMJ since its enactment in 1950. (There also is a history of retirees being court-martialed prior to enactment of the UCMJ.) The 30 UCMJ prosecutions noted are cases in which the person convicted was adjudged a punitive discharge and/or more than one-year of confinement. That sentence entitled them to an appeal to a service Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces. In 1960, the Court of Military Appeals affirmed Retired Rear Admiral Selden G. Hooper’s conviction at court-martial for crimes he committed after his retirement in 1950 (Hooper remains the only U.S. Navy flag officer ever convicted at court-martial), and his various appeals in the federal civilian courts challenging court-martial jurisdiction failed.

Military jurisdiction over regular component retirees for crimes they commit after retirement has been affirmed in many other cases, such as when Retired Chief Petty Officer Andrew L. Gagnon was convicted of conspiracy to wrongfully dispose of government property while a civilian employee.³ His conviction was reversed on appeal for reasons unrelated to any question of jurisdiction. There are other cases where prosecution was initiated but then, for some reason, aborted. A recent notorious case is that of a retired Army major general recalled for prosecution on serious sex offenses.⁴ His case was dismissed before trial because the Court of Appeals for the Armed Forces (CAAF) had recently decided the case of United States v. Mangahas, a case in which the court held the statute of limitations prohibited a prosecution more than five years after the offense. Thus, the major general was given the benefit of Mangahas. The major general did not escape prosecution, however, because he later plead guilty to the charges in a Commonwealth of Virginia court, there being no double jeopardy concerns. Of interest, the U.S. Supreme Court decided United States v. Briggs and United States v. Collins in December 2020, holding that the CAAF reasoning behind Mangahas was wrong and that there was no statute of limitations for the offense of rape.

Nevertheless, retiree court-martial jurisdiction is not a settled legal issue and is currently undergoing various court challenges as well congressional scrutiny. This week, the Supreme Court denied a petition to review the conviction of Army Master Sergeant Timothy Hennis, who had challenged court-martial jurisdiction over him as a retiree. While on active duty in 1986, he was convicted in civilian court in North Carolina for murder, but that conviction was overturned in 1988 on appeal and he was acquitted in 1989. He then remained on active duty until retirement. In 2006, DNA developments provided new evidence that led the Army to recall him for court-martial, at which he was convicted and sentenced to death. The Supreme Court action terminates his military appeals and he may now seek habeas corpus relief in the federal courts.

The Navy and the Marine Corps also have an interesting issue percolating of UCMJ jurisdiction over persons transferred into the Fleet Reserve and Fleet Marine Corps Reserve. Chief Petty Officer Stephen Begani retired from active duty and was transferred into the Fleet Reserve. He then took a contractor job on base at Iwakuni, Japan. Unfortunately for him he got caught in an NCIS “to-catch-a-predator” sting. After being convicted at court-martial, he challenged his status as a person subject to court-martial jurisdiction. The Navy–Marine Corps Court of Criminal Appeals decided that he was subject to jurisdiction and his case is now pending appeal before the Court of Appeals for the Armed Forces.

In another case, Marine Corps Staff Sergeant Steven M. Larrabee had transferred from active duty into the Fleet Marine Corps Reserve, at which point he began managing two local bars in Iwakuni, Japan. Alleged to have sexually assaulted a bartender, he was prosecuted and convicted at court-martial. On appeal he raised an issue similar to that of Begani (and several others) that a person transferred to the Fleet Reserve of Fleet Marine Corps Reserve was not subject to court-martial jurisdiction. The military appellate courts held there was jurisdiction and so affirmed his conviction and sentence. Not satisfied, Larrabee took his case to federal court where on 20 November 2020 the district court judge found the jurisdictional statute unconstitutional. We can anticipate that the Government will appeal Larrabee v. Braithwaite to the federal circuit court of appeals.

Advocates for continued retiree jurisdiction claim it is necessary to address retiree misconduct overseas and to maintain good order and discipline. Others suggest any such prosecutions should be limited to those with a direct impact on the military. Others argue that once a retiree reaches Category-III status (over the age of 60), they should no longer be subject to court-martial jurisdiction.

Finally, beyond the question of jurisdiction, other matters, such as discharge status, are still being challenged as well. Recently, the Court of Appeals for the Armed Forces reversed long-standing precedent and decided a retiree can be sentenced to either a dishonorable or bad conduct discharge at court-martial. Prior to the case of retired U.S. Marine Corps Gunnery Sergeant Derrick Dinger, it was generally accepted that no punitive discharge (and loss of retirement benefits) could be imposed. Dinger’s petition for an appeal at the Supreme Court was denied in 2018.