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Can a Retired Military Officer Get Court-martialed?

June 7, 2024

Are you a retired military officer wondering if you can still face a court-martial even after leaving active duty service? The short answer is yes – under certain circumstances, retired members of the U.S. Armed Forces may face the Uniform Code of Military Justice (UCMJ) and court-martial proceedings.

If you are a retired service member facing potential military legal issues, seek guidance and learn about your rights from an experienced court-martial lawyer or attorney.

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What is a court-martial?

"MARTIAL LAWS" - text on white paper against a dark background with a judge's gavel. Concept of legal information.

A court-martial is a military court that tries service members for criminal offenses under the UCMJ.

There are three types of courts-martial:

  • Summary court-martial: This type of court handles minor offenses similar to misdemeanors in civilian court. A single officer serves as judge and jury.
  • Special court-martial: This court handles more serious offenses, equivalent to a civilian felony trial. It consists of a military judge, prosecutor, defense counsel, and a panel (jury) of at least three service members. The court can impose punishments of up to one year of confinement, bad conduct discharge, and forfeiture of pay.
  • General court-martial: Reserved for the most serious offenses. Similar to a special court-martial but with a panel of at least five members. Can impose any punishment allowed under the UCMJ, including death.

Courts-martial have some key differences from civilian criminal trials:

  • No right to a jury trial – the accused can request trial by judge alone or by a panel of officers and/or enlisted members
  • Broader criminal jurisdiction, including uniquely military offenses like desertion or disobeying orders
  • More limited rights of appeal
  • Harsher punishments, including punitive discharges and confinement in military prison

The Military’s Jurisdiction Over Retirees

Service members are still considered part of the Armed Forces when they retire from the military.

Article 2 of the UCMJ subject, the following categories of retirees to military jurisdiction:

  • Members of the regular components of the armed forces entitled to pay
  • Retired members of a reserve component in a military hospital
  • Members of the Fleet Reserve and Fleet Marine Corps Reserve
  • Members of the Army National Guard or Air National Guard when in federal service

In short, if you are entitled to military retirement pay, you are still subject to the UCMJ. This is true even if you receive VA disability compensation instead of retired pay. The key factor is your retiree status, not the source of your pay.

Common Offenses Leading to Court-martial of Retirees

While retirees can technically be tried for any offense under the UCMJ, the military is most likely to pursue cases involving:

Sexual Assault and Harassment

The military has taken a strong stance against sexual misconduct in recent years, especially in light of high-profile scandals and the “Me Too” movement. Retired service members are not exempt from facing consequences for sexual assault or harassment committed during or after their time in uniform.

Sexual assault includes any unwanted sexual contact, from groping to rape, where the victim does not or cannot consent. Sexual harassment involves unwanted sexual advances, demands for sexual favors, or other physical/verbal harassment of a sexual nature. Both types of misconduct are punishable under the UCMJ.

If a retired officer is accused of sexual assault or harassment, they may face a court-martial. The military has jurisdiction over these offenses, even if they occurred off-base or after the officer retired. A conviction can result in confinement, punitive discharge, and registration as a sex offender.

Fraud and Theft

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Retired military members who defraud or steal from the government can face a court-martial. Fraud involves deliberately deceiving the military for financial gain, such as by submitting false claims or overbilling for services.

Theft can include embezzling funds, stealing equipment, or unlawfully converting military property for personal use.

One common type of fraud committed by retirees is TriCare fraud. This involves submitting false claims or overcharging for medical services covered by the military health insurance program.

Retirees may also commit pension fraud by concealing information that will disqualify them from receiving retirement pay, such as a criminal conviction.

Espionage and Treason

Espionage and treason are among the most serious military offenses. They involve betraying the United States by aiding an enemy country, usually by passing sensitive information or providing other assistance.

Retired officers are particularly vulnerable to committing these crimes because they may have had access to classified information during their careers.

The UCMJ allows for the court-martial of any service member, active or retired, who commits espionage or treason. In certain circumstances, these offenses can lead to life in prison. Even if the act occurred after retirement, the military still has jurisdiction to prosecute.

Violent Crimes

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Retired officers accused of violent crimes like murder, manslaughter, assault, or domestic violence may face a military court-martial under certain circumstances. Generally, the crime must have some connection (or nexus) to the military to fall under UCMJ jurisdiction.

Some factors that can establish a military nexus include:

  • The crime occurred on a military base or installation
  • The victim was a military member, retiree, or dependent
  • The crime involved the use of a military weapon or equipment
  • The offense impacted the morale, discipline, or readiness of a military unit

For example, if a retired officer assaulted another retiree at a military reunion event, that can be tried at court-martial. Or if a retiree was involved in a fatal DUI accident while driving a military vehicle, they might face a military trial for manslaughter.

Domestic violence is an area of particular concern for the military, given its high rates among service members and veterans. Retired officers who commit domestic abuse may be subject to court-martial, especially if the victim was a military spouse or dependent.

Uniquely Military Offenses

In addition to civilian-equivalent crimes, retired officers can face court-martial for offenses unique to the military. These actions may not violate civilian laws, but they violate the customs, traditions, and standards of the Armed Forces.

One broad category is conduct unbecoming an officer. This catch-all offense covers any behavior that disgraces the officer corps or compromises an officer’s ability to lead. Examples can include public drunkenness, fraternization with enlisted troops, or misuse of one’s rank or position.

Retired officers are also still subject to the military’s restrictions on political activities. While they are free to vote and privately express political views, they may not make public statements that might represent the military, such as by wearing a uniform to a protest or using their rank title in a political endorsement. Doing so can result in a court-martial.

