Charleston Chapter – MOAA Charleston Chapter – MOAA
Charleston Chapter – MOAA Charleston Chapter – MOAA
Member Login    News    Support our Charities    Photos    Event Calendar      
Charleston Chapter – MOAA


Recent News:
(Published in last 30 days)


Charleston Chapter – MOAA
Date Posted:05/25/20
This Story Expires on: 09/30/20
Here Are the 2020 2021 Post 9/11 GI Bill Rates

Date Posted:05/25/20
This Story Expires on: 09/30/20
Pell Grant Limits Increase, Student Loan Interest Rates Decrease for 2020 2021

Date Posted:05/25/20
This Story Expires on: 07/31/20
Some Stimulus Payments Are Coming in the Form of Debit Cards

Date Posted:05/14/20
This Story Expires on: 06/14/20
VA cemeteries will open to the public on Memorial Day, but wreath laying ceremonies will be closed

Date Posted:05/14/20
This Story Expires on: 07/31/20
Meet the First Lady of Space Force: An interview with Mollie Raymond

Date Posted:05/14/20
This Story Expires on: 08/15/20
2 Lowcountry military installations change command

Date Posted:05/13/20
This Story Expires on: 07/31/20
'Astonishing': Veteran Military Pilots See First Survey Data on How Many Have Cancer

Date Posted:05/13/20
This Story Expires on: 07/31/20
Tricare Drops Telehealth Copays, Adds Phone Call Coverage in Emergency Measure

Date Posted:05/13/20
This Story Expires on: 07/31/20
This new site is all about money for military spouses

Date Posted:05/13/20
This Story Expires on: 07/31/20
How Trump honors our troops: A military wife’s perspective

Date Posted:05/13/20
This Story Expires on: 07/31/20
VA Opens New Phone Line for Survivor Education Benefits

Date Posted:05/11/20
This Story Expires on: 08/31/20
Pentagon Lifts Onerous Proof Requirements for Student Military Survivor Benefits

Date Posted:05/11/20
This Story Expires on: 08/31/20
Tutor.com Extends Free Tutoring for Military Families

Date Posted:05/11/20
This Story Expires on: 07/31/20
Here's the VA's 3 Part Plan to Resume Full Services for Veterans

Date Posted:05/11/20
This Story Expires on: 08/31/20
Tricare Dental Plan Benefits and Coverage

Date Posted:05/07/20
This Story Expires on: 07/31/20
Tricare Limits Some Prescription Refills During Pandemic

Date Posted:05/07/20
This Story Expires on: 07/31/20
Trump signs second bill protecting GI Bill benefits amid coronavirus outbreak

Date Posted:05/01/20
This Story Expires on: 06/30/20
Military Commissaries Limit Meat Purchases Amid Supply Chain Worries

Date Posted:05/01/20
This Story Expires on: 07/31/20
The Economic Stimulus Can Seriously Affect Your Retirement Funds

Date Posted:05/01/20
This Story Expires on: 06/30/20
Troops, Families Say They’re Worried About Planned Changes to Military Health System

Date Posted:04/24/20
This Story Expires on: 06/30/20
Thunderbirds, Blue Angels Team Up for Dramatic Salute to Coronavirus Responders

Date Posted:04/24/20
This Story Expires on: 07/31/20
Tutor.com Extends Free Tutoring for Military Families

Date Posted:04/24/20
This Story Expires on: 06/30/20
Some Veterans Need to Fill Out This Form ASAP to Get Their Stimulus Payment

Date Posted:04/24/20
This Story Expires on: 06/30/20
How to Get a New ID Card When Everything Is Shut Down

Date Posted:04/22/20
This Story Expires on: 06/30/20
Frameworks for dissent and principled resignation in the US military: A primer

Date Posted:04/22/20
This Story Expires on: 06/30/20
New Agreement Will Make it Easier for Doctors to Access Military, Veteran Health Records

Date Posted:04/22/20
This Story Expires on: 06/30/20
New House bill would grant Gold Star families access to commissary, base recreation

Date Posted:04/21/20
This Story Expires on: 06/30/20
Defense Health Agency to Beneficiaries: Stop Taking Zantac

Date Posted:04/21/20
This Story Expires on: 06/14/20
35,000 Military Retirees Will Soon See a Tricare Refund

Date Posted:04/16/20
This Story Expires on: 06/14/20
USPHS Ready Reserve Corps Becomes Law With the CARES Act

Date Posted:04/16/20
This Story Expires on: 06/30/20
COVID 19 and USERRA: Know Your Re Employment Rights

Date Posted:04/13/20
This Story Expires on: 06/30/20
Everything You Need to Know About Tricare and National Guard and Reserve Activation

Date Posted:04/08/20
This Story Expires on: 06/30/20
Tricare Must Waive Coronavirus Test Visit Copays, But Not Off Base Pharmacy Fees

Date Posted:04/08/20
This Story Expires on: 06/30/20
Pentagon Extends ID Card Expiration Dates, Allows Mail Order for Some

Date Posted:04/07/20
This Story Expires on: 06/14/20
Retirees, Active Duty Families Could Be Barred from Military Pharmacies over Pandemic

Date Posted:04/07/20
This Story Expires on: 06/14/20
Some Veterans May Need to Take This Extra Step to Get Their Stimulus Check

Date Posted:04/03/20
This Story Expires on: 06/30/20
Trump says VA won’t collect debts, will extend benefits deadlines amid coronavirus outbreak

Date Posted:03/23/20
This Story Expires on: 06/30/20
VA suspends funeral honors, large gatherings at cemeteries due to coronavirus

Date Posted:02/08/20
This Story Expires on: 11/15/20
Here’s your friendly election year reminder to stay away from politics while in uniform

Date Posted:10/11/19
This Story Expires on: 09/30/20
WARNING Hackers target job hunting service members, veterans with sham employment website

Date Posted:10/03/19
This Story Expires on: 07/31/20
VA Releases Survivors Quick Start Guide

7 Affordable Ideas for Military Care Packages

March 22 Luncheon Meeting

Military Star Card Questions & Answers

US Air Force Museum to Mark 75th Anniversary of Japan Raid

Chapter News   
Register for News Story Emails

New 'Bombshell' Legal Opinion Says Military Retirees Can't Be Court Martialed
Posted on: 08/13/19
This Story Expires on: 10/31/19




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.

