U.S. Military vs. RETIRED Military Service Members

I was absolutely flabberghasted to hear of efforts by some within the military “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.” (Vladeck, S. (Feb 12, 2019). The Supreme Court and military jurisdiction over retired servicemembers. Lawfare. Retrieved from https://www.lawfareblog.com/supreme-court-and-military-jurisdiction-over-retired-servicemembers)

Apparently, the U.S. Supreme Court declined to hear it: “Feb 19 2019 Petition DENIED.”

This makes absolutely zero sense at all, particularly in light of the fact that,”with respect to reservists, unlike retired service members, Congress has authorized military trials only for offenses committed while on active duty or inactive-duty training—as the Court of Appeals for the Armed Forces just reaffirmed last week” (Vladeck).

I strongly suspect Congress never included retirees in this bill simply because they could never conceive of anyone would so grossly misconstruing “on duty or present” in 10 U.S. Code §?888.Art. 88. Contempt toward officials to mean “forever” rather than “present after duty hours or while on leave,” AS IT WAS INTENDED. Congress had absolutely zero intention of keeping every active duty commissioned officer on some sort of legal hook for decades throughout decades of retirement.

Before we proceed further, let’s examine the law itself:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Hmm… This doesn’t appear to apply to misconduct with one’s partner in a bar…

If it were not so intended back in 1956, then Congress would never have “authorized military trials ONLY for offenses committed while on active duty or inactive-duty training—as the Court of Appeals for the Armed Forces just reaffirmed last week” (Vladeck). After all, Reservists do not lose their commissions between Reservist weekends or being recalled to active duty status. They remain commissioned officers, and they’re commissioned by the President, the same as all active duty officers. If they’re not subject to 10 U.S. Code §?888.Art. 88 while not on active duty, then by pure and simple logic as well as straightforward jurisprudence, neither are any retired officers, as retirees are not on active duty, either.

As for “To make Rules for the Government and Regulation of the land and naval Forces,” the Congressional authority given in Article I Section 8 of the United States Constitution MUST be taken in context. That context immediately precedes the “land and naval forces” with:

“To raise and support Armies…” and “To provide and maintain a Navy.”

Both clauses sound quite “active” as “on active duty.” Yes, retired military officers remain officers. No, retired military officers are NOT on active duty.

For example, my father was in the Navy Reserves, but he served on active duty status for 30+ years. The day after he retired, he was no longer on active duty. Simple enough, right?

Moreover, no officer has ever been on active duty status the day after they retired, and the operative clause in 10 U.S. Code §?888.Art. 88, “…in which he is on duty or present” clearly and undeniably to all rational, reasonable minds means “on duty or off duty, as in either “after duty hours” or “on leave.” It absolutely does not, cannot mean those who are no longer on active duty, the same as how Reservists between Reserve weekends and months, or activations aren’t subject to Art. 88, either.

Quite frankly, it appears that someone, for some unfathomable reason, is taking horrible advantage of a poorly worded 1956 federal law to… What? Advance their career? Wreak havoc or vengeance on someone they knew while on active duty? Seriously, their logic and reasoning escapes me.

However, to give them the benefit of the doubt, I believe they may be confused with respect to 42 U.S. Code §?212.Retirement of commissioned officers:

(c)Recall to active duty

A commissioned officer, retired for reasons other than for failure of promotion to the senior grade, may (1) if an officer of the Regular Corps or an officer of the Reserve Corps entitled to retired pay under subsection (a), be involuntarily recalled to active duty during such times as the Commissioned Corps constitutes a branch of the land or naval forces of the United States, and (2) if an officer of either the Regular or Reserve Corps, be recalled to active duty at any time with his consent.

If I’m not mistaken, I believe their confusion stems from the phrase, “as the Commissioned Corps constitutes a branch of the land or naval forces of the United States…” Naturally, this brings us back to the Constitution’s, “To make Rules for the Government and Regulation of the land and naval Forces,” as well as 10 U.S. Code §?888.Art. 88’s application to active duty personnel ONLY.

It most certainly does not apply to an issue at an overseas bar.

I would encourage each and every one of us (myself included) to write at least one member on the U.S. House Committee on Armed Services Committee. Consider including any of the verbiage contained herein, as well as Vladeck’s observation that “Neither the lower courts, nor the solicitor general in his brief in opposition, have offered any rationale for why retirees should be subject to court-martial for nonmilitary offenses in their civilian lives when reservists are not.”

Since the U.S. Supreme Court refused to hear this case, the entire situation is absolutely ripe for bipartisan protection from such gross misinterpretation and abuse.

You might wish to provide a copy of Steve Vladeck’s article and respectfully request they expressly clarify that 10 U.S. Code §?888.Art. 88. Contempt toward officials applies ONLY to commissioned officers while on active duty and NOT to commissioned officers in any other status.

Nearing the Bottom Line: Those who fought risking their very lives to “support and defend the Constitution of the United States against all enemies foreign and domestic” should absolutely NEVER be hobbled from enjoying the same Constitutional rights and freedoms, particularly in the form of abridging the freedom of speech, as any and all members of the general populace, particularly when they’ve retired to rejoin the general populace themselves.

Final Word: Rick Houghton offers a “you’re forever on the hook” point of view, then cites 10 U.S. Code §?802.Art. 2. Persons subject to this chapter, which contains three critical statements:

(a) The following persons are subject to this chapter:

(4) Retired members of a regular component of the armed forces who are entitled to pay

(c)Notwithstanding any other provision of law, a person serving with an armed force who—
(1)submitted voluntarily to military authority;
(2)met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3)received military pay or allowances; and
(4)performed military duties;
is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

Bottom Line: According to the LAW, specifically, 10 U.S. Code §?802.Art. 2. Persons subject to this chapter, those whose active service has been terminated et all i.e. by honorable or other discharge, and complied with (1)-(4) are no longer subject to this chapter (UCMJ).

I discovered yet ANOTHER bottom line in 10 U.S. Code §?10141.Ready Reserve; Standby Reserve; Retired Reserve: placement and status of members; training categories:

(a)There are in each armed force a Ready Reserve, a Standby Reserve, and a Retired Reserve. Each Reserve shall be placed in one of those categories.
(b)Reserves who are on the inactive status list of a reserve component, or who are assigned to the inactive Army National Guard or the inactive Air National Guard, are in an inactive status. Members in the Retired Reserve are in a retired status. All other Reserves are in an active status.
(c)As prescribed by the Secretary concerned, each reserve component except the Army National Guard of the United States and the Air National Guard of the United States shall be divided into training categories according to the degrees of training, including the number and duration of drills or equivalent duties to be completed in stated periods. The designation of training categories shall be the same for all armed forces and the same within the Ready Reserve and the Standby Reserve

In summary, when it comes to one’s status, there’s active, inactive, and retired. Those who are retired are in a retired status. Again, according to (c), you’re no longer subject to “this chapter” i.e. the UCMJ once your active status has been terminated. For retirees, it specifically states in your DD-214, block 23, the Type of Separation is Retirement.

One cannot be in “active status” if one has been “separated” from the service with an “Honorable Discharge” (Block 24). Active status has been terminated, therefore, the UCMJ no longer applies.

NOTE: Other federal law still applies! But no retiree can lawfully be hauled into a military court of law.

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