• This is a political forum that is non-biased/non-partisan and treats every person's position on topics equally. This debate forum is not aligned to any political party. In today's politics, many ideas are split between and even within all the political parties. Often we find ourselves agreeing on one platform but some topics break our mold. We are here to discuss them in a civil political debate. If this is your first visit to our political forums, be sure to check out the RULES. Registering for debate politics is necessary before posting. Register today to participate - it's free!

New 'Bombshell' Legal Opinion Says Military Retirees Can't Be Court-Martialed

Bum

I survived. Suck it, Schrodinger.
Dungeon Master
DP Veteran
Joined
Aug 15, 2017
Messages
17,079
Reaction score
16,477
Location
In a box.
Gender
Male
Political Leaning
Other
A new legal opinion from the Navy-Marine Corps Court of Criminal Appeals says court-martialing military retirees is unconstitutional -- and the reason concerns the issue of retirement pay.

New 'Bombshell' Legal Opinion Says Military Retirees Can't Be Court-Martialed | Military.com



This is interesting.....

Knowing that "military justice" is a major contradiction in terms this is going to be messy.

On one hand he is forced to be in the reserves in order to collect his pension, that right there seems unconstitutional to me, he earned his pension through his years of service and should not to still be bound by the military.

When he enlisted, and reenlisted multiple times, I'm willing to bet he did not reenlist for the remainder of his life...
 
Begani had been communicating with someone who he believed to be a 15-year-old girl, but who was actually an undercover NCIS agent.




If you leave the military, I don't see how they can court martial you.

Seems like the civilian justice system would handle it.
 
Begani had been communicating with someone who he believed to be a 15-year-old girl, but who was actually an undercover NCIS agent.




If you leave the military, I don't see how they can court martial you.

Seems like the civilian justice system would handle it.

By law, retiree's and veterans can be recalled up to age 65.
 
By law, retiree's and veterans can be recalled up to age 65.


Everyone when they leave are technically in the reserves for a number of years depending on their MOS.

Does that mean they are still under the authority of CMJ?
 
A desperate argument from a desperate lecher ensnared in an underage sex sting ...


Possibly however I believe this should have been handed over to the civilian authorities.

It is possible that the civilian authorities turned it dow.

The code of military justice does not recognize entrapment in any form.

There may or may not be a lot more to this story than meets the eye.
 
Possibly however I believe this should have been handed over to the civilian authorities.

It is possible that the civilian authorities turned it dow.

The code of military justice does not recognize entrapment in any form.

There may or may not be a lot more to this story than meets the eye.
Yeah, but the crimes were committed during the soldier's time of duty.
 
By law, retiree's and veterans can be recalled up to age 65.
No, and certainly not for the purpose of being court martialed.
Everyone when they leave are technically in the reserves for a number of years depending on their MOS.
Does that mean they are still under the authority of CMJ?
MOS/rating is irrelevant to obligated inactive reserve requirements. For Navy enlisted personnel, those who complete 20 (or longer) years transfer to the Fleet Reserve and are not considered retired until reaching the 30 year mark, when they are officially transferred to the retired list. Commissioned officers only require 20 years total service to be placed in the retired list. Although extremely unlikely to ever happen, all the above are technically subject to the UCMJ for as long as they receive pay.

The code of military justice does not recognize entrapment in any form.
These types of “sting” operations are not entrapments and have been upheld by courts many times.

Yeah, but the crimes were committed during the soldier's time of duty.
The retired sailor was arrested for his crime after retiring.
 
No, and certainly not for the purpose of being court martialed.

MOS/rating is irrelevant to obligated inactive reserve requirements. For Navy enlisted personnel, those who complete 20 (or longer) years transfer to the Fleet Reserve and are not considered retired until reaching the 30 year mark, when they are officially transferred to the retired list. Commissioned officers only require 20 years total service to be placed in the retired list. Although extremely unlikely to ever happen, all the above are technically subject to the UCMJ for as long as they receive pay.


These types of “sting” operations are not entrapments and have been upheld by courts many times.


The retired sailor was arrested for his crime after retiring.

Yes.

