Retired Lieutenant Colonel Is Unlikely to Face Court-Martial in Capitol Riot, Experts Say

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Protesters enter the Senate Chamber on January 06, 2021 in Washington, DC.
Protesters enter the Senate Chamber on January 06, 2021 in Washington, DC. (Win McNamee/Getty Images)

It's unlikely an Air Force veteran who entered the Senate Chamber during the Jan. 6 assault on the U.S. Capitol in Washington, D.C., will face a military court-martial, according to legal experts.

Larry Rendall Brock Jr., seen brandishing zip-tie handcuffs during the pro-Trump siege, was arrested Sunday in Texas and charged with knowingly entering a restricted building without lawful authority, along with one count of "violent entry and disorderly conduct," according to the Justice Department.

Brock retired from the Air Force Reserve in 2014 as a lieutenant colonel, according to the service. While he faces civilian charges, he is unlikely to be recalled to go through the military justice system, experts say.

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Zachary Spilman, the lead contributor for the military justice blog CAAFlog, explained Monday that Brock is not subject to a court-martial, despite his past military service.

Spilman and other experts made clear that Brock's exact status the day he entered restricted federal property matters because the Uniform Code of Military Justice applies differently to different groups.

"Broadly speaking, court-martial jurisdiction over retired members is limited to retired regulars," Spilman, a Marine reservist and lawyer who specializes in military justice, said in an email, referring to those who retired from active duty.

The issue is complicated: Retired members of a reserve component are subject to court-martial only if they receive hospitalization care from one of the armed forces, according to Section 802 of Title 10 of the U.S. Code, said Steve Vladeck, a University of Texas School of Law professor who specializes in national security legal matters.

Brock graduated from the U.S. Air Force Academy in 1989 and commissioned as an active-duty second lieutenant. He transferred into the Air Force Reserve in 1998, Air Force spokeswoman Ann Stefanek said Saturday. Since he later retired from the Reserve, the UCMJ "did not apply" to him on Jan. 6, Spilman explained.

A ruling issued by a federal district court judge in November further complicates matters, Vladeck said on Twitter.

In Larrabee v. Braithwaite, Judge Richard Leon of the United States District Court for the District of Columbia ruled that it was unconstitutional to court-martial members of the Fleet Marine Corps Reserve for offenses they committed after retiring from active duty. It may even apply to active-duty retirees, Spilman added.

That case concerns retired Staff Sgt. Steven Larrabee, who was convicted of sexually assaulting a bartender, the wife of an active-duty Marine, at a bar in Iwakuni, Japan, where he worked as a civilian. He had retired from active duty in 2015 but had been placed on the Fleet Marine Corps Reserve status list for three months. The assault occurred while he was in Reserve status.

After a court-martial, during which Larrabee wore civilian attire, he was sentenced to eight years' confinement, a reprimand and a dishonorable discharge. In a pre-trial agreement, his prison term was reduced to 10 months. Larrabee attempted to have his conviction overturned on appeal, stating it was for a civilian -- not military -- court to decide his fate.

"Based purely on Larrabee, [someone like Brock] cannot be brought back ... [and tried]," explained Gary Solis, who served as a Marine judge advocate general and taught military law at West Point and Georgetown University.

Any pay and benefits Brock may still receive as a retiree probably cannot be stripped, either.

"You can't do that without a judicial action [like a court-martial]," Solis said. "And since he's not subject to military jurisdiction, he's probably home free on his retirement."

If the military wanted to make an example of any retirees who commit offenses, it could still pursue cases, Solis said.

"If they want to get aggressive, they could bring [forth] a case in spite of Larrabee because Larrabee is not all that firm," he said.

The ruling may be appealed soon, Vladeck noted.

It's expected that the Court of Appeals for the Armed Forces will hear arguments surrounding Larrabee this spring, as well as another case regarding jurisdiction over ex-military members who commit crimes while transitioning from active-duty orders.

The second case centers on retired Chief Petty Officer Stephen Begani, who was court-martialed after leaving the Navy on charges of attempted sexual abuse of a child.

Begani was picked up by Naval Criminal Investigative Service agents on Aug. 5, 2017, a little over a month after he left active duty and then transferred to the Fleet Reserve. He received a bad-conduct discharge and was sentenced to 18 months' confinement.

The news of Brock's Air Force affiliation was first reported by Ronan Farrow of The New Yorker.

Brock was an A-10 Warthog pilot until 2007, Stefanek said. His last known position was Admissions Liaison Officer with the U.S. Air Force Academy prior to his retirement, according to credentials provided to Military.com.

A list of his other unit assignments and decorations was not available.

Sen. Tammy Duckworth, D-Ill., a member of the Senate Armed Services Committee, called Monday for a Defense Department investigation in cooperation with other agencies to examine how many active and retired military members may have participated in the Capitol riots.

In a letter sent to Acting Defense Secretary Christoper Miller, Duckworth stressed that each service branch should initiate inquiries into "whether members of the U.S. Armed Forces, retired members of a regular component of the U.S. Armed Forces and members of the Fleet Reserve/Fleet Marine Corps Reserve, engaged in insurrection against the authority of the United States."

The military typically cannot try those who have separated from the service, Vladeck added.

Those who remain subject to the UCMJ must be held accountable, Duckworth said in the letter.

If the department doesn't take any action, "it would be a disgraceful insult to the vast majority of service members who honorably serve our nation in accordance with the core values of their respective services," she said.

-- Patricia Kime and Gina Harkins contributed to this report.

-- Oriana Pawlyk can be reached at oriana.pawlyk@military.com. Follow her on Twitter at @Oriana0214.

Related: Retired Air Force Lieutenant Colonel Arrested, Charged in Capitol Riot

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