Military Retirees Can Be Court-Martialed After All, Appeals Court Decides

In the latest turn of a dramatic and winding court saga, a naval appeals court has released a split decision finding that a Navy retiree was properly court-martialed and convicted for a crime committed after he had left active duty.

The en banc decision was published Jan. 24 by the Navy-Marine Corps Court of Criminal Appeals, with four judges agreeing with the final decision and three others dissenting. The matter concerns retired Chief Petty Officer Stephen Begani, who pleaded guilty to attempted sexual assault and attempted sexual abuse of a child in December 2017, after corresponding and making plans with a Naval Criminal Investigative Service undercover agent pretending to be a 15-year-old girl.

Begani had already transferred to inactive status in the Fleet Reserve following 24 years on active duty at the time of the crime, and appealed his conviction on the grounds that it was unconstitutional to court-martial active-duty retirees like him when retired reservists were not subject to court-martial.

In an Aug. 9, 2019, decision described as a "bombshell," the NMCCA agreed with Begani, overturning his sentence of 18 months' confinement and a bad-conduct discharge.

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

The victory, however, would be short-lived.

In October, the appeals court withdrew its opinion, setting up conditions for reconsideration and an overturn, which came four months later.

Begani's attorney, Navy Lt. Daniel Rosinski, did not immediately respond to a request for comment on the development and whether he plans to appeal the reaffirmation of his client's sentence.

Delivering the majority opinion of the court, NMCCA Judge Marine Lt. Col. John Stephens wrote that the decision was based in part on Begani's membership in the Fleet Reserve, where, although functionally retired, he continued to receive some "retainer pay" and base privileges.

Members of the Fleet Reserve and the Marine Corps equivalent are enlisted and have more than 20, but less than 30, years of service; they are transferred to the retired list and receive retired pay when they hit the 30-year mark. The Air Force and the Army don't have comparable retired Reserve contingents.

The Defense Department's interest in maintaining authority over this group is tied to its need to be ready to fight in case of a major crisis or catastrophe, Stephens wrote.

"It appears plain that Congress intended for Fleet Reservists to be among the first 'retired' Service Members to be drawn from," he said. "No declaration of war or national emergency is required by Congress. No other legal precursors are required. The Secretary of the Navy can return Appellant, and any other members of the Fleet Reserve, to active duty with a mere signature."

Court-martial power is also connected to this contingency, he wrote, noting that the government would need the authority to prosecute any who refused to return to service.

Retired pay, too, comes with strings attached: While typically viewed as a pension, its reality is more complex.

"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,'" Stephens wrote.

By contrast, he noted, regular reservists are not subject to court-martial when not drilling or performing other duties, and do not receive retired pay before the age of 60.

"Members of the Fleet Reserve, like Appellant, have typically been career active duty enlisted Sailors. That means they have been on continuous, salaried active military service for at least two decades, and subject to the UCMJ throughout that entire time," Stephens said. "Their transfer to the Fleet Reserve is but an extension of this continuity, in terms of salary, readiness requirements, recallability, and jurisdiction."

In a concurring opinion, two of the court's judges took issue with the fact that Begani claimed his court-martial was improper only in the appeals process, and after pleading guilty.

"Appellant's failure to lodge this claim with the court below leaves us thin means in the record to address such a weighty constitutional claim of first impression," wrote Judge Navy Capt. Arthur Gaston.

But three judges, including the court's chief judge, Navy Capt. James Crisfield, dissented, maintaining that Begani was wrongly court-martialed in his retired status. Crisfield wrote the court's original opinion overturning Begani's sentence.

"I acknowledge that there is little case law to guide our determination of whether these groups of retirees are similarly situated for equal protection purposes," Crisfield wrote. "I nonetheless feel confident determining that members of the Fleet Reserve, Regular component retirees, and Reserve component retirees are similarly situated because there is no meaningful distinction, legally or factually, between the groups that is relevant to good order and discipline in the armed forces."

Military retired pay, he wrote, "is not contingent on ... continued military usefulness or employability. [Retirees'] actual ability to contribute to the accomplishment of a military mission is completely irrelevant to their status."

Most importantly, the dissenting opinion noted, "the fact that retired reservists are subject to immediate recall into active service under certain circumstances runs counter to the argument that they have no military status whatsoever."

Zachary Spilman, an attorney who specializes in military justice and is a major in the Marine Corps Reserve, first reported the case development on his military appellate court blog CAAFlog.

Spilman, who had previously predicted that the original appellate decision would be overturned and Begani's sentence approved, said that, for him, the case came down to receipt of military pay.

"You are being paid for your service, and with your service comes jurisdiction," he said.

Reserve retired pay is treated differently than active-duty retired pay, he noted, and is entirely separated from membership in a continuing military status.

While Begani could petition the Court of Appeals for the Armed Forces to review the case, Spilman noted the facts and circumstances might make it a poor test case with which to overturn current law. Among those facts: Begani had continued to live near the Okinawa military base where he had served at the time of his crime, and he pleaded guilty to the grave criminal offense of which he was accused.

The issue of whether military retirees should be court-martialed may soon be revisited, however.

Last March, Marine Staff Sgt. Steven Larrabee filed a federal lawsuit in the District of Columbia, asking the court to find that his court-martial conviction on charges of indecent recording and sexual assault while a member of the Fleet Marine Corps Reserve was unconstitutional.

Larrabee sued after the Supreme Court decided not to hear his case in February 2019. A decision on the lawsuit is still pending.

Editor's Note: This story has been updated to correct the name of the judge delivering the opinion of the court. It is Lt. Col. John Stephens.

-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.

Read more: 41-Year-Old Medal of Honor Hero Now Faces His Hardest Fight on a New Battlefield