I suggest you read title USC 10 Ch 59
(a) No commissioned officer may be dismissed from any armed force except—
(1) by sentence of a general court-martial;
(2) in commutation of a sentence of a general court-martial; or
(3) in time of war, by order of the President.
(b) The President 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.
The court martial can reduce the individual in rank and retire them. We do not know the details of his court martial. He could have been given an OTH, as the hearing and findings were in in June 2012, current information shows that he was retired as a major.
Well...since you want to play JAG, and I'm always in favor of being educated (I try to learn at least one new thing every day) I did precisely what you "suggested."
Here's what I found:
§1161. Commissioned officers: limitations on dismissal
(a) No commissioned officer may be dismissed from any armed force except—
(1) by sentence of a general court-martial;
(2) in commutation of a sentence of a general court-martial; or
(3) in time of war, by order of the President.
(b) The President 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.
(Aug. 10, 1956, ch. 1041, 70A Stat. 89; Pub. L. 104–106, div. A, title V, §563(b)(1), Feb. 10, 1996, 110 Stat. 325; Pub. L. 104–201, div. A, title X, §1074(a)(5), Sept. 23, 1996, 110 Stat. 2658.)
Historical and Revision Notes
Revised section Source (U.S. Code) Source (Statutes at Large)
1161(a) 50:739 (words before semicolon, less applicability to Navy and Marine Corps warrant officers). May 5, 1950, ch. 169, §10 (less applicability to Navy and Marine Corps warrant officers), 64 Stat. 146.
1161(b) 50:739 (less words before semicolon, less applicability to Navy and Marine Corps warrant officers).
In subsections (a) and (b), the word “commissioned” is inserted since, for the Army and the Air Force, the term “officer” is intended to have the same meaning in 50:739 as it has in the Uniform Code of Military Justice (article 4). For Navy warrant officers see section 6408 of this title.
In subsection (b), the words “from his place of duty” are omitted as surplusage. The words “at least” are substituted for the words “or more”. The words “by a court other than a court-martial or other military court” are substituted for the words “by the civil authorities”.
Amendments
1996—Subsec. (b). Pub. L. 104–201 substituted “section 1167” for “section 1178” in par. (2).
Pub. L. 104–106 struck out “or” after “three months,”, added par. (2), and redesignated former par. (2) as (3).
You'll note it says nothing about retirement, simply dismissal; the "where's and why's and how's." But then I kept digging...
Reading the "Manual for Courts Martial, 2012, Rule 1003: Punishments" I find all the punishments afforded to a court martial. Reduction in grade is mentioned, and I quote:
R.C.M. 1301(d), a court-martial may sentence an enlisted member to be reduced to the lowest or any intermediate pay grade, But not an officer.
Then in referencing the portion of available "actions" for the Secretary and President (POTUS, not of a court), Rules 1206 and 1207 would apply. Again, no reference to demotion of a commissioned officer.
So barring any other information (and I'm open to being educated here) I'm going to go by past experience on 12 courts martial that I've sat. Now I do know of a few officers that were found guilty under Article 15 of the UCMJ and were allowed to retire rather than face court martial. But in those cases, the Service Secretary stepped in and determined that the officer hadn't served "honorably" in certain grades and reduced their retirement grade. The most notable is that of former Major General Thomas Fiscus.
10 USC applies there but a different chapter:
According to 10 USC § 1370, an officer retires "... in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned ..." Pursuant to this statute, the Secretary of the Air Force determined that colonel was the highest grade in which Fiscus served satisfactorily. Fiscus served as a major general for the remainder of his active duty tenure, but was placed on the retired list on February 1, 2005 in the grade and pay of colonel. (Thanks to Wiki for immediate reference).
Steve
USAFA ALO
USAFA '83