Military is Issued Warning That No ‘Disrespect’ of Biden Will Be Allowed Over Afghanistan Debacle

No disrespect of Biden will be allowed...or WHAT?

I am retired and am not an expert but I have read that they would have to recall us to Active Duty and then Courts Marshall us.

Your understanding is not inaccurate but very incomplete. The article is gross bullcrap where it states, "The UCMJ prohibits the public questioning of the President, the Vice President, Congress, or the Secretary of Defense, among others." That applies only to commissioned officers expressing contempt toward said officials, and the offense must be service connected. Essentially, the bluster can only apply to commissioned officers who expressed contempt toward the stated officials while on active duty, and who are currently in a pay status if since separated from active duty.

A retiree, in a pay status, may be recalled and subjected to court-martial. This did occur in the famous case of Dr. Jeffrey MacDonald. While such may establish jurisdiction over the person, it does not address the additional requirement for jurisdiction over the crime which is sorely lacking in the context of the article. See David A. Schlueter, Military Criminal Justice, Practice and Procedure, 5th Ed., (1999), Matthew Bender & Company, pp. 175-176 (footnotes omitted):

§ 4-8(D). Retired Members.
Article 2, U.C.M.J., provides that retired members of the armed forces may be subject to court-martial jurisdiction while in a retired status. Specifically, Article 2 provides for jurisdiction over three categories of retirees: (1) retired members of a regular component of the armed forces who are entitled to pay; (2) retired members of a reserve component who are receiving hospitalization from an armed force; and (3) members of the Fleet Reserve and Fleet Marine Corps Reserve. The first category, retired members entitled to pay, was tested in United States v. Hooper and found to be valid. The Court turned its decision on the conclusion that retired members entitled to receive pay are a part of the “land or naval forces.” Historically, the courts have considered retirees to be a part of the armed forces. The holding in Hooper was reaffirmed by the Court in Pearson v. Bloss where a retired master sergeant was entitled to receive pay; the court held that he possessed the requisite status for court-martial jurisdiction.
Jurisdiction over the third category, members of the Fleet Reserve and Fleet Marine Corps Reserve, was addressed in United States v. Overton. In Overton, the accused had retired after 22 years of active duty and was transferred to the Fleet Marine Corps Reserve. While working as a civilian employee for the Navy, he was court-martialed for various larcenies of government property. The court concluded that the personal jurisdiction over the accused was neither novel nor arbitrary, and noted that he was subject to recall; he was subject to some annual active duty, and he was receiving a retainer for his status.

https://tile.loc.gov/storage-services/service/ll/usrep/usrep395/usrep395258/usrep395258.pdf

O'CALLAHAN v. PARKER, WARDEN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 646. Argued January 23, 1969.-Decided June 2, 1969.
Petitioner, a United States Army sergeant, while on an evening pass from his army post in Hawaii and in civilian attire, broke into a hotel room, assaulted a girl, and attempted rape. Following his apprehension, city police, on learning that petitioner was in the Armed Forces, delivered him to the military police. After interrogation, petitioner confessed. He was charged with attempted rape, housebreaking, and assault with attempt to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice, tried by a court-martial, convicted on all counts, and sentenced. His conviction was affirmed by the Army Board of Review and thereafter by the United States Court of Military Appeals. Petitioner later filed a petition for a writ of habeas corpus in the District Court claiming that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass. The District Court denied relief and the Court of Appeals affirmed. Held: A crime, to be under military jurisdiction, must be service connected, and since petitioner's crimes were not, he could not be tried by court-martial but was entitled to a civilian trial with 'the benefits of an indictment by a grand jury and trial by jury. Pp. 261-274.
(a) Art. I, § 8, cl. 14, of the Constitution recognizes that military discipline requires military courts in which not all the procedural safeguards of Art. III trials need apply, and the Fifth Amendment exempts "cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger" from the requirement of prosecution by indictment and the right to trial by jury. See Ex parte Quirin, 317 U. S. 1, 40. Pp. 261-262.

