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Edited on Thu Sep-10-09 10:45 PM by happyslug
You must understand, technically when Officers leave the service, they can do two things, first go inactive (and if he has 20 years in) go in "half-pay" (What most people call Military retirement). Now technically when an officer goes inactive but is given half-pay in case Congress ever wants to call the Officer back into service so technically he is still on duty but not active and as such subject to the UCMJ. This has been the case since the American Revolution.
Now many officers, in addition to their duties under Half-pay (Which can only be exercised by Congress) have additional reserve time due in some sort of inactive reserve status. Inactive Reserve Status was aimed at enlistees who had served 20 years and then gone on half-pay themselves, but was quickly extended to Officers. The problem with this extension (And I believe this was done while before WWI, but may be part of the Universal Military Service Act of 1947) was enlisted ranks only served for a set number of years and then either have to re-enlist or discharged. Upon the expiration of their enlistment, the military can no longer call them back into service (Right now, people enlist for an Eight year period, four years active and four years inactive, upon re-enlistment this can be extended so many an enlistee with 20 years of service has another 10 years of inactive reserve duty to perform, at the end of that period of inactive service they can no longer be called up for duty).
Officers, on the other hand, have NO set time of service, they serve till their resign. This is even the case when such Officers go on Inactive status. Many Officers, like enlistees, have inactive reserve time so when such Officers leave the service (i.e. go on half-pay) they just go inactive and retain their commissions. At the end of any reserve time the Officer can resign his or her Commission but most do not, for as long as their have that Commission they are treated as Officers by Military Regulations, but once they resign such status their status as officers ends (Unofficial Status as an ex-officer can continue BUT legally such a resignation make the Ex-officer an Ex-Officer).
Do to the connections retaining the Commission brings with it in certain situations, most Officers never resign their commission. Such Officers may never have used the Commission in 30-40 years but retain it for its prestige AND the status it bring the person who holds the Commission. The down side of this is the person is submitting himself to the rules and regulations over Officers as imposed by the UCMJ.
One of the rules in the UCMJ is any officer MUST uphold the political leadership of this Country. Prior to the Passage of the UCMJ in 1954, this was extended to enlistee under the former Articles of War, but Congress changed it in 1954 to apply to officers only do to the case where an American Nazi had been drafted, during WWII, into the US army. Before the American Nazi was drafted he praise Hitler and attack the US war against Germany, after the American Nazi was drafted he continued to do so. The American Nazi was court martial under the Old Articles Of War and the Conviction was upheld upon appeal. People were upset about that decision for it involved an enlistee who had been drafted but the law was clear and had been the law since 1649 when Oliver Cromwell first wrote it (It was "Updated" by the British in 1774 so technically it was the 1774 Version of the Articles of War the US Adopted in 1775 but the 1774 Article was basically the same as the 1649 but updated more for the changes in the English Language between 1649 and 1774 then any other reason).
The same Congress that adopted the Constitution and the Bill of Rights fully accepted the Article of War (to my knowledge Congress made no changes to the Articles of War, except technically changes up till 1954 and the adoption of the UCMJ). Thus the Courts have ruled the Article of War clauses, as a general rule, do NOT violate the Bill of Rights and the American Nazi's conviction was upheld on appeal (No appeal to the US Supreme Court, just the Federal Court of Appeals). Please note that decision was upsetting to many people in the Military, given that we had a draft at that time, thus when the 1954 UCMJ was passed Congress restricted clause to upholding the political leadership to Officers only.
Thus the key is did this Congressman resign his Commission? If he did he is NOT subject to the UCMJ but if he did not, just retired at half pay, then he is subject to the UCMJ. This clause does NOT apply to Enlistees just officers since the passage of the UCMJ in 1954 (Through Bush did issue a military regulation to that effect while he was president, I believe that regulation is unconstitutional for CONGRESS knew what the Articles of War was when CONGRESS changed the law when CONGRESS adopted the UCMJ. The President can pass a regulation, but NOT to undo a change in the law done by Congress, thus the Regulation extending this ban to enlistees, in my opinion, unconstitutional but as to Officers it has been the law since 1649).
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