Petition for Writ of Certiorari — Steven M. Larrabee, Petitioner v. United States

No. 18-_____

IN THE

Supreme Court of the United States

__________

STEVEN M. LARRABEE,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

CAPT BRIAN L. MIZER, USN

CDR RICHARD FEDERICO, USN

Appellate Defense Counsel

Navy-Marine Corps

Appellate Review Activity

1254 Charles Morris Street, S.E.

Building 58, Suite 100

Washington, DC 20374

STEPHEN I. VLADECK

Counsel of Record

727 E. Dean Keeton Street

Austin, TX 78705

(512) 475-9198

svladeck@law.utexas.edu

EUGENE R. FIDELL

Feldesman Tucker Leifer

Fidell LLP

1129 20th Street, N.W.

Suite 400

Washington, DC 20036

Counsel for Petitioner

September 17, 2018

QUESTIONS PRESENTED

In United States ex rel. Toth v. Quarles, this Court

held that the armed forces could not constitutionally

court-martial “civilian ex-soldiers who had severed all

relationship with the military and its institutions,”

350 U.S. 11, 14 (1955), even for offenses committed

while on active duty. Petitioner is a retired Marine

who was tried and convicted by court-martial for

offenses committed after he had been discharged from

active duty, and with no relationship to his military

status. The lower courts nevertheless rejected his

constitutional challenge to the exercise of military

jurisdiction, concluding that “those in a retired status

remain ‘members’ of the land and Naval forces who

may face court-martial” for any and all crimes they

commit while retired. United States v. Dinger, 76 M.J.

552, 557 (N-M. Ct. Crim. App. 2017).

The Questions Presented are:

1. Whether the Constitution permits the courtmartial of a retired military servicemember.

2. Whether, if so, the Constitution limits the

jurisdiction of courts-martial in such cases to offenses

that are related to the retiree’s military status.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................ i

TABLE OF AUTHORITIES ............................................... iv

PETITION FOR A WRIT OF CERTIORARI .......................... 1

DECISIONS BELOW........................................................ 4

JURISDICTION ............................................................... 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................... 5

STATEMENT OF THE CASE ............................................. 5

A. Legal Background ............................................... 5

B. Procedural History.............................................. 9

REASONS FOR GRANTING THE PETITION ..................... 12

I. THE QUESTIONS PRESENTED ARE

EXCEPTIONALLY IMPORTANT .............................. 14

A. The Receipt of Pay is Not a Sufficient

Basis for Treating Retirees as

Part of the “Land and Naval Forces” .......... 16

B. The Alternative Ground Identified

in Dinger Would Lead to a Stunning

Expansion in Military Jurisdiction............. 17

C. At Most, Retirees Should Only

Be Subject to Court-Martial

For Offenses Related to Their

Military Status ............................................ 21

II. THIS PETITION PRESENTS AS GOOD A

VEHICLE FOR DECIDING THE QUESTIONS

PRESENTED AS IS LIKELY TO ARISE ................... 22

A. This Court Has Jurisdiction

Over this Petition ........................................ 22

iii

TABLE OF CONTENTS (CONTINUED)

B. This Court May Not Have Jurisdiction

Over These Questions in Future Cases ...... 25

CONCLUSION .............................................................. 28

APPENDIX ................................................................... 1a

U.S. Court of Appeals for the Armed Forces,

Order of Affirmance (Aug. 22, 2018) ........... 1a

U.S. Court of Appeals for the Armed Forces,

Order Granting Review (Mar. 20, 2018)..... 2a

U.S. Navy-Marine Corps

Court of Criminal Appeals,

Opinion (Nov. 28, 2017)............................... 3a

*

*

*

iv

TABLE OF AUTHORITIES

Cases

Al Bahlul v. United States,

840 F.3d 757 (D.C. Cir. 2016)

(en banc) ................................................................ 15

Anderson v. Dunn,

19 U.S. (6 Wheat.) 204 (1821) ......................... 14, 27

Armann v. McKean,

549 F.3d 279 (3d Cir. 2008)................................... 26

Barker v. Kansas,

503 U.S. 594 (1992) ........................................passim

Bhd. of R.R. Trainmen v.

Balt. & Ohio R.R. Co.,

331 U.S. 519 (1947) ............................................... 25

Billings v. Truesdell,

321 U.S. 542 (1944) ............................................... 20

Burns v. Wilson,

346 U.S. 137 (1953) ............................................... 26

Cook County, Ill. v.

United States ex rel. Chandler,

538 U.S. 119 (2003) ............................................... 24

Dart Cherokee Basin Operating Co. v.

Owens,

135 S. Ct. 547 (2014) ............................................. 23

Ex parte Milligan,

71 U.S. (4 Wall.) 2 (1866) ...................................... 14

Ex parte Yerger,

75 U.S. (8 Wall.) 85 (1869) .................................... 24

Forsyth v. City of Hammond,

166 U.S. 506 (1897) ............................................... 23

v

TABLE OF AUTHORITIES (CONTINUED)

Grisham v. Hagen,

361 U.S. 278 (1960) ........................................... 2, 12

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) ............................................... 15

Hooper v. United States,

326 F.2d 982 (Ct. Cl. 1964) ..................................... 7

In re Al-Nashiri,

835 F.3d 110 (D.C. Cir. 2016) ............................... 15

Kinsella v.

United States ex rel. Singleton,

361 U.S. 234 (1960) ..................................... 2, 12, 13

McCarty v. McCarty,

453 U.S. 210 (1981) ................................................. 8

McElroy ex rel. United States v.

Guagliardo,

361 U.S. 281 (1960) ........................................... 2, 12

Montgomery v. Louisiana,

135 S. Ct. 1546 (2015) (mem.)............................... 25

Noyd v. Bond,

395 U.S. 683 (1969) ......................................... 15, 17

Ortiz v. United States,

138 S. Ct. 2165 (2018) ........................................... 23

Penland v. Mabus,

78 F. Supp. 3d 484 (D.D.C. 2015) ......................... 26

Reid v. Covert,

354 U.S. 1 (1957) ............................................passim

Schlesinger v. Councilman,

420 U.S. 738 (1975) ............................................... 15

vi

TABLE OF AUTHORITIES (CONTINUED)

Solorio v. United States,

483 U.S. 435 (1987) ........................................passim

Stern v. Marshall,

564 U.S. 462 (2011) ............................................... 27

The Selective Draft Law Cases,

245 U.S. 366 (1918) ............................................... 19

Thomas v. U.S. Disciplinary Barracks,

625 F.3d 667 (10th Cir. 2010) ............................... 26

United States ex rel. Pasela v. Fenno,

167 F.2d 593 (2d Cir. 1948)..................................... 7

United States ex rel. Toth v. Quarles,

350 U.S. 11 (1955) ..........................................passim

United States v. Ali,

71 M.J. 256 (C.A.A.F. 2012) .................................. 12

United States v. Allen,

33 M.J. 209 (C.M.A. 1991) .................................... 10

United States v. Carpenter,

37 M.J. 291 (C.M.A. 1993) ...................................... 8

United States v. Denedo,

556 U.S. 904 (2009) ............................................... 23

United States v. Dinger,

76 M.J. 552

(N-M. Ct. Crim. App. 2017)............................passim

United States v. Dinger,

77 M.J. 447 (C.A.A.F. 2018) ........................ 2, 10, 12

United States v. Hooper,

26 C.M.R. 417 (C.M.A. 1958) .............................. 1, 7

United States v. Morita,

74 M.J. 116 (C.A.A.F. 2015) .................................... 4

vii

TABLE OF AUTHORITIES (CONTINUED)

United States v. Morris,

54 M.J. 898

(N-M. Ct. Crim. App. 2001)..................................... 9

United States v. Overton,

24 M.J. 309 (C.M.A. 1987) ...................................... 7

United States v. Sloan,

35 M.J. 4 (C.M.A. 1992) ........................................ 10

United States v. Tyler,

105 U.S. 244 (1882) ................................... 6, 7, 8, 27

Constitutional Provisions

The Make Rules Clause,

U.S. CONST. art. I, § 8, cl. 14 ..........................passim

The Grand Jury Indicment Clause,

U.S. CONST. amend. V ........................... 5, 12, 21, 22

Statutes, Regulations, and Court Rules

10 U.S.C.

§ 688 ........................................................... 11, 18, 19

§ 690(b) .................................................................. 18

§ 802(a)(4) ................................................................ 5

§ 802(a)(6) ................................................................ 5

§ 802(d)(2) .............................................................. 18

§ 867a(a) .................................................... 23, 24, 25

§ 888 ....................................................................... 14

§ 920 ....................................................................... 10

§ 920c ..................................................................... 10

§ 934 ....................................................................... 14

§§ 1401–15 ............................................................. 16

§ 6332 ..................................................................... 10

§ 10101 ..................................................................... 9

viii

TABLE OF AUTHORITIES (CONTINUED)

28 U.S.C.

§ 1254(1) ................................................................ 23

§ 1259(3) .........................................................passim

50 U.S.C. § 3803(a) ............................................... 3, 19

Act of Aug. 3, 1861, ch. 42, 12 Stat. 287 .................... 5

National Defense Authorization Act for

Fiscal Years 1990 and 1991,

Pub. L. No. 101-189,

103 Stat. 1352 (1989) ............................................ 25

Uniformed Services Former Spouses’

Protection Act,

Pub. L. No. 97-252,

96 Stat. 718 (1982) ................................................ 16

DoD Instruction 1352.01 (2016) ............................... 18

C.A.A.F. R. 5 ............................................................. 24

Other Authorities

Joseph W. Bishop, Jr., Court-Martial

Jurisdiction Over Military-Civilian

Hybrids: Retired Regulars, Reservists,

and Discharged Prisoners, 112 U. PA.

