Azimuth Check: Unpaid Social Liaisons

November 13, 2012 § 22 Comments

Let’s check our direction without the help of any paid or unpaid social liaisons. Though, this week I’ll be applying for “unpaid social liaison” positions at my nearest military base. Who’s willing to bet that I lack fundamental, requisite qualifications?

Too many people are reacting with extreme seriousness to this whole situation. Stop. Let’s have fun with a prime example of the fallibility of humanity. After all, the only thing separating those two from the morally-upright-citizens-regiment is circumstance. Frankly, we should be thrilled that neither of them has the title “Reverend,” as with most stories of this nature.

So, let’s go “All In” with some unwashed trivia.

Does the Military Have Jurisdiction?

Here’s our trivia question. And, I think this is a pretty good one.

Can Mr. Petraeus be given a court-martial for committing adultery? After all, he is retired and no longer wearing a uniform on a regular basis. He is entitled to military retirement pay and benefits as a result.

First, what is adultery?

The elements of the crime are as follows (Article 134 of the Uniform Code of Military Justice):

1. That the accused wrongfully had sexual intercourse with a certain person;

2. That, at the time, the accused or the other person was married to someone else; and

3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

So, knowing that the evidentiary hurdle for establishing element 3 is extraordinarily low, 1 and 2 are easily met by the General’s own confession.

The big question is whether the military has jurisdiction.

Article 2 of the Uniform Code of Military Justice answers the question for us.

a. The following persons are subject to this chapter:

4. Retired members of a regular component of the armed forces who are entitled to pay.

So, the answer is yes. General Petraeus could be recalled to active duty for the purposes of holding him accountable for the military crime of adultery. Of course, this is highly unlikely given the bureaucratic nightmare that is recalling someone back to the active rolls (not to mention the unnecessary and burdensome media attention). However, this is trivia. We’re not worried about probability, only possibility.

So, what about his paramour?

Good question, and, honestly, I don’t have enough facts to answer it.

Some press reports make her a member of the Army Reserve Component. Some say she is no longer a member. However, establishing her as subject to the UCMJ is not as easy as with the General, even if we have the facts of her military status.

Let’s turn to Article 2 of the UCMJ, as before:

a. The following persons are subject to this chapter:

3. Members of a reserve component while on inactive-duty training…

What is “inactive-duty training?” You know how reservists are caused to perform their duties on one weekend each month and two weeks each summer? That is inactive training. If it could be proven that she had relations with him on one of these times, and if she is still a member of the reserves, then she could be punished by the military.

Of course, as with him, this is extremely unlikely for many reasons. But, hey, now you can amaze your gossipy friends with a unique bit of trivia.

Unpaid Social Liaisons

This term is not getting the double-entendre treatment I expected. So, here’s my contribution.

In short, I’m disgusted that the military has unpaid social liaisons available for high-ranking individuals when lower-ranking servicemembers must pay for the same or similar services.

Update:

Some people (see comments) refuse to recognize that retirees are subject to the code.

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§ 22 Responses to Azimuth Check: Unpaid Social Liaisons

  • TexasADA says:

    You really should be a biographer, too, to nail that unpaid social liaison job.

  • JMo says:

    I like your attitude about all this.

    As long as you are talking possiblities, I would suggest that if she is still a member of a reserve component that some sort of letter (LOC, LOA, LOR or whatever it is they do in the Army) is very possible. No need for you to be in status to garner one of those. I’m sure it wouldn’t be hard to dream up a basis — pretty much any civilian action that besmirches your service branch in the eyes of the public can qualify.

    • Eric says:

      I was thinking the same thing. In the Army it is simply a Letter of Reprimand.

      Plus, those are nearly impossible to appeal. The question will be whether someone feels sufficiently motivated to take such action.

    • Eric says:

      Update: It seems that she is still on the reserve rolls and has been recently promoted to Lt. Colonel. Also, reports state that she lost her security clearance, which will make maintaining her officer commission problematic.

  • TexasADA says:

    Such a great question! When it came up in an office discussion yesterday, all I had to do was pull up your blog, read it aloud, and look terribly well-informed about military law. (Bahaha) Thanks.

  • TexasADA says:

    Oh, please! I learn a lot from your blog.
    “Apparently” is the operative word here. I mean, I WAS reading it aloud, so no one thought it came from my own brain. :-)

    • Eric says:

      Future blog post: How to read one of my blog posts aloud but make it appear to be your own idea.

      As you know, I’m here to help.

  • TexasADA says:

    I’ll try to read that one without moving my lips, even.

  • pml says:

    Eric,
    I think you are wrong on this one. In order to exert juristiction the Adultery had to have happened while he was on active duty. If he was already retired when the acts took place then they can’t recall him for that sole purpose. If it happened while he was serving then they can recall him, but my understanding from the news stories it started after retirement.

    • Eric says:

      I’m not. Once personal jurisdiction is established through the UCMJ, subject matter jurisdiction follows. See my quotation of the UCMJ above.

      He is subject to the code for anything he does for the rest of his life. Just because something is not probable does not make it impossible.

  • pml says:

    However if you read under c.it says

    “is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned”

    So jurisdiction ends upon termination of active service. You can be recalled for thing you did on active service if your retired, but not for crimes that haooen after retirement.

    • Eric says:

      You got me! I’m such a worthless…wait…maybe not.

      Subparagraph C? You’re trying to use subparagraph c in this discussion? That paragraph is a standalone rule that applies to civilian workers (contractors and such) deploying with US armed forces overseas.

