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Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service

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22 Feb 2019
Military.com | By Patricia Kime
The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service | Military.com

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.

I agree with the idea, but the reason should be that service is not a get out of jail free card and citizens should not be required to support criminals.
 
22 Feb 2019
Military.com | By Patricia Kime
The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service | Military.com

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.

"The court on Tuesday chose not to hear the case of a retired Marine who was court-martialed for a sexual assault he committed three months after leaving the service in August 2015. By not accepting the case, Larrabee v. the United States, the court upheld the status quo: that military retirees are subject to the Uniform Code of Military Justice".

"The denial of certiorari has no other significance than to signal that fewer than four members of the Court deemed it desirable to review a decision of the lower court. This is a matter of “sound judicial discretion.” Considerations for denial of certiorari can be varied. Additionally, dissent on a denial of cert should not be read as indicating that only one person thought the petition should be granted.

Since reasons can conflict some have suggested that the Court give reasons for denial. For practical reasons the Court will not. It would just take too much time from its more important duties."

Maryland v Baltimore Radio Show, Inc.
 
Lt.-Gen. Flynn retired pleaded guilty to a felony crime and is awaiting sentencing.

Flynn needs to be taken to court martial. He needs to be stripped of his rank and benefits. His discharge needs to be downgraded from honorable. Flynn may need to get a government paid visit on an extended basis to the federal pen at Ft. Leavenworth, Kansas.

The judge in Flynn's proceedings raised the question of treason relative to Flynn's criminal activities while National Security Adviser in the White House and prior to then. The principal reason to date Flynn hasn't been busted and isn't likely to get tossed into the Big House is that Trump won't allow it. Once Flynn is sentenced however Pentagon will have a strengthened position to act on its own, which remains an open question.

Lock him up.
 
Lt.-Gen. Flynn retired pleaded guilty to a felony crime and is awaiting sentencing.

Flynn needs to be taken to court martial. He needs to be stripped of his rank and benefits. His discharge needs to be downgraded from honorable. Flynn may need to get a government paid visit on an extended basis to the federal pen at Ft. Leavenworth, Kansas.

The judge in Flynn's proceedings raised the question of treason relative to Flynn's criminal activities while National Security Adviser in the White House and prior to then. The principal reason to date Flynn hasn't been busted and isn't likely to get tossed into the Big House is that Trump won't allow it. Once Flynn is sentenced however Pentagon will have a strengthened position to act on its own, which remains an open question.

Lock him up.

I don't know.... Could be double jeopardy situation?

The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . "

Double Jeopardy | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute
 
Lt.-Gen. Flynn retired pleaded guilty to a felony crime and is awaiting sentencing.

Flynn needs to be taken to court martial. He needs to be stripped of his rank and benefits. His discharge needs to be downgraded from honorable. Flynn may need to get a government paid visit on an extended basis to the federal pen at Ft. Leavenworth, Kansas.

The judge in Flynn's proceedings raised the question of treason relative to Flynn's criminal activities while National Security Adviser in the White House and prior to then. The principal reason to date Flynn hasn't been busted and isn't likely to get tossed into the Big House is that Trump won't allow it. Once Flynn is sentenced however Pentagon will have a strengthened position to act on its own, which remains an open question.

Lock him up.

The thread isn't about Flynn and his crime was a procedural crime that's hardly worth remark.
 
I don't know.... Could be double jeopardy situation?

The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . "

Double Jeopardy | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute

Pentagon has the authority and the obligation to vacate Flynn's rank, benefits and discharge status as punishment from the standpoint of the UCMJ, which is to say the armed forces. Nothing's happened in these respects because Trump is CinC and a Flynn defender and sympatico who appointed Flynn both to the campaign to do deals with Russia on removing sanctions and as National Security Adviser to do same. We're talking punishment meaning a court martial may not be necessary or may not be proper Constitutionally, the latter being the specific issue you raise. The taxpayer has a direct interest in this too as does the integrity of the Army specifically in which Flynn was an officer and the armed forces given Flynn violated his sacred military oath.

The record in the US court shows Flynn betrayed his country for more than one reason and purpose and that personal financial gain was one of 'em. Flynn being military and properly subjected to the UCMJ and its punishments adds the particular dimension to his case that a civilian would not ordinarily have. I cite the old adage throughout the armed forces that, military justice is to justice as military music is to music. Scotus passed already on the civilian indictment in the Larabee case by allowing the Larabee court martial ruling to stand, i.e., declining cert.
 
22 Feb 2019
Military.com | By Patricia Kime
The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service | Military.com

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.

I'm conflicted about this...their severance has already been earned, and is separate than anything done afterwards. Seems to me like more of an excuse to cut benefits to those who earned it. How broad of a net are they going to cast to use this option now? Get caught smoking pot or something? Do we get to apply this to every single person that gets paid retirement from any government job? Congressmen? State elected officials? State and federal workers?

Overall, I don't like it.
 
The thread isn't about Flynn and his crime was a procedural crime that's hardly worth remark.

