Military Defender

More Than 20 Years Of Active Duty Military Service

Photo of Attorney Phillip E. Stackhouse
In Southern California And Worldwide
department of the army USA
department of navy
department of airforce
united states coast guard
department of navy USA

Are military retirees subjected to a court-martial?

On Behalf of | May 10, 2023 | Military Law |

Military retirees become eligible for a host of benefits – on top of retirement pay, they can also receive pensions and medical benefits, among other things.

But retirees are also still subject to the law, no matter how long they’ve served. In fact, if they’re charged with a criminal offense, a court martial will hear their case rather than a regular court.

Why is this the case?

Military laws on court-martialing retirees

Under the Uniform Code of Military Justice (UCMJ), regular component (Army, Air Force, Coast Guard, Marine, Navy, and even the Space Force) military retirees who are entitled to pay can be court-martialed.

Are retired reservists exempted?

The same rules also state that court-martial also applies to retirees who previously served the Fleet Reserve or Fleet Marine Corps Reserve.

Why is this information significant?

Courts-martial are not Article III courts, which means they have several key differences. For instance, while a 12-member jury presides over civilian cases, in military cases a panel of up to eight members is present for the procedure. Moreover, a court-martial panel is comprised of commissioned officers who rank higher than the accused, which can be intimidating for any retiree.

There are other considerations to keep in mind when it comes to comparing civilian and military courts, such as:

  • Rights advisements: For civilians, their rights advisements (Miranda rights) are read to them after they’re in custody. But for military members and retirees, they’re advised of their Article 31 rights when questioned by any other military member acting in an official capacity – the detained member/retiree doesn’t have to be in custody for this to trigger.
  • Pleading guilty: The military prohibits members from accepting nolo contendere (defendant accepts punishment but doesn’t admit guilt) or Alford (defendant pleads guilty but maintains they are innocent) pleas. A military judge must conduct a “providence” inquiry before the defendant can plead guilty.
  • Verdicts: While federal courts require that all verdicts be unanimous, military courts allow split verdicts.

In conclusion, being a military retiree doesn’t exempt you from court martial. Be mindful that courts-martial and civilian courts are very different from each other, so consider your legal options wisely.