L. REV. 317, 332 (1964) ................................ 6, 13, 18

Brief for the United States as Amicus

Curiae in Support of Petitioners,

Barker v. Kansas, 503 U.S. 594

(1992), 1991 WL 11009204

(No. 91-611) ............................................................. 9

Brief for the United States in

Opposition,

McKeel v. United States,

549 U.S. 1019 (2006) (mem.)................................. 23

ix

TABLE OF AUTHORITIES (CONTINUED)

Brief for the United States in

Opposition,

Wiechmann v. United States,

559 U.S. 904 (2010) (mem.)................................... 23

Dep’t of Defense,

Statistical Report on the Military

Retirement System: Fiscal Year 2017

(2018) ................................................................. 1, 19

Frank O. House,

The Retired Officer: Status, Duties,

and Responsibilities,

26 A.F. L. REV. 111 (1987) ...................................... 6

H.R. CONF. REP. NO. 101-331 (1989) ........................ 25

J. Mackey Ives & Michael J. Davidson,

Court-Martial Jurisdiction Over

Retirees Under Articles 2(4) and 2(6):

Time to Lighten Up and Tighten Up?,

175 MIL. L. REV. 1 (2003) ............................. 6, 16, 19

Library of Congress,

Historical Attempts to Reorganize the

Reserve Components (2007)............................... 3, 18

Selective Serv. Sys.,

Annual Report to the Congress of the

United States: Fiscal Year 2017 (2018) .................. 3

Stephen M. Shapiro, et al.,

Supreme Court Practice

(10th ed. 2013) ....................................................... 24

*

*

*

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner is one of the two million former activeduty U.S. servicemembers who are legally “retired.” 1

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. He was nevertheless tried

and convicted by court-martial—dressed in civilian

clothes—for non-military offenses committed after he

retired from active duty, on private property, and

against a victim who was not part of the armed forces.

“[G]iven its natural meaning, the power granted

Congress ‘To make Rules’ to regulate ‘the land and

naval Forces’ would seem to restrict court-martial

jurisdiction to persons who are actually members or

part of the armed forces.” United States ex rel. Toth v.

Quarles, 350 U.S. 11, 14 (1955) (quoting U.S. CONST.

art. I, § 8, cl. 14). Toth thus held that the Constitution

forbids the court-martial of a servicemember after his

discharge—even for crimes committed while on active

duty in a foreign combat theater. But this Court has

never clarified how, if at all, Toth applies to retirees.

For a time, lower courts had distinguished Toth on

the ground that military retirees, unlike discharged

ex-soldiers, continue to receive pay. See, e.g., United

States v. Hooper, 26 C.M.R. 417, 425 (C.M.A. 1958)

(“Certainly, one . . . who receives a salary to assure his

availability . . . is a part of the land or naval forces.”).

1. As of September 30, 2017, there were 1,996,375 military

retirees. Dep’t of Defense, Statistical Report on the Military

Retirement System: Fiscal Year 2017, at 17 (2018).

2

But in two separate lines of cases, this Court has

vitiated that reasoning.

First, in Reid v. Covert, 354 U.S. 1 (1957), and

Kinsella v. United States ex rel. Singleton, 361 U.S.

234 (1960), this Court rejected the government’s

argument that civilian dependents of servicemembers

were “part of” the “land and naval forces,” and thus

constitutionally subject to trial by court-martial,

because they were “accompanying a serviceman

abroad at Government expense and receiving other

benefits from the Government.” Covert, 354 U.S. at 23

(plurality opinion); see Singleton, 361 U.S. at 246–49

(adopting Covert). And this Court’s companion rulings

in McElroy ex rel. United States v. Guagliardo, 361

U.S. 281 (1960), and Grisham v. Hagen, 361 U.S. 278

(1960), likewise rejected Congress’s extension of

military jurisdiction to civilian employees of the

military, even though they were receiving a regular

salary for their services. Guagliardo, 361 U.S. at 286.

Second, in Barker v. Kansas, 503 U.S. 594 (1992),

this Court held that military retired pay is not in fact

current income, but is instead “deferred pay for past

services.” Id. at 605. Even if a salary, on its own, could

be sufficient to subject the recipient to court-martial,

Barker confirms that military retirees are pensioners,

not part-time, salaried employees. As the lower courts

recognized in the ruling at issue here, Barker thereby

eliminated the central analytical justification for

holding that retirees remain members of the “land and

naval forces” under the Make Rules Clause—and, in

the process, the constitutional rationale for trying

them by court-martial. See United States v. Dinger, 76

M.J. 552, 555 (N-M. Ct. Crim. App. 2017), aff’d on

other grounds, 77 M.J. 447 (C.A.A.F. 2018).

3

Lacking any precedential foundation, the lower

courts instead resorted to “first principles,” id. at 556,

but nevertheless sustained military jurisdiction here,

holding that retirees are still part of the “land and

naval forces”—and subject to trial by court-martial—

not because they receive pay, but solely because they

can be involuntarily recalled to active duty. See id. at

556–57. Military jurisdiction over retirees is justified,

the argument goes, in order to promote “good order

and discipline” among those who may, at some

indefinite point in the future, be needed for additional

active-duty service. See id.; see also Pet. App. 5a n.1

(applying Dinger to this case).

This holding is stunning in its breadth. Not only

would it mean that every retired servicemember could

be subject to court-martial for any crime committed

until their death, but it would also mean Congress

could authorize courts-martial for any offense

committed by any of the 17 million men registered for

the Selective Service, 2 who are subject to involuntary

induction and activation by the President for training

and service at any time, “whether or not a state of war

exists.” 50 U.S.C. § 3803(a).

Tying military jurisdiction over retirees to future

recall is also anachronistic. Under current law, few

retirees are realistically subject to involuntary recall.

Instead, since Vietnam, a robust reserve component—

rather than the retired list—has become the military’s

preferred means for augmenting active-duty troops.

See Library of Congress, Historical Attempts to

Reorganize the Reserve Components, at 15–17 (2007).

2. At the end of 2016, 16,829,936 men were registered for the

Selective Service. See Selective Serv. Sys., Annual Report to the

Congress of the United States: Fiscal Year 2017, at 28 (2018).

4

But even if, by dint of hypothetical future service,

retirees remain part of the “land and naval forces,”

their amenability to court-martial should be limited to

crimes bearing some nexus to the military. Courtsmartial may exercise only “the narrowest jurisdiction

deemed absolutely essential to maintaining discipline

among troops in active service.” Toth, 350 U.S. at 22.

Thus, although active-duty servicemembers can be

tried for offenses with no military connection, Solorio

v. United States, 483 U.S. 435 (1987), reservists can

only be tried for offenses committed on active duty or

during inactive-duty training—not for every crime

they might commit in civilian life. See, e.g., United

States v. Morita, 74 M.J. 116, 122–23 (C.A.A.F. 2015).

If retirees are to be subject to courts-martial at all,

then, this Court should at the very least clarify that

such jurisdiction is constitutionally limited to crimes

related to their residual military status. No matter

how broadly that standard is construed, this case fails

to meet it. And because this Court has jurisdiction

over the questions presented here, but may not in

future cases in which they arise, this Petition presents

not only immensely important questions about the

constitutional scope of military jurisdiction, but also

an appropriate vehicle through which to answer them.

DECISIONS BELOW

The order of the Court of Appeals for the Armed

Forces (CAAF) is not yet reported. It is reprinted in

the Appendix at Pet. App. 1a. CAAF’s order granting

review of Petitioner’s petition for review is reported at

77 M.J. 328 (C.A.A.F. 2018), and is reprinted in the

Appendix at Pet. App. 2a. The decision of the NavyMarine Corps Court of Criminal Appeals (NMCCA) is

not reported. It is reprinted in the Appendix, id. at 3a.

5

JURISDICTION

CAAF granted Petitioner’s petition for review on

March 20, 2018, id. at 2a, and issued an order

affirming the NMCCA on August 22, 2018. Id. at 1a.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1259(3). See post at 22–25 (discussing jurisdiction).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Make Rules Clause authorizes Congress “[t]o

make rules for the government and regulation of the

land and naval forces.” U.S. CONST. art. I, § 8, cl. 14.

The Fifth Amendment exempts from its requirement

of a grand jury indictment “cases arising in the land

or naval forces, or in the militia, when in actual

service in time of war or public danger.” Id. amend. V.

Articles 2(a)(4) and 2(a)(6) of the Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 802(a)(4) and

802(a)(6), provide that “[r]etired members of a regular

component of the armed forces who are entitled to

pay” and “[m]embers of the Fleet Reserve and Fleet

Marine Corps Reserve” are subject to the UCMJ—and

to court-martial for the offenses prescribed therein.

STATEMENT OF THE CASE

A.

Legal Background

The status of a “retired” servicemember dates to

1861, when Congress first authorized a “retired list”

for Army and Marine Corps officers who were either

physically disabled or who had served for at least 40

consecutive years. See Act of Aug. 3, 1861, ch. 42,

§§ 15–18, 12 Stat. 287, 289–90. Unlike soldiers who

had been “discharged” from the service, those on the

retired list were generally entitled to receive annual

pay at a reduced rate. See Frank O. House, The

6

Retired Officer: Status, Duties, and Responsibilities,

26 A.F. L. REV. 111, 113 (1987).

Against that background, this Court held in United

States v. Tyler, 105 U.S. 244 (1882), that a military

retiree receiving pay was still “serving” in the military

for purposes of a statute that provided for raises for

every five years of a military officer’s service. For

retirees such as Tyler, “the compensation is continued

at a reduced rate, and the connection is continued,

with a retirement from active service only.” Id. at 245.

And although Tyler only raised the scope of a specific

federal benefit, it suggested in dicta that retirees “may

be tried, not by a jury, as other citizens are, but by a

military court-martial.” Id. Tyler thus “first tacitly

recognized the power of Congress to authorize courtmartial jurisdiction” over retirees. Dinger, 76 M.J. at

555; see also Joseph W. Bishop, Jr., Court-Martial

Jurisdiction Over Military-Civilian Hybrids: Retired

Regulars, Reservists, and Discharged Prisoners, 112

U. PA. L. REV. 317, 332 (1964) (“[T]he amenability of

retired regulars to court-martial, though unknown to

the founding fathers, is as old as the retired list itself,

which was also unknown to them.”).

