Uncle Sam wants you back -- but this time it's for prosecution

It is nothing new for the military to court martial retirees. Since the 1950 enactment of the Uniform Code of Military Justice, UCMJ, and until recently, more than 30 retirees have been convicted and sentenced. 10 U.S.C. § 801-946

What is new is that in December 2023, the Pentagon transformed the way it investigates and prosecutes some serious crimes. Decision-making about whether or not an accusation should go to court-martial shifted from commanders to independent prosecutors in some instances. Since this transformation, the recently formed Office of Special Trial Counsel, OSTC, has recalled more than 100 soldiers back to active duty for prosecution.

Once in uniform, rights may be different from other citizens

Enlistment changes a person's status from citizen to soldier. Certain UCMJ articles and regulations place limits on political speech and activity, so those who serve or formerly served don't always have the same rights as those who did not serve. For example, an officer may not be contemptuous of the President under UCMJ art. 88. And the Fifth Amendment of the Constitution exempts court-martial from the right to indictment by a grand jury. And even in cases where the sentence may mean years in confinement or death, the military allows less than a unanimous verdict for convictions. Ramos v. Louisiana, 140 S.Ct. 1390 (2021)

Authority for OSTC

Congress gave the OSTC more independence to refer or defer covered offense allegations. This independence is to allow the OSTC to make disposition decisions that are binding on the command. However, Congress also directed that commanders for both the accused and a victim should have the opportunity to make recommendations. UCMJ art. 24a(c)(4) (2021)

Who can the military bring back for prosecution?

In Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court held that the constitutionality of subjecting individuals to court-martial jurisdiction and military law turns solely on whether those individuals have a "military status." But the court did not define "military status." However, the Constitution recognizes two military statuses. One is a member of the regular forces, whose occupation is being a soldier, and the other is a militiaman, whose occupation is something in the civilian world, but who is subject to occasional military service. U.S. Constitution Art. I, § 8, cls. 12-16

Matters are not at all clear regarding who may be brought back for court-martial. According to authors Philip D. Cave and Kevin M. Hagey, there are three categories of retirees: (1) those retired from active duty (Regular Component), (2) those retired from the Reserves (Reserve Component) and who are receiving hospital care from the military, and (3) those transferred into the Navy or Marine Corps Fleet Reserve. UCMJ art. 2(a)(4)-(6), 10 U.S.C. § 802(a)(4)-(6). The authors say there is a continuing question about when, if ever, a retiree becomes a civilian.

Cave and Hagey cite retiree Lieutenant Colonel Larry Brock, who entered the U.S. Senate Chamber on Jan. 6, 2021, as an example of a retiree who could not be prosecuted. The reason is that retired reserves like him are not subject to court-martial under UCMJ art. 2, unless receiving medical care.

It's complicated.

Example of retiree brought back prior to the OSTC

In Larrabee v. Braithwaite, 502 F.Supp. 3d 322, after 20 years in the Marine Corps, Staff Sergeant Steven Larrabee retired from the Marine Corps, but requested transfer to the Fleet Marine Corps Reserve rather than being discharged from the military. While managing two bars in Japan as a civilian in 2015, he sexually assaulted a woman. He was ordered back into active duty, prosecuted and convicted by a general court-marital. He was sentenced to eight years in confinement and lost on appeal.

Thereafter, Larrabee filed a challenge to UCMJ art 2 in federal court, which article expands court-martial jurisdiction to include military retirees in the Fleet Marine Corps Reserve for offenses committed after retirement from active-duty service. The federal trial court concluded expansion of court-martial jurisdiction over retirees who are members of the Fleet Marine Corps Reserve is unconstitutional.

But the lower court's ruling was reversed in Larrabee v. Del Toro, 458 U.S. App. D.C. 322. The United States Court of Appeals for the District of Columbia held that as a Fleet Marine Reservist, Larrabee was a member of the armed forces. The United States Supreme Court denied certiorari in 144 S.Ct. 277.

