A controversial legal opinion that determined court-martialing military retirees was unconstitutional has been withdrawn.
The Navy–Marine Corps Court of Criminal Appeals will reconsider the case of Stephen Begani, a retired Navy chief petty officer who faced a court-martial after leaving the military. The court also withdrew its July 31 opinion on court-martialing retirees, according to an Oct. 1 order.
Navy Lt. Daniel Rosinski, who represents Begani, said he had no comment on the decisions. Spilman called the move to withdraw the court’s opinion unusual.
“But, of course, this is an unusual case,” he added.
The government asked the court to reconsider its decision on military retirees’ courts-martial, Spilman said. That was no surprise, he added, given some of the pushback he and other legal experts posed after the court the initial opinion this summer.
“I wouldn’t be surprised if the result of the court’s next opinion is the opposite of the July opinion (and upholds retired jurisdiction), considering the issues I identified in my posts,” he said.
This case dates back to 2017, when Begani was charged with attempted sexual abuse of a child about a month after retiring from the Navy.
He was arrested after arriving at a home in Japan, where he worked as a contractor on a Marine Corps. Begani had been communicating with who he believed was a 15-year-old girl. Instead, it was an undercover Naval Criminal Investigative Services agent.
As a member of the Fleet Reserve, Begani was subject to the UCMJ. Retirees in the Fleet Reserve or Fleet Marine Corps Reserve get retainer pay and are expected to maintain readiness in case of a war or national emergency.
Begani went to court-martial and was sentenced to 18 months confinement and a bad-conduct discharge.
Retired reservists aren’t held to the UCMJ though, which is why three officers — two Navy captains and a Marine colonel — decided in July that it wasn’t fair to treat some military retirees differently than others. That, Navy Capt. James Crisfield wrote in the original opinion, was unconstitutional.
“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,” Crisfield wrote. “… Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional.”
Spilman argued in a post this summer that the judges’ opinion was flawed. If retirees like Begani receive retainer pay as part of the Fleet Reserve or Fleet Marine Corps Reserve, they agree to “maintaining readiness for active service,” he wrote.
“That’s hardly an insignificant obligation,” Spilman wrote at the time. “… [That] undoubtedly requires a person to remain ordered and disciplined, the maintenance of which is the very reason for a military justice system.”
The Navy-Marine Corps Court of Criminal Appeals will reconsider Begani’s case en banc. That means the case will be reconsidered by the court as a whole, according to the Navy-Marine Corps Court of Criminal Appeals rules of practice procedure.
“Such consideration or reconsideration ordinarily will not be ordered except … when the proceedings involve a question of exceptional importance,” the procedures state.
Earlier this year, the U.S. Supreme Court upheld the Defense Department’s authority to prosecute military retirees for crimes they commit.
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