Notwithstanding Tyler’s apparent endorsement,

until recently, “reported courts-martial of military

retirees [were] relatively rare.” J. Mackey Ives &

Michael J. Davidson, Court-Martial Jurisdiction Over

Retirees Under Articles 2(4) and 2(6): Time to Lighten

Up and Tighten Up?, 175 MIL. L. REV. 1, 11 (2003). But

in the handful of reported cases in which a retiree has

challenged his amenability to military jurisdiction,

the reviewing court generally pegged its analysis to

Tyler—and to the facts that the accused was still

receiving military pay and remained theoretically

subject to recall to active duty.

7

For example, in United States ex rel. Pasela v.

Fenno, 167 F.2d 593 (2d Cir. 1948), the Second Circuit

rejected a constitutional challenge to the courtmartial of a member of the Fleet Reserve for an

offense committed after he had left active duty. As the

court explained, “The Fleet Reserve is so constituted

that it falls reasonably and readily within the phrase

‘naval forces’ in the Fifth Amendment. Its

membership is composed of trained personnel who are

paid on the basis of their length of service and remain

subject to call to active duty.” Id. at 595.

And shortly after this Court’s decision in Toth, the

Court of Military Appeals (today’s CAAF) reaffirmed

this reasoning in United States v. Hooper:

Officers on the retired list are not mere

pensioners in any sense of the word. They form

a vital segment of our national defense for their

experience and mature judgment are relied

upon heavily in times of emergency. The

salaries they receive are not solely recompense

for past services, but a means devised by

Congress to assure their availability and

preparedness in future contingencies.

26 C.M.R. at 425; see also Hooper v. United States, 326

F.2d 982, 987 (Ct. Cl. 1964) (adopting this analysis

despite “certain doubts” as to its validity). For over a

century, then, Tyler’s understanding of retiree pay

was central to lower courts’ consistent conclusions

that military retirees could constitutionally be subject

to court-martial—even though this Court’s decisions

after and in light of Toth should have eroded the

compensation rationale as a sufficient predicate for

military jurisdiction. See, e.g., United States v.

Overton, 24 M.J. 309, 311 (C.M.A. 1987).

8

But whatever was left of that rationale was

washed away by this Court’s decision in Barker. 3

There, in considering how retiree pay should be

treated for purposes of a state tax scheme, this Court

concluded that “military retirement benefits are to be

considered deferred pay for past services” instead of

“current compensation” to retirees “for reduced

current services.” 503 U.S. at 605. Among other

things, as Justice White wrote for the unanimous

Court, “[t]he amount of retired pay a service member

receives is calculated not on the basis of the

continuing duties he actually performs, but on the

basis of years served on active duty and the rank

obtained prior to retirement.” Id. at 599 (citation and

internal quotation marks omitted); cf. United States v.

Carpenter, 37 M.J. 291, 295 (C.M.A. 1993) (“[A] retired

officer has no duties . . . .”), vacated on other grounds,

515 U.S. 1138 (1995) (mem.).

Although Barker observed in dicta that “[m]ilitary

retirees unquestionably remain in the service and are

subject to restrictions and recall,” 503 U.S. at 599, it

did so while eviscerating that part of Tyler that had

previously carried those jurisdictional implications.

As Barker explained, Tyler’s framing of retiree pay as

“current compensation” had been unnecessary to the

result; had failed to appreciate the disparities that

“current pay for current services” would create among

those who held the same preretirement rank; and had

generally created confusion among courts considering

how to treat retiree pay for purposes of an array of

probate and tax considerations. See id. at 599–600.

3. This Court had previously reserved the question it decided

in Barker. See McCarty v. McCarty, 453 U.S. 210, 222–23 &

nn.15–16 (1981).

9

Instead, the Barker Court held that, at least for

purposes of the relevant federal statute, “military

retirement benefits are to be considered deferred pay

for past services.” Id. at 604. 4

“From these developments it is clear that the

receipt of retired pay is neither wholly necessary, nor

solely sufficient, to justify court-martial jurisdiction

[over retirees].” Dinger, 76 M.J. at 555–56. But in the

26 years since Barker was decided, this Court has not

had occasion to consider how—if at all—that ruling

calls into question the continuing constitutionality of

military jurisdiction over retired servicemembers.

B.

Procedural History

On August 1, 2015, after 20 years of service in the

U.S. Marine Corps, Petitioner Steven M. Larrabee

retired from active duty as a Staff Sergeant, and was

transferred to the Fleet Marine Corps Reserve. 5 After

his retirement, Petitioner continued to reside in

Iwakuni, Japan (his final duty station), and began

managing two local bars. On November 15, 2015, after

a night of drinking, Petitioner sexually assaulted a

bartender at one of the bars he managed and used his

cell phone to record the incident. The victim, identified

4. The Solicitor General, participating as an amicus, had

argued for exactly this understanding of retiree pay. See Brief for

the United States as Amicus Curiae in Support of Petitioners at

19–21, Barker, 503 U.S. 594, 1991 WL 11009204 (No. 91-611).

5. Members of the Fleet Marine Corps Reserve receive

“retainer pay,” not “retired pay.” For all practical purposes,

however, including the military’s statutory and constitutional

jurisdiction, this is a distinction without a difference. See United

States v. Morris, 54 M.J. 898, 899 (N-M. Ct. Crim. App. 2001).

Indeed, its name aside, the “Fleet Marine Corps Reserve” is not

actually a reserve component of the armed forces. See 10 U.S.C.

§ 10101 (listing the seven reserve components).

10

in court records as “KAH,” was not a member of the

armed forces, although her spouse was.

Petitioner was subsequently convicted by a courtmartial, pursuant to his pleas, on one count of sexual

assault and one count of indecent recording in

violation of Articles 120 and 120c of the UCMJ, 10

U.S.C. §§ 920 and 920c. The military judge sentenced

Petitioner to eight years’ confinement, a reprimand,

and a dishonorable discharge. As part of a pre-trial

agreement, however, the Convening Authority

disapproved the reprimand, suspended confinement

in excess of 10 months, and, except for that part of the

sentence extending to the dishonorable discharge,

ordered the sentence executed.

Petitioner raised four claims in his appeal to the

NMCCA. As relevant here, 6 Petitioner argued that,

because he was retired, the court-martial’s exercise of

jurisdiction over him was unconstitutional. And even

if it was not, Petitioner argued that 10 U.S.C. § 6332

deprived the court-martial of the power to sentence

him to a punitive discharge subsequent to his transfer

to the Fleet Marine Corps Reserve. 7

6. In the NMCCA, Petitioner also raised two claims relating to

whether the proceedings in his case were subject to unlawful

command influence. Those claims are not at issue here.

7. That provision specifies that “when a member of the naval

service is transferred . . . to the Fleet Marine Corps Reserve,”

“the transfer is conclusive for all purposes,” including grade and

rate of pay based on years of service to that point. 10 U.S.C.

§ 6332. Earlier decisions by CAAF’s predecessor had interpreted

this language to prohibit punitive discharges of retirees. See

United States v. Sloan, 35 M.J. 4 (C.M.A. 1992); United States v.

Allen, 33 M.J. 209 (C.M.A. 1991). CAAF overruled those

decisions in Dinger, 77 M.J. 447.

11

While Petitioner’s appeal to the NMCCA was

pending, that court resolved both of these arguments

in the government’s favor in United States v. Dinger.

76 M.J. 552. As to the constitutional objection, the

NMCCA agreed that Barker and the line of cases

beginning with Covert together called into question

prior decisions upholding military jurisdiction over

retired servicemembers. But conceding that the case

required resort to “first principles,” the court

nevertheless held that retirees remain members of the

“land and naval forces” for purposes of Congress’s

Article I authority:

Unlike the wholly discharged veteran in Toth

whose connection with the military had been

severed, a “retired member of the . . . Regular

Marine Corps” and a “member of the . . . Fleet

Marine Corps Reserve” may be “ordered to

active duty by the Secretary of the military

department concerned at any time.”

Id. at 556–57 (quoting 10 U.S.C. § 688). Thus,

“[n]otwithstanding Barker and its implications

regarding the tax status of retired pay, we are firmly

convinced that those in a retired status remain

‘members’ of the land and Naval forces who may face

court-martial.” Id. at 557.

Based on Dinger, the NMCCA rejected Petitioner’s

similar challenges, and affirmed the trial judge’s

findings and sentence in his case. Pet App. 5a n.1, 20a.

Petitioner then filed a petition for review in CAAF,

seeking discretionary review of three issues: Whether

(1) the unlawful command influence in his case was

harmless beyond a reasonable doubt; (2) the assertion

of jurisdiction was constitutional; and (3) a retiree can

lawfully be sentenced to a punitive discharge.

12

On March 20, 2018, CAAF granted review in

Petitioner’s case, but only with respect to the

sentencing issue. Id. at 2a. After it affirmed the

NMCCA’s resolution of that question in a published

opinion in Dinger, 77 M.J. 447, CAAF issued a

summary order in Petitioner’s case on August 22,

2018, affirming the NMCCA’s decision in this case “in

light of Dinger.” Id. at 1a.

REASONS FOR GRANTING THE PETITION

Since the end of World War II, this Court has

carefully policed the constitutional boundaries of

military jurisdiction. In one of the lines of cases

discussed above, it has all but foreclosed the military’s

power to try civilians by court-martial—concluding

that they fall outside the “land and naval forces”

subject to Congress’s plenary regulatory authority

under the Make Rules Clause of Article I. See, e.g.,

Guagliardo, 361 U.S. 281; Grisham, 361 U.S. 278;

Singleton, 361 U.S. 234; Covert, 354 U.S. 1; Toth, 350

U.S. 11. 8 A second line of decisions has recognized the

breadth of the military’s power to try active-duty

servicemembers, interpreting the Make Rules Clause

and the exception from the Fifth Amendment’s Grand

Jury Indictment Clause for “cases arising in the land

and naval forces” to allow the military to try any

offense committed by such personnel. See Solorio, 483

U.S. 435. The unifying theme of these decisions has

been the sufficiency of the accused’s military status for

purposes of the Make Rules Clause:

8. In United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012), CAAF

upheld the court-martial of a non-citizen military contractor for

offenses committed in Iraq—but only because, as a non-citizen

outside the United States, the accused, per CAAF, lacked jurytrial rights under the Fifth and Sixth Amendments. Id. at 269.

