American Veterans Joining the Ukrainian Army May Run Afoul of Federal Law and Could Lose Benefits or US Citizenship

Ukrainian servicemen attend a training session
Ukrainian servicemen attend a training session outside Kharkiv, Ukraine, Friday, March 11, 2022. (AP Photo/Andrew Marienko)

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Sean Timmons is the managing partner of Tully Rinckey PLLC's Houston office, concentrating his practice on military law.

Since the Russian Federation launched, in its words, a "special military operation" on Feb. 24, there has been a steady stream of footage of heartbreaking mass atrocities inflicted by the invading Russian military. Much of the world has looked on in shock. These are unfolding events the world has not seen coming out of Europe since the tragic collapse and disintegration of Yugoslavia in the 1990s.

Many American veterans of the wars in Iraq and Afghanistan have had sleepless nights, filled with intense anxiety from viewing the ongoing atrocities. In response to calls from Ukrainian officials for foreign fighters to join a newly formed foreign legion, many American veterans have shown interest in joining the fight in Ukraine.

Ukrainian President Volodymyr Zelenskyy has ordered a temporary lift on visas for foreign fighters and has taken to social media to actively encourage everyone with military experience and training willing to join his countrymen to help his nation resist the Russian war effort.

But do American veterans risk losing their earned benefits by joining a foreign army? The answer, sadly, is yes.

A key limitation on the participation of retired United States military personnel is found in the Constitution itself. It lies in Article I, Section 9, Clause 8. This constitutional provision, known in American legal doctrine as the "Emoluments Clause," specifically prohibits any person "holding any office of profit or trust" in the federal government from accepting any gift, emolument, office or title of any kind from any king, prince or foreign state without the consent of Congress.

As interpreted by the Department of Justice Office of Legal Counsel, the Emoluments Clause prohibits the receipt of any form of compensation, including consulting fees, gifts, travel expenses, honoraria or salary by all retired military personnel -- officer and enlisted, regular and Reserve -- from a foreign government unless Congress consents. Consent, arguably, is provided by Congress in 37 U.S.C. § 908, which has delegated approval to the military branches and requires advance consent from the relevant service secretary and the secretary of state before accepting anything from any foreign government.

This limitation would apply equally to United States military veterans agreeing to fight for Ukraine, Russia or any other country engaged in any other armed conflict around the world.

    Thus far Ukraine has said that it will not offer to compensate Americans who join its new foreign legion, but that position could well change.

    Additionally, receipt of retirement pay from the United States government is conditioned on maintaining citizenship and availability to be recalled in the event of a national emergency. Fighting for a foreign government in some limited circumstances can result in the loss of American citizenship, imperiling those benefits.

    Furthermore, the Department of Defense may suspend retirement pay up to the amount of any foreign salary earned or obtained as a result of fighting for a foreign government, such as Ukraine. Retired veterans wishing to obtain formal permission from their service secretary should contact the branch for which they last served, which means they must contact the pertinent office: Air Force Personnel Command, Army Human Resources Command, Navy Personnel Command, or the Judge Advocates Division of Marine Corps Headquarters.

    Congress could pass legislation making an exception to this rule prohibiting military retirees and veterans from active foreign armed conflict participation to specifically encourage American military veterans to fight for Ukraine; however, the prospect of Russian soldiers being killed by skilled American combat veterans may be seen as an escalation and provocation of the existing conflict and could drag America closer to an actual war with Russia.

    Additionally, there are significant security clearance implications and other potential legal issues for veterans who might join the fight. Many may wish to fight for Ukraine, but they must consider whether to forfeit their ability to pay the rent or mortgage for their own family in America. Those same veterans should consider whether to risk their retirement benefits and request permission before voluntarily deploying to assist.

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