Court Martials Involving Veterans

By Joseph Low for VT

After you have left the military, your focus is likely now on returning to civilian life, catching up with friends and family, and starting a new career. However, you may be surprised to find that you are still under the jurisdiction of the Uniform Code of Military Justice and, if you are charged with a crime, you may be subject to a court martial instead of a civilian trial.

Supreme Court Upholds UCMJ Jurisdiction

Despite being retired from the military, veterans are still considered to legally have a relationship with their respective branches of the military. The basis for this is the subject of both pensions and active vs reserved status. Because veterans can receive pension payments from the military, they are still considered to legally be under the jurisdiction of the military, as well as the UCMJ. This idea is also backed up by the concept of the reserve forces.

Even after retiring from the military, veterans are still considered members on the basis that they are a reserve force that can be re-enlisted in a national emergency or war. While this is extremely rare, the courts have used this argument to state that retired service members can be subject to a court martial under federal law.

This argument has since been upheld by the Supreme Court in the case of retired Marine Corps Staff Sgt. Steven Larrabee. Defendant Larrabee was retired from the Navy while living in Japan when he was charged with sexual assault and the subject of a court martial. After his sentencing, he appealed the court to have his case reviewed under a civilian court, as he argued he was no longer a member of the military.

This appeal did end up reaching the Supreme Court, however, as the court refused to hear the arguments. By rejecting the request to review the case, the court has effectively said that the case should be handled by the UCMJ. Thus, based on this ruling, retired service members can be court martialed and be tried in a military court.

Debate Within Navy Marine-Corp Court of Appeals

While the Supreme Court ruling may seem final, there is still debate within the different departments of the military. Most recently in August 2019, the Navy Marine-Corp Court of Appeals declared that court martials of retired sailors and marines are unconstitutional.

The basis for this argument is that currently retired service members are treated differently under the law. Currently, service members who have left the Navy for between 20-30 years are considered subject to the UCMJ. It is not until after 30 years of retirement that they are transferred to the Regular Retired List and subject to civilian courts.

The court initially argued that this distinction was arbitrary and retired veterans should not have the looming threat of a court martial above their head for decades. However, the court has since backtracked that opinion and opened up a debate on the subject in October 2019. That discussion ultimately led to a full retraction of the court’s opinion, thus upholding the jurisdiction of the UCMJ over veterans and retired members of the Navy.

Standing Up for Veterans

While the debate about court martials and retired service members is still ongoing, both active and retired members of the military do have a right to fair representation in a military court. If you find yourself the subject of a court martial, you should not hesitate to contact a California military defense lawyer.

Joseph H. Low IV
E-4, Corporal, Cpl.
U.S. Marines
Camp Pendleton, CA 92055
San Diego County
joseph@jhllaw.com
Cell: (949) 533-6969