13

military jurisdiction has always been based on

the “status” of the accused, rather than on the

nature of the offense. To say that military

jurisdiction “defies definition in terms of

military ‘status’” is to defy unambiguous

language of Art. I, § 8, cl. 14, as well as the

historical background thereof and the

precedents with reference thereto.

Singleton, 361 U.S. at 243; see also Solorio, 483 U.S.

at 439–40 (quoting this language).

Retired servicemembers “are certainly not obvious

members of the armed forces, as are soldiers on active

duty; on the other hand they are not ‘full-fledged’

civilians.” Bishop, supra, at 318. Thus, even as it has

coalesced around these two sets of constitutional

rules, this Court has not had the occasion to consider

on which side of the constitutional line military

retirees fall, either before Barker or since in the 26

years since it undermined the prevailing view—that

retirees remain part of the land and naval forces

because they continue to receive pay.

In its own right, whether retired servicemembers

can ever be tried by courts-martial, even for offenses

committed after their retirement from active duty

that have no relation to their military status, is a

sufficiently serious constitutional question to warrant

this Court’s intervention. But the case for certiorari is

all the more compelling in light of the theory on which

the NMCCA relied below, which would allow Congress

to authorize trial by court-martial of any and all

offenses committed by any individual theoretically

subject to future active-duty military service.

for

On that theory, not only would it be constitutional

the military to court-martial octogenarian

14

Vietnam veterans who commit Medicare fraud or who

use “contemptuous words against the President,” 10

U.S.C. § 888; it would also be constitutional to courtmartial 18-year-olds registered for the Selective

Service System who speed on the George Washington

Parkway or sell marijuana in a state in which such

sales are lawful. See id. § 934. Petitioner does not

believe that the Constitution abides such a staggering

expansion of military jurisdiction. But if it does, it

should at the very least be for this Court to say so.

I.

THE QUESTIONS PRESENTED ARE

EXCEPTIONALLY IMPORTANT

As this Court observed in Toth, “[d]etermining the

scope of the constitutional power of Congress to

authorize trial by court-martial presents another

instance calling for limitation to ‘the least possible

power adequate to the end proposed.” 350 U.S. at 23

(quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204,

230–31 (1821)). This is so, Justice Black argued three

years later, because “[e]very extension of military

jurisdiction is an encroachment on the jurisdiction of

the civil courts, and, more important, acts as a

deprivation of the right to jury trial and of other

treasured constitutional protections.” Covert, 354 U.S.

at 21 (plurality opinion); see also Ex parte Milligan, 71

U.S. (4 Wall.) 2, 122–23 (1866) (“[I]f ideas can be

expressed in words, and language has any meaning,

this right—one of the most valuable in a free

country—is preserved to everyone accused of crime

who is not attached to the army, or navy, or militia in

actual service.”).

Thus, although this Court has repeatedly shown

deference to the military in general and to the system

of military justice Congress created in the UCMJ in

15

particular, see, e.g., Schlesinger v. Councilman, 420

U.S. 738, 753 (1975), the one topic on which it has

shown no deference is the scope of what has been

described as the military’s “personal jurisdiction,” i.e.,

the classes of offenders who may constitutionally be

subjected to trial before a military tribunal. See, e.g.,

Hamdan v. Rumsfeld, 548 U.S. 557, 585 n.16 (2006). 9

Not only has this Court repeatedly identified and

enforced constitutional limits on military jurisdiction

in such cases, but it has recognized an exception to

abstention when “[t]he constitutional question

presented turned on the status of the persons as to

whom the military asserted its power.” Councilman,

420 U.S. at 759; see In re Al-Nashiri, 835 F.3d 110,

133–34 (D.C. Cir. 2016) (summarizing the “status”

exception to Councilman abstention), cert. denied, 138

S. Ct. 354 (2017). As the second Justice Harlan put it,

this Court “did not believe that the expertise of

military courts extended to the consideration of

constitutional claims of the type presented.” Noyd v.

Bond, 395 U.S. 683, 696 n.8 (1969).

This Petition presents jurisdictional questions of

the same gravity. And although it comes to this Court

on direct review rather than habeas, the questions are

no less urgent. If anything, the fact that Petitioner has

exhausted his military remedies—and to no avail—

underscores not only the imperative for this Court’s

resolution of the Questions Presented, but the

suitability of this case as an appropriate vehicle for

addressing them.

9. “Personal jurisdiction” may be a misnomer here, because the

constitutional objection “is a structural question of subject

matter jurisdiction.” Al Bahlul v. United States, 840 F.3d 757,

760 n.1 (D.C. Cir. 2016) (en banc) (Kavanaugh, J., concurring).

16

A.

The Receipt of Pay is Not a Sufficient

Basis for Treating Retirees as Part of

the “Land and Naval Forces”

This Court’s unanimous decision in Barker

necessarily vitiated the rationale upon which the

lower courts had long relied in sustaining courtmartial jurisdiction over retired servicemembers.

After all, although Barker’s holding was specific to a

single federal statute, its analysis highlights the

logical fallacy in the conclusion that individuals

remain part of the “land and naval forces” for purposes

of Article I so long as they continue to receive pay.

Among other things, “a military retiree is entitled to a

stated percentage of the pay level achieved at

retirement, multiplied by the years of creditable

service.” Barker, 503 U.S. at 599; 10 U.S.C. §§ 1401–

15 (setting out statutory rules for retiree pay).

If, as Barker held, Congress treats retiree pay as

tantamount to a pension, 10 then that remuneration is

a benefit paid to a former servicemember, rather than

a continuing financial tether to a current one. But

those receiving benefits from the military could hardly

be said to be “in” the “land and naval forces” as a

result. See Covert, 354 U.S. at 23 & n.16 (plurality

opinion). Instead, Barker compels the conclusion, as

the NMCCA held in Dinger, that military jurisdiction

over retired servicemembers can no longer rest on the

fact that they continue to receive pay—and perhaps

never should have.

10. To similar effect, the Uniformed Services Former Spouses’

Protection Act, Pub. L. No. 97-252, tit. X, 96 Stat. 718, 730 (1982),

generally provides “that retired pay should be treated as a form

of property divisible upon divorce according to state marital

property laws.” Ives & Davidson, supra, at 52.

17

B.

The Alternative Ground Identified in

Dinger Would Lead to a Stunning

Expansion in Military Jurisdiction

In Dinger, the NMCCA properly recognized

Barker’s jurisdictional implications, and agreed that

it had to return to “first principles” to resolve whether

retirees could be tried by court-martial. 76 M.J. at

556. It nevertheless upheld the military’s jurisdiction

by pointing to the fact that retirees remain subject to

recall at any time. See id. at 556–57. The NMCCA’s

cursory analysis suffers from three separate—but

independently material—flaws.

First, the NMCCA justified this “subject to recall”

rationale based upon the deference Congress is owed

when it legislates under the Make Rules Clause. But

it failed to recognize that this deference was derived

from cases involving active-duty servicemembers—to

which there was no question that the Make Rules

Clause applied. As Chief Justice Rehnquist wrote for

the Court in Solorio, “we have adhered to this

principle of deference in a variety of contexts where,

as here, the constitutional rights of servicemen were

implicated.” 483 U.S. at 448 (emphasis added); see

also id. (citing seven examples, all of which involved

active-duty personnel). The NMCCA’s conclusion that

Congress is entitled to similar deference in extending

military jurisdiction to individuals who are not activeduty servicemembers does not follow from these cases.

At a more basic level, it is also belied by the numerous

decisions cited above, ante at 15, in which this Court

recognized the special need for searching review of

claims that the military lacked jurisdiction based

upon the status of the offender. E.g., Noyd, 395 U.S.

at 696 n.8.

18

Second, the understanding that retirees face a

reasonable likelihood of recall to active duty, “like

Cincinnatus from the plow,” Bishop, supra, at 357, is

generally anachronistic—and has been for decades.

Since Vietnam, if not earlier, the reserve components,

rather than the services’ retired lists, have been the

primary mechanism for augmenting active-duty

troops. See, e.g., Library of Congress, supra, at 15–17.

Thus, the future activation-based argument in favor

of military jurisdiction “seems rather more plausible

when applied to reservists, who are in reality [more]

likely to be called to service in emergencies.” Bishop,

supra, at 357. 11

This policy shift is reflected not only in the legal

framework governing activation of the reserve

components, but also in two different constraints on

when and how retirees can be recalled. For example,

10 U.S.C. § 690(b) imposes a rigid cap (15 flag officers

and 25 other officers from each service branch) on the

number of retired officers who can be recalled to active

duty under 10 U.S.C. § 688 at the same time—outside

a time of war or national emergency.

And current Defense Department regulations all

but preclude the involuntary recall to active military

duty any former servicemember who retired due to

disability or who has reached the age of 60. See DoD

Instruction 1352.01, ¶ 3.2(g)(2) (2016) (noting limits

11. As noted ante at 4, inactive reservists, unlike retirees, are

not subject to trial by court-martial for any offense committed at

any time. Instead, Congress has limited jurisdiction in such cases

to offenses committed while the reservist was “on active duty” or

“on inactive-duty training.” 10 U.S.C. § 802(d)(2). There is no

plausible explanation for why jurisdiction over reservists—who

are far more likely to be called to active duty—should be so

heavily limited when jurisdiction over retirees is not.

19

on recall of “Category III” retirees). 12 “Theoretically,”

under current law, “only death cuts off the military’s

ability to recall its retired members to active duty

and/or to subject them to court-martial jurisdiction.”

Ives & Davidson, supra, at 8. In reality, however, the

vast majority of military retirees face no prospect of

involuntary recall to active duty.

