Top Military Court Considers Challenge to DoD's Authority to Court-Martial Some Retirees

The Court of Appeals for the Armed Forces
The Court of Appeals for the Armed Forces. Wikipedia image

The Court of Appeals for the Armed Forces, or CAAF, heard arguments March 9 in the case of a retired Navy sailor who is challenging the constitutionality of his conviction by court-martial after he left military service.

Attorneys for retired Chief Petty Officer Stephen Begani say the current laws are flawed because they treat retired members of the active and reserve forces differently when it comes to recalling them for court-martial, and Congress overstepped its authority in making active-duty retirees subject to court-martial.

The government has argued that the military proceedings were fair because Begani, as a member of the Naval Fleet Reserve, which includes enlisted Navy retirees who leave active service after 20 years but under 30 years and receive retainer pay rather than retired pay, was subject to recall to military service in a national emergency.

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The issue of whether military retirees can be brought back on active duty to be tried for crimes committed either while they served or as a retiree has been raised numerous times in the past decade, most recently in debate over whether retired Air Force Lt. Col. Larry Brock could be court-martialed for his involvement in the Jan. 6 attack on the U.S. Capitol.

Begani's case dates about a month after he left the Navy in 2017, where he served for 24 years. While working as a contractor at Marine Corps Air Station Iwakuni in Japan, he was arrested for showing up at a house to meet a girl he had been communicating with online and believed to be 15 years old.

The "girl," however, was an undercover Naval Criminal Investigative Service agent.

Begani received a bad-conduct discharge and was sentenced to 18 months' confinement.

In addition to the Begani case, a similar challenge, Larrabee v. Braithwaite, is wending through the court system, in which a U.S. District Court judge in Washington, D.C., has ruled that it is unconstitutional for members of the Fleet Marine Corps Reserve to be court-martialed.

In that case, retired Marine Corps Staff Sgt. Steven Larrabee was convicted of a sexual assault he committed three months after leaving the service in 2015. He appealed his military court-martial up to the U.S. Supreme Court, which declined to take the case in 2019.

But when Larrabee filed suit in civilian court, U.S. District Court Judge Richard Leon ruled the government had not adequately demonstrated that court-martial jurisdiction over retirees is necessary to maintain good order and discipline in the armed forces.

The government has appealed Leon's ruling.

Attorney Stephen Vladeck, who has represented both Larrabee and Begani, said the onus is on the government to prove that retirees must have a significant ongoing relationship with the military, other than simply collecting retainer or retirement pay, to be subject to the Uniform Code of Military Justice, or UCMJ.

And being a member of the Fleet Reserve Forces doesn't demonstrate that relationship, Vladeck told the CAAF judges last week.

"When you look at the personnel on whom the government would rely as supplemental manpower in the case of emergency, retirees are well down the list under current regulations. Retirees are behind the Selected Reserve, the Individual Ready Reserve, the National Guard and, in a true emergency, perhaps even the Selective Service. And unlike all four of those categories, retirees remain subject to the constant jurisdiction of the UCMJ. This is something the government has never justified," Vladeck argued.

Arguing for the Defense Department, Marine Maj. Clayton Wiggins said the Fleet Reserve was created specifically as a force from which to recall personnel during a crisis or national emergency, and its members are expected to adhere to the UCMJ.

"Congress created the Fleet Reserve through a number of statutes ... which gives a person like [Begani] the option to do one of two things: Leave the land and naval forces and no longer have any connection ... and in that case, the appellant would have been a civilian not subject to court-martial conviction," Wiggins argued. "But he didn't take that choice. He chose to stay in the land and naval forces and simply transfer to a different part of the land and naval forces. As such, that status alone, as a member of the land and naval forces, makes him subject to court-martial jurisdiction."

Members of the Marine Corps and Navy Fleet Reserves receive what is essentially retainer pay and can be summoned back to active duty without their consent in the event of war or a national emergency. After 30 years of active or inactive service, they are transferred to the Regular Retired List and are no longer subject to call-up.

A decision by CAAF to uphold Begani's conviction would put the military's highest court at odds with Leon's November decision and potentially set the stage for a petition to the U.S. Supreme Court.

The CAAF judges did not give any indication when they may issue an opinion.

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime.

Related: Supreme Court: Retirees Can Be Court Martialed For Crimes Committed After Service

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