Court of Appeals for Armed Forces and Federal District Court Come to Different Conclusions on Question of UCMJ Jurisdiction Over Retirees

In 2017 the Navy court-martialed retired Chief Petty Officer Begani for offenses that occurred after he retired from active duty. Chief Begani was convicted and appealed his conviction, arguing that the military should not have jurisdiction to try retired servicemembers for offenses that are committed while they are retired. Initially, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed with Chief Begani and ruled that the UCMJ’s exercise of jurisdiction over retired active duty servicemembers but not over retired reservists was a violation of his Fifth Amendment right to Equal Protection under the law. That opinion is discussed here. The Government requested that the NMCCA reconsider the matter en banc, and the Court agreed, withdrawing the original panel’s decision.

In January 2020, the full NMCCA published an opinion finding that the exercise of UCMJ jurisdiction over Chief Begani was not a violation of his Equal Protection right. That opinion is discussed here. The Chief appealed this decision to the Court of Appeals for the Armed Forces (CAAF). The Chief argued again that he was not being equally protected by a law that allowed him to be prosecuted under the UCMJ, but did not subject retired reservists to the same. The CAAF granted review on this Fifth Amendment question.

Before the Court decided the Fifth Amendment question, the federal district court in the District of Columbia issued its opinion in Larrabee v. Braithewaite. In Larrabee, a retiree who had been court-martialed noted that the Constitution grants Congress the authority to make rules governing and regulating the “land and naval forces.” He argued that because retirees have no military duties and are not realistically subject to involuntary recall they are not part of the land and naval forces. The U.S. District Court for the District of Columbia agreed, finding the exercise of court-martial jurisdiction over all active duty retirees unconstitutional.

As a result of this opinion, the CAAF agreed to also review the question of whether active duty retirees have a sufficient current connection to the military to subject them to court-martial jurisdiction. The CAAF issued its opinion in June of 2021. The Court agreed with the NMCCA that Chief Begani’s Equal Protection rights were not violated. The Court also held that the collection of retired pay, the possibility of involuntary recall, and the mandate to maintain military readiness meant that active duty retirees were part of the land and naval forces and were subject to Congress’s rules, including the one extending court-martial jurisdiction to offenses committed after retirement.

With these two different outcomes, the ultimate question over whether retirees are part of the “land and naval forces” remains unsettled. The U.S. Court of Appeals for the District of Columbia is now reviewing the Larrabee decision. Meanwhile, Chief Begani has petitioned the U.S. Supreme Court for review of the CAAF decision. If the U.S. Court of Appeals in D.C. upholds the lower court’s decision, the Supreme Court will have a greater interest in hearing Chief Begani’s case and resolving this conflict.

If you or your loved one was convicted of an offense at court-martial, you need someone with experience who knows the law. I have argued numerous issues in front of appellate courts and CAAF. I have the experience you need. Please contact Bill Cassara at (706) 445-2943 for a free consultation.

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