Third, if even the illusory specter of activation

suffices to justify the assertion of military jurisdiction,

then the exact same can be said about the Selective

Service System, whose 17 million registrants are

“liable for training and service in the Armed Forces of

the United States.” 50 U.S.C. § 3803(a). Indeed, just

as 10 U.S.C. § 688 authorizes the involuntary recall to

active duty of retired servicemembers “at any time,”

the Selective Service Act empowers the President,

whether or not a state of war exists, to select

and induct into the Armed Forces of the United

States for training and service . . . such number

of persons as may be required to provide and

maintain the strength of the Armed Forces.

50 U.S.C. § 3803(a). The UCMJ does not currently

authorize the court-martial of Selective Service

registrants. But if Dinger’s reasoning is correct, it

could. Cf. The Selective Draft Law Cases, 245 U.S. 366,

377–78 (1918) (holding that the Constitution allows

Congress, in appropriate circumstances, to provide for

the involuntary conscription of all citizens).

12. Of the nearly two million living retirees reported by the

Department of Defense as of September 30, 2017, 1,300,702 were

60 or older. Statistical Report, supra, at 50–51. An additional

77,433 retirees under 60 were disabled. Id. at 58. Thus, at least

69% of all retirees fall into Category III.

20

To be sure, as the NMCCA pointed out in Dinger,

this Court has held that it is constitutional for

Congress to subject a pre-induction draftee to military

jurisdiction. See 76 M.J. at 556 (citing Billings v.

Truesdell, 321 U.S. 542, 544 (1944)). But all Billings

recognizes is the straightforward point that Congress

can treat as part of the “land and naval forces” those

who have in fact been lawfully called to active duty,

whether or not the call was answered. It hardly

follows that anyone who might one day be drafted or

otherwise called to service is therefore subject to

military jurisdiction so long as that remains solely a

theoretical possibility.

And yet, Dinger’s analysis requires exactly that

result. If the fact that retirees remain subject to recall

to active duty alone provides a sufficient basis for

treating them as part of the “land and naval forces,”

there is no obvious reason why Selective Service

registrants—whose activation would be far more

likely in a true emergency—are not similarly situated.

Under Dinger, then, not only could Congress provide

for military jurisdiction over each of the two million

current military retirees; it could also authorize trial

by court-martial of the 17 million men who have

registered with the Selective Service, whether or not

they are ever actually inducted into the military.

In rejecting military jurisdiction over civilian exservicemembers, Toth emphasized “the enormous

scope of a holding that Congress could subject every

ex-serviceman and woman in the land to trial by

court-martial for any alleged offense committed while

he or she had been a member of the armed forces.” 350

U.S. at 19. Those figures only pale in comparison to

what Dinger would allow.

21

C.

At Most, Retirees Should Only Be

Subject to Court-Martial For Offenses

Related to Their Military Status

Even if the NMCCA in Dinger was correct that the

Make Rules Clause empowers Congress to subject to

military jurisdiction anyone who is currently subject

to future activation, that conclusion would only

provoke a related constitutional question—whether,

by limiting such cases to those “arising in the land or

naval forces,” the Grand Jury Indictment Clause of

the Fifth Amendment requires that the offense have

some relationship to the retiree’s military status.

Certiorari is therefore warranted not only to resolve

whether retirees are ever subject to trial by courtmartial, but, even if the answer is yes, to clarify the

circumstances in which they may be so tried.

To be sure, Solorio rejected the argument that the

Constitution requires offenses by active-duty

servicemembers to be connected to their military

service in order to be subject to military jurisdiction.

483 U.S. at 450–51 (“The requirements of the

Constitution are not violated where, as here, a courtmartial is convened to try a serviceman who was a

member of the Armed Services at the time of the

offense charged.”). But this Court’s analysis was

predicated entirely on the view that, where activeduty servicemembers were at issue, their status

necessarily brought them within the regulatory scope

of the Make Rules Clause and therefore settled their

amenability to court-martial jurisdiction. See, e.g., id.

at 439–40. Where other classes of individuals who are

outside any active chain of command are subjected to

military jurisdiction, however, not only does Solorio

not govern, but its reasoning militates in favor of the

opposite conclusion.

22

After all, even if the accused is a member of the

“land and naval forces” for purposes of the Make Rules

Clause, the dispute must still “arise[] in the land or

naval forces” for purposes of the Fifth Amendment’s

Grand Jury Indictment Clause. And whichever

offenses that text encompasses in the specific context

of retired servicemembers, it should not extend to the

crimes at issue here. Petitioner was convicted for

conduct that took place after he retired from active

duty. His offenses were not unique to the military.

They were not committed on a military base. They

were not committed against a victim who was part of

the armed forces. Thus, unless the Constitution allows

for the exercise of military jurisdiction over all retirees

in all cases, Petitioner’s offenses did not “arise in the

land or naval forces,” and the Fifth Amendment

should have forbidden his trial by court-martial

regardless of the Make Rules Clause of Article I.

II.

THIS PETITION PRESENTS AS GOOD A

VEHICLE FOR DECIDING THE QUESTIONS

PRESENTED AS IS LIKELY TO ARISE

This Petition not only presents constitutional

questions of the first order, but it also provides an

appropriate vehicle through which to resolve them.

This Court has jurisdiction, and the Petition presents

as good a case for resolving the Questions Presented

as this Court is likely to see in the near future.

A.

This Court Has Jurisdiction Over this

Petition

This Court has jurisdiction to review decisions by

CAAF in “[c]ases in which [CAAF] granted a petition

for review under section 867(a)(3) of title 10.” 28

U.S.C. § 1259(3). This is such a case. CAAF granted

Petitioner’s petition for review and issued a decision

23

and judgment affirming the NMCCA’s findings and

sentence. Pet. App. 1a. There is thus no question that

the plain text of § 1259(3) is satisfied. See Ortiz v.

United States, 138 S. Ct. 2165, 2172 (2018); see also

United States v. Denedo, 556 U.S. 904, 909–10 (2009)

(rejecting a “parsimonious” construction of § 1259).

Despite the clear text of § 1259(3), the Solicitor

General has previously contended that this Court’s

jurisdiction under that provision does not extend to

issues on which CAAF did not grant a discretionary

petition for review. E.g., Brief for the United States in

Opposition at 7 n.2, Wiechmann v. United States, 559

U.S. 904 (2010) (mem.); Brief for the United States in

Opposition at 6, McKeel v. United States, 549 U.S.

1019 (2006) (mem.). This argument rises and falls on

10 U.S.C. § 867a(a), which provides that this Court

“may not review by a writ of certiorari under [§ 1259]

any action of [CAAF] in refusing to grant a petition for

review.”

It is well settled that this Court’s power to review

“cases” in the courts of appeals under 28 U.S.C.

§ 1254(1) allows it to consider the entire dispute, and

not just the specific grounds of decision relied upon by

the court from which review is sought. See, e.g.,

Forsyth v. City of Hammond, 166 U.S. 506, 513 (1897)

(“The power thus given is not affected by the condition

of the case as it exists in the court of appeals.”); see

also Dart Cherokee Basin Operating Co. v. Owens, 135

S. Ct. 547, 554–55 (2014). Although § 1259(3) likewise

invests this Court with appellate jurisdiction to

review CAAF’s decisions in “cases” in which it has

granted a discretionary petition for review, 13 the

13. Section 1259’s mandate that this Court review “decisions”

by CAAF is generally understood as a limit on the timing of this

24

Solicitor General’s argument appears to be that

§ 867a(a), enacted six years after § 1259(3), narrows

that jurisdiction to review of only the specific issues

CAAF agreed to resolve. 14

“It is an unresolved question whether, once

[CAAF] grants a petition for review on some issues,

the Supreme Court has the power to consider other

issues in the case that were not granted review,”

Shapiro, supra, § 2.14, at 130 n.120. But it is not a

difficult one. The text of § 867a(a) only precludes this

Court from reviewing CAAF’s actions in “refusing to

grant a petition for review.” There is no “petition for

review” that CAAF “refus[ed] to grant” in this case.

See Pet. App. 2a (order granting review). Petitioner

did not file three petitions for review, two of which

were denied; he filed one petition raising three issues,

and it was granted as to one of them. Section 867a(a)

is therefore inapposite.

Even if § 867a(a) were ambiguous on this point, it

is a “cardinal rule” of statutory interpretation that

“repeals by implication are not favored,” Cook County,

Ill. v. United States ex rel. Chandler, 538 U.S. 119, 132

(2003) (internal quotation marks omitted), including

repeals of this Court’s appellate jurisdiction. Ex parte

Yerger, 75 U.S. (8 Wall.) 85, 105 (1869). And yet, there

Court’s appellate jurisdiction, not its scope. E.g., Stephen M.

Shapiro, et al., Supreme Court Practice, § 2.14, at 132 (10th ed.

2013) (“[T]he Court cannot grant certiorari to review a nonfinal

judgment of [CAAF], or an appeal from a lower military court

judgment that has just been lodged in [CAAF].”).

14. Perhaps tellingly, CAAF’s own jurisdiction is not so limited.

Instead, even in cases in which it grants a discretionary petition

for review, it “may specify or act on any issue concerning a matter

of law which materially affects the rights of the parties,” C.A.A.F.

R. 5 (emphasis added), not just those identified by the parties.

25

is no evidence that Congress intended § 867a(a) to

narrow the scope of § 1259(3), as opposed to make

explicit what had previously been implicit—that

§ 1259(3) only extends to cases CAAF chooses to hear.

See H.R. CONF. REP. NO. 101-331, at 656–67 (1989). 15

But if this Court is of the view that this unresolved,

recurring jurisdictional question is indeed difficult,

the proper disposition would not be to deny certiorari

and leave the matter unsettled, but to add whether

this Court has appellate jurisdiction to the Questions

Presented and grant certiorari, so that the matter can

be fully briefed and argued. See, e.g., Montgomery v.

Louisiana, 135 S. Ct. 1546, 1546 (2015) (mem.). If

anything, the opportunity to resolve an unsettled

threshold question as to the scope of this Court’s

appellate jurisdiction only further justifies certiorari.

B.

