The Supreme Court just ruled that former military members, even upon having left military service, can be court-martialed for crimes committed after service and as such are still subject to the Uniform Code of Military Justice:
The U.S. Supreme Court has upheld the Defense Department’s authority to prosecute retired service members for crimes they commit, even after retirement.
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 Larrabee’s petition marks the high court’s second rebuff in a year of a case involving a military retiree accused of non-military crimes in retirement.
Retired Marine Corps Staff Sgt. Steven Larrabee was convicted of sexually assaulting a bartender, the wife of an active-duty Marine, at a bar in Iwakuni, Japan, where he worked as a civilian. He had been retired — technically, placed on the Fleet Marine Corps Reserve status list — for three months.
Following a general court-martial in which he wore civilian clothes, Larrabee was sentenced to eight years’ confinement, a reprimand and a dishonorable discharge. In a pre-trial agreement, Larrabee’s prison term was reduced to 10 months.
Larrabee served his sentence but tried to have his conviction overturned on appeal, arguing that he should have been tried in a civilian court, as the offenses occurred after he was retired.
The case closely resembles that of retired Gunnery Sgt. Derek Dinger who, also while living on Okinawa and on the Fleet Marine Corps Reserve list and, later, the Active Duty Retired List, was found to be in possession of and producing child pornography. He was arrested and initially indicted within the civilian courts, but his case ended up in the military court system, where he was convicted and sentenced to nine years’ confinement and a dishonorable discharge.
Dinger appealed his discharge, arguing that the case should not have fallen under the military court system and that a dishonorable discharge should be reserved for “those who separated under conditions of dishonor.”
His challenge also was petitioned to the U.S. Supreme Court. It was denied last June.
Attorneys for both Marines argued that the cases should have been considered by the U.S. Supreme Court because they have far-reaching consequences for military retirees. The law stipulates that “retired members of a regular component of the armed forces who are entitled to pay” and “members of the Fleet Marine Corps Reserve” are subject to court-martial jurisdiction.
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.
But Stephen Vladeck, a University of Texas law professor who represented Larrabee, said that this argument no longer holds true with the rise of the reserve component. He called the idea that retirees are reserved for future service “anachronistic,” adding that military retirees are no longer among the “pool of persons at the ready” and thus should not be subject to the UCMJ.
“Increasingly, the function has been performed by reserves, not retirees,” he said.
Furthermore, Vladeck said in an interview with Military.com, there are articles in the UCMJ that could place many military retirees at risk for arrest, and the U.S. Supreme Court has an interest in weighing in on how cases involving retirees are handled.
He cited one provision in the UCMJ that makes “contemptuous words” used by a commissioned officer “against the president, the vice president, Congress” and others as punishable by court-martial.
“From Adm. Bill McRaven to Gen. Michael Hayden and Gen. Martin Dempsey, some of President Donald Trump’s more visible critics of late have been retired military officers. And a provision of federal law … makes it a crime, triable by court-martial,” he wrote in a blog post on Lawfare. “But does the Constitution really allow the government to subject to military trial those who have retired from active duty — in some cases, long ago — even for offenses committed while they are retired?”
Yes, it does, according to the Supreme Court, in its denial of Larrabee’s and Dinger’s writs of certiorari.
Retired Maj. Gen. Charles Dunlap, former deputy judge advocate general of the Air Force, concurs.
In a Feb. 16 post on Duke University School of Law’s Lawfire blog, Dunlap said Congress explicitly states that the UCMJ applies to retirees and that Vladeck’s arguments about the impropriety of senior officers speaking out against the president, as well as the “anachronistic” idea that retirees can be recalled to active duty, aren’t valid.
He added that the very act of receiving retired pay means that retired personnel are choosing to keep a relationship with the military and accept all that goes with the choice not 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.
