OSTC Reachback

Reachback

In a November 2024 public announcement, the Army Office of Special Trial Counsel (OSTC) has advertised its ongoing efforts to “reach back” and prosecute retirees (and some active duty members) for alleged serious offenses that have gone unprosecuted for various reasons.

Army prosecutors have revived over 100 cases of serious crimes. Task & Purpose, 13 November 2024.  https://taskandpurpose.com/news/army-legal-office-reach-back-authority/

Here is an example: Michelle McCaskill, Soldier Recalled to Active Duty, Sentenced to Prison for Sexual Abuse of a Child. DVIDS News, 10 May 2024.

The article discusses the office’s authority to prosecute old cases of serious crimes, a power that significantly impacts the community. Since its launch in December 2023, the office has reopened over 100 cases. One case involved a soldier the Army recalled to active duty to face charges of sexual abuse and rape, a crime that profoundly affected the victims and military community. Another case involved a soldier who was charged with involuntary manslaughter, child endangerment, and negligent homicide after a child died while in his care, another instance with profound community implications.

Since 1950,  over 30 retirees have been prosecuted at court-martial. Most have been living and working overseas. Those living overseas often have jobs with the Department of Defense.

The Congressional Research Service has a brief but helpful overview of retiree jurisdiction. https://crsreports.congress.gov/product/pdf/LSB/LSB10945

It doesn’t matter whether the person is a Regular retiree or in the Navy or Marine Corps Reserve. https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html. It does matter in a limited way for Retired Reserve retirees or those on the Permanent Disabled Retired or Temporary Disabled Retired lists.

If the appropriate statute of limitations has not expired, a retiree can be prosecuted at court-martial for offenses committed on or off active duty. This published article explains more. As military defense counsel, one of the first legal questions we have is the statute of limitations date.

Cave & Hagey, Military Retiree Court-Martial Jurisdiction: Trials and Tribulations. Georgetown Law Journal of National Security and Law & Police, 2022. 

It doesn’t matter, initially, if your case was dealt with in a civilian court. We wrote about this for the Virginia Lawyer. https://virginialawyer.vsb.org/articles/can-a-military-retiree-be-court-martialed-

Note please that the U.S. Supreme Court has decided Larrabee was properly subject to court-martial. And the Supreme Court has usually taken a hands-off approach to military court-martial jurisdiction questions.

One important question the Supreme Court decided is that once a servicemember has been discharged, they have received their DD-214, they have settled any pay owed, and midnight of the discharge date is passed the person is a citizen not subject to court-martial. That’s the The

The Army Regulation 27-10 outlines the process for requesting a retiree be court-martialed.

If Army CID or someone you don’t know from the military contacts you—be careful. We have handled a number of these cases over the past several years.

The “conversation” usually starts with a “we’d like to talk with you about an incident while you were on active duty” or something similar. It would be best to immediately be suspicious of why the CID agent is calling. 

They might be calling because you are a witness to something they are investigating. They might tell you that, or they might not. We have had conversations start this way and turn into the “witness” being a subject of the investigation.

Usually, they are less than open about why they are calling because they hope to get you talking.

Please don’t talk, don’t go to their office, don’t agree to a meeting until you have spoken with us or another experienced military law expert.

Cave & Freeburg, LLP have extensive experience and expertise as military defense counsel in retiree court-martial cases–reach out for a consultation.