The Office of Special Trial Counsel

Each branch of the military now has an OSTC, comprised of specially trained military lawyers, legal professionals and support staff responsible for the expert and independent prosecution of murder, sexual assault, domestic violence, child abuse, kidnapping and other serious criminal offenses. The OSTC reports directly to the secretary of the branch, and prosecutorial decisions are more independent from the military chains of command of the accused and the victim than in the past.

A December 2024 article in Court Martial Law describes the OSTC as a specialized body within the military designed to handle certain high stakes prosecutions. The offices were created as part of military justice reforms intended to improve the impartiality and effectiveness of military legal proceedings.

Historically, the chain of command has had significant influence over whether charges are brought against a service member, leading to questions about potential bias or conflicts of interest. The OSTC aims to address these concerns by positioning experienced prosecutors to make decisions and carry out prosecutions with impartiality and autonomy. Thus, one of the most significant features of the OSTC is the much lauded, but not complete, independence from the traditional chain of command. This means that the decision to pursue charges and move forward with a trial lies with experienced trial counsel, reducing the risk of undue command influence. 

Sexual assaults and harassment in the military

According to the military, by focusing on such crimes as sexual assaults, the OSTC strives to ensure these matters are handled with the seriousness and professionalism they require. But author Patty Nieberg wrote in "Task & Purpose" that the new office's debut stumbled in early December 2023 when the Army fired its top sexual assault prosecutor after a 10-year-old email surfaced in which he appeared to belittle victims' claims. In 2013, in his role as a military defense counsel, Brig. Gen. Warren Wells emailed his staff that "you and your teams are now the ONLY line of defense against false allegations and sobriety regret." He told them they were the only "personal defenders" of troops no lawyers would defend, "even when all signs indicate innocence."

That's not the only problem regarding the OSTC's prosecution of sexual crimes in the military. Sexual harassment might be an exception to that independence from the chain of command the OSTC is supposed to have. A 2024-2025 Gonzaga Law Review article states that Congress created a significant loophole by limiting the OSTC's authority to only certain allegations of sexual harassment. The 2023 National Defense Authorization Act stipulates that a commander must substantiate the sexual harassment claim before referring it to the OSTC. The article states: "While it sounds like the military is making progress by the creation of sexual harassment as a standalone article under the UCMJ, sexual harassment has always been punishable under Article 134, the General Article. More importantly, the decision to leave the new standalone offense of sexual harassment to the discretion of the commander is a deliberate step against the prevention of sexual violence." Pub. L. No. 117-263, 136 Stat. 2395 § 541 (2022); 60 GONZLR 297

Example of an OSTC reach back prosecution

Who is the OSTC bringing back for court-martial? Here is an example.

Retired Staff Sergeant William Rivers was arrested in December 2023 while working as a government contractor. He has remained in custody since his arrest. Rivers sexually abused his stepdaughter over multiple years in Hawaii and Florida before he retired from the military in 2017. He was recalled to active duty specifically for the purpose of general court-martial. On May 8, 2024, Rivers pled guilty to five specifications of sexual abuse of a child. He must serve at least 80 months of his 108-month sentence based on the terms of his plea agreement. Rivers was reduced in rank to private and given a bad conduct discharge.

Warnings given by defense lawyer

Apparently, there is a recognition that something different is happening vis-à-vis reach back prosecutions. Virginia military lawyer Philip D. Cave warns veterans that if the Army Criminal Investigation Division, CID, or someone you don't know from the military contacts you -- be careful. He cautions not to talk, stating: "We have handled a number of these cases over the past several years. The 'conversation' usually starts with a 'we'd like to talk with you about an incident while you were on active duty' or something similar. It would be best to immediately be suspicious of why the CID agent is calling."

Conclusion

It's difficult to discern the differences between what happened before the creation of the OSTC and afterward. Both before and after, the military was able to order retirees back into the military. Both before and after, the commander has had say in whether sexual harassment should be prosecuted. Nonetheless, it does appear the military has stepped up its prosecutions of serious crimes by reaching back to prosecute many more retirees.