The Supreme Court recently denied a writ of certiorari in Larrabee v. United States. In denying to hear this appeal, the Supreme Court effectively upheld the lower courts decision. The case made the news because it involved a retired Marine who was tried by a military court after his retirement.
At a general court-martial a military judge convicted Marine Staff Sgt. Steven M. Larrabee of sexual assault and indecent recording violations in violation of Articles 120 and 120c of the Uniform Code of Military Justice (UCMJ). Larrabee was sentenced to eight years' confinement, a reprimand, and a dishonorable discharge. (United States v. Larrabee, U.S. Navy-Marine Corps Court of Criminal Appeals, November 28, 2017.)
What's unique about this case is that three months before the offense occurred Larrabee had retired from active duty from the Marine Corps and was transferred to the Fleet Marine Corps Reserve.
Larrabee later attempted to appeal his conviction, one element of his appeal was that he should have been tried as a civilian. His appeal was heard by the U.S. Navy-Marine Corps Court of Criminal Appeals, which upheld his conviction, determining he was subject to a general court-martial despite his retired status because he had not fully separated from the military.
Larrabee took his case to the Supreme Court, and just this past week the Supreme Court denied his appeal, effectively upholding the standard that retirees are still subject to the UCMJ.
The government argued in its brief opposing Larrabee's appeal,
“An enlisted servicemember desires to be discharged from the Armed Forces after completing his or her service obligation, the servicemember may elect to be discharged. An enlisted active-duty Marine, for instance, may obtain a ‘discharge' – i.e., a ‘[c]omplete severance from all military status' – upon completion of his or her enlisted military service obligation. Once discharged from the Armed Forces, the former servicemember is no longer subject to the UCMJ.”
The government further argued, “An enlisted active-duty Marine may, however, forgo discharge and may elect instead to remain in the Armed Forces by applying either for retired status or for a transfer to the Fleet Marine Corps Reserve.”
The Fleet Marine Corps Reserve is a component of the Marine Corps and thus Larrabee, by his own choice, had not fully separated from the Marine Corps, and thus was subject to the UCMJ and to be tried by a military court, and not a civilian, despite his retired status.
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