Court-Martialing Military Retirees Should Be Stopped Until Congress Acts, Lawyers Say

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A gavel lays on the Uniform Code of Military Justice inside the 28th Bomb Wing courtroom at Ellsworth Air Force Base, S.D., July 17, 2018. (U.S. Air Force/Airman 1st Class Nicolas Z. Erwin)
A gavel lays on the Uniform Code of Military Justice inside the 28th Bomb Wing courtroom at Ellsworth Air Force Base, S.D., July 17, 2018. (U.S. Air Force/Airman 1st Class Nicolas Z. Erwin)

The military's ability to court-martial some retirees and not others is a "textbook violation of equal protection," an opening brief filed this week with a top court of appeals says.

Lawyers representing Stephen Begani, a retired Navy chief petty officer who was court-martialed shortly after leaving the Navy in 2017, filed their opening brief with the U.S. Court of Appeals for the Armed Forces on Monday. Begani filed a petition earlier this year for the top military appellate court to hear his case after a lower court determined he'd been rightly court-martialed.

Begani was subject to the Uniform Code of Military Justice as a member of the Fleet Reserve. Sailors and Marines who leave active duty after serving more than 20 years, but less than 30, move into that status if they want to collect retiree pay.

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Retired reservists don't face those same rules, however. Unlike members of the Fleet Reserve, they are not subject to the UCMJ.

That, Begani's lawyers say, is unconstitutional.

"This Court's responsibility in such a case is clear: to bar the court-martial of Fleet Reservists for offenses committed after their retirement and off active duty until and unless Congress eliminates this disparity," they wrote in their opening brief.

Begani was working as a contractor at a Marine Corps air station in Japan when he was arrested by members of the Naval Criminal Investigative Service and charged with attempted sexual abuse of a child. The retired chief petty officer arrived at what he thought was the home of a 15-year-old girl with whom he'd been communicating. That person was actually an undercover NCIS agent.

Begani received a bad-conduct discharge and was sentenced to 18 months' confinement.

"Servicemembers who 'retire' from regular components remain subject to military law in perpetuity; those who retire from the reserves don't," Steve Vladeck, who's representing Begani, tweeted this week. "... [That] distinction is unconstitutional."

Navy Lt. Daniel Rosinski, who also represents Begani, argued that point in a lower court last year. There's no difference between someone leaving active duty or the Reserve, he said, adding that any of them can be recalled to active duty, though Reserve retirees would be tried as civilians -- unlike Begani. Rosinski declined to comment further on Monday's opening briefing.

The Navy-Marine Corps Court of Criminal Appeals last summer issued a legal opinion saying court-martialing military retirees was unconstitutional. In a rare move though, that opinion was later withdrawn.

The U.S. Court of Appeals for the Armed Forces, known as CAAF, is the last stop before military appeals battles head to the Supreme Court.

The Supreme Court has previously upheld the Defense Department's authority to try retirees. In 2019, the court opted against hearing the case of a retired Marine who was court-martialed for a sexual assault he committed after leaving the military.

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.

Related: New 'Bombshell' Legal Opinion Says Military Retirees Can't Be Court-Martialed

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