Navy-Marine Corps Court of Criminal Appeals Reverses Earlier Opinion on Whether Regular Component Retirees Are Subject to UCMJ Jurisdiction

In December 2017, the Navy court-martialed retired Chief Petty Officer Stephen Begani for attempted sexual assault of a child and attempted sexual abuse of a child. The charges stemmed from online conversations between the retired Chief and an undercover NCIS agent who was portraying a 15-year old child and the Chief’s travel to meet with the individual for sexual activity. Chief Begani pled guilty to the charges and the Convening Authority approved a sentence of 18 months confinement and a bad-conduct discharge.

On appeal, the Chief argued for the first time that the Navy’s exercise of jurisdiction over him violated his constitutional rights to Equal Protection under the law. The appeal was initially heard by a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals. The panel agreed with Chief Begani’s argument and dismissed the guilty findings and sentence. A discussion of that opinion can be found here. The Government filed a motion asking the full Court to reconsider the case. The Court granted the Government’s motion and withdrew the panel’s opinion.

This month the full seven-member Navy-Marine Corps Court of Criminal Appeals issued its opinion, affirming the Chief’s guilty findings and sentence. The principal opinion of the Court was issued by two judges who found that Congress’s decision to grant the military jurisdiction over members of the Fleet Reserve and Regular component retirees and not over Reserve component retirees was not a violation of the Equal Protection guarantee included in the Fifth Amendment to the Constitution. This opinion was based on the composition of the various populations concerned. Active duty enlisted members of the Navy or Marine Corps who have completed twenty years of service, but not thirty, can request to be transferred to the Fleet Reserve or Fleet Marine Corps Reserve. Once those individuals reach thirty years of combined active duty service and time in the Fleet Reserve or Fleet Marine Corps they are transferred to the Navy or Marine Corps retired list. Active duty enlisted members with over thirty years of service and active duty Navy and Marine Corps officers are put directly onto the retired list. Chief Begani was a member of the Fleet Reserve when he was subjected to UCMJ jurisdiction. Under the law, both members of the Fleet Reserve and Regular component retirees are easily recalled to active duty. Reserve retirees are only subject to recall in times of war or national emergency. The Court also pointed out that before retirement, Reserve component service members are only subject to UCMJ jurisdiction while activated or traveling to military training or duty. Because of these differences, the principal opinion determined that the groups were not similarly situated. The opinion further stated that even if they were considered similarly situated for Equal Protection purposes, the different treatment of the groups was rational and did not violate Chief Begani’s Equal Protection rights.

A concurring opinion was issued by two judges, agreeing with the majority of the principal opinion and agreeing that the Chief’s findings and sentence should be affirmed. However, this concurring opinion found that the Chief had waived his Equal Protection claim by not raising it at trial and therefore did not come to a decision on Chief Begani’s Equal Protection argument.

Finally, three judges issued a dissenting opinion, arguing that the Navy’s exercise of jurisdiction over Chief Begani under Article 2 of the UCMJ did in fact violate his Equal Protection rights and that his findings and sentence should be dismissed.

Because four of the seven judges agreed that the findings and sentence should be affirmed, Chief Begani’s conviction and sentence remain intact. However, the holding of the principal opinion regarding Equal Protection was not supported by a majority of the Court and therefore is not binding. Certainly, this case will be appealed to the Court of Appeals for the Armed Forces next for a resolution of the matter.

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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William E. Cassara- Military Law Attorney

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