Chief Judge Navy Capt. James Crisfield delivered the opinion last week, joined by Senior Judges Navy Capt. Marcus Fulton and Marine Col. Jonathan Hitesman. The decision was made as a result of an appeal from retired Chief Petty Officer Stephen Begani, who was court-martialed after leaving the Navy on charges of attempted sexual abuse of a child.

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.

He was sentenced to 18 months confinement and a bad-conduct discharge.

Begani was court-martialed because of a federal law that leaves some troops subject to the Uniform Code of Military Justice long after they hang up the uniform. Marines and sailors who leave active duty after more than 20 years in uniform but less than 30 and who want to collect retiree pay move into the Fleet Reserve or Fleet Marine Corps Reserve.

There they receive what is essentially retainer pay and can be summoned back to active duty without their consent in the event of war or a national emergency. After 30 years of active or inactive service, retirees are then transferred to the Regular Retired List and they're no longer subject to the UCMJ.

None of this is true for retired reservists, though, which is why Crisfield argued in his written opinion that treating one group of retirees different than another is unconstitutional.

"Congress has determined that some, but not all, military retirees should remain subject to the Uniform Code of Military Justice (UCMJ) while they are retired," Crisfield wrote. "... Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional."

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

Zachary Spilman, a lawyer who specializes in military justice and the lead contributor to the military justice blog CAAFlog, where he first wrote about the decision, called the opinion "a bombshell."

"This is a huge deal," he said. "A court-martial for a retiree is very rare, but the threat of a court-martial is very real."

As Spilman noted in his Tuesday blog post on the decision, Begani did not challenge jurisdiction at trial, but he did challenge it on appeal. Begani argued that being subjected to the UCMJ as a retired regular component member while retired Navy Reserve members are not "violated the Fifth Amendment Due Process Clause's guarantee of equal protection of the laws."

Navy Lt. Daniel Rosinski, who represented Begani, argued that there's no difference between a reservist retiree or one who left active duty. They're all out of uniform, none are subject to military duties on a day-to-day basis, and they can all be recalled to active duty, Rosinski said in his oral arguments. But a reserve retiree in Begani's case would have been tried as a civilian.

Since they're "similarly situated," Rosinski argued that active and Reserve military retirees should be treated no differently when it comes to UCMJ jurisdiction.

"There are good reasons to subject full-time active-duty personnel to military jurisdiction," Rosinski said. "They're performing military duties on a day-to-day basis and there's a compelling governmental interest in regulating their conduct.

"But there's not good reason to distinguish among those non-active-duty personnel -- active-duty retirees, retired reservists and selective reservists -- for purposes of court-martial jurisdiction," he added.

Spilman said that's where the judges' opinion -- which essentially agrees with Rosinski's point -- is flawed. The judges' opinion acknowledges that the retainer pay regular retirees like Begani receive come with the obligation that they'll "maintain readiness for active service in event of war or national emergency."

"That's hardly an insignificant obligation; maintaining readiness for active service -- while not a particular specific demand -- undoubtedly requires a person to remain ordered and disciplined, the maintenance of which is the very reason for a military justice system," Spilman wrote on Tuesday. "Furthermore, the federal courts have recognized that the Fleet Reserve was established for that specific purpose."

In a Thursday follow-up post, Spilman again reiterated that those like Begani who are in the Fleet Reserve or the Fleet Marine Corps Reserve receive retainer pay, which is different than retired pay, and that a member "must actually be in that status to get the money."

Spilman told Military.com on Thursday he believes there's "zero chance" the government will not ask the Navy-Marine Corps Court of Criminal Appeals to reconsider its decision.

The U.S. Supreme Court earlier this year upheld the Defense Department's authority to prosecute military retirees for crimes they commit when it opted not to hear the case of retired Marine Staff Sgt. Steven Larrabee, who was convicted of sexually assaulting a bartender.

The Navy-Marine Corps Court of Criminal Appeals opinion could now affect other cases, Spilman said. That includes Larrabee's, who has taken his case to the U.S. District Court in Washington, D.C.

Stephen Vladeck, a professor at the University of Texas School of Law who represents Larrabee, has argued, like Rosinski that military retirees should not be subject to the UCMJ. He told Military.com in February when the Supreme Court declined to hear Larrabee's case that the idea that retirees could be pulled back into active duty was outdated.

"Increasingly, the function has been performed by reserves, not retirees," Vladeck said at the time.

Not everyone agreed, though. Retired Air Force Maj. Gen. Charles Dunlap, a professor at Duke University's law school, wrote in February that it's up to retirees who don't want to keep a relationship with the military to terminate their commission or request a discharge.

"As a retired service member subject to military jurisdiction, count me among those of my comrades-in-arms who believe it a small price to pay to maintain the connection with the armed forces," Dunlap wrote.

By Gina Harkins

Patricia Kime contributed to this report.



Return to News Stories
Charleston Chapter – MOAA
Charleston Chapter – MOAA

· Copyright ©2020 Charleston Chapter – MOAA P.O. Box 70421 Charleston SC 29415 ·
· Contact Charleston Chapter – MOAA · Editorial and Privacy Policy · Webmaster · Browser and Email Settings ·