Other uniquely military offenses that can land a retired officer in court include insubordination (disrespecting or disobeying a superior officer), malingering (faking illness to avoid duty), and misbehavior before the enemy (cowardice or misconduct in battle).

The UCMJ exists not just to punish common crimes but to uphold the highest standards of honor and discipline among all military members, current and former.

Of course, the decision to court-martial a retiree is case-by-case. The military must weigh factors like the severity of the offense, the strength of the evidence, the impact on morale and discipline, and the availability of civilian jurisdiction.

Benefits at Risk in a court-martial

The retired military officer is saluting in front of the US flag.

A retired officer convicted at court-martial faces criminal penalties and the loss of military benefits.

These include:

  • Retirement Pay: A retiree sentenced to confinement or punitive discharge (Dismissal or Dishonorable Discharge) forfeits all pay and allowances, including retired pay.
  • Medical Benefits: A retiree who loses retired pay due to a court-martial also loses TriCare coverage for themselves and their family. However, if they have a qualifying disability rating, they may still be eligible for VA medical benefits.
  • Commissary and Exchange Privileges: Convicted retirees lose access to base commissaries, exchanges, and MWR facilities.
  • Burial Rights: In rare cases, a retiree convicted of a capital offense or treason may be barred from burial in a national cemetery.
  • VA Benefits: A court-martial conviction does not automatically disqualify a retiree from VA disability compensation, pension, or other benefits. However, the VA may deny benefits in cases of serious misconduct or dishonorable service.

Losing these benefits can be devastating for a retiree and their family. That’s why you must mount the strongest possible defense with the help of a skilled court-martial attorney.

Alternatives to court-martial for Retirees

While the threat of court-martial is very real for retired officers, it’s not the only way the military can address misconduct.

In some cases, you may face these alternatives:

  • Article 15 (Non-Judicial Punishment): A commanding officer may impose Article 15 discipline on a retired member recalled to active duty. However, NJP may not apply to retirees on active duty.
  • Administrative Separation: The military may administratively separate from a retired officer for misconduct. This is not a criminal proceeding but can still result in an Other Than Honorable discharge characterization and loss of benefits.
  • Grade Determination Board: If an officer committed misconduct in a lower grade before retiring in a higher grade, the military may convene a Grade Determination Board to decide the highest grade in which the officer served honorably. That grade will determine the retired officer’s pay.
  • Civilian Prosecution: Retiree misconduct often violates state or federal law. The military may let civilian authorities prosecute the case rather than convening a court-martial.

These court-martial alternatives carry heavy consequences for a retired officer. A military law attorney can protect your rights, reputation, and benefits.

Your Rights When Facing Court-martial as a Retiree

If you are a retired service member facing court-martial, you still have important rights under military law:

  • Right to Counsel: You can have military defense counsel at no cost. You may also hire a civilian defense attorney at your own expense, which is often the best decision. Your lawyer will advise you of your rights, negotiate with the prosecution, and mount your best defense at trial.
  • Right to a Speedy Trial: You have the right to a speedy trial free from unreasonable delays. Unless a delay is justified, the military must bring you to trial within 120 days of preferring charges.
  • Right to Confront Witnesses: You can confront and cross-examine witnesses against you at trial. Your defense attorney can challenge the credibility and testimony of prosecution witnesses.
  • Right to Present Defense: You can present evidence and testimony in your defense. This may include character witnesses, expert witnesses, or evidence of extenuating or mitigating circumstances.
  • Right to Appeal: You can appeal the verdict and sentence if convicted at court-martial. The relevant service Court of Criminal Appeals and potentially the Court of Appeals for the Armed Forces or the U.S. Supreme Court will review your case.

A knowledgeable military defense lawyer can protect these rights throughout the court-martial process. Don’t face military justice alone – get the advocacy you deserve.

How a Military Defense Lawyer Can Help

The concept of military law, with a soldier and a wooden gavel in a courtroom.

Going through the military justice system as a retiree can overwhelm you. The rules and procedures are complex, the stakes are high, and you may feel like the cards are stacked against you.

That’s where an experienced military defense attorney comes in.

Here’s how an attorney can help you:

  • Investigate the Allegations: Your lawyer will conduct an independent investigation into the allegations against you, looking for weaknesses in the prosecution’s case and evidence that supports your defense. They may interview witnesses, review documents, or consult experts to build your case.
  • Negotiate with the Prosecution: In some cases, your attorney can negotiate with the prosecution for a dismissal, reduction of charges, or favorable plea agreement. An attorney can leverage their knowledge of the military justice system to get you the best possible outcome.
  • Advise You on Your Options: Your lawyer will explain your rights, the potential consequences of a conviction, and your options for defending against the charges. An attorney can help you decide whether to accept an Article 15, administrative separation, or civilian plea deal, or to fight the charges at court-martial.
  • Represent You at Trial: If your case goes to court-martial, your military defense counsel will be by your side every step of the way. They will challenge the prosecution’s evidence, cross-examine witnesses, present your defense, and argue for a not guilty verdict or lenient sentence.
  • Advocate for You Post-Trial: If you are convicted at court-martial, your lawyer can file an appeal and advocate for pardon or parole. Your lawyer can also counsel you on the impact of the conviction on your benefits and navigate the post-trial process.

Remember, you don’t have to face military justice alone. A skilled court-martial defense attorney can be your strongest ally in protecting your rights, freedom, and hard-earned military benefits.

Call a Military Lawyer Today

Are you or a loved one facing court-martial as a retired military officer? Don’t go through the complex military justice system alone. Reach out to an experienced military criminal defense lawyer today for your free consultation and take the first step toward securing your future.

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