Under DOD Directive 1352.1 …..though its generally not used to recall service members for UCMJ proceedings, it has been used in such a way.


Although its highly unlikely to recall anyone over the age of 60 because they would fall under Category Tier III.
And yes, MOS or other military skill does play a factor in deciding who can be recalled.

6.2.2. Involuntary Order to Active Duty

6.2.2.1. Twenty-Year Active Military Service Retirees. The Secretary of a Military Department may order any retired Regular member, retired Reserve member who has completed at least 20 years of active service, or a member of the Fleet Reserve or Fleet Marine Corps Reserve to active duty at any time to perform duties deemed necessary in the interests of national defense in accordance with 10 U.S.C. 675 and 688 (reference (b)). Retired Regular members of the Coast Guard may be ordered to active duty by the Secretary concerned only in time of war or national emergency in accordance with Sections 331 and 359 of reference (g).
 
Last edited:
The ruling seems fair, imo. Hardly a 'bombshell' though.
 
Wrong. You said;
By law, retiree's and veterans can be recalled up to age 65.
Nowhere does it say there is an age cutoff at 65.

Under DOD Directive 1352.1 …..though its generally not used to recall service members for UCMJ proceedings, it has been used in such a way.
My mistake. A retiree may be recalled for courts martial at any point, but very rarely has it ever happened.

And yes, MOS or other military skill does play a factor in deciding who can be recalled.
I wasn’t referring to determining what MOS’s/ratings may be recalled before others, I was referring to GDViking’s mistaken assertion.
Everyone when they leave are technically in the reserves for a number of years depending on their MOS.
Obligated active/inactive reserve time is not tied to MOS/rating.
 
Wrong. You said;
Nowhere does it say there is an age cutoff at 65.


My mistake. A retiree may be recalled for courts martial at any point, but very rarely has it ever happened.


I wasn’t referring to determining what MOS’s/ratings may be recalled before others, I was referring to GDViking’s mistaken assertion.

Obligated active/inactive reserve time is not tied to MOS/rating.

My mistake in reading the reg; 60 ( or just under) appears to be the cutoff....but my point stands..the arm of the DoD is quite long, and simply retiring does not free you from additional obligation.

DoD Policy
DODD 1352.1: Military retirees shall be ordered to active duty with full pay and allowances. Military retiree categories are defined as follows:
Category I: non-disability retirees under age 60 who have been retired fewer than 5 years.
Category II: non-disability retirees under age 60 who have been retired 5 years or more.
Category III: military retirees, including those retired for disability, other than Category I and II retirees.


edit"

It appears voluntary return to service Anyone discharged after 20 years or more of military service, up to age 70, can apply for recall at the Army Human Resources Command website (HRC Homepage)
 
Last edited:
My mistake in reading the reg; 60 ( or just under) appears to be the cutoff....but my point stands..the arm of the DoD is quite long, and simply retiring does not free you from additional obligation.
I don’t recall reading anywhere about any cutoff age. Yes, the government’s reach is long. As I noted in my first post, anyone receiving retired pay is subject to the UCMJ.

edit"

It appears voluntary return to service Anyone discharged after 20 years or more of military service, up to age 70, can apply for recall at the Army Human Resources Command website (HRC Homepage)
Just to be clear, as opposed to the involuntary recall of military retirees we’ve been discussing, you’re now referring to voluntary recall to active duty for Army personnel.
 
I don’t recall reading anywhere about any cutoff age. Yes, the government’s reach is long. As I noted in my first post, anyone receiving retired pay is subject to the UCMJ.


Just to be clear, as opposed to the involuntary recall of military retirees we’ve been discussing, you’re now referring to voluntary recall to active duty for Army personnel.

Yes, thats what I just said in the above statement....voluntary.

As for the age cutoff...it does state in the involuntary recall to active duty Category tables "Under 60".....did I misread that?

But I imagine that is for recall to service in active duty; I dont think an age cutoff exists for recall to face USMJ.
 