This Court May Not Have Jurisdiction

Over These Questions in Future Cases

Nor is there any reason to wait for a future case

raising the Questions Presented, with or without this

jurisdictional issue. Among other things, there is no

realistic possibility of a division of authority among

the lower courts. Any appeal of a military retiree’s

15. Section 867a(a) was enacted as section 1301(b) of the

National Defense Authorization Act for Fiscal Years 1990 and

1991, Pub. L. No. 101-189, § 1301(b), 103 Stat. 1352, 1569 (1989),

which was titled “Restatement of Certiorari Provision.” Although

“the heading of a section cannot limit the plain meaning of the

text,” it is one of the “tools available for the resolution of a doubt.”

Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519,

529 (1947). That § 867a(a) merely “restates” § 1259 is reinforced

by its preceding sentence, which also restates an already settled

proposition: “Decisions of the United States Court of Appeals for

the Armed Forces are subject to review by the Supreme Court by

writ of certiorari as provided in section 1259 of title 28.”

26

court-martial conviction would necessarily go through

CAAF—such that there is nothing to be gained by

waiting to see if some other lower court reaches a

different result on similar facts.

In addition, and most importantly, there is no

guarantee that, in future cases in which retirees are

subject to court-martial, CAAF will grant a petition

for review on any issue—and thereby open the door to

direct review by this Court. That CAAF declined to

grant discretionary review of the constitutional issues

presented in this Petition either in this case or in

Dinger suggests that CAAF sees those matters as

settled by its own precedent—even though, as the

NMCCA’s ruling in Dinger makes clear, they are not.

In such circumstances, it may be unwise for this

Court to assume that, in a future case in which the

only issue is the constitutionality of a retiree’s courtmartial, CAAF would grant review. And not only will

this Court lack appellate jurisdiction if CAAF denies

subsequent petitions for review raising this issue, but

collateral relief via habeas corpus may be unavailable,

as well. 16 Thus, this case is not only an appropriate

vehicle for this Court to resolve the constitutionality

of military jurisdiction over retirees; it may be the last

good opportunity to do so for some time.

16. Collateral review of courts-martial via habeas corpus is

generally limited to claims that were not “fully and fairly”

considered by the military courts. See Burns v. Wilson, 346 U.S.

137, 142 (1953) (plurality opinion); Thomas v. U.S. Disciplinary

Barracks, 625 F.3d 667, 671 (10th Cir. 2010). It is not settled

whether that standard applies to jurisdictional objections such

as those presented here. See, e.g., Penland v. Mabus, 78 F. Supp.

3d 484, 493 (D.D.C. 2015). Either way, a claim can be “fully and

fairly” considered even if CAAF denies a petition for review. See,

e.g., Armann v. McKean, 549 F.3d 279, 292–96 (3d Cir. 2008).

27

*

*

*

Petitioner’s case “may seem innocuous at first

blush.” Stern v. Marshall, 564 U.S. 462, 503 (2011).

But “[s]light encroachments create new boundaries

from which legions of power can seek new territory to

capture.” Covert, 354 U.S. at 39 (plurality opinion).

For decades, lower courts sustained the military’s

authority to try retirees by court-martial based upon

cryptic—and since discredited—dicta about retiree

pay in this Court’s 1882 decision in Tyler. But rather

than confess error, the lower courts have now

gravitated toward a new theory, one with far

broader—and potentially startling—implications.

As in Toth, “[t]o allow this extension of military

authority would require an extremely broad

construction of the language used in the constitutional

provision relied on.” 350 U.S. at 14–15. Throughout its

history, this Court has repeatedly rejected such broad

constructions of the Constitution, recognizing that

“[t]here are dangers lurking in military trials which

were sought to be avoided by the Bill of Rights and

Article III of our Constitution.” Id. at 22. As in those

cases, the jurisdiction of courts-martial over military

retirees presents “another instance calling for

limitation to ‘the least possible power adequate to the

end proposed.” Id. at 23 (quoting Anderson, 19 U.S. (6

Wheat.) at 230–31).

But at the very least, if such a construction is to be

the law of the land, it ought to come from this Court’s

hand, and not that of the NMCCA.

28

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

STEPHEN I. VLADECK

Counsel of Record

727 East Dean Keeton St.

Austin TX 78705

(512) 475-9198

svladeck@law.utexas.edu

CAPT BRIAN L. MIZER, USN

CDR RICHARD FEDERICO, USN

Appellate Defense Counsel

Navy-Marine Corps

Appellate Review Activity

1254 Charles Morris Street, S.E.

Building 58, Suite 100

Washington, DC 20374

EUGENE R. FIDELL

Feldesman Tucker Leifer Fidell LLP

1129 20th Street, N.W.

Suite 400

Washington, DC 20036

Counsel for Petitioners

September 17, 2018

APPENDIX

APPENDIX

TABLE OF CONTENTS

United States Court of Appeals

for the Armed Forces,

Order of Affirmance

(Aug. 22, 2018) ....................................................... 1a

United States Court of Appeals

for the Armed Forces,

Order Granting Review

(Mar. 20, 2018) ....................................................... 2a

United States Navy-Marine Corps

Court of Criminal Appeals,

Opinion Affirming Conviction

(Nov. 28, 2017) ....................................................... 3a

1a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

WASHINGTON, D.C.

United States,

Appellee

v.

Steven M. Larrabee,

Appellant

No. 18-0114/MC

Crim. App. No. 201700075

ORDER

On further consideration of the granted issue, 77

M.J. 328 (C.A.A.F. 2018), and in light of United States

v. Dinger, 77 M.J. 447 (C.A.A.F. 2018), it is, by the

Court, this 22nd day of August 2018,

ORDERED:

That the decision of the United States NavyMarine Corps Court of Criminal Appeals is hereby

affirmed.

FOR THE COURT

/s/ Joseph R. Perlak

Clerk of the Court

cc:

The Judge Advocate General of the Navy

Appellate Defense Counsel (Mizer)

Appellate Government Counsel (Monks)

2a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

WASHINGTON, D.C.

United States,

Appellee

v.

Steven M. Larrabee,

Appellant

No. 18-0114/MC

CCA 201700075

ORDER GRANTING REVIEW

On consideration of the petition for grant of review

of the decision of the United States Navy-Marine

Corps Court of Criminal Appeals, it is, by the Court,

this 20th day of March, 2018,

ORDERED:

That said petition is hereby granted on the

following issue:

10 U.S.C. § 6332 STATES THAT THE TRANSFER

OF A SERVICEMEMBER TO RETIRED STATUS

IS “CONCLUSIVE FOR ALL PURPOSES.” CAN A

COURT-MARTIAL SENTENCE A RETIREE TO

A PUNITIVE DISCHARGE?

No briefs will be filed under Rule 25.

FOR THE COURT

/s/ Joseph R. Perlak

Clerk of the Court

cc:

The Judge Advocate General of the Navy

Appellate Defense Counsel (Mizer)

Appellate Government Counsel (Monks)

3a

UNITED STATES NAVY-MARINE CORPS

COURT OF APPEALS

No. 201700075

UNITED STATES OF AMERICA

Appellee

v.

STEVEN M. LARRABEE

Staff Sergeant (E-6), U.S. Marine Corps (Retired)

Appellant

Appeal from the

United States Navy-Marine Corps Trial Judiciary

Military Judges: Lieutenant Colonel Eugene H.

Robinson, Jr., USMC.

Convening Authority: Commanding General, Marine

Corps Installations Pacific, Okinawa, Japan.

Staff Judge Advocate’s Recommendation:

Major Christopher W. Pehrson, USMC.

For Appellant:

Commander Brian L. Mizer, JAGC, USN.

For Appellee: Lieutenant Commander Justin C.

Henderson, JAGC, USN; Lieutenant George R.

Lewis, JAGC, USN

Decided 28 November 2017

Before HUTCHISON, FULTON, AND SAYEGH,

Appellate Military Judges

4a

This opinion does not serve as binding

precedent, but may be cited as persuasive

authority under NMCCA Rule of Practice and

Procedure 18.2.

SAYEGH, Judge:

At a general court-martial, a military judge

convicted the appellant, pursuant to his pleas, of one

specification of sexual assault and one specification of

indecent recording in violation of Articles 120 and

120c, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 920 and 920c. The military judge sentenced

the appellant to eight years’ confinement, a

reprimand, and a dishonorable discharge. The

convening authority (CA) disapproved the reprimand,

but approved the remainder of the sentence. In

accordance with the pretrial agreement (PTA), the CA

suspended confinement in excess of 10 months, and,

except for that part of the sentence extending to the

dishonorable discharge, ordered the sentence

executed.

The appellant raises four assignments of error

(AOEs): (1) the staff judge advocate (SJA) created

unlawful command influence (UCI) by attempting to

have the military judge reassigned a year before he

was scheduled to leave his judicial assignment in

Okinawa, Japan; (2) the CA abused his discretion by

not approving the appellant's request for a post-trial

Article 39(a) session to investigate the appellant's

allegations of UCI; (3) application of jurisdiction

under Article 2(a)(6), UCMJ, is unconstitutional in

this case where the appellant was transferred to the

5a

Fleet Marine Corps Reserve three months prior to

committing the offenses to which he pleaded guilty;

and (4) a court-martial cannot sentence a service

member transferred to retired status to a punitive

discharge. 1

Having carefully considered the record of trial and

the parties’ submissions, we conclude the findings and

sentence are correct in law and fact and find no error

materially prejudicial to the appellant's substantial

rights. Arts. 59(a) and (66)(c), UCMJ.

I.

BACKGROUND

The appellant retired from active duty in the

United States Marine Corps on 1 August 2015 and

was transferred to the Fleet Marine Corps Reserve.

Upon retiring, the appellant remained in Iwakuni,

Japan, and began managing two local bars. On 15

November 2015, the appellant video-recorded himself

sexually assaulting KAH at one of the bars he

managed. On 25 May 2016, the Secretary of the Navy

authorized the CA to “apprehend, confine, or, exercise

general-court martial convening authority” over the

appellant. 2 On 2 June 2016, the CA placed the

appellant in pretrial confinement (PTC). On 7 June

1. In accordance with our holding in United States v. Dinger,

76 M.J. 552 (N–M. Ct. Crim. App. 2017), rev. granted, ––– M.J. –

–––, 2017 CAAF LEXIS 995 (C.A.A.F. Oct 16, 2017), we

summarily reject AOEs 3 and 4. United States v. Clifton, 35 M.J.

