If someone is retired, are they really retired when it comes to service in the United States military? That issue is awaiting review by the Supreme Court in the matter of Begani v United States of America.
Begani served 24 years on active duty before transferring to the Fleet Reserve. The Fleet Reserve is a status in which you are paid “retainer pay” (same amount as your retirement pay) but are subject to recall to active duty. The Navy and Marines have a unique system in which you cannot be retired and actually collecting what is officially retirement pay until you have completed 30 years total of service.
The Move to Fleet Reserve
After Begani transferred to the Fleet Reserve, he remained in Japan where he was last stationed. Begani was working as a government contractor, when he became under investigation for improper sexual contact with a minor via text messages, where he made an overt attempt to meet the minor, who in fact was a fictitious person. The Secretary of the Navy approved Begani to be charged under the UCMJ and tried by court martial. Begani pled guilty under agreement that he would not receive a punitive discharge. On appeal, however, the Navy and Marines Corps Court of Military Appeals (NMCCA) ruled that applying the UCMJ to members (Article 2 of the UCMJ) of the Fleet Reserve but not to retired Navy Reserve members violates the equal-protection guarantee of the Fifth Amendment’s Due Process Clause, and (2) that petitioner was a “former member” of the armed forces and therefore could not be subject to the UCMJ. However the matter was then taken up by the NMCCA en banc (meaning every judge on that court, not just a panel), and Begani’s conviction was affirmed. The Court of Appeals for the Armed Forces (CAAF) affirmed the latter decision of the NMCCA, and Begani subsequently has petitioned the Supreme Court to hear the matter. There is some precedence in the matter from two different lower appellate courts. For brevity and the purpose of this article, the rulings seem contradictory. For a more detailed account that legal nerds may be interested in, Jacob Weaver has penned an excellent article.
The issue at hand, for those of you worried retirees (who plan on being investigated), only seems to apply to the unique legal status conveyed upon Navy and Marine personnel who have completed active duty and are eligible for retired pay. Perhaps the most compelling argument set forth by Begani in his SCOTUS petition is in his introduction (be careful what you ask for) when he says:
He receives deferred compensation stemming from his prior active-duty service, but he holds no active rank; he has no commanding officer or subordinates; he lacks the authority to issue binding orders; he has no obligation to follow orders; he performs no duties; he is under no requirement to maintain any level of physical (or other) readiness; and he participates in no regular military activities of any kind. He was nevertheless tried and convicted by a court-martial— dressed in civilian clothes—for non-military offenses committed after he retired from active duty.
As a side note to that argument, if the security clearances of those in the Naval Fleet Reserves are actively maintained, then the issues multiply too.
Current Law and UCMJ
The government in their response last week, essentially defended the current law and the UCMJ, citing multiple cases which define the terms “land and naval forces” found in the constitution. In other words, there is rationale behind the UCMJ language that has been molded and shaped for years.
Going forward, will the law and the UCMJ be changed regardless of whether SCOTUS hears this case? Is there an argument to be made that in today’s military, this is tantamount to involuntary service, something this country has shunned for an all-volunteer force? Whether the court decides or not, will the visibility of the case be used against the Navy and Marines for recruiting purposes? Watch this case closely to see what we find out.
