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According to Article 2 of UCMJ, "Retired members of a regular component of the armed forces who are entitled to pay" are covered by UCMJ. Does this mean that retirees can be charged with UCMJ violations even long after retirement and when not doing anything related to the military? Has this ever happened?
http://usmilitary.about.com/od/punitivearticles/a/ucmjsubject.htm
http://usmilitary.about.com/od/punitivearticles/a/ucmjsubject.htm
Retired
Retirement
UCMJ
JAG
Posted 9 y ago
Responses: 388
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It is true. Remember, it's called "retainer" pay, not retired pay. In my experience, it is very rare.
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LTC Paul Labrador
Yup, if you're retired normally, you are still IN the military....just on inactive reserve status. Officers still hold their commission, and do so for life.
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Interesting question. I don't doubt the citation, but I haven't heard of the UCMJ being imposed on a retiree. Every case I know of has the circumstance of the retiree being recalled to active duty and them subjected. I've even seen that done with general officers. Most of the responses don't reveal all of the circumstances. Was the person charged with rape overseas in a US SOFA? Or on post? Civil offenses in the US are almost always attended to by the civil judicial system. The only time the military is the prosecuting agency is if the crime is on the installation and even then usually when it is a military violation vs. civilian. I'm sure there are exceptions, but in my experience they are rare and there are some special circumstances.
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CDR Stan Fuger
Here is the interesting part. Most of the comments made here seem to assume that a retiree must be "recalled to active duty" in order to be tried at court-martial. That is not, however the reality. Retirees are subject to the UCMJ. Under the Solorio case, all that the government need show to have court-martial jurisdiction is that: (1) the accused is a person subject to the UCMJ, and (2) that the charged offense is a crime under the UCMJ. A retiree may be charged and prosecuted at court-martial even while in a retired status. A retiree may be summoned to appear before a court-martial and trial may proceed if the person voluntarily appears. This is analogous to a summons in a civilian court. If the retiree declines to appear, then the military's recourse is to recall that individual to active duty and order his/her appearance. If the accused does not appear, then the service would have the right to take the person into custody and bring him/her to trial.
Please also note that there is no requirement that there be a "service connection" between the offense and the military in order for a court-martial to have jurisdiction. By way of example, Driving under the Influence is both a civilian offense and military offense. A retiree arrested in Montana for a state DUI is also potentially liable to trial by court-martial, albeit the reality of that happening is extremely remote.
There is another factor that could apply as well. A great many military retirees go on to have a career in civilian law enforcement. As most people know, the police have to give a Miranda warning before questioning a person WHO IS IN ACTUAL OR CONSTRUCTIVE POLICE CUSTODY. Miranda apples only to custodial interrogations. However, the military analog to Miranda, that is Article 31, requires that whenever a person subject to the UCMJ suspects another person subject to the UCMJ of having committing a crime under the UCMJ, he/she must give an Article 31 warning BEFORE asking any questions. It is therefore, conceivable that a civilian police officer who is a military retiree may be the one who stopped military retiree for a DUI. Arguably, Article 31 might apply in that situation.
Now, having wasted a lot of electrons on making these comments, this discussion may be the modern equivalent of the medieval argument of "how many angels can dance on the head of a pin." The reality is that the Armed Forces have enough court-martial business with active duty members without having to worry about prosecuting retirees. So, while it is possible for a retiree to be prosecuted at court-martial, it is most likely extraordinarily rare or non-existent.
Please also note that there is no requirement that there be a "service connection" between the offense and the military in order for a court-martial to have jurisdiction. By way of example, Driving under the Influence is both a civilian offense and military offense. A retiree arrested in Montana for a state DUI is also potentially liable to trial by court-martial, albeit the reality of that happening is extremely remote.
There is another factor that could apply as well. A great many military retirees go on to have a career in civilian law enforcement. As most people know, the police have to give a Miranda warning before questioning a person WHO IS IN ACTUAL OR CONSTRUCTIVE POLICE CUSTODY. Miranda apples only to custodial interrogations. However, the military analog to Miranda, that is Article 31, requires that whenever a person subject to the UCMJ suspects another person subject to the UCMJ of having committing a crime under the UCMJ, he/she must give an Article 31 warning BEFORE asking any questions. It is therefore, conceivable that a civilian police officer who is a military retiree may be the one who stopped military retiree for a DUI. Arguably, Article 31 might apply in that situation.
