Appeals Court Finds Military Retirees Can Still Be Court Martialed

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Gavel in a courtroom and scales in background.

A new court decision published Jan. 24, has confirmed that military retirees can still be court-martialed even after they have left active duty. In a 4-3 split decision, the Navy-Marine Corps Court of Criminal Appeals found that Navy retiree, Chief Petty Officer Stephen Begani’s conviction and sentence of 18 months’ confinement and a bad-conduct discharge stood even though he was a retired reservist at the time of his criminal actions. 

Begani pleaded guilty to attempted sexual assault and attempted sexual abuse of a child in December 2017 after connecting and making plans with a Naval Criminal Investigative Service undercover agent, while pretending to be a 15-year-old girl. 

After 24 years of active duty, Begani transferred to inactive status. This was the reason for his appeal. He argued that his conviction was unconstitutional to court-martial retirees like himself because they are not subject to court-martial. 

The Majority Opinion

Although the appellate court initially agreed with Begani in August 2019, its opinion didn’t last very long. It withdrew its opinion in October 2019, and set up conditions for reconsideration. Four months later the original decision was affirmed; Bengani was still subject to court-martial. 

The court cited that one of the biggest factors in the decision was that Bengani was still a member of the Fleet Reserve, which provided him with certain base privileges and some ongoing pay. In essence, even though he was retired, he technically was not.

The Defense Department holds those in the Fleet Reserve in this position, as it wants to maintain its authority should it need more soldiers in the event of a crisis that requires more people ready to fight. Those in the Fleet Reserve are some of the first service members chosen to return to active duty if needed. All that would be required is the signature of the Secretary of the Navy.

More Than a Pension?

Supreme Court Judge Stephens explained that the payment that service members receive is more than just a pension. “While the Supreme Court has viewed, for tax purposes, this salary as deferred pay for past services, the salary such retirees receive has generally been viewed not as a mere pension but as ‘a means devised by Congress to assure their availability and preparedness for future contingencies,” he wrote.

However, it’s hard to say if the decision will remain or be revisited soon. 

The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime

The U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible.

If you are a military service member (active or reserve) and have been charged with a crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!

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