Meanwhile, the Supreme Court’s refusal to hear the Larrabee case may not be the end of the legal road for the retired Marine. According to Vladeck, Larrabee may consider suing for back pay in the Court of Federal Claims. Vladeck believes his client is entitled to do so under the Military Pay Act. (source, source)
Based upon the ruling, this is a very important court case with massive social ramifications.
This is not to say that military members, or anybody in society who commits a serious crime, should simply be exonerated from it. It is also not to say that these two cases cited above asked for a “civilian” trial out of a desire for objective justice, but it was likely because they hoped they could get a “lighter” sentence overall in a civilian court versus a military court.
But the question is not what the motivations of the men were. The concern with these cases is one of procedure and precedent it has for the future.
It is already a known fact that a solider in the military does not sign up now for four years, but for eight– four of “active duty,” and then a period of four years where the military can “recall” a soldier to the force. Likewise, state laws on expunged criminal convictions do not apply to the military, meaning that if a person had a crime expunged or his records sealed for whatever reason, the military has the ability to un-seal his records and to see his crime, and while the states declare that a person does not have to discuss previous expungements with an employer, the military considers them guilty convictions under the term “adverse adjucations” and in spite of state law, if one does not list them the military can charge a soldier at a later point with making a false statement under the UCMJ.
The very fact that military law by the example of criminal records supercedes state law is a clear declaration of the difference in rights between soldiers and civilians.
Military law and “civilian” law are very different because a person in the military is considered US government property. A person in the military does NOT have the same constitutional rights as a citizen does. Even if the difference is small, the fact is that there is a legal difference between the two, the former having less than the latter. Military justice applies while a person is in the military, and civilian justice the moment a person leaves the military, regardless of what the crime is.
The result of these two cases is to allow for the distinction between civilian and military to be blurred. By allowing former soldiers who have left the service to be charged as soldiers even though they are not soldiers, a precedent has been set that says that soldiers, while they are property of the US government while in the service, are in fact property for the rest of their lives.
Note the point that I highlighted in the article. The UCMJ allows for a soldier to be tried for “insulting the President,” which is essentially the Islamic equivalent of “blasphemy.” Islam does it to honor what Muslims believe to be the supreme diety and creator of the universe, and even though Allah is a false god and a deception, the intention is at least one that can be said to be nominally honorable as a principle since it pertains to what they believe is absolute truth. The military does it because one generally does not publicly criticize one’s employer while one is employed with him, but once he leaves he can say what he wants. This ruling effectively creates a military “religion,” where members of that religion are members for life and one can never leave and is forever bound by the group just as how many Muslim apostates are forever rejected by their families and live in fear of receiving Islamic “justice” from them.
It is the gradual militarization of American law, and the increasing inability of the average person to be able to be reconciled to society for errors of judgement or accidents.
Consider for example American bankruptcy laws. In America, it is almost legally impossible to discharge student loans, alimony payments, or child support payments, and those who find themselves subject to such debts are forever enslaved to them with little hope of escaping them. Indeed, for many people it would seem to be better to leave the country for another and eventually renounce one’s citizenship, starting life again simply to get away from the debts as many people have done throughout history.
This is a gradual enslavement of the people, a gradual pattern where the people of the nation believe they are free but are subject to such a morass of laws they do not even perceive they are tied down by, but passively accept as a way of life. It is increasingly the Hotel California, where while one can “check out” any time, one can never “leave.”
Eventually in the future, it could be possible for there to be three groups- a majority of those who are enslaved by poverty, circumstance, debt, and other laws, those who rule over the masses, and then those men outside of them who while living in comparable worse poverty and hardships, have retained their sense of identity and self for who they are, realizing that true freedom is hard, it begins in the mind, and for which there is a sacrifice that must be made, to the animating pursuit of freedom over the tranquility of servitude to an elite class and being bound by invisible chains that lock both body and mind.
Slavery often does not come fast, but piece-by-piece in small changes, until one wakes up and realizes that he has been consumed by a monster that he created by his decisions.