Now, having wasted a lot of electrons on making these comments, this discussion may be the modern equivalent of the medieval argument of "how many angels can dance on the head of a pin." The reality is that the Armed Forces have enough court-martial business with active duty members without having to worry about prosecuting retirees. So, while it is possible for a retiree to be prosecuted at court-martial, it is most likely extraordinarily rare or non-existent.
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CPT David Borell
CDR Stan Fuger - I agree that a retiree is subject to the UCMJ and Art. 2, UCMJ, makes that fairly plain. However, the Petitioner in Solorio was presently on active duty in the Coast Guard at the time of the charges, but in a different jurisdiction. It seems, as a result, that the Court was more concerned with the jurisdiction over the charges in light of the lower court's holding that they were not sufficiently service connected. Although the Court held that "the requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the Armed Services at the time of the offense charged," they did not touch on the topic of recall for a retiree. Solorio v. United States, 483 U.S. 435, 450-451 (June 25, 1987). Do you have a citation for your further statement that a retiree may decline to appear at a properly convened Court-Martial. My question is not facetious...I have a current client to which this directly applies.
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SSG (Join to see)
Yes. The catch is that DOD has policies that place limits to the military recalling a retiree for UCMJ. You would have to committ a federal or state crime and get arrested before the military can have jurisdiction rights
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LtCol William Bentley
CPT David Borell - Without a lot of research myself, which you've probably already covered since you posted 12 days ago, I'd hazard an educated guess about why a retiree who is "invited" to his own court-martial could refuse:
1. If the retiree is subject to the UCMJ, then charges could result in a CM. I'm going to say that only a General CM would ever even try this...after a bevy of lawyers reviewed it.
2. But if the retiree is not voluntarily or involuntarily placed into a duty status, then the fact that they are subject to the UCMJ doesn't actually provide a mechanism to compel attendance at said GCM.
a. Can the Court issue a warrant for their arrest...as a civilian subject to the UCMJ?
b. Or would the retiree need to be placed, involuntarily or not, into a duty status such that orders could then be compulsory and more than binding --> enforceable through the mechanism of physically apprehending (using military authority) the retiree wherever he might be and delivering him to the court, or declaring him a deserter like any other and await his (hopeful) eventual arrest by civilian or military authorities and then delivery back to the convening authority to stand their CM?
3. Goes to the heart of the issue: if a retiree is subject to the UCMJ, including all lawful and general orders, the entire UCMJ, etc., and someone, anyone, who would have the lawful capability to issue an order to the retiree simply states, "Bob, you're a retired lieutenant colonel. I'm a Colonel on active duty. Thus, I order you, under the UCMJ, to appear at your own court-martial..." I suppose that might be a lawful order...or is it?
a. Without another offense right then and there that would cause the Colonel to apprehend (or try, at least, although I'm guessing that it would not stick as unconstitutional...my guess only) the retiree, if the retiree said nothing but walked out and never came back, I think only involuntary recall to active duty provides the mechanism to compel it.
b. The related question: even if the retiree struck the Colonel in the face, which would clearly be a crime (battery at the minimum), could the Colonel THEN apprehend the retiree? The retiree is subject to the UCMJ, but is not in a duty status. Thus, he is a civilian...but subject to the UCMJ.
c. Can anyone with powers of apprehension under UCMJ (MPs, E4s and up) apprehend a civilian? No. They might detain them for other law enforcement (Federal or local). Can they detain a civilian who is subject to the UCMJ? Well, maybe...is the retiree's crime of striking the Colonel an offense against the UCMJ? Yes. But it's also a local crime under state law.
d. Once a retiree who is subject to the UCMJ is apprehended, the words are spoken "You are under apprehension, sir." and restraints are applied (or not, irrelevant under the UCMJ since apprehension is a state of being rather than physical restraints), where would the MPs and/or Colonel who performed the apprehension take the "apprehended"? The brig would be highly unlikely to accept him: he's not in a duty status, who pays for his food and cell, are we liable for injuries to him or if he causes injuries or damage, etc. Civilians are not accepted at the brigs...taken to the nearest Federal detention facility/prison for processing in...but they are accused of violating the UCMJ, and/or local laws...
e. Would we order him to pre-trial confinement/arrest in his quarters...off-base. Perhaps in another city, state, country? Commandeer a BOQ room and order him to stay in it? And who pays for that and his meals, etc.? Is he then entitled to per diem?
