is not a DOD court and is helmed by civilians nominated by the President and confirmed by Congress.

So excuse me if I see that as a distinction without a difference.

it is very much a distinction. The lower appellate court for each branch is made up of active duty military judge advocates.

The top appellate court is made up of people with limitations on military service at all, and are often people with experience commensurate with those picked for the other Circuit Courts.

They are not tied to the DOD. They don't work for the DOD. They generally don't have any DOD experience. They often rule against the DOD as they did here since if was the DEFENSE that held the position they ultimately ruled on, not the government *you know, the DOD folks in charge who argued against it?

But I've practiced before CAAF so what do I know?

I also knew that it was the defense team that pushed the claim that a statute of limitations existed and that he could not be court martialed for these crimes.

They still overturned standing precedent and established a 5 year statute of limitations where none existed previously.

The effect of which was to keep this asshole from being Court Martialled.

So it was a distinction. Granted

I suppose I owe them an apology for calling them a DoD court just because all their cases involve the DoD.

1. The Supreme Court said you couldn't give the death penalty for rape anymore.
2. The SOL for the death penalty for rape was life BECAUSE the death penalty was an authorized punishment in the military for rape.
3. The language for the SOL for rape wasn't "because it's rape" unfortunately, it was because it was authorized the death penalty.
4. Thus, the SOL for rape was SOLELY tied to the fact that you could get the death penalty and no other reason.
5. So now, that was invalid. Thus, it reverted back to the standard SOL of five years for your average offense.
6. Congress changed it, but ex post facto means you cannot retroactively apply that SOL.

They didn't do it to protect this guy. And they didn't "break precedent."

IF you want to be mad at someone, be mad at the judge advocates who poorly wrote the SOL by tying it to the death penalty way back when. But CAAF, in this case, in my opinion, ruled the only way they could based on the text of the code as written and the Supreme Court decision which, again rightfully, said you can't get the DP for rape.

This happens sometimes. It's about to happen again. The Supremes just said you must have unanimous verdicts in criminal cases. The military system has (now) a 3/4ths requirement. Now the case didn't specifically mention the military courts, but odds are, it's going to cause quite an issue in the future.

when Kennedy v. Louisiana was decided in 2008, not only was I working in the Army's Defense Appellate Division, but I was also just starting up as lead counsel on a death penalty appeal.

So, as you can guess, I was pretty interested.

When the CAAF case came down, I was working as the deputy of the Defense Counsel Assistance Program (we trained all the defense attorneys) so again, right place, right time to understand that case because we had to help notify/train/explain it to counsel.

and the nature of his service can't be considered Honorable - But he was convicted in a state court, so I don't know.

I know that it would not be automatically rescinded for a conviction in a civilian court - There is a retired SNCO I was acquainted with serving time for Meth distribution and he is still getting his pension.

But he fell apart after he retired - So the character of his service was still "Honorable"

I suppose that a case this notorious may push the Army to try to try to revoke his pension...

Lotta words for "Beats me man"

Or, maybe better, send his pension directly to his daughter. Yeah, they probably can't do that one.

so wouldn't necessarily be redirecting his pension but she could definitely get some monetary support as a victim of abuse.

US Code basically says the only way to take away an officer's retirement is via dismissal by a court-martial. A discharge review board can lower the final rank/pay based on misconduct but not take it away completely.

Enlisted can also lose a vested retirement via an administrative action (e.g. a separation board).

But there's always loopholes to this stuff so maybe there's an obscure path? But I've faced this issue several times while on active duty, and it was a pretty tight thing at least back a few years ago.

I just double-checked the FMR. Only loopholes are if he's convicted of a national security crime or some other temporary things, so doesn't appear to be a loophole here.

the only way an officer can lose their retirement/pension that I am aware of, is via court-martial with a dismissal.

Since he explicitly can't be tried in a court-martial, I don't see how he would lose his pension.

So yes, he keeps it.

Now, what COULD happen is this. When anyone retires, there's a board that reviews their service. Usually, this is pro forma.
BUT if they determine misconduct occurred, they can "invalidate" any service after that.

So let's say that this conduct happened when he was a CPT. The Board could determine that 1LT or CPT was the last time that he honorably served, and cap his retirement rank and pay at that level.

That board has already met once obviously. What I don't know is, could it revisit this with the new information/conviction.

and drew retirement as an 05 at 21 years - The Air Force basically invalidated the last 5 and a half years of his career.

So i knew THAT was possible - But we are only given a rudimentary run down of Military Justice in SNCO Academy - which is why my answer was basically a shrug.

I was an LTC judge advocate and I had to do the research to find out the answer to the retirement part. I was surprised to learn of the difference in how enlisted and officers were treated. Well, disappointed more than surprised. I don't see any reason for treating anyone differently on something like this. Either everyone's retirement is equally protected, or not protected.

Then again, I was prior enlisted lol