UCMJ Retiree status

Cajunman

Registered Member
My questions is can I be called back for UCMJ?

I’m a medically retired office from the Army for my service connected injuries since December 2016. While on my last month of terminal leave. I flew out of state to attend a friend birthday party.

I met a this lady at the party, had a one night stand she ended up getting pregnant, she contacted me after she had the baby took the DNA test the child is mine. At that time I find out that she’s an enlisted Soldier (NCO) who was married during the time we were together. I told her I’ll start making child support payments once we go to court. We don’t see eye to eye, and she’s threatening to go to JAG to report me for Fraternization, and Adultery...I was never married but she was.

Can they call me back to active duty for UCMJ?



Will she be punished for her involvement if so what repercussions can be given to her?
 

RonG

PEB Forum Veteran
Registered Member
I have no personal experience with that type situation although I did sit on three courts martial during my career.

However, there seems to be provisions for a recall of that sort. Whether the following pertains to officers is unknown to me, but retirees themselves are included. Jason Perry might have some remarks to add.

General Provisions: UCMJ, art. 2, provides jurisdiction over categories of persons with military status:
  1. Enlistees; Inductees; Academy Cadets/Midshipmen;
  2. Retirees;
    1. Jurisdiction over retirees is constitutional. Pearson v. Bloss , 28 M.J. 376 (C.M.A. 1989); United States v. Hooper , 26 C.M.R. 417 (C.M.A. 1958); Sands v. Colby , 35 M.J. 620 (A.C.M.R. 1992).
    2. United States v. Huey,
      57 M.J. 504 (N-M. Ct. Crim. App. 2002). The accused had served 20 years on active duty and was placed on the Retired List on 1 January 1989. In 1996 he worked as a Naval civilian employee in Okinawa. He confessed to engaging in sexual intercourse several times a week over a nine-month period with his 16-year old adopted daughter. By the time the raping stopped, the accused was 58 years old and his daughter was pregnant with his child. At trial, the accused moved to dismiss for lack of personal jurisdiction based upon a violation of constitutional due process under the Fifth Amendment. The accused cited to
      Toth v. Quarles,
      350 U.S. 11 (1955) and argued that he had “obtained civilian status” and was being deprived of due process rights available only in a civilian courtroom. The service court disagreed stating that there “is no doubt that a court-martial has the power to try a person receiving retired pay.”
    3. United States v. Stevenson
      , 65 M.J. 639 (N.M.Ct.Crim.App. 2006). Accused was a sailor on the Temporary Disability Retirement List who waived his military disability pay in favor of Veteran’s Affairs disability compensation. Held: Court-martial had personal jurisdiction because accused was “entitled to pay”, even if he was not receiving pay.
    4. HQDA approval is required before prosecuting retirees (AR 27-10, para. 5-2). Failure to follow “policy” and obtain HQDA approval to try a retiree, however, is not jurisdictional error.
      United States v. Sloan
      , 35 M.J. 4 (C.M.A. 1992 ADDED: Under Article 2 of the UCMJ, the Army maintains court-martial jurisdiction over retired personnel. Army Regulation 27-10, Military Justice, states “Retired members of a regular component of the Armed Forces who are entitled to pay are subject to the provisions of the UCMJ . . . and may be tried by court-martial for violations of the UCMJ that occurred while they were on active duty or while in a retired status.” Department of the Army policy, however, does limit these trials to cases where extraordinary circumstances are present. The Army normally declines to prosecute retired Soldiers unless their crimes have clear ties to the military, or are clearly service discrediting. If necessary to facilitate courts-martial action, retired Soldiers may be ordered to active duty. RECOMMENDATION: Review AR 27-10
 
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Cajunman

Registered Member
I have no personal experience with that type situation although I did sit on three courts martial during my career.

However, there seems to be provisions for a recall of that sort. Whether the following pertains to officers is unknown to me, but retirees themselves are included. Jason Perry might have some remarks to add.

