Can You Still Be Court-Martialed After You Retire?
FAC has a very active military veteran population, a recent case decided in the 10th circuit might be relevant to many.
When most people think about a court-martial, they think about active-duty military personnel. But what happens when the service member has retired?
A recent decision from the United States Court of Appeals for the Tenth Circuit provides an answer: retirement does not necessarily end military status for purposes of court-martial jurisdiction.
In James A. Laughrey v. Commandant, Midwest Joint Regional Correctional Facility, No. 24-3073, decided September 23, 2026, the Tenth Circuit considered a challenge by a former military officer who argued that his court-martial lacked jurisdiction because he was retired when the proceedings began. The lower court rejected that argument. Laughrey appealed, arguing that because he had retired before his court-martial was convened, the military no longer had constitutional authority to prosecute him. The Tenth Circuit disagreed and affirmed.
The court pointed to 10 U.S.C. § 802(a)(4), which expressly provides that retired members of the armed forces who are entitled to pay are subject to the Uniform Code of Military Justice. The constitutional question being; does a retired service member still fall within the Constitution’s reference to the “land and naval Forces”?
The Tenth Circuit answered yes. Relying heavily on its own recent precedent, Wilson v. Curtis, 150 F.4th 1359 (10th Cir. 2025). In Wilson, the court examined the status of retired service members and concluded that they remain members of the military for purposes of court-martial jurisdiction because retirement does not necessarily sever all of the legal relationships between the retiree and the military.
Retired service members may still be required to obey military orders. They may be recalled to active duty. They retain military rank. They may wear the uniform under certain circumstances. And they continue to receive military pay and/or benefits. Taken together, those continuing obligations and privileges mean that retirement does not necessarily transform someone into a civilian.
That meant that even assuming Laughrey had in fact retired before his court-martial, his retirement did not deprive the military court of jurisdiction over him. Importantly (and what many of you might be concerned about) the decision doesn’t say that every person who once served in the military can be court-martialed forever, but for certain military retirees, the answer might be yes.
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Can you still be court-martialed after retirement?
The answer is somewhat complicated. It is YES in some very extreme cases and NO in most cases.
Court-martial jurisdiction is dependent on the nature, time, and location of the offense. However, in Solorio v. United States, 483 U.S. 435 (1987), the U.S. Supreme Court ruled that a court-martial’s jurisdiction depends solely on the accused person being a member of the armed forces when the crime happened.
In doing so, the court overlooked 200 years of reasoned precedents and ignored th plain language of the 5th Amendment to the Constitution. The court did not provide anything to support its ruling other than because it could.
As result of Solorio, if you are receiving military pay, that is, if you are on active duty, the reserves, or retired, you are subject to a trial by court-martial.
The COL is an idiot. He was only trying to save his military retirement and benefits for his family (nice try). If he had looked at Larrabee v. Del Toro (2023 and 2018) (https://www.scotusblog.com/cases/larrabee-v-del-toro/), then he would’ve seen his case had no merit and shouldn’t have been attempted in the first place. It was long settled legal precedent at SCOTUS (by denial of certiorari) that military retirees ARE subject to UCMJ impacts to include court-martials and agreement across the CCOAs of the same topic conclusions. (At the same time, Larrabee should’ve known while he was in the Fleet Reserve, he was still within reach of the UCMJ and thereafter by their law. If he didn’t, then he didn’t pay attention during his TAPS and military guidance section for behavior post-official first day of retirement.)
One can also see that since the law has changed, others have been recalled to active duty for prosecutions (Uncle Sam wants you back — but this time it’s for prosecution, Daily Journal 6 Aug 2025 https://www.dailyjournal.com/articles/386998-uncle-sam-wants-you-back-but-this-time-it-s-for-prosecution). It has long been precedent former military members (retirees) could be recalled for active duty since the UCMJ was introduced in 1950.
Even when the lack of military prosecution happens, one can still be reduced in rank post-civilian conviction that violates UCMJ statutes though the UCMJ statute of limitation has passed, i.e., happened when on active duty. Retired Army major general reduced to second lieutenant for sex crime conviction (Army Times 7 Jun 2021 https://www.armytimes.com/news/your-army/2021/06/07/retired-army-major-general-reduced-to-second-lieutenant-for-sex-crime-conviction/)
Military retirement pay is fundamentally deferred compensation for past services (Barker v. Kansas, 503 U.S. 594 (1992)). (The TSP changes this to an extent since this ruling, but overall stands as is for the majority of the retiree pay.)
While there is no upper limit for recalling;
“Age 60 and 5-Year Guidelines: Internal military policies make involuntary recall unlikely for retirees who are over age 60 or have been retired for more than five years, unless a severe national emergency requires specialized skills.”
and
“Officers: Retired commissioned officers technically retain their commission for life unless they officially resign it, extending their theoretical liability longer, though advanced age (often past 70) or health makes it practically rare.”
ALL retirees (medically or otherwise) keep the rank they last served honorably at which is determined by someone other than themselves, e.g., promotion board to obtain the next higher rank, the retirement board for those of higher ranks before they retired, or even SECDOW in the case noted above for the two-star, and are ALL available for UCMJ prosecution should it be deemed necessary (there is no splitting of the retirees for yes and no to UCMJ prosecution).
This does not mean all legal instances which retirees face civilly and are infractions according to the UCMJ are going stand recall orders for prosecution. If so, then the military courts would be flooded with DWI/DUI cases, for example (which as military members of all sorts know is really bad on your career possibly). Therefore, it is a thin line between recalling one for prosecution and not with all sorts of factors involved should the military become aware of it.
Those who served and left before retirement of any sort are not eligible for UCMJ prosecution, but could be prosecuted Federally for crimes from their time on active duty if the statute of limitations is not busted.
I am all for trying to create a break where retirees, et al, can receive relief in such legal instances, but in reality, it is pretty air tight when it comes to Title I v Title III in addition to the reach of the UCMJ (though it is not really the J part of the title because that is subjective, IMO).
So, in the end, if you have any military benefit post-active duty, don’t be stupid to do anything and lose it.
We all know who those certain retired people are. It seems joining the military, has put a bad reason once again.