Flynn has pleaded guilty to a felony crime and is awaiting sentencing. Under UCMJ the retired lieutenant general is subject to consequences, i.e., punishment. Whether that might include a court martial is under some layman discussion here. There isn't any question however that Flynn is subject too to the UCMJ, which means he needs his rank vacated to include vacating his retirement programs and his character of discharge altered negatively against him. This can be done only under the UCMJ which is the proper judicial venue.

The Right can try to hustle Flynn away from it but it can't hide him from it.
 
Flynn has pleaded guilty to a felony crime and is awaiting sentencing. Under UCMJ the retired lieutenant general is subject to consequences, i.e., punishment. Whether that might include a court martial is under some layman discussion here. There isn't any question however that Flynn is subject too to the UCMJ, which means he needs his rank vacated to include vacating his retirement programs and his character of discharge altered negatively against him. This can be done only under the UCMJ which is the proper judicial venue.

The Right can try to hustle Flynn away from it but it can't hide him from it.

Nothing you said refutes my comment.
 
Lt.-Gen. Flynn retired pleaded guilty to a felony crime and is awaiting sentencing.

Flynn needs to be taken to court martial. He needs to be stripped of his rank and benefits. His discharge needs to be downgraded from honorable. Flynn may need to get a government paid visit on an extended basis to the federal pen at Ft. Leavenworth, Kansas.

The judge in Flynn's proceedings raised the question of treason relative to Flynn's criminal activities while National Security Adviser in the White House and prior to then. The principal reason to date Flynn hasn't been busted and isn't likely to get tossed into the Big House is that Trump won't allow it. Once Flynn is sentenced however Pentagon will have a strengthened position to act on its own, which remains an open question.

Lock him up.

Why?

His politics?

Obama Pardons James Cartwright, General Who Lied to F.B.I. in Leak Case



Petraeus gets probation for leaking secrets to mistress
 
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I don't know.... Could be double jeopardy situation?

The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . "

Double Jeopardy | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute


Military law is far stricter, there are all kinds of charges the military can file that would not be illegal for a regular citizen.
 
Nothing you said refutes my comment.

No matter how you slice it it's still baloney.

You have not addressed Flynn's guilty plea to a felony crime and the fact he is awaiting sentencing. The judge in the US district court used the word "traitor" during the proceedings.

You have not addressed the Uniform Code of Military Justice, Flynn, his plea of guilty to a felony crime and that Flynn is awaiting sentencing. The UCMJ applies to retired armed forces personnel who are receiving a pension so you have failed to address this material factor.

You're not addressing anything in the case. You rather say you "don't like it." You may not like mowing the lawn either but if you don't you're going to raise a lot of weeds. You may even get a snake in its natural camoflage in 'em.
 
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No matter how you slice it it's still baloney.

You have not addressed Flynn's guilty plea to a felony crime and the fact he is awaiting sentencing. The judge in the US district court used the word "traitor" during the proceedings.

You have not addressed the Uniform Code of Military Justice, Flynn, his plea of guilty to a felony crime and that Flynn is awaiting sentencing. The UCMJ applies to retired armed forces personnel who are receiving a pension so you have failed to address this material factor.

You're not addressing anything in the case. You rather say you "don't like it." You may not like mowing the lawn either but if you don't you're going to raise a lot of weeds. You may even get a snake in its natural camoflage in 'em.

And the generals before him?

How many were court-martialed for civil convictions?

You just hate his lean.. That much is crystal clear.
 
I oppose this. Once retired or separated you should be considered a civilian for all legal purposes.
 
I oppose this. Once retired or separated you should be considered a civilian for all legal purposes.

Traditionally retirees could be called back for crimes during their service only. And I support this.

People who want a court martial for a general on a completely non military action are talking out their southern passage. Letting hate guide their ideology. Had they served they might feel differently.
 
22 Feb 2019
Military.com | By Patricia Kime
The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service | Military.com

The reasoning, the government argues, is that retirement is simply a change of military status and retired personnel are subject to recall should the need arise.

OK, a few other things that nobody else has mentioned.

For one, if you are retired and under the age of 60, you are placed in the "Fleet Marine Reserve". This is a permanent holding place, but you can be recalled at need. And he had only retired 3 months prior.

Then secondly. He assaulted a co-worker, the spouse of an Active Duty Marine at a bar they both worked at on Okinawa.

So it was not like he went back to Hicksville, Wyoming and raped and videotaped the wife of a local cowboy. It was overseas, and the spouse of a Marine. So yea, his being recalled and court martialed is entirely justified.

And he should be damned glad it was handled that way! Under SOFA, that was entirely under the jurisdiction of the Japanese Authorities. I bet a lot of deals were made to let them turn him over to the US for prosecution. Where he was sentenced to 5 years incarceration, all but 10 months suspended. In Japan, that would get him 5-15 years in jail. And there they do not consider parole until 75% of the sentence is completed.

I have had to have dealings with Americans in Japanese jails. They generally do not do very well. Nobody speaks English there, and it is a discipline that is beyond what even most Marines have ever seen before. Automatic and instant compliance is expected, or the batons start hitting flesh. Time in the exercise yard is not like hanging out on the playground. You exercise your entire time in it, or you are returned to your cell.
 