Perhaps your case will result in the precedent that is so badly needed to clear up the grey areas. Cheers, WKB
1. If the retiree is subject to the UCMJ, then charges could result in a CM. I'm going to say that only a General CM would ever even try this...after a bevy of lawyers reviewed it.
2. But if the retiree is not voluntarily or involuntarily placed into a duty status, then the fact that they are subject to the UCMJ doesn't actually provide a mechanism to compel attendance at said GCM.
a. Can the Court issue a warrant for their arrest...as a civilian subject to the UCMJ?
b. Or would the retiree need to be placed, involuntarily or not, into a duty status such that orders could then be compulsory and more than binding --> enforceable through the mechanism of physically apprehending (using military authority) the retiree wherever he might be and delivering him to the court, or declaring him a deserter like any other and await his (hopeful) eventual arrest by civilian or military authorities and then delivery back to the convening authority to stand their CM?
3. Goes to the heart of the issue: if a retiree is subject to the UCMJ, including all lawful and general orders, the entire UCMJ, etc., and someone, anyone, who would have the lawful capability to issue an order to the retiree simply states, "Bob, you're a retired lieutenant colonel. I'm a Colonel on active duty. Thus, I order you, under the UCMJ, to appear at your own court-martial..." I suppose that might be a lawful order...or is it?
a. Without another offense right then and there that would cause the Colonel to apprehend (or try, at least, although I'm guessing that it would not stick as unconstitutional...my guess only) the retiree, if the retiree said nothing but walked out and never came back, I think only involuntary recall to active duty provides the mechanism to compel it.
b. The related question: even if the retiree struck the Colonel in the face, which would clearly be a crime (battery at the minimum), could the Colonel THEN apprehend the retiree? The retiree is subject to the UCMJ, but is not in a duty status. Thus, he is a civilian...but subject to the UCMJ.
c. Can anyone with powers of apprehension under UCMJ (MPs, E4s and up) apprehend a civilian? No. They might detain them for other law enforcement (Federal or local). Can they detain a civilian who is subject to the UCMJ? Well, maybe...is the retiree's crime of striking the Colonel an offense against the UCMJ? Yes. But it's also a local crime under state law.
d. Once a retiree who is subject to the UCMJ is apprehended, the words are spoken "You are under apprehension, sir." and restraints are applied (or not, irrelevant under the UCMJ since apprehension is a state of being rather than physical restraints), where would the MPs and/or Colonel who performed the apprehension take the "apprehended"? The brig would be highly unlikely to accept him: he's not in a duty status, who pays for his food and cell, are we liable for injuries to him or if he causes injuries or damage, etc. Civilians are not accepted at the brigs...taken to the nearest Federal detention facility/prison for processing in...but they are accused of violating the UCMJ, and/or local laws...
e. Would we order him to pre-trial confinement/arrest in his quarters...off-base. Perhaps in another city, state, country? Commandeer a BOQ room and order him to stay in it? And who pays for that and his meals, etc.? Is he then entitled to per diem?
Perhaps your case will result in the precedent that is so badly needed to clear up the grey areas. Cheers, WKB
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If you commit a crime against the government you can be brought back face charges
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Actually it is happening right now. Two weeks ago there was a news announcement that a retired Army Major General was being charged with nine counts of sexual assault of a minor. The alleged offenses occurred over a decade ago, and the MG has long since retired. But, since he is receiving retirement pay, he is still subject to charges under the UCMJ. This officer had served at HQ TRADOC and was famously abusive of his subordinates, so this news item caught several eyes.
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MAJ Hugh Blanchard
Sorry to learn that. No one's rank should shield them from such a crime. None of us are above the UCMJ or the other laws that govern our republic. Most states' laws don't have an end date for such a disgusting crime. So this person must answer for his past alleged crimes, and that is a good thing. As a former enlisted soldier and NCO, I understand the need for the armed forces to hold all soldiers to the same standard. We cannot hope to maintain an effective force otherwise.
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There's a lot of speculation and "I believes" in this thread. The simple answer is this: **Yes**. If you are retired, you remain subject to the UCMJ and charges CAN be preferred against you for violations of the UCMJ even if the actions which resulted in those charges occurred outside a geographical military jurisdiction and while in a retired status. In fact, not only can it happen, it HAS happened. The MSG at Ft. Bragg (referenced earlier by SSG Palmer) is but one example of this. Now, is the military going to place you back on active status to prefer charges because you were disrespectful to the Commander-in-Chief? Probably not. But will they tack on charges from both pre-retirement and post-retirement when the charges are serious enough to warrant it? Absolutely.
