Title 10, Paragraph 1161. Bad news for Mike Flynn?


"10 U.S. Code § 1161. Commissioned officers: limitations on dismissal

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(a) No commissioned officer may be dismissed from any armed force except—


by sentence of a general court-martial;

in commutation of a sentence of a general court-martial; or

in time of war, by order of the President.

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."  US Code
Attention pilgrims!   LTG Michael Flynn US Army (ret) is awaiting sentencing in the aftermath of one of the Mueller sting trials. Flynn is RETIRED from the US Army.  That means he is still a member of the US Army rather than being a FORMER member of the US Army.  As a RETIRED member he is still subject to recall to active duty to face disciplinary or administrative action.  As is stated in Title 10, paragraph 1161 above, he can be Dismissed from the service administratively if sentenced to confinement.  The root of this provision in the law lies in the long standing tradition in the US that commissioned officers (Lieutenant and up) cannot be confined and if sentenced to confinement be a court-martial or civilian court must be ejected from the US military as though they had never served.  Enlisted service members can be given a bad discharge, but not commissioned officers.  This is a form of death in life.  In addition to the loss of retirement pay (an unvested benefit), rank, medical care, etc  A loss of identity and feelings of  deep shame would also result.
Military retirees do not receive pensions.  They receive pay at a reduced rate appropriate to the rank and length of service.  There are no residual benefits from this form of compensation if status as a retired service member is lost.  This has nothing to do with any other benefits that may be received from something like the VA.
The administrative action of Dismissal would require an active decision on the part of the Secretaries of Defense or Army.  But I ask you, pilgrims, who in the Trump Administration would decide to protect Mike Flynn?  Who among them would not prefer to see him stripped of everything rather than have a Lieutenant General sit in jail with their "brand name' painted across his forehead.
I am not surprised that Flynn has now decided to get new lawyers.  pl
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20 Responses to Title 10, Paragraph 1161. Bad news for Mike Flynn?

  1. Fred says:

    Isn’t Clapper a retired officer as well? He should be getting some new lawyers too.

  2. turcopolier says:

    fred – Yes! Yes!

  3. It is a political prosecution. When he was head of DIA and called out the Obama Administration for arming the Salafists in Syria his fate was probably sealed.
    Mueller Investigation threaten his son with prosecution so he took a plea in order to save his son.

  4. JamesT says:

    On a related note, when I heard that Paul Manafort was facing mortage fraud charges I immediately thought of the scene in The Wire in which Lester Freaman explains the “head shot”. Explanation here (I suggest you skip the video): https://jackbaruth.com/?p=8652

  5. Cortes says:

    Possibly out of order and apologies if so, but I wonder if pressuring Flynn is with a view to him preserving pension benefits for the family by going into the den and “doing the decent thing”?
    Would that work for office holders? Might his testimony be THAT toxic for certain people?

  6. turcopolier says:

    Cortes – There are no “pension benefits” for retired military. Can you possible understand that? Read the post.

  7. Cortes says:

    Thanks for the clarification.
    I merely wanted to know how the survivors of someone who “ate his gun” before determination of a case against him might fare.
    Once again, apologies if I’ve made an inappropriate comment.

  8. akaPatience says:

    Is it even probable that Flynn will serve time in jail? Would a sentence of a mere 9 days (ala Papadopoulos) jeopardize his status with the military?
    IMO “protecting” him would have little effect on the luster of Trump’s brand. If anything’s tarnished it it’s the familiarity people all over the world now have with his tendency to shoot from the lip.
    Still, it’s that pugnacious behavior that endears him to millions of voters. I used to hate it, and while I still occasionally wish he’d just ST*U, I nevertheless appreciate it at times. For instance, I happen to agree with him that “Nervous Nancy” is a mess.
    I say protect Flynn and be done with it. It sounds like the guy was the victim of overzealous prosecution anyway.

  9. Kelly Hall says:

    It would have been encouraging if the Army had bothered to Article 133 Flynn when he pleaded guilty. They might still do so, had they pride or honor. But I suppose the powers that be have their reasons for not looking too closely at the peccadillos of their team.

  10. blue peacock says:

    Clapper will sure need some high-powered attorneys if he’s called to testify to a grand jury by US attorney Durham. And so will Brennan, Comey, McCabe & Lynch.

  11. edding says:

    From your post I’m assuming a presidential pardon prior to sentencing (if Trump himself has the guts to follow through) would preserve Flynn’s benefits. The irony is that Flynn’s alleged spurious contact with Kislyak was for precisely those interests to which the Administration (and the Dems and Repubs) are beholden.

  12. Doggrotter says:


  13. turcopolier says:

    Kelly Hall
    I think an Article 133 investigation would have decided that the misstatement by Flynn was so trivial as to not merit trial. I do not know is there is any double prosecution connection between UCMJ and the US Code. I would think not.

  14. robt willmann says:

    The situation with Gen. Flynn has seemed very strange from the beginning. When he was removed as National Security Advisor for allegedly making a misleading statement to vice president Pence, it was a muddy situation itself. How Pence was “mislead” has been unclear to me, although perhaps I missed a thorough explanation. Then came the Mueller investigation which turned into a criminal investigation.
    Around a month or so ago, I heard on the radio part of an interview with a lawyer who was involved with representing the White House or Trump in the Mueller investigation. He said something astonishing about Flynn’s situation before Flynn made the plea bargain with the Mueller group. I do not know if I can find a recording of it, but the idea was that some evidence had been produced that showed Flynn’s likely innocence.

  15. Doggrotter says:

    Mueller started life in the military, I guess the pols are safe as most of them got deferments.

  16. turcopolier says:

    Dogrotter – Mueller was in USMC for a couple of years. How many years was Flynn on active duty?

  17. joanna says:

    How Pence was “mislead” has been unclear to me
    games people play?
    Pat said something interesting at one point, I seem to remember, it was a bit naive of Flynn to accept the RT gala dinner invitation. He wouldn’t have… But then, I may be dreaming. On the other hand easy dot connectors in the services surely may have thought otherwise. Meaning not naive but evil.

  18. Keith Harbaugh says:
  19. Flynn’s plea deal required him to plead guilty only for lying to the FBI. The government recommended no jail time. The judge made comments during his last hearing indicating he was still considering jail time. Flynn panicked at that point. I don’t blame him. His recent change of lawyers is still puzzling to me. Is he attempting to play hardball at this stage in the game? The perjury charge is small stuff compared to his hidden status as an agent for Turkish interests. Why risk reopening that can of worms? That has the potential of setting him up as Manafort’s bunkmate at Rikers.

  20. turcopolier says:

    All – There were a number of surprisingly naive Americans who attended that dinner. They can name themselves here if they wish.

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