As for the age cutoff...it does state in the involuntary recall to active duty Category tables "Under 60".....did I misread that?
I’m not sure what the cutoff age is. When we were reactivating the old battleships in the late 80’s, I met several old timers who were recalled (voluntarily) to teach young sailors how to maintain and operate the 16” guns.

I dont think an age cutoff exists for recall to face USMJ.
Nope. No cutoff for anyone receiving retired pay.
 
I’m not sure what the cutoff age is. When we were reactivating the old battleships in the late 80’s, I met several old timers who were recalled (voluntarily) to teach young sailors how to maintain and operate the 16” guns.


Nope. No cutoff for anyone receiving retired pay.


I learned to hate those things.....stationed in Hawaii when they towed the Missouri into Pearl, and the Bn CSM "involunteered" many of us to assist in painting her; 4 days later and I never wanted to see another bucket of gray paint again in my life.
 
I learned to hate those things.....stationed in Hawaii when they towed the Missouri into Pearl, and the Bn CSM "involunteered" many of us to assist in painting her; 4 days later and I never wanted to see another bucket of gray paint again in my life.
I hear you. I laid down enough haze grey during my career that it could’ve covered Mount Rushmore 2 or 3 times.
 
Begani was picked up by Naval Criminal Investigative Service agents on Aug. 5, 2017, a little over a month after he left active duty and was transferred to the Fleet Reserve. He was arrested when he arrived at a residence at Marine Corps Air Station Iwakuni, Japan, where he was employed as a contractor. Begani had been communicating with someone who he believed to be a 15-year-old girl, but who was actually an undercover NCIS agent.

Yea, he should be Court Martialed. It happened with somebody who was on a military base, and he was in the Fleet Reserve.

Now if he had been arrested by SVU New York for trying to hook up with a girl in Brooklyn, I might see that aspect. But he was arrested by military personnel, on a military base. Of course, we could always turn him over to the Japanese for prosecution. If I remember correctly part of the SOFA with Japan gives them jurisdiction of all sex crimes. He can always try his luck and see how they choose to deal with him.
 
Yea, he should be Court Martialed. It happened with somebody who was on a military base, and he was in the Fleet Reserve.

Now if he had been arrested by SVU New York for trying to hook up with a girl in Brooklyn, I might see that aspect. But he was arrested by military personnel, on a military base. Of course, we could always turn him over to the Japanese for prosecution. If I remember correctly part of the SOFA with Japan gives them jurisdiction of all sex crimes. He can always try his luck and see how they choose to deal with him.

Mainland Japan jails are a bitch.
 
Mainland Japan jails are a bitch.

I know, I have visited one. And I said that on purpose.

Japanese prisons are nothing like US ones. Almost every prisoner is in solitary. Everything is tightly controlled, and infractions are generally resolved through corporal punishment.

Prisoners generally spend 22 hours or so in their cells. For 1 hour a day they have their "exercise period". Where they are taken out by themselves to an enclosed courtyard where they are to exercise. And they are expected to exercise for the entire hour. Stop for more than 10 minutes, and the guards just assume you are done and back to your cell you go. They will not speak anything other than Japanese, and not following commands results in a baton stroke to the back of the legs. Does not matter if you understand the command or not.

In 1988 I had to make weekly "comfort runs" to an American in a Japanese jail, awaiting trial for a drug offense. Once a week I drove an Officer to the prison, along with his mail, Stars & Stripes newspapers, and 2 cases of MREs. He was frequently bruised when I saw him, and was completely and utterly miserable. About the only thing he was given to eat was rice with fish heads or other fish parts, and either water or fruit juice. He spent almost 3 months in that hellhole awaiting his trial.

And I had to drive him after the trial. Now remember, his arrest was because he came up positive for marijuana on a drug test after leave. But as part of the SOFA, the US has to share all such results with Japanese authorities. And once or twice a year they will pick one at random to use as an example. 2 weeks after he popped hot (he already had his UCMJ, reduced from E-3 to E-2 and confined to base for 2 weeks), the JPs arrived at the main gate. Warrant in hand, they took him immediately into custody.

