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Supreme Court affirms military retirees can be tried in court-martial

A gavel sits on display in a military courtroom Jan. 29, 2014, at Dover Air Force Base, Del. (Airman 1st Class William Johnson/U.S. Air Force)
February 27, 2019

The Supreme Court has affirmed the Pentagon’s authorization to court-martial military retirees for conduct after service.

The decision was affirmed Feb. 19 when the Supreme Court refused to review a case involving Staff Sgt. Steven Larrabee, a Marine retiree who was court-martialed and eventually convicted of a sexual assault charge in 2015 after separation from the Marine Corps.

Larrabee later appealed his conviction, arguing it should be overturned due to his civilian status. The Supreme Court this month rejected the appeal on the reasoning that retired service members must still adhere to the Uniform Code of Military Justice (UCMJ).

His petition to the Supreme Court challenged a previous ruling that declared “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial for any and all crimes they commit while retired.”

Retired Col. Ralph Capio, a former Air Force JAG, told American Military News on Tuesday, “The Supreme Court did not make new law in this present decision; it merely reaffirmed the existing law based on the conclusion that military retirees aren’t really retired, in the traditional sense of that word, because, absent a statutory change by Congress redefining military retiree status, we are subject to recall to active duty.”

“Military ‘retirees’ are, indeed, subject to involuntary recall to active duty, and are still subject to military Courts-Martial jurisdiction not only for offenses they may have committed while on active duty, but even for offenses they may have committed after they retired,” Capio added.

Larrabee was found in violation of Articles 120 and 120c of the Uniform Code of Military Justice after he sexually assaulted a bartender employed at one of the bars he managed in Inwakuni, Japan. The encounter was recorded on his cell phone.

He was convicted in a court-martial on sexual assault and indecency charges. His sentence included eight years confinement, formal reprimand and a dishonorable discharge. His sentence was reduced to 10 months due to a pretrial agreement.

In a blog post earlier this month, Duke Law faculty member and retired Air Force Maj. Gen. Charles Dunlap Jr. argued that by collecting retirement pay, military retirees are making the choice to remain connected to the military.

“In 10 U.S.C. §802, it explicitly provided for court-martial jurisdiction of not only ‘retired members of a regular component of the armed forces who are entitled to pay’ like myself, but also of ‘members of the… Fleet Marine Corps Reserve,’ ” Dunlap wrote.

Larrabee was not entirely separated from service. He had retired from active duty and transferred to Fleet Marine Corps Reserve and was receiving “retainer pay” in lieu of “retired pay.” However, there is no difference between reservists and retirees when it comes to the UCMJ.

The decision could have widespread implications for those involved in scandals despite separation from service.

The “Fat Leonard” scandal is one of those instances.

In November 2017, the Navy said it was investigating 190 current and retired members of the Navy to determine their role in the Fat Leonard scandal, and potential disciplinary actions toward them.

Zack Spilman, a former Marine Corps judge advocate, told Navy Times that “Retired pay is not a pension, it is retired pay. It is reduced compensation for reduced current service.”

“Military retirement is not retirement in the ordinary sense of the word,” he said. “Military retirement is just a change in status.”