"(b) The President or the Secretary of Defense, or in the case of a commissioned officer of the Coast Guard, the Secretary of the department in which the Coast Guard is operating when it is not operating in the Navy, may drop from the rolls of any armed force any commissioned officer (1) who has been absent without authority for at least three months, (2) who may be separated under section 1167 of this title by reason of a sentence to confinement adjudged by a court-martial, or (3) who is sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a court other than a court-martial or other military court, and whose sentence has become final." Title 10, 1161
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Let us be clear.
Commissioned officers in the US Armed Forces cannot be sentenced to military prison after court-martial. They must be "dismissed," i.e., expelled from the service before that can happen. As stated above, a similar thing is supposed to happen if a commissioned officer is sentenced to a civilian prison after conviction in a civilian court.
Michael Flynn is still a lieutenant general of the US Army. A RETIRED (as opposed to former) regular commissioned officer of the Army is still an officer, subject to recall for further service, punishment or administrative changes in his status. Title 10, para 1161 (b) above makes it very clear that if Flynn serves time in a civilian prison after a sentence becomes final then he could be dismissed from the Army by the president or Secretary of Defense.
Retired Regular service members do not receive vested pension benefits. They receive Retirement Pay. This is a reduced amount of their active duty pay. They did not pay into the funds that pay them retirement pay every month. This is is pay, not a vested pension.
If an officer is dismissed from the service for whichever reason, (court-martial or civilian prison sentence) all identity with the service is lost to include rank, pay, all benefits to include medical for him and his family.
Some of you will pleased with that. Others not so much.
The president or SECDEF might not want to do that to Flynn, but it would be difficult to have a lieutenant general serving a civilian prison sentence .
If the legal eagles think I have this wrong, let me know. pl
http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section1161&num=0&edition=prelim