79, 81–82 (C.M.A. 1992).

2. Appellate Exhibit (AE) IV at 2, Secretary of the Navy

Memorandum for Commanding General, Marine Corps

Installations Pacific of 25 May 2016.

6a

2016, an initial review officer (IRO) determined

grounds existed to retain the appellant in PTC.

In August 2016, the appellant’s trial defense

counsel (TDC) filed a motion alleging the IRO abused

his discretion and seeking the appellant's immediate

release from PTC. On 14 September 2016, the military

judge ruled that the IRO abused his discretion and

ordered the appellant released from PTC. Five days

later, on 20 September 2016, the appellant was

released from PTC and placed on pretrial restriction.

On 26 October 2016, the TDC filed a motion, pursuant

to Article 13, UCMJ, for illegal pretrial punishment.

During the Article 13, UCMJ, motion session, the

defense called the SJA to establish the SJA’s improper

motives and basis for advising the CA to not

immediately abide by the military judge’s PTC release

order. The SJA testified that he disagreed with some

of the military judge’s past rulings, to include

sentences on previous cases, and that he did not agree

with the military judge’s decision to order the release

of the appellant from PTC in this case, describing it as

“erroneous.” 3 The SJA testified that he asked the trial

counsel (TC) to file a motion for reconsideration of the

military judge’s PTC release order. 4

The SJA denied that his disagreements were

personal or that they in any way affected his approach

3. Record at 58.

4. Id. at 69. The motion was ultimately withdrawn based on

the government’s misunderstanding of an email from the

military judge that a motion to reconsider would not be litigated.

See id. at 81–82; AE XVI at 1.

7a

to his duties. The SJA described his personal opinion

regarding previous rulings by the military judge:

Let’s agree to disagree. To characterize this as

a vendetta or motive against this military judge

or against any particular accused is just flat

wrong. So no, I had no concern whatsoever

about any previous decision. There’s been

hundreds of them prior to this, and there will

be hundreds of them after that. And we will

continue with our process as required. I can’t

get fixated on one decision. 5

In support of the Article 13, UCMJ, motion, the

appellant submitted an affidavit from one of his TDCs,

Captain N, alleging specific comments by the SJA

about the military judge. The comments were made

during, and in the context of, pretrial negotiations in

the appellant's case. The affidavit states that the SJA

indicated he would not support the proposed PTA

because, in light of the military judge’s decision to

order day-for-day PTC credit, it did not provide for

enough confinement. The SJA further explained that

he was dissatisfied with the military judge’s sentences

in two previous cases. Captain N quotes the SJA as

saying, “Okinawa is dealing with a military judge who

just does whatever he wants to do” and “[The military

judge] does whatever he wants to do when I try to do

everything right.” 6 The SJA testified that he did not

recall making the specific statements alleged in

Captain N’s affidavit, but he did acknowledge that

5. Record at 69.

6. AE XVII at 7.

8a

during the previous “Article 6” visit he discussed with

the SJA to the Commandant of the Marine Corps

(CMC) the need for more judge advocates and another

military judge in Okinawa. 7 The SJA denied that he

requested the military judge be removed or replaced—

he testified that the discussion was intended to

facilitate assignment of more judge advocates and a

second military judge to Okinawa in order to improve

case processing times. 8 The SJA admitted he made

similar remarks about judge advocate manning in

Japan to the Deputy Commander, Marine Corps

Installations Pacific, a week prior to his testimony. 9

Based on the SJA’s testimony, the military judge

approved the TDC’s request to conduct voir dire of the

military judge. 10 During this voir dire, the military

judge indicated that his current tour as a military

judge was due to end in the summer 2018 and that he

had taken no action to request reassignment sooner. 11

The military judge stated that he had received a

phone call in late September or early October 2016

from Headquarters, Marine Corps. The purpose of the

phone call was to inform the military judge that he

would be reassigned during the upcoming summer of

2017. 12 The military judge was not given a reason for

the early reassignment, only that his replacement was

7. Record at 62.

8. Id. at 63–64.

9. Id. at 64.

10. Id. at 72.

11. Id.

12. Id. at 73.

9a

a newly promoted Colonel. 13 At the conclusion of the

voir dire, the military judge indicated he had no

reservations about his ability to continue to

impartially try the appellant’s case, and that he did

not believe a third party, who knew all of the facts,

would have any reservations with him remaining as

the military judge in this case. 14

During argument on the Article 13, UCMJ, motion,

the TDC suggested there was UCI, stating: “Sir, just

as a preliminary matter, our questions regarding

the—what has been accused of tampering with the

military judge and by the SJA to get him relocated, we

do believe that we have raised at least the appearance

of UCI enough to shift the burden with regards to that

issue onto the government.” 15 The TDC made no

further references to UCI. During the government's

argument in rebuttal, the TC commented:

I’m, quite frankly, completely confident that

this Court is not swayed by the rhetoric that is

cited in the motion trying to attack and further,

you know, unannounced tries to claim some

sort of [UCI] and that somehow Lieutenant

Colonel

[P]

is

communicating

with

Headquarters Marine Corps to try to get this—

to try tp get your honor removed from the

bench, which is obviously ridiculous. 16

13. Id.

14. Id. at 74–75.

15. Id. at 76–77.

16. Id. at 79.

10a

The military judge issued an immediate bench

ruling denying the appellant's request for additional

confinement credit for illegal pretrial punishment, but

under RULE FOR COURTS-MARTIAL (R.C.M.) 305(k),

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016

ed.), did award the appellant an additional day-forday credit for the period of time the appellant spent in

PTC because the IRO abused his discretion. The

military judge’s ruling did not address UCI.

On 3 February 2017, the appellant submitted

matters pursuant to R.C.M. 1105, requesting that the

CA disqualify himself from taking action on the case,

or alternatively, order a post-trial Article 39(a)

session, award additional confinement credit, and

grant the appellant access to Marine Corps Air

Station, Iwakuni for medical care. The CA considered,

but did not grant, the appellant's request.

II.

DISCUSSION

A. UCI

UCI is “‘the mortal enemy of military justice.’”

United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004)

(quoting United States v. Thomas, 22 M.J. 388, 393

(C.M.A. 1986)). “Congress and this court are

concerned not only with eliminating actual unlawful

command influence, but also with ‘eliminating even

the appearance of [UCI] at courts-martial.’” United

States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)

(quoting United States v. Rosser, 6 M.J. 267, 271

(C.M.A. 1979)). Indeed, the “appearance of [UCI] is as

devastating to the military justice system as the

actual manipulation of any given trial[.]” United

11a

States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003)

(citation and internal quotation marks omitted).

In United States v. Boyce, 76 M.J. 242 (C.A.A.F.

2017), the court set forth an analytical framework for

courts to use in applying this standard. First, an

appellant must show some evidence that UCI

occurred. Id. at 249. This is a low burden, but the

showing “must consist of more than ‘mere

speculation.’” Id. (quoting United States v. Salyer, 72

M.J. 415, 423 (C.A.A.F. 2013)) (additional citation

omitted). Once an appellant presents some evidence of

UCI, the burden shifts to the government to prove

beyond a reasonable doubt that “either the predicate

facts proffered by the appellant do not exist, or the

facts as presented do not constitute unlawful

command influence.” Id. (citing Salyer, 72 M.J. at 423)

(additional citation omitted). If the government meets

this burden, no further analysis is necessary. Id. We

consider the totality of the evidence in determing

whether there is the appearance of UCI. Id. at 252.

We first turn our attention to whether the

appellant properly raised the issue of UCI at trial. The

appellant’s brief asserts that UCI was raised at trial

but “[t]he military judge simply ignored the defense

request to address the [UCI] directed at the military

judge.” 17 We disagree. “The threshold for raising the

[UCI] issue at trial is low, but more than mere

allegation or speculation.” United States v. Biagase,

50 M.J. 143, 150 (C.A.A.F. 1999) (citing United States

v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994)). The

17. Appellant’s Brief of 8 May 2017 at 11.

12a

appellant in this case did not file a written UCI motion

or make one orally on the record. In the absence of a

written or oral motion, the TDC’s references to

possible UCI during argument on a distinctly separate

issue was not sufficient to properly raise UCI at

trial. 18 Therefore, we analyze the appellant’s UCI

claim as one first raised on appeal.

The appellant asserts that the SJA’s criticism of

the military judge to the TDC during pretrial

negotiations, and the apparent actions he took in

trying to have the military judge reassigned a year

early, amounted to UCI. The appellant also argues

that after the military judge learned of the SJA's

criticisms, he intentionally ignored the appellant's

request to address UCI at trial and allowed himself to

be influenced in his decision to deny the appellant's

motion for unlawful pretrial punishment. 19

Although neither a commander nor a CA, actions

by an SJA may constitute UCI, because ‘“a[n SJA]

generally acts with the mantle of command

authority.”’ United States v. Hamilton, 41 M.J. 32, 37,

(C.M.A. 1994) (quoting United States v. Kitts, 23 M.J.

105, 108 (C.M.A. 1986)). Likewise, the Court of

Appeals for the Armed Forces has found UCI where

the government sought to remove a sitting military

judge and where government actions compelled a

18. We considered but did not find any abuse of discretion on

the part of the military judge for not recusing himself after he

granted additional voir dire and sought challenges from both

parties. Record at 75. See United States v. Allen, 31 M.J. 572

(N.M.C.M.R. 1990).

19. Appellant’s Brief at 11, 16.

13a

military judge to recuse themself. See Salyer, 72 M.J.

at 415; Lewis, 63 M.J. at 405.

At the outset, we look for facts which, if true, would

constitute actual UCI. The military judge was not

removed from the bench before the end of his tour.