      Here it is (in its entirety and not cherry-picked):

      (c) Notwithstanding any other provision of law, a person serving with an armed force who–

      (1) Submitted voluntarily to military authority;

      (2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submissions to military authority:

      (3) received military pay or allowances; and

      (4) performed military duties: is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

      That is the rule, as changed by the handiwork of Senator Graham as part of the 2006 Defense Appropriations Act (I think). Notice that it applies to individuals serving “with” an armed force, not “in” an armed force. Those are the four criteria that must be satisfied in order to exercise jurisdiction over a civilian accompanying the force. If each of those applies to a civilian, then they may be held subject to the UCMJ.

      OK, fine. I can see that I’m not going to win this fight, no matter how much law I cite or explain. Will you at least consider believing the folks at the National Institute of Military Justice?

  • pml says:

    After reading your post I asked our SJA on base where I work. This is what he pointed to.

    2012 Manual for Court Martials, Rule 202

    (a) In general. Courts-martial may try any person
    when authorized to do so under the code.
    Discussion
    (1) Authority under the code. Article 2 lists classes of persons
    who are subject to the code. These include active duty
    personnel (Article 2(a)(1)); cadets, aviation cadets, and midshipmen
    (Article 2(a)(2)); certain retired personnel (Article 2(a)(4)
    and (5)); members of Reserve components not on active duty
    under some circumstances (Article 2(a)(3) and (6)); persons in the
    custody of the armed forces serving a sentence imposed by courtmartial
    (Article 2(a)(7)); and, under some circumstances, specified
    categories of civilians (Article 2(a)(8), (9), (10), (11), and
    (12); see subsection (3) and (4) of this discussion). In addition,
    certain persons whose status as members of the armed forces or
    as persons otherwise subject to the code apparently has ended
    may, nevertheless, be amendable to trial by court-martial. See
    Article 3, 4, and 73. A person need not be subject to the code to
    be subject to trial by court-martial under Articles 83, 104, or 106.
    See also Article 48 and R.C.M. 809 concerning who may be
    subject to the contempt powers of a court-martial.
    (2) Active duty personnel. Court-martial jurisdiction is most
    commonly exercised over active duty personnel. In general, a
    person becomes subject to court-martial jurisdiction upon enlistment
    in or induction into the armed forces, acceptance of a
    commission, or entry onto active duty pursuant to orders. Courtmartial
    jurisdiction over active duty personnel ordinarily ends on
    delivery of a discharge certificate or its equivalent to the person
    concerned issued pursuant to competent orders. Orders transferring
    a person to the inactive reserve are the equivalent of a
    discharge certificate for purposes of jurisdiction.

    • Eric says:

      Which verifies that Article 2(a)(4) is legit.

      Are you really this desperate to be right? You’re better-off arguing that 2+2=45.

    • Eric says:

      Please identify yourself and the SJA who gave you this information. Thanks.

      • pml says:

        Ft Drum, NY,

        The last last paragraph is the key.

        “Courtmartial jurisdiction over active duty personnel ordinarily ends on
        delivery of a discharge certificate or its equivalent to the person
        concerned issued pursuant to competent orders”

        Retirement is a discharge

      • Eric says:

        Yes, “ordinarily.” For most people who never reach retirement, like me, delivery of my discharge cert. ended my being subject to the UCMJ. There is a reason the comment (comments are not binding law) says “ordinarily” instead of “will” or “shall.”

        Can you not see that Article 2(a)(4) offers a specific exception to what would “ordinarily” happen in the case of most average ETS’s?

        Also, consider the pages I inserted in the “update” above from the Army JAG Legal Center and School’s Basic Military Justice Textbook. So, are you willing to disagree with me, the National Institute of Military Justice, and the faculty (all with LLMs in Military Law) at the Army JAG Legal Center and School?

  • pml says:

    It all comes back to being discharged. Once your discharged and the offense has nothing to do with the service, they have no authority to recall you.

    • Eric says:

      Perhaps you’d like to read this excerpt from

        Sands v. Colby,

      35 MJ 620. The accused in this trial retired in 1984 and committed his crimes in 1992.

      Retired members of the regular component entitled to pay are specifically included among those subject to trial by court-martial and may be recalled to active duty for that purpose. UCMJ art. 2 (a)(4); Pearson v. Bloss, 28 M.J. 376 (C.M.A.1989) ; United States v. Overton, 24 M.J. 309 (C.M.A.) ; cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987) . United States v. Hooper, 26 C.M.R. 417 (C.M.A.1958) . While the petitioner makes the argument that this case involves the right not to be tried, his argument must fail based on the statute and prior case law. Accordingly, we hold that there is jurisdiction to try the petitioner by court-martial since he is a member of the armed forces.

      Those retirees aren’t really discharged. They’re moved to the retired rolls, subject to recall at any time.

  • pml says:

    I can see will will not agree on this, so I will just let it go at that. It has been a good discussion though, Thanks

    • Eric says:

      I’ve given you the following:

      1. The text of Article 2(a)(4)
      2. An excerpt from the JAG School Textbook (with citations to appellate decisions).
      3. A link to the issue addressed by folks at the National Institute for Military Justice.
      4. Texts from appellate cases addressing this issue (with citations to more appellate decisions).
      5. A rebuttal to your improper use of Article 2(c).

      I completely understand the natural human desire to be right, and I don’t fault you for it. However, this is starting to be reminiscent of Austin Power’s insistence that it’s just not his bag, baby.

      In the words of a colleague: I can explain it to you, but I can’t understand it for you.

      It’s probably time for you to go argue the point over at the link I gave you for the National Institute for Military Justice.

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