For purposes of Article 2 jurisdiction, the courts have held the term "in time of war" to apply only to a war formally declared in Congress. The Vietnam War did not qualify. See United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970).

https://cite.case.law/cma/19/363/

We conclude that the words “in time of war” mean, for the purposes of Article 2 (10), Code, supra, a war formally declared by Congress. Pyramid Life Insurance Company v Masch, 134 Colo 56, 299 P2d 117 (1956) ; Ex parte Givins, 262 F 702 (ND Ga) (1920). As a result of the most recent guidance in this area from the Supreme Court we believe that a strict and literal construction of the phrase “in time of war” should be applied. A broader construction of Article 2(10) would open the possibility of civilian prosecutions by military courts whenever military action on a varying scale of intensity occurs.
We do not presume to express an opinion on whether Congress may constitutionally provide for court-martial jurisdiction over civilians in time of a declared war when these civilians are accompanying the armed forces in the field. Our holding is limited — for a civilian to be triable by court-martial in “time of war,” Article 2(10) means a war formally declared by Congress.

Article 88 on contempt toward officials applies only to commissioned officers.

Article 89 on disrespect applies only to disrespect toward a person's superior commissioned officer.

The articles of the Uniform Code of Military Justice (UCMJ) are codified at 10 United States Code 801-946a. The punitive articles are at 10 U.S.C. 877-934 (Articles 87-134).

https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-ii/chapter-47/subchapter-x/sec-888/

2018 US Code
Title 10 - Armed Forces
Subtitle A - General Military Law
Part II - Personnel
Chapter 47 - Uniform Code of Military Justice
Subchapter X - Punitive Articles
10 U.S.C. § 888 (2018)
§888. Art. 88. Contempt toward officials
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
- - - - - - - - - -
https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-ii/chapter-47/subchapter-x/sec-889/
10 U.S.C. § 889 (2018)
Art. 89. Disrespect toward superior commissioned officer; assault of superior commissioned officer
Section Text
(a) Disrespect.—Any person subject to this chapter who behaves with disrespect toward that person's superior commissioned officer shall be punished as a court-martial may direct.
(b) Assault.—Any person subject to this chapter who strikes that person's superior commissioned officer or draws or lifts up any weapon or offers any violence against that officer while the officer is in the execution of the officer's office shall be punished—
(1) if the offense is committed in time of war, by death or such other punishment as a court-martial may direct; and
(2) if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

After retirement one is subject to recall for a limited amount of time - it isn’t for the rest of one’s life. During that period ‘retirement pay’ is really retainer pay. After that period ends, all bets are off.

Many retirees still have a active or retired reserve commitment.
They can be recalled to active duty for punishment under the UCMJ. I agree, it would be a real chickens#@t move to do it for political reasons. But look at the caliber of leadership, no surprise here.

While we're on the subject, how about vindman??

30 years after the date of your original enlistment and a retiree is no longer an inactive reserve or subject to recall. I don't know if that is 30 years straight up or also means 30 years of accumulated service. I retied 30 years ago after my 20 and my ID card only shows "benefits number" and under civilian "yes", "INDEFIN" expiration.

I think you’ve covered everything there

Recall me.

You are correct, on all your points.

Your O-5 may have committed this crime while on active duty, I presume, which makes it logical that he could be called back for court martial. I still wonder about a retiree who is already released from ready reserve and out for say, two decades (y’know, just asking for a friend). Your excerpt from the code (thanks, btw), as I read it, does say a Regular Army officer, retired, can be recalled to active duty to be punished for calling some doofuses doofuses. If they don’t go after Kurt Schlichter, though, they are not likely to go after anybody. If they do take on the Vodkapundit, they’ll surely have their hands full. Love to see his column almost certain to come about just this issue.

Yup, the O-5 was on active duty when he did commit the actions for which he was charged. His civilian lawyer was fighting the recall because his client had served his 30 years at retirement.

After conviction and judgement he lost at the Court of Military Appeals. The real issue became retirement pay O-5 vs O-3 so the ambulance chaser could get a bugger cut.