OK, a few other things that nobody else has mentioned.

For one, if you are retired and under the age of 60, you are placed in the "Fleet Marine Reserve". This is a permanent holding place, but you can be recalled at need. And he had only retired 3 months prior.

Then secondly. He assaulted a co-worker, the spouse of an Active Duty Marine at a bar they both worked at on Okinawa.

So it was not like he went back to Hicksville, Wyoming and raped and videotaped the wife of a local cowboy. It was overseas, and the spouse of a Marine. So yea, his being recalled and court martialed is entirely justified.

And he should be damned glad it was handled that way! Under SOFA, that was entirely under the jurisdiction of the Japanese Authorities. I bet a lot of deals were made to let them turn him over to the US for prosecution. Where he was sentenced to 5 years incarceration, all but 10 months suspended. In Japan, that would get him 5-15 years in jail. And there they do not consider parole until 75% of the sentence is completed.

I have had to have dealings with Americans in Japanese jails. They generally do not do very well. Nobody speaks English there, and it is a discipline that is beyond what even most Marines have ever seen before. Automatic and instant compliance is expected, or the batons start hitting flesh. Time in the exercise yard is not like hanging out on the playground. You exercise your entire time in it, or you are returned to your cell.

Ah the sweet sound of candy sticks on flesh....

Thank you for fleshing this out.
 
Ah the sweet sound of candy sticks on flesh....

Thank you for fleshing this out.

Well, this to me is yet another example of when people simply "react" based on their "feelings", and do not actually look into the circumstances or other things that might apply or happen.

So long as you are under 60, "retirement" is not permanent. You are simply moved into the "Inactive Reserve" until you hit the mandatory retirement age. And it is indeed Reserve. I knew people both in 1990-1991 and 2001-2004 that were recalled out of this status because they had skills the military needed. And anybody that is (or can) retire is fully aware of this. I myself am now past 20 years of service, and can retire at any time. But since I am 54, I see no reason to sit in that pool for 6 years when I can just keep serving until I hit my mandatory retirement age (and get even more money after retiring).

Nobody else seems to have bothered to do even the minimum of research into this case, they simply read the absolute basics then went running, often then taking it into political directions that do not apply in any way. Something that always disturbs me greatly.

And yes, things like this have happened before. But generally only for things that involved the Government in some way after leaving the service, or something discovered after they left the service that they had done while still in. This is somewhat unusual, in that it happened after he left the service. But the fact that it involved a military spouse is probably why it became applicable.

And since it happened in Japan, this is where I would love to know more about it. Clearly this is a case where under SOFA, the Japanese authorities have all rights of prosecution. Any crime involving sex, drugs, or violence on Japan is automatically under their jurisdiction unless they choose to turn it over to US authorities. I have seen that first hand, when the Japanese Police came on base and arrested a Marine on base because he failed a urinalysis. Per SOFA all results had to be shared, and a few times a year they would pick one of the servicemembers up to "make an example" of them.

Because under Japanese law, a positive result was the same as possession of the drug. But the example of those guys going through the 3-6 month Japanese legal and penal system was highly effective as a warning to people who were going to Japan to be especially careful about what they did.

I bet after the incident, there was quickly some deal reached between the US and Japanese governments. Get that guy out of there, have him tried by the military, and they will give jurisdiction to the US. And that is exactly what happened. I would not even be surprised if he was not only aware of this but was hoping for such to happen. I am sure that he could have insisted that the US stay out and the case and trial be handled by Japanese authorities. But for some reason, he did not seem to object to the "change of venue" from Japanese to US authority.

Because like most of us that have been stationed in Japan, he knew that unlike in the US they do not play games with criminals. Japan cares little about disguising their penal system as "correctional", it is primarily about punishment. You are not abused in it, but you are taught you are paying for your crime. And that when you get out you had better not do it again or you will be punished again.

I bet if not for the stripping of his retirement pension it probably would have ended there.

And hopefully this will also serve as a lesson to other scumbags who retire. Do not be a scumbag, even after you get out. Or else you can also be a middle aged scumbag with no pension.
 
I agree with all of the analysis regarding the SOFA and why Court Martial was the way to go. I also agree with the points about being retired but still subject to the UCMJ. I'll just add these points:
First of all, it's in the statute. Someone noted that earlier, but everyone who has served knows the UCMJ.
Second, military "retirement" is not a pension, it is "retired pay." It is regular income being paid by DoD.
Third, there is an administrative process for recovering/reducing retired pay, although Court Martial is the best way of doing that, since you get busted all the way to E-1 if you're discharged by Court Martial. For example, Oliver North lost his pension (it was restored) after being convicted in the Iran Contra scandal. The administrative standard is being reduced "to the last rank honorably held".
Fourth, deciding who to prosecute is "prudential" - by that, I mean it is a practical decision. As noted, these guys were both in Japan and recently retired. The same wouldn't be true where someone was in the United States, had been long retired, etc.
 
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