Are retirees subject to UCMJ?

That is really pathetic.

Certainly if it happened on AD you can be brought back. Remember, SMA McKinney was brought back out of retirement to be tried under UCMJ. He ended up being reduced in rank to MSG if memory serves.

He was still on Active Duty when charged. He was just removed from his post when the investigation started. His brother and another CSM covered his duties. It came from the sexual harassment hotline he was supervising for the SoA. He was also convicted of intentionally hitting a man with his car in 2011.

1SG John Millan - Recall that Article 2 of the UCMJ omits reservists who are not in any duty status, and most reserve retirees (although there are some important exceptions where reserve retirees might be subject to UCMJ). Thus, the vast majority of the 1/6th of all military retirees who are of the Retired Reserve (415K or so out of 2.3M total) are immune to the UCMJ...although not to various other Federal laws and administrative regulations...
See: https://fas.org/sgp/crs/misc/RL34751.pdf
Cheers!

Thank you for your service Major. I never called your character or your caliber into question. I guess that's what separates the enlisted from the officers.

It has nothing bases on rank. I suggest you read all the posts to contemplate your active participation in the devolution of this topic. Maybe it will compel you to get off the white horse you are riding. I said my piece, but yo and your infinite wisdom kept rambling.PO2 George Conley

One more thing. You and the COL expound on something that is illogical. It would be like cutting off my arm to prevent breaking bones in it. I see some people shoot from the hip without proper cogitation. PO2 George Conley

Hence the term, Soldier for Life.

rules that come with them...

Friday, Jan 25, 2013 Publication: Andrews Gazette
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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

PO1 Brian Carlson - This is an excellent reference! The distinctions made in the text...as drawn from US law and the UCMJ itself are:
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!

Wrong again. It has to be espionage. Look it up.

I would have to agree. I don't see the relevancy of being brought out of retirement fir a potential crime committed outside the walls of federal property! It's like saying I'm owned by the Federal government and I would have something say about that! I'm curious though on how this would affect Trump since he never served but is Commander in Chief, would he be sent to Leavenworth if he was found to have broken Federal laws?

Honorable answer.

No, you're wrong,. ONly if it involves espionage.

PO1 (Join to see) - You are right, but many folks get the distinction between losing their VA disability compensation $$$ after 60 days of confinement for a felony conviction, with losing military retirement pay. Generally, as you noted, only a Hiss Act-type violation will result in forfeiture of military retired pay. Although certain other convictions might result in "dropping from the rolls" of their Service, that doesn't always mean losing the pension that was already earned...it just means the Service dumps them on the side of the road in a bag and leaves them for dead as it drives on...it's roughly like an Other than Honorable administrative discharge.

Your retirement pay is suspended while incarcerated for a felony crime. it is reinstated upon release.

"I learned something here." is always a good answer in my book, Capt (Join to see). :-)

Me too.

I am a retired federal law enforcement officer with over a quarter of a century of service in the federal system alone and I have served and I have served at every level of law enforcement from county to state to federal and after my retirement I was invited to join a local law enforcement agency in the Commonwealth of Virginia. When I first retired I went into the private security field and I was in a class of civilians and the topic of how to deal with child molesters came up during a bovine fecal material session during a break and people were coming up with every solution from life in prison to castration and crucifixion. I was sitting in the back minding own business and reading my book when the instructor asked me how I would handle child molesters. I said “give them six months in general population. All the civilians were in shock. The instructor started laughing and asked me what police department I retired from he was a retired Distract of Columbia Police sergeant. One of ladies in our class asked him how he knew I was a retired police officer he told me to explain it to her. The explanation is really simple everyone in prison has little children in their families and child molesters have very short violent and very painful lives in prison because the people there maybe outlaws but they have a very well developed sense of justice!!!