General Provisions: UCMJ, art. 2, provides jurisdiction over categories of persons with military status:
  1. Enlistees; Inductees; Academy Cadets/Midshipmen;
  2. Retirees;
    1. Jurisdiction over retirees is constitutional. Pearson v. Bloss , 28 M.J. 376 (C.M.A. 1989); United States v. Hooper , 26 C.M.R. 417 (C.M.A. 1958); Sands v. Colby , 35 M.J. 620 (A.C.M.R. 1992).
    2. United States v. Huey,
      57 M.J. 504 (N-M. Ct. Crim. App. 2002). The accused had served 20 years on active duty and was placed on the Retired List on 1 January 1989. In 1996 he worked as a Naval civilian employee in Okinawa. He confessed to engaging in sexual intercourse several times a week over a nine-month period with his 16-year old adopted daughter. By the time the raping stopped, the accused was 58 years old and his daughter was pregnant with his child. At trial, the accused moved to dismiss for lack of personal jurisdiction based upon a violation of constitutional due process under the Fifth Amendment. The accused cited to
      Toth v. Quarles,
      350 U.S. 11 (1955) and argued that he had “obtained civilian status” and was being deprived of due process rights available only in a civilian courtroom. The service court disagreed stating that there “is no doubt that a court-martial has the power to try a person receiving retired pay.”
    3. United States v. Stevenson
      , 65 M.J. 639 (N.M.Ct.Crim.App. 2006). Accused was a sailor on the Temporary Disability Retirement List who waived his military disability pay in favor of Veteran’s Affairs disability compensation. Held: Court-martial had personal jurisdiction because accused was “entitled to pay”, even if he was not receiving pay.
    4. HQDA approval is required before prosecuting retirees (AR 27-10, para. 5-2). Failure to follow “policy” and obtain HQDA approval to try a retiree, however, is not jurisdictional error.
      United States v. Sloan
      , 35 M.J. 4 (C.M.A. 1992 ADDED: Under Article 2 of the UCMJ, the Army maintains court-martial jurisdiction over retired personnel. Army Regulation 27-10, Military Justice, states “Retired members of a regular component of the Armed Forces who are entitled to pay are subject to the provisions of the UCMJ . . . and may be tried by court-martial for violations of the UCMJ that occurred while they were on active duty or while in a retired status.” Department of the Army policy, however, does limit these trials to cases where extraordinary circumstances are present. The Army normally declines to prosecute retired Soldiers unless their crimes have clear ties to the military, or are clearly service discrediting. If necessary to facilitate courts-martial action, retired Soldiers may be ordered to active duty. RECOMMENDATION: Review AR 27-10
Thanks, I’ll post in the PEB forum and see if Mr Perry have something to add. Thanks for replying
 

Cajunman

Registered Member
I had a DNA test through the medical staff. It’s legit, I had it done myself at a the hospital.
 

oddpedestrian

PEB Forum Veteran
Registered Member
First, make no official statements I would end all communication's with her and let her know you have an attorney and she must go through him now. I doubt she will go to JAG as she will be the first to go down for adultery and fraternization the burden will on her to prove you knew she was married at the time of intercourse hopefully she has no screenshots emails proving so? Since you are a retiree I'm wagering they will tell her this is a civilian matter and handle it through those courts, either way even if they contact you refer them to your attorney. Be wary of anyone who threatens you with criminal matters, this was a serious slip of judgment on your part do not have unprotected sex with strangers wear protection or get fixed.
 

Matt Kozyra

PEB Forum Veteran
Registered Member
Prior Navy prosecutor and defense counsel. Standard caveat - no one on this forum, including me, can give you legal advice on what to do in your particular case. We can talk to you about the process and general rules, but please don't take this as legal advice from your attorney. As someone else mentioned, Soldier's Counsel can help you out if you want real advice. Or you can hire a civilian.

That said, @RonG and @chaplaincharlie are spot on (both here and in your other parallel post). Article 2 absolutely allows any retiree (length of service, TERA, TDRL, or PDRL) to be recalled from retirement to stand court martial. As @Jason Perry said in another post, it's stupid rare. Almost never happens.

It may ease some of your fears to know a few things about the potential charges of Adultery and Fraternization. They are a little more nuanced than a lot of people in the military think.

First, adultery is a crime under Article 134 of the UCMJ. Article 134 is the oddball of the UCMJ. It encompasses a lot of different types of misconduct (from drunk and disorderly to assault with an intent to commit murder). All of them have one thing in common, called the "terminal element." The terminal element is that the conduct must have been either (a) prejudicial to good order and discipline, or (b) of a nature to bring discredit upon the armed services.

It's not enough for someone to just sleep with a person who's married to someone else. The government also has to prove, beyond a reasonable doubt, that the conduct was detrimental to good order and discipline or that it was service discrediting. That's hard to do in the case of a discreet, one-time thing between members of different commands who didn't know each other. The Manual for Courts Martial lists a number of factors that a jury should consider when deciding whether an affair meets that terminal element. The list includes things like the ranks of the people involved, but also things like whether the conduct continued in spite of command warnings to stop, and whether government time or resources were misused to carry out the affair, and the impact of the misconduct on the participants' abilities to support their military missions. The UCMJ describes prejudice to good order and discipline as "an obvious and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or
respect toward a servicemember." It's not nothing.

There's also a defense of "reasonable mistake of fact." Basically, if the accused can show any evidence that he didn't know she was married, the government has to prove beyond a reasonable doubt that he's either lying or that his belief was unreasonable. That's hard to prove.

Fraternization is another Article 134 offence, which means it has the same terminal element requirements as Adultery. The mistake of fact defense is even stronger with Frat, though. Here are the elements of the charge:

(1) That the accused was a commissioned or warrant officer;
(2) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;
(3) That the accused then knew the person(s) to be (an) enlisted member(s);
(4) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and
(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Element 3 means that, whether the accused says anything or not, the government has to prove beyond a reasonable doubt that he knew she was enlisted at the time of the action. For a normal Frat charge (Department Head sleeping with a Boot), that's not hard. Everyone works together and wears uniforms all the time. But for a random girl some guy met at a party? That's a different story.

If you were still on Active Duty and I were advising your command on this, I'd tell them not to bring any charges. First, because they would be very difficult to prove. Second, because these are piddly little charges that we'd never take to a Court Martial anyway. These are Article 15 charges, at best. You almost always get Courts Martial for Adultery or Frat as an add-on charge to more serious misconduct like sexual assault. And you don't (read: can't) be recalled to Active Duty for Article 15.
 
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