He was convicted in a 45 minute trial (in Japan, a positive urinalysis result is considered the same as simple possession). Sentenced to 5 years in jail, his sentence was suspended and he was returned to US custody, on the condition that he catch the first flight out of Japan and never return to the country. I already had his sea bag in the car, and drove him to Kadena AFB where the first flight leaving was to South Korea. I have no idea what happened after that, but he probably got stuck there for a while since most flights from Korea have a stop in Japan, and he could not even be on a plane that lands in Japan.

Yea, I actually said that Japan should deal with him with purposeful malice. If he thinks he was badly treated by the US, I would love to see what he thought of the treatment Japan would give him.
 
I know, I have visited one. And I said that on purpose.

Japanese prisons are nothing like US ones. Almost every prisoner is in solitary. Everything is tightly controlled, and infractions are generally resolved through corporal punishment.

Prisoners generally spend 22 hours or so in their cells. For 1 hour a day they have their "exercise period". Where they are taken out by themselves to an enclosed courtyard where they are to exercise. And they are expected to exercise for the entire hour. Stop for more than 10 minutes, and the guards just assume you are done and back to your cell you go. They will not speak anything other than Japanese, and not following commands results in a baton stroke to the back of the legs. Does not matter if you understand the command or not.

In 1988 I had to make weekly "comfort runs" to an American in a Japanese jail, awaiting trial for a drug offense. Once a week I drove an Officer to the prison, along with his mail, Stars & Stripes newspapers, and 2 cases of MREs. He was frequently bruised when I saw him, and was completely and utterly miserable. About the only thing he was given to eat was rice with fish heads or other fish parts, and either water or fruit juice. He spent almost 3 months in that hellhole awaiting his trial.

And I had to drive him after the trial. Now remember, his arrest was because he came up positive for marijuana on a drug test after leave. But as part of the SOFA, the US has to share all such results with Japanese authorities. And once or twice a year they will pick one at random to use as an example. 2 weeks after he popped hot (he already had his UCMJ, reduced from E-3 to E-2 and confined to base for 2 weeks), the JPs arrived at the main gate. Warrant in hand, they took him immediately into custody.

He was convicted in a 45 minute trial (in Japan, a positive urinalysis result is considered the same as simple possession). Sentenced to 5 years in jail, his sentence was suspended and he was returned to US custody, on the condition that he catch the first flight out of Japan and never return to the country. I already had his sea bag in the car, and drove him to Kadena AFB where the first flight leaving was to South Korea. I have no idea what happened after that, but he probably got stuck there for a while since most flights from Korea have a stop in Japan, and he could not even be on a plane that lands in Japan.

Yea, I actually said that Japan should deal with him with purposeful malice. If he thinks he was badly treated by the US, I would love to see what he thought of the treatment Japan would give him.

I originally thought the fish heads and rice thing was an urban myth. No more after a tour in Iwakuni in the 1980s.

Ah, the "candy sticks". The white ends pointed to tell you to do something. The red ended pointed to tell you to stop doing something. As we were told the concept of "police brutality" does not exist in Japan.
 
I originally thought the fish heads and rice thing was an urban myth. No more after a tour in Iwakuni in the 1980s.

Ah, the "candy sticks". The white ends pointed to tell you to do something. The red ended pointed to tell you to stop doing something. As we were told the concept of "police brutality" does not exist in Japan.

I was there at the time of the official end of the 1 year of mourning for the death of Emperor Showa. And one of the things that was quickly passed around was what happened to an Airman in Okinawa City.

He was walking down the street, just "batting" with his hand at the Japanese flags hanging everywhere in honor of the end of the 1 year of Mourning. Nothing even intentional or malicious, just absentmindedly swatting them as he passed by. 2 JPs saw this, and took great offense. They literally beat the crap out of him right there on the street, and hauled him away. If I remember he plead guilty to some offense and the US had to pay his penalty. Never heard what happened afterwards, but probably an Article 134 UCMJ, and an order to pay back the amount after a quick return to the US.

Yea, I still remember my in-briefings each time I arrived there. Pretty much "If you are going to do something stupid, do it on base. If you are stupid enough to get in trouble out in town, don't fight back and do anything they tell you to do".
 
Back
Top Bottom