Sunday, April 13, 2014

Crime, military pensions, and families

An April 12, 2014 editorial in The Fayetteville Observer makes the point that military dependents who have done nothing wrong can wind up paying the price if their active duty spouse or parent is convicted by a court-martial and sentenced to a dismissal or punitive discharge, thus forfeiting retirement and medical benefits. One woman, the editorial notes,
has taken her case to Congress, lobbying for changes in the Uniform Code of Military Justice that would preserve benefits for military family members, even if the service member is punished harshly and kicked out of the military. That, she says, will encourage earlier reporting of wrongdoing and more appropriate punishment for those who are convicted.
The editorial raises important questions that do not have easy answers. For example, if a civilian who has a nearly-vested pension is convicted and incarcerated and hence prevented from continuing to work, so that the pension never vests, is the offender's employer under a moral or other obligation to prevent the offender's innocent dependents from suffering as a result of the employee's criminal conduct? Is there a cogent reason to have different approaches where the accused is a member of the armed forces rather than a civilian? As a further complication, some UCMJ offenses are also offenses under civilian criminal law, and if a civilian conviction ensues and the member is imprisoned for a protracted period, the military will be unable to preserve the member's retirement (and hence, the innocent dependents' benefits). Does this mean that dependents might have an interest in urging convening authorities to employ the UCMJ and actively discourage civilian prosecution in which the member enjoys the full protection of the Constitution? Do the pecuniary interests of dependents trump the constitutional rights of the member?

What do you think?

2 comments:

  1. Tremendously interesting issue. A model code of military justice should account these issues that affect cases on the merits and in sentencing.

    At some point, ICC complementarity could factor in. Imagine the prosecuting state is weak and the crimes charged are grave breaches or war crimes. If an offender is exonerated so that his family does not get punished, I could see the ICC taking an interest.

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  2. Replace "let off" for "exonerated."

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