Recalling Former Military Personnel, and Holding Private Contractors Under Military Direction, for Discipline Under the UCMJ

Many civilian legal authorities believe the use of civilian courts using civilian prosecutors and defense for civilian offenses involving civilians and former military personnel, in the same action or crime, are always the best solution to a criminal case. The Supreme Court of the United States disagreed with this.

Substantive Sections in this Article:

I. Commissioned and Non-Commissioned Military Retirees

II. Opinion of the Supreme Court of the United States

III. For All Military Enlistees the Contract of Enlistment Reads

IV. Rules for Military Retirees

V. How Does Being Recalled Work?

VI. History of the Bill Involving Civilian Contractors

VII. How Does This Assist With Military Effectiveness?

VIII. Decision Process to Initiate Military Proceedings

IX. Traceable Subjects

X. End Notes and Sources

I.                Commissioned and Non-commissioned Military Retirees.

"Congress has determined that some, but not all, military retirees should remain subject to the Uniform Code of Military Justice (UCMJ) while they are retired,"(1) The retiree can terminate their military commitments and obligations by requesting a discharge or resigning their commission. The Bill initiating the changes for Retirees also covers Civilian Contractors in the Field with Military Units. Jurisdiction over individuals in the military services is defined in 10 U.S.C. Section 802. A discharged former service member has no further responsibility to the U.S. military, nor the military to them.

II.              Opinion of the Supreme Court of the United States.

The U.S. Supreme Court upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement.

The Court, in February 2019, chose not to hear the case of a retired Marine who was court-martialed for a sexual assault he committed three months after leaving the service in August 2015. By not accepting the case, Larrabee v. the United States, 436 F.3d 890 cert. denied on February 19, 2019, the court upheld the status that military retirees are subject to the Uniform Code of Military Justice.

The denial of Larrabee's petition marks the high court's second rebuff in a year of a case involving a military retiree accused of non-military crimes in retirement.(see also citation 1)

III.             For All Military Enlistees the Contract of Enlistment Reads:

 “If this is my initial enlistment, I must serve a total of eight (8) years. Any part of that service not served on active duty must be served in a Reserve Component unless I am sooner discharged.(2?) “

The traditional enlistment contract calls for four years of active duty, but this can vary depending on a few factors. Some Army enlistment contracts have active-duty components of two, three, or six years. These depend on what kind of training the recruit is receiving; some programs require more active duty commitment than others. The Navy also has shorter-term active duty commitments based on the nature of the training received.

Subsequent enlistments assist the military with retention, particularly, for critical skills.

IV.            Rules for Military Retirees

Retired military officers are subject to the Uniform Code of Military Justice (UCMJ) under Article 2 of the UCMJ, which extends the jurisdiction of military law to those who spend at least 20 years in the military and draw retirement pay. Under this Article the retired service member can be recalled to active duty for their entire life. However, the policy established in "DoD Instruction 1352.01 - Management of Regular and Reserve Retired Military Members" makes the recall to active duty unlikely (not impossible) for those who have been retired for more than five years, and those over age 60.(3)

V.              How Does Being Recalled Work?

The president of the United States has “Presidential Reserve Call Up Authority.”(4) This means that, when needed, the president can recall individuals to military service to support military operations. This is most frequently accomplished with a state of emergency.

In a state of emergency, the president can recall members for an indefinite period of time. If there is no state of emergency, the president is limited to call less than 200,000 Reserves and Individual Ready Reserve (IRR) for a period of less than 365 days.(5)

President Donald Trump issued an executive order (EO) during his Presidency amending President George W. Bush’s Executive Order 13223, originally issued on Sept. 14, 2001. In short, the amendment allows military service Secretaries (the Secretaries of the Air Force, Army, and Navy), subject to regulation by the Secretary of Defense, to recall retired service members to active duty. The order for recall, such as for disciplinary action, no longer must come from the President.

