http://usmilitary.about.com/od/punitivearticles/a/ucmjsubject.htm
Basically you could be recalled to active duty and then have the articles applied.
Selecting the Best Military Attorneys to defend Army, Air Force, Navy, & Marine court martials in Germany, Italy, England, Korea, Hawaii, Japan, Okinawa.
See: https://fas.org/sgp/crs/misc/RL34751.pdf
Cheers!
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Ask The Lawyer: Can I Face Court-Martial Charges After Retirement?
by Mathew B. Tully
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Q. After I retire from the military, can I face court-martial charges for offenses committed while on active duty?
A. Leaving the military does not make a retiree untouchable to military justice. Generally, if the military learns of unlawful conduct after a service member retires or was not able to prefer charges before that time, the retiree could be recalled to stand at court-martial.
Under Article Two of the Uniform Code of Military Justice, retired military personnel entitled to pay or receiving hospitalization benefits are subject to the UCMJ. The same goes for service members awaiting discharge after the enlistment term has expired. Barring any statutes of limitations, Article Three holds that these individuals can be tried for offenses they committed while they were subject to the UCMJ regardless of the termination of military status. Under Department of Defense Directive 1352.1, military retirees can be ordered to active duty to perform duties deemed by the Secretary of Defense to be “in the interests of national defense” – including standing at court-martial proceedings.
The case of U.S. v. Lantz Nave (2008) illustrates how a retiree could be involuntarily ordered to active duty to face court-martial charges. The case involved an Air Force sergeant who retired from active duty with an honorable discharge in September 2003 after 20 years of service, affording him retirement pay. Earlier that year, the sergeant got involved in what he believed was an illegal drug trafficking operation that was actually a reverse sting operation headed by the FBI. Almost two years after the sergeant retired from the Air Force, a base commander requested the sergeant’s recall so he could be tried, and the Secretary of the Air Force granted that request.
The government charged the sergeant with conspiring to possess cocaine with the intent to distribute, possessing cocaine with the intent to distribute, soliciting others to distribute cocaine, and soliciting another to purchase marijuana. The sergeant argued that he should not have been recalled to active duty because DoD policy prohibits the recalling of retirees “solely for obtaining court-martial jurisdiction over the member.” The Air Force Court of Criminal Appeals disagreed, noting that his offenses afforded the Air Force jurisdiction over him, and he was recalled to active duty “simply to ‘facilitate’ the exercise of court-martial jurisdiction.”
Under Article 43, absent without leave and missing movement in times of war, along with offenses punishable by death such as rape and murder, have no statute of limitation. Generally, the statutes of limitation for most other offenses are five years, though there are numerous exceptions that could extend this period. Military retirees charged for offenses they allegedly committed while serving on active duty should immediately consult with a military law attorney. Depending on the circumstances, a lawyer could help the retiree determine whether the government lacks jurisdiction over them or the offense’s statute of limitation has expired.
Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to [login to see] . The information in this column is not intended as legal advice
1. “solely for obtaining court-martial jurisdiction over the member.”
2. “simply to ‘facilitate’ the exercise of court-martial jurisdiction.”
The first is actually wording more applicable to reservists and veterans (i.e., having served but now completely and utterly without any military status or obligation). DoD policy -- but not law -- says not to recall such persons to an active status just so that once reinstated to active duty, they would THEN be subject to UCMJ and thus jurisdiction over the person is added to jurisdiction over the offense, and a court-martial could proceed.
The second above re-educates those involved with the criminal justice system that retirees (at least most of them, and in his case, Retiree Nave, USAF (ret) was so subject per Article 2 of UCMJ) are already subject to the UCMJ...and thus jurisdiction over the accused is de jure...a matter of law. Globally, 24/7/365, for life, on land, at sea, in the air, even in space...until death. Or if the member is dropped from the rolls and officially discharged as a result of certain felony convictions...
Retiree Nave's argument proceeded from the flawed assumption that he was not subject to Article 2 of the UCMJ as a retiree in receipt of pay...those words are pretty clear, so not sure how he might have thought otherwise.
Now, if he had been a pure veteran, or a reservist not in a duty status, or a reserve retiree (most of them at least...there are always exceptions), then DoD policy might have been applicable, in that recalling him to active duty would literally have been solely for the purpose of imposing UCMJ jurisdiction over him, as the accused, so that the Court could proceed...
Cheers!
Personally, I would just rather conduct myself in civilian life that I'm still in the UCMJ's shadow, regardless. You know, that's one of the reasons why there are veteran's courts coming into more frequent use when dealing with veterans. We as military members, current and former, are/were held to a different standard while in uniform or on active service. We also understand the sacrifice that is behind our nation's laws and constitution.
So why not just continue to live by that standard of discipline and respect.
https://www.armytimes.com/news/your-army/2017/10/18/retired-army-two-star-charged-with-raping-a-minor-to-face-court-martial/
Retired Army two-star, charged with raping a minor, to face court-martial
A retired Army major general will go to court-martial on charges that he allegedly raped a minor on multiple occasions over a period of at least six years.