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LTC Paul Labrador
The majority of the confusion comes from people misunderstanding what "retired" status is and what "retired pay" is. When you retire from the military, you are still IN the military. You are just no longer on active status. It's like being permanently in the IRR. I may be retired, but I'm still A LTC. Granted, I cannot wield command authority anymore, but I'm still able to carry out some of the other functions that come with a commission (administering Oaths for example). "Retired Pay" as such is NOT a pension. It is a retainer. On a day to day basis, retirees are no longer subject to customs and regulations, but if they military REALLY wants to, they can subject you to UCMJ.
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YES! I was an Air Force OSI Agent and conducted one investigation into a rape and murder conducted by a retired MSGT when he was active duty. It wasn't discovered until 17 years after he retired...he was brought back on AD and tried and sentenced!
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Don't be fooled.....There is no statute of limitations if the Federal Bureaucrats are in charge.......There are no Constitutional Rights if the Federal Bureaucrats are in charge....There is no equal justice under the law if the Federal Bureaucrats are in charge....There is no right to a speedy trail if the Federal Bureaucrats are in charge.....There is no Rule Of Law if the Federal Bureaucrats are in charge....You always have the right to an appeal....But remember the same Federal Bureaucrats in charge will be the same ones determining your appellate rights....Statistics are not on your side for appeals in the lower courts...Appeals to the Supreme Courts are even less..... The Supreme Courts decide which cases they will hear, about 80 each year. They decide another 50 without hearing arguments. The Supreme Court gets about 7000 requests to hear cases per year, so there are many cases that don't get heard....And out of those 50 to 80 cases successfully brought before the Supreme Courts are brought by well connected lawyers and lawyer groups who have interned or have interns working at the Supreme Courts to help push their cases ahead of the other 7000... Now in the Army Court of Criminal Appeals your chances are even less when appealing to the Federal military Bureaucrats... and getting an appeal to the United States Court of Appeals for the Armed Forces (CAAF) (the equivalent of the Supreme Court) is even less when appealing to the Federal Military Bureaucrats ....So as I said in the beginning don't be fooled....The Constitution, your legal rights have been eroded for decades now by the Federal Bureaucrats.......Your a fool if you think otherwise....
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Yes. Here is a really good and short article discussing this topic.
http://www.caaflog.com/2017/03/29/the-nmcca-affirms-that-retired-service-members-are-still-in-the-military-and-still-subject-to-the-ucmj/?hilite=%22Retired%22
http://www.caaflog.com/2017/03/29/the-nmcca-affirms-that-retired-service-members-are-still-in-the-military-and-still-subject-to-the-ucmj/?hilite=%22Retired%22
The NMCCA affirms that retired service members are still in the military and still subject to the...
Ina published issued yesterday, in United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affir…
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My understanding is YES but I'm not a JAG and wouldn't even qualify as a "sea lawyer". Regular Officers retired ID cards read Indefinite for EAS and they can be called back by appropriate policy or law under a national emergency. Reserves get a bit different depending on category. There are so many variations of Reserve and Guard and I'm not familiar with any. In the USMC even a 20 year retired Enlisted transfers to the Fleet Marine Corps Reserve until the 30 year mark and then they transfer to the Retired List. I believe folks in the FMCR can be recalled and in the most extreme cases maybe even Regular Retired but don't quote me on it. Any that already have 30 years and request retirement automatically transfer to the Retired List. I've read about retired Officer and Enlisted being called back to face punishment, so again I'd say yes. There are infinite possibilities of offenses that might warrant it, and it would depend on the offense and any agreement between civil and military jurisdiction. I'd imagine it would be whomever could get the greatest benefit for the cost that would prosecute and whether the offense impacted more on the civil or military community.
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CWO3 (Join to see)
Not sure this meets the criteria of being called back but it does speak to the issue of being prosecuted many years later. PFC Garwood, USMC.
https://en.wikipedia.org/wiki/Robert_R._Garwood
https://en.wikipedia.org/wiki/Robert_R._Garwood
Robert Russell Garwood (born 1 April 1946 in Greensburg, Indiana) is a controversial former Vietnam War prisoner of war (POW). Garwood was a United States Marine Corps Private First Class[1] when he was captured on September 28, 1965 near Da Nang, Quang Nam Province.
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