The order’s stated purpose is to “provide the Secretary of Defense additional authority to manage personnel requirements,” in recognition of “the continuing and immediate threat of further attacks on the United States.” Though the language of the amendment is very broad.(6)

VI.            History of the Bill Involving Civilian Contractors.

The 2007 Defense Bill, places contractors and others who accompany the military in the field under UCMJ (the Uniform Code of Military Justice), by defining the UCMJ to cover civilians not just in times of declared war but also contingency operations. Jurisdiction is conferred under 10 U.S.C. Section 802 (a)(8) as “other organizations, when assigned to and serving with the armed forces”, and 10 U.S.C. Section 802 B (10) “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”(7)

The clause placing contractors under the UCMJ was put into the 2007 Defense Bill as a floor amendment by Senator Lindsay Graham (R) of South Carolina. Senator Graham was a reserve Judge Advocate General officer for thirty-three years,(8) and has stated that he felt it would give military commanders a more fair and efficient means of discipline on the battlefield by placing civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.

VII.          How Does This Assist With Military Effectiveness?

This addition to the UCMJ’s jurisdiction brought legal status and accountability to contractor businesses that have expanded their actions into gaps in military operations. Generally, the UCMJ now removes any reasoning that the military has no authority over embedded civilians within a unit in the field during a military action or only has a “coordinating” relationship with contractors in the field.

VIII.         Decision Process to Initiate Military Proceedings

Articles 77 through 134 of the UCMJ are known as the punitive articles. These are specific offenses that, if violated, can result in punishment by court-martial. I suggest that any of the specific Punitive Articles plus General Article 134, ... (which reads):

           "Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."

...may result in the retired military member or civilian contractor in being taken into custody or ordered to active duty for prosecution before a court-martial. The level of the court-martial to be determined by the Secretary of the member’s branch or the Assistant Secretary of the service members branch.

IX.            Traceable Subjects

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X.              End Notes and Sources

1.    https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html

2.    Department of Defense. "DD Form 4, Enlistment/Reenlistment Document, Paragraph 10," @10a., Page 2.

3.    See the Army’s implementing regulation, AR 27-10, Military Justice, here: “Retirees are subject to the UCMJ and may be tried by court-martial for violations ... that occurred ... while in a retired status.” Further, AR 27-10, Military Justice, states, “Army policy provides that retired Soldiers ... will not be tried for any offense by courts-martial unless extraordinary circumstances are present. Prior to referral of courts-martial charges against retired Soldiers, approval will be obtained from the Criminal Law Division ... of the Assistant Secretary of the Army.” And Department of Defense. "DoD Instruction 1352.01," Page 13.

4.    https://www.lawfareblog.com/summary-executive-order-allowing-pentagon-recall-retired-service-members

5.    10 U.S.C. Section 802 - Art. 2. Persons subject to this chapter. Known as an Individual Ready Reserve (IRR), an inactive reservist receives no pay and does not spend any time doing anything within the military—so no drilling or training, and consequently no benefits of service. However, you still can be called for service by the president. https://www.thebalancecareers.com/military-reserves-federal-call-up-authority-3332677

6.    Congressional Research Service. "Reserve Component Personnel Issues: Questions and Answers," Page 19.

7.    The provisions of 10 U.S.C. Section 802 are subject to section 876b(d)(2) of this title (article 76b(d)(2)).

8.    After law school, Senator Graham joined the U.S. Air Force as a member of the Judge Advocate General Corps, where he acted as a military prosecutor and defense attorney. During his six years of active duty, the Senator served both stateside and in Europe where he was involved in numerous cases. Even after being elected to the United States Senate, Senator Graham continued to wear the uniform and serve in the U.S. Air Force Reserves where he performed reserve duty in the war zones of Afghanistan and Iraq. For the bulk of his 33-year military career, the Senator served in the U.S. Air Force Reserves. He retired in 2015 as a colonel. https://www.lindseygraham.com/about/