There is no evidence in the record that the SJA’s

comments to the SJA to CMC was the catalyst for the

phone call to the military judge. 20 Even assuming the

comments by the SJA to Capt N were true in all

respects, they would not amount to actual UCI. The

comments reflect the SJA’s frustration with a military

judge who makes decisions uninfluenced by command

authority. The comments were also made in the

context of pretrial negotiations and not in a public

forum. Further, following the additional voir dire of

the military judge, the TDC was satisfied that the

military judge could continue to impartially try the

appellant’s case. There being no evidence the military

judge was unlawfully removed from the bench, no

evidence the SJA’s comments or actions unlawfully

influenced the proper disposition of the appellant’s

case, nor any challenges to the military judge prior to

his ruling on the Article 13, UCMJ motion, we

conclude that the appellant has failed to establish any

facts, which if true, would constitute actual UCI and

will focus our analysis on apparent UCI.

The appellant avers there is apparent UCI because

“the public would be appalled to know the trial

20. The court will not engage in speculation regarding the

purpose or intent behind how the United States Marine Corps

executes the assignments of their judge advocates.

14a

judiciary of the Marine Corps can be openly mocked

and manipulated by senior leaders as it was in this

case.” 21 The appellant bears the burden of producing

“some evidence” of UCI before the burden shifts to the

government. Biagase, 50 M.J. at 150. “[G]eneralized,

unsupported claims of ‘command control’ will not

suffice to create a justiciable issue.” Green v.

Convening Authority, 42 C.M.R. 178, 181 (C.M.A.

1970). “The quantum of evidence necessary to raise

unlawful command influence” requires the “record

[contain] some evidence to which the [trier of fact] may

attach credit if it so desires” United States v. Ayala, 43

M.J. 296, 300 (C.A.A.F. 1995) (citations and internal

quotation marks omitted).

Assuming, without deciding, that the appellant

has met the low threshold of “some evidence,” the

burden of proof shifts to the government to prove

beyond a reasonable doubt that the facts as presented

do not constitute apparent UCI. Boyce, 76 M.J. at 249.

Unlike the military judges in Salyer and Lewis who

recused themselves, the military judge here indicated

he had no reservations about his ability to continue to

impartially try the appellant's case, and was not

challenged by either party on his ability to do so. The

SJA denied on the record making any statements or

taking any action intended to have the military judge

reassigned. 22 The SJA testified that his attempts to

facilitate assignment of additional judge advocates

and another military judge to Okinawa were not based

21. Appellant’s Reply Brief of 11 Aug 2017 at 3.

22. Record at 64.

15a

on his personal dissatisfaction with the military

judge’s past rulings, or any rulings in this case. This

testimony was unrebutted by the appellant. Although

the SJA admitted to discussing the need for additional

legal personnel in Okinawa with the SJA to the CMC,

there is no evidence that this discussion had any

influence on the Headquarters, Marine Corps’ phone

call to the military judge.

The appellant's speculation regarding the SJA’s

motives “amounts to no more than a claim of [UCI] in

the air.” United States v. Shea, 76 M.J. 277, 282

(C.A.A.F. 2017). Morever, the military judge’s Article

13, UCMJ ruling—awarding the appellant 111

additional days of PTC credit—demonstrated his

ability to remain impartial despite the SJA’s

comments. 23 “We will not presume that a military

judge has been influenced simply by the proximity of

events which give the appearance of [UCI] in the

absence of a connection to the result of a particlar

trial.” United States v. Allen, 33 M.J. 209, 212 (C.M.A.

1991) (citing Thomas, 22 M.J. at 389 (additional

citation oitted). We find the government has proven

beyond a reasonable doubt that the facts as presented

do not constitute apparent UCI.

However, assuming arguendo the government

failed to meet its burden, we would nonetheless find

that the government proved beyond a reasonable

doubt that the UCI did not place an intolerable strain

on the public's perception of the military justice

system because “an objective, disinterested observer,

23. Id. at 85.

16a

fully informed of all the facts and circumstances,

would harbor a significant doubt about the fairness of

the proceeding.” Boyce, 76 M.J. at 248 (quoting Lewis,

63 M.J. at 415). Unlike actual UCI, which requires

prejudice to the accused, “no such showing is required

for a meritorious claim of an appearance of [UCI].

Rather, the prejudice involved ... is the damage to the

public's perception of the fairness of the military

justice system as a whole[.]” Id.

The facts and circumstances surrounding this case

include an SJA who voiced his personal displeasure

with the military judge to the TDC during pretrial

negotiations. As stated above, these comments were

not intended for the public, nor were they

substantively UCI. The SJA made a specific request

directly to the SJA to CMC for an additional military

judge to be assigned to Japan, and there was a

subsequent phone call to the military judge from

Headquarters, Marine Corps informing him that he

was being reassigned a year early. However, the

reasons for the phone call are not clearly established

on the record, and ultimately the military judge was

never reassigned. Morever, following voir dire, where

the military judge stated on the record he could

impartially try the case, the TDC was apparently

satisfied and declined to challenge him for cause.

Finally, a different SJA provided the CA the required

post-trial advice and recommendations. 24 Under these

24. The appellant does not argue and we find no evidence in

the record that the removal of the original SJA was some indicia

of UCI. There are many reasons SJAs are substituted during the

post-trial process.

17a

facts, we find that the government has proven beyond

a reasonable doubt that any apparent UCI “did not

place ‘an intolerable strain’ upon the public's

perception of the military justice system and that ‘an

objective, disinterested observer, fully informed of all

the facts and circumstances, would [not] harbor a

significant doubt about the fairness of the

proceeding.”’ Boyce, 76 M.J. at 249 (quoting Salyer, 72

M.J. at 423).

B. CA’s denial of post-trial Article 39(a), UCMJ,

hearing

The appellant asserts as error that the CA abused

his discretion in “ignoring” the request for a post-trial

Article 39(a), UCMJ, session after being presented

with “more than enough evidence that the [UCI] in

this case is not harmless beyond a reasonable

doubt.” 25 Although not referenced in the post-trial

submission, we reviewed the appellant’s request as

one pursuant to R.C.M. 1102(b)(2).

R.C.M. 1102(b)(2) and (d) provide authority for a

CA to direct a post-trial Article 39(a), UCMJ, session

for the purpose of inquiring into, and when

appropriate, resolving “any matter that arises after

trial and that substantially affects the legal

sufficiency of any findings of guilty or the sentence.”

R.C.M. 1102(b)(2). “When an appellant requests the

[CA] to order a post-trial Article 39(a) session, it is a

matter for the [CA’s] sound discretion whether to

grant the request.” United States v. Ruiz, 49 M.J. 340,

25. Appellant’s Brief at 19.

18a

348 (C.A.A.F. 1998). In as much as a CA may be

persuaded by facts, a CA is not compelled to approve

a request “based merely on unsworn, unsubstantiated

assertions.” Id. “We review a convening authority’s

decision not to grant a post-trial hearing for an abuse

of discretion.” United States v. Lofton, 69 M.J. 386, 391

(C.A.A.F. 2011) (citing Ruiz, 49 M.J. at 348). Both

Lofton and Ruiz found that it was an abuse of

discretion for a CA to deny a request for a post-trial

39(a) session that was based on substantiated

assertions. Lofton, 69 M.J. at 392; Ruiz, 49 M.J. at

348.

The appellant’s request for a post-trial Article

39(a), UCMJ, was to address the appellant's

assertions of UCI on the part of the SJA.

“We request a post-trial hearing to determine

(1) whether [UCI] occurred in this case; (2)

whether the military judge should have recused

himself before awarding a sentence or ruling on

motions; and (3) if the answer to (2) is yes, then

whether SSgt Larrabee should have been

awarded additional credit for illegal pretrial

punishment and the [CA’s] refusal to obey a

judicial order.” 26

The appellant's request alleges apparent UCI

through the actions of the SJA and that the military

judge was being reassigned early due to “defense

26. Addendum to SJA’s Recommendation (SJAR) dated 8 Feb

2017, Encl. (1) at 3.

19a

friendly rulings.” 27 The appellant’s request also

included new allegations that accused the SJA of

fabricating evidence and misrepresenting facts to an

administrative discharge board that occurred after

the appellant’s court-martial and was unrelated to the

appellant's case. 28 Finally, the request included an

affidavit from a TDC not detailed to this case. In this

affidavit the TDC alleges a conversation about a PTC

issue in an unrelated case where the SJA said over the

phone in a “very derisive tone,” saying ‘“[The Military

Judge] is a liberal judge’ who ‘does not understand the

purpose of military justice’ and that the area needed a

better judge, or words substantially to that effect.” 29

The CA’s action indicates the the appellant’s request

was considered before the CA took action and

approved the sentence as adjudged. 30

We find the appellant’s request did not

substantiate his assertions. The affidavit presented to

the CA included comments between the SJA and a

TDC made in the context of discussing a PTC issue

associated with an unrelated case. The comments

were unprofessional, but not intended for the public,

nor did they constitue UCI on the part of the SJA. The

request alluded to the SJA creating apparent UCI

through his actions, but provide the CA no additional

evidence to substantiate that allegation. The

27. Id. at 4.

28. Id.

29. Id. Encl. (1) to Encl. (1).

30. CA’s Action of 15 Feb 17. A different SJA prepared and

processed the SJAR and SJAR addendum.

20a

appellant asserts the military judge was being

reassigned early because of his previous rulings, but

includes nothing to support the claim. Similarly, the

appellant's allegation that the SJA intentionally

fabricated

evidence

before

an

unrelated

administrative discharge board hearing that occurred

after the appellant's trial is not relevant to the

appellant's court-martial. Although the allegations in

the appellant’s request may raise questions regarding

the character and conduct of the SJA, they do not

substantiate the allegation that the SJA was able to

influence the military judge’s rulings in this case, or

influence the decision of Headquarters Marine Corps

to notify the military judge of a potential early

reassignment.

We find the appeallant’s request fails to

sufficiently establish any matter that would affect the

legal sufficiency of the proceedings, and thus conclude

that the CA did not abuse his discretion in denying the

appellant's request for a post-trial Article 39(a),

UCMJ, session.

III.

CONCLUSION

The findings and sentence, as approved by the CA,

are affirmed.

Senior Judge HUTCHISON and Judge FULTON

concur.

For the Court

[SEAL]

R.H. TROIDL

Clerk of Court