A gasp went up recently about the likely recall of a retired general officer for court-martial prosecution. (It’s my understanding that he’s not actually been recalled, merely that the SecArmy has determined to exercise jurisdiction. He’ll be brought on “active duty” close to trial.) See, e.g., Oriana Pawlyk, Retired General Accused of Sexual Assault Faces Uncertain Future. Military.com 8 Sept. 2016. There are historical examples, not many, of retirees being recalled for prosecution for conduct while on active duty. I expect to see a modest increase in the recall of retirees for sexual assault allegations.
In United States v. Reynolds, retired First Sergeant Reynolds was accused of various assaults on some Marines while on active duty. It appears that he’d:
joined an outlaw biker gang, violating Department of Defense Instruction 1325.06, with Change 1, dated 22 February 2012. In January 2014, he agreed to help two fellow gang members—also enlisted Marines—assault another Marine who they believed had pursued a gang member’s girlfriend. After the victim was lured to a local bar, the appellant kicked and stomped him during the attack.
[F]ollowing 16 years on active duty, and 2 days after the local bar attack, the appellant was placed on the Temporary Disability Retirement List (TDRL), and transferred to the Fleet Marine Corps Reserve (FMCR). He was then entitled to retirement pay, but waived it in favor of monthly Veterans’ Administration (VA) compensation. Later that year, during incidents in May and June 2014, he hit his girlfriend with his fists.
Slip op. at 2.
He plead guilty and did not raise any jurisdiction issues until his case was on appeal. There was an extensive record from trial documenting the personal status and jurisdiction of Reynolds. And, “When personal jurisdiction is contested for the first time on appeal, appellate courts may rely upon documentary evidence to resolve the matter. See United States v. Oliver, 57 M.J. 170, 172-73 (C.A.A.F. 2002).” Slip op. at 3.
Readers may be familiar with continuing jurisdiction over service members on TDRL. The potentially non-permanent nature of their disabilities and their prospects for further active service create a heightened governmental interest in good order and discipline among TDRL military retirees. So they remain “subject to court-martial jurisdiction under Article 2,” UCMJ. United States v. Stevenson, 53 M.J. 257, 259 (C.A.A.F. 2000) (citing United States v. Bowie, 34 C.M.R. 411 (C.M.A. 1964)).
After an extensive and helpful rehearsal of the law affecting retirees and those in a retired disability status, the NMCCA found Reynolds was subject to court-martial.
Another interesting issue, which NMCCA found against Reynolds, he challenged whether a punitive discharge was authorized. Again, NMCCA found against him. Slip op. at 7.
If you are in this situation, feel free to give me a call at 703-298-9562, or drop an eMail to firstname.lastname@example.org for a consult.