To the disappointment of many of us who have served in the U.S. military, current and former servicemembers participated (in disproportionate numbers) in the well-documented January 2021 insurrection in our nation’s Capitol. Active members of the Armed Forces may face consequences in the military justice system, including punishment by the court-martial under the Uniform Code of Military Justice as well as administrative sanctions such as less than honorable discharge.
As the US Department of Justice prosecutes the insurrectionists, a question has been raised: What action, if any, might be taken against retired and former military members? An answer comes from existing federal law, which provides that federal officers—including retired uniformed personnel—convicted of certain offenses against the U.S. government must be stripped of their lifetime retirement pay. A different provision of law, which covers similar offenses, also strips benefits from the Department of Veterans Affairs (VA). Pursuing national security charges, such as insurrection or seditious conspiracy, would rectify the poetic injustice of offering military benefits to those who have struck out at the government they once swore to serve.
The Problem: Lifetime Pensions and VA Benefits for Military Personnel Who Participated in Rebellion
Military retirements provide lifetime annuities for those who have served twenty or more years. Many servicemembers often retire as early as their 40s after having joined in their late teens or early twenties. That gives them 30–40 years to draw a pension, assuming the average 78.7-year life expectancy (not accounting for any future advances in medical science). Loss of these pensions, therefore, would represent a significant financial blow, potentially worth millions of dollars.
Unlike military retirements, VA benefits are generally more easily obtained. For example, servicemembers start becoming eligible for the Post-9/11 GI Bill, which pays for higher education and vocational training, after 90 days of active duty. Another important VA benefit is service-connected disability payments, which have no minimum time in service to be eligible. These monthly payments, which are not taxable (unlike military pensions), range from $144.14 to $3,146.42 (or more if the veteran has dependents) in 2021. These are two of the many benefits the VA offers veterans.
In light of the robust post-service support provided by the federal government, it seems perverse that servicemembers would participate in an attempt to overthrow the government, one that they swore to defend. While the moral position is clear-cut, the military justice system does not provide a similarly straightforward path to stripping military pensions or VA benefits.
For example, among the participants in the January 6th insurrection was retired Air Force Reserve Lieutenant Colonel Larry Rendall Brock Jr., seen in the Senate chamber with zip ties, wearing a military-style helmet and vest. Some retired military personnel has been subject to court-martial per the Uniform Code of Military Justice. However, that would not apply to a retired reservist like Brock, as the military jurisdiction statute does not cover retired reservists (as opposed to those who retired from active duty) except in cases of military hospitalization.
Additionally, a recent court ruling has questioned the constitutionality of punishing retired servicemembers for conduct after leaving the military. Even assuming such courts-martial are constitutional, the ability to specifically strip retirees of their pension is doubtful. As one military appellate court noted, “There is no express authorization in the Uniform Code of Military Justice or the Manual for Courts-Martial for the denial of retirement benefits.”
Because ex-military members who are not receiving retirement pay, but may be receiving VA benefits have no formal military status, they can be held accountable only by the civilian justice system.
A Solution: Civilian Convictions for Rebellion, Insurrection, or Seditious Conspiracy
The venue, then, for prosecuting ex-military insurrectionists should be civilian, given questionable or non-existent military jurisdiction over such cases. Within the civilian criminal justice system, convictions under the federal charges discussed below would have the collateral effect of stripping ex-servicemembers of both military pensions and VA benefits.
The pension-stripping law dates back to 1954 and provides that federal officers (uniformed and civilian) convicted of national security offenses such as espionage and treason may not receive retirement pay or annuities. Congress enacted this law in response to the American diplomat Alger Hiss who spied on behalf of the Soviet Union. His time in federal service, when he was actively spying on behalf of a foreign power, might have made him eligible for an annuity—a thought anathema to the legislature. (As a historical note, Hiss did end up winning a court fight to get a pension based on the timing of the law).
Relevant here, the pension-stripping law includes “a member or former member of a uniformed service” as employees to whom the pension-stripping law applies. This definition does not discriminate between retirees of the active or reserve components.
Likewise, a conviction for these offenses would also strip former servicemembers of their Department of Veterans Affairs benefits. The benefits lost would include disability compensation, education benefits (such as the Post-9/11 GI Bill), and burial benefits.
The federal crimes that trigger pension stripping and VA benefit revocation apply to the events of January 6, 2021. One relevant offense is “rebellion or insurrection,” which allows conviction where one “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof.” This charge is pertinent given that a large number of rioters attempted to derail the constitutional process of ratifying the President’s election by storming congressional spaces.
Another applicable charge is “seditious conspiracy,” which punishes conspiracies of two or more people “to destroy by force the Government of the United States . . . or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”
Conspiracies do not need to be explicit agreements, though investigation may uncover those, potentially on social media. In the absence of concrete agreement between the rioters (which could be hard to prove if verbal), prosecutors could use the activity of like-minded individuals storming our Capitol as circumstantial evidence of a shared purpose to undermine the laws governing presidential transition and wreak havoc on federal property. Indeed, a federal appellate court has written that conspiracy can “be proved by inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme” and that a “conspiracy conviction will be upheld if the circumstances surrounding a person’s presence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him” (internal quotes omitted).
Of note, the seditious conspiracy charge has been applied by federal prosecutors against domestic and international terrorists. If the 1993 attack against the commercial World Trade Center qualifies as seditious conspiracy, so too should an attack on our country’s center of government. To be fair, seditious conspiracy charges are not always successful due to the rigor of proving a plan to disrupt government’s function and not mere anti-government sentiment. Here, however, the intent—backed up by action—to disrupt Congress’s functioning on the specific day of Electoral College ratification seems quite clear.
Civilian federal convictions for the aforementioned charges thus provide a direct path to stripping former military personnel of their lifetime annuities and VA benefits. Moreover, this legal tack could also apply to the pensions of non-military federal officers and employees, including members of Congress, who may have participated in or facilitated the shocking events of January 6, 2021. Federal prosecutors were considering charges of sedition and conspiracy but do not appear to have filed them. The Department of Justice can use insurrection and seditious conspiracy charges against those who broke their oaths to support and defend the Constitution. Those rioters should not be allowed to engage in open rebellion against our elected government one day while collecting checks from it the next.
Lee Hiromoto, MD, JD is a resident physician at Oregon Health & Science University. He is a graduate of Harvard Law School and previously served as a judge advocate in the US Navy. The opinions here are his alone and do not represent any institution or government.