The Navy-Marine Corps Court of Criminal Appeals this month withdrew an opinion asserting that it’s unconstitutional for the Pentagon to prosecute retired service members.

The original opinion, filed on July 31, 2019 and withdrawn Oct. 1, stemmed from an appeal from retired Navy Chief Petty Officer Stephen Begani, who was first charged in 2017 with attempted sexual abuse of a child after he left the service. Following his court martial, he was sentenced to 18 months of confinement coupled with a bad-conduct discharge.

The Navy-Marine Corps Court of Criminal Appeals also announced on Oct. 1 that the case would be reconsidered en blanc, or reconsidered by the court as a whole.

According to court documents, Begani retired from active duty on June 30, 2017 after serving 24 years in the Navy. He subsequently transferred to the Fleet Reserve, which is for enlisted sailors and Marines who retire after serving at least 20 years active duty but less than 30 years.

Upon transferring to the Fleet Reserve or the Fleet Marine Corps Reserve, sailors and Marines are eligible to collect retirement pay. But the arrangement comes with strings attached: they could be called back to service in times or war or a national emergency.

Additionally, those in the Fleet Reserve are still subject to the Uniform Code of Military Justice. However, retired reservists who do not collect a retirement pay until they are 60-years-old do not fall under the UCMC’s jurisdiction — creating what a panel of three judges in July labeled “disparate treatment” among 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," Navy Capt. James Crisfield wrote in the opinion in July.

“Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional,” Crisfield added.

That opinion has now been withdrawn.

Begani’s case

After leaving active duty service, Begani remained in Iwakuni, Japan where he was last stationed and was hired as a contractor conducting aircraft maintenance work for the U.S. military.

Court documents claim Begani started communicating with a person he believed was a 15-year-old female named “Mandy.” The two exchanged sexual messages, and they arranged to meet at an on-base residence at Marine Corps Air Station Iwakuni where Begani was planning to have sex with “Mandy,” per court documents.

However, “Mandy” was actually an undercover Naval Criminal Investigative Services agent. NCIS agents subsequently arrested Begani upon his arrival at the on-base residence on August 5, 2017.

Begani pleaded guilty to attempted sexual assault of a child and attempted sexual abuse of a child at a grand court martial in Yokosuka, Japan on Dec. 1, 2017.

But Begani filed an appeal arguing it was a violation of the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws that he is subject to the UCMJ when retired Navy Reserve members are not.

“He argues that this unequal jurisdictional scheme unconstitutionally deprived him of his right to a jury of his peers, the right to a grand jury, and the right to free speech when a similarly situated reserve retiree would enjoy those rights,” Crisfield’s July opinion said.

The Navy-Marine Corps Court of Criminal Appeals is set to reconsider the case.

Should retirees be held to the UCMJ?

The subject of whether military retirees could still face prosecution for crimes committed after leaving the service is controversial. In February, the Supreme Court rejected hearing the case of retired Marine Staff Sgt. Steven Larrabee, effectively upholding the Pentagon’s authority to prosecute retired service members.

After 20 years in the Marine Corps, Larrabee left the service and transferred to the Fleet Marine Corps Reserve but stayed in Iwakuni, Japan where he was last stationed to manage several local bars.

Court documents claim he sexually assaulted a bartender at one of those bars and filmed the incident on his cell phone on Nov. 15, 2015. He was later convicted by a court-martial on one counts of sexual assault and one count of indecent recording in violation of Articles 120 and 120c of the UCMJ, per court records.

Initially, he was sentenced to eight years’ confinement, a reprimand, and a dishonorable discharge. But his prison term was cut to only 10 months due to a pre-trial agreement.

He then filed a petition in Sept. 2018 to overturn his conviction on appeal, claiming he should have been tried as a civilian and that it is “anachronistic” to view him still a member of the military.

“He receives pay in the form of his military pension, but he holds no active rank; he has no commanding officer or subordinates; he lacks the authority to issue binding orders; he has no obligation to follow orders; he performs no duties; and he participates in no regular military activities,” Larrabee’s petition said.

Larrabee’s appeals attorney Steve Vladeck also wrote in a Lawfare blog post that only a “tiny percentage of retired service members would be realistically subject to involuntary recall” because the reserve component is the military’s preference to assist active duty troops.

Meanwhile, others such as retired Air Force Maj. Gen. Charles Dunlap Jr. pushed back on Larrabee and Vladeck’s arguments.

“Forecasting the future of warfare is highly problematic,” Dunlap wrote in February in a blog post. “In my view, it’s quite possible to envision a future where America must be ready to use all available manpower.”

Additionally, Dunlap noted that retirees are under no obligation to collect their retirement pay. Dunlap said Congress “rather clearly provided for military justice jurisdiction in cases like Larabee’s,” given that he was a member of the Fleet Marine Corps Reserve.

The Supreme Court’s rejection of the case means that retirees could still face prosecution for actions committed following their exit from the service.