Recent reports of current service members, veterans and some military retirees participating in the insurrection at the U.S. Capitol on Jan. 6 have prompted calls for investigations into those connections and using the Uniform Code of Military Justice to prosecute the offenders.
But the law is complicated — each of those groups falls into different categories when it comes to the UCMJ and military justice might not apply in many cases. The trickiest is retirees.
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For those currently serving on active duty, the UCMJ applies.
The UCMJ does not apply to veterans who were discharged before reaching 20 years of service and qualifying for a retirement.
For reservists, the UCMJ applies only while on active duty or inactive duty training.
But for retirees, the UCMJ does apply in some situations — it all depends on how they retired, and even that is being litigated.
In a letter to acting Secretary of Defense Chris Miller this week, combat veteran and U.S. Sen. Tammy Duckworth, D-Illinois, called for the Pentagon and services to “root out extremists” and “hold individuals accountable” under the UCMJ.
One of the earliest such cases identified from the Capitol insurrection was retired Air Force Lt. Col. Larry Rendall Brock Jr.. He was photographed inside the Senate chamber holding zip ties and dressed in military-style gear, wearing a 706th Fighter Squadron patch.
Brock turned himself in to authorities on Sunday. At his first appearance in federal court in Texas on Monday, Brock was charged with one count of entering or remaining in a restricted building without lawful authority and one count of violent entry and disorderly conduct on Capitol grounds, according to court records.
In a statement to the Military Times, Ann Stefanek, an Air Force spokeswoman, said: “Lt. Col. Larry R. Brock, Jr. retired from the Air Force Reserve in 2014. As a private citizen, we no longer have jurisdiction over him.”
Because Brock is a retired reservist, he doesn’t fall under the UCMJ.
Had he retired from active duty, however, the Air Force could pursue charges against him.
Though that option has rarely been used in the history of the UCMJ, there have been high-profile cases in recent years that resulted in the prosecution of retirees. Those have led to legal challenges to the practice of charging retirees, which some say is “anachronistic” and some judges have called it “unconstitutional.”
Recent cases involving retired servicemembers, are testing the practice of charging active-duty retirees under the UCMJ.
One of those cases involved retired Marine Staff Sgt. Steven Larrabee, who was convicted of sexually assaulting a fellow bartender, the wife of an active-duty Marine, while she was unconscious and recording the incident on his cell phone.
This was in 2015, just three months after he had retired and had taken a civilian job in Iwakuni, Japan.
Larrabee ultimately pleaded guilty to sexual assault and indecent recording. He then appealed his conviction to the Supreme Court, where the justices declined to take it up in early 2019.
When the court declined to hear the case, it left his conviction in place.
Another case involving a retiree pulled back to face UCMJ charges was Marine Gunnery Sgt. Derek Dinger. The former gunny had been retired for nearly a decade when the Naval Criminal Investigative Service arrested him for downloading and sharing child pornography in Okinawa, where he was working as a civilian contractor.
Dinger was convicted but appealed the decision to the Supreme Court, which also declined to hear his case.
The court typically receives an estimated 7,000 to 8,000 petitions a year and accepts about 80, according to the court’s website. The justices do not typically provide explanations for why a petition is not accepted.
On Aug. 5, 2017, Naval Criminal Investigative Services arrested retired Navy Chief Petty Officer Stephen Begani, at his Marine Corps Air Station Iwakuni, Japan, residence for communications he had with what he thought was a 15-year-old girl but turned out to be an NCIS agent.
He was later convicted and sentenced to 18 months and given a bad conduct discharge.
Begani has appealed his conviction, also challenging whether a post-retirement charge should fall under the UCMJ. That appeal is expected to be reviewed by the Court of Appeals for the Armed Forces, or CAAF, in the coming months.
Those cases and others highlight past attempts to convince the courts to interpret the law in a way that would end the practice of pulling retirees or fleet reservists back to active duty to face charges. But, some attorneys have noted, the way that the law is now being read technically opens up retirees to nearly any punishment at any time.
In 2019, Larrabee and his attorneys also filed a federal civil lawsuit against the Secretary of the Navy. And in November, District Judge Richard J. Leon, ruled that using the UCMJ against a retired service member was unconstitutional.
That ruling was appealed on Jan. 14.
In part, Leon pointed out that retirees from the active force compared to those who retired from the reserves are being treated dramatically different when it comes to the UCMJ.
The federal judge laid out a hypothetical scenario to illustrate his point:
“Indeed, under the current regime, a retired member of the Army and an inactive member of the Army Reserve who get into a bar brawl would face two entirely different systems of justice: the Army retiree could be hauled before a court-martial and tried by a military judge and active military officers, whereas the Army Reservist would be entitled to indictment by a grand jury and trial by a civilian jury of his peers overseen by an impartial judge. Please!”
Stephen Vladeck, one of Larrabee’s attorneys and a law professor at the University of Texas, told Military Times that while his client’s appeal to the Supreme Court from the military court rulings was not taken up, the federal civil court ruling could offer another opportunity to settle the matter at the high court.
Retired Marine officer and military lawyer Colby Vokey told Military Times that while so far military prosecutors have used the UCMJ against some retirees, that hadn’t been common practice in the past.
Vokey said looking back over the past few decades it appears there’s been a culture change among military prosecutors to expand jurisdiction.
“There doesn’t seem to be too much of a limit on prosecuting retirees if you follow the thinking of the court,” Vokey said. “I still have a hard time believing that.”
“I still think it’s an open question,” he said.
One of the arguments prosecutors have made is specific to the Navy and Marine Corps. That’s because in those branches if a person retires after 20 years but before 30 years of service they go onto the Navy-Marine Corps Fleet Reserve.
Technically, they are still able to be called back to service. And because they are receiving a kind of “retainer” pay, then they are subject to the UCMJ, government prosecutors have argued.
But Vladeck has argued that case law has defined military retirement pay as a “deferred compensation,” basically a pension, and not a reduced salary ensuring retirees’ future readiness, he wrote.
Vladeck and Vokey note that by allowing prosecutors to go after retirees with UCMJ offenses, the military greatly expands their powers. Vladeck called the move “stunning in its breadth.”
Todd South has written about crime, courts, government and the military for multiple publications since 2004 and was named a 2014 Pulitzer finalist for a co-written project on witness intimidation. Todd is a Marine veteran of the Iraq War.
