Court-Martial Jurisdiction Over Retirees Under Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up?

• Author: Michael J. Davidson
• Pages: 02

MILITARY LAW REVIEW

Volume 175 March 2003

COURT-MARTIAL JURISDICTION OVER RETIREES UNDER ARTICLES 2(4) AND 2(6): TIME TO LIGHTEN UP

AND TIGHTEN UP?

LIEUTENANT COLONEL (RET.) J. MACKEY IVES1 & LIEUTENANT COLONEL (RET.)

MICHAEL J. DAVIDSON2

1. Introduction

   A retired Regular Army officer working as a General Services (GS) federal employee becomes enraged during an argument with his military division head, an Army Colonel, and impolitely suggests that the senior officer perform certain anatomically impossible feats. The Colonel seeks to prefer charges against the retired officer for disrespect to a superior commissioned officer. Similarly, the retired officer then encounters a disrespectful active duty Army Captain, prompting the retired officer to prefer charges against the junior officer. A popular radio talk show host and his guest, who are both retired military officers of the regular components, publicly denounce the President and Congress, prompting another retired

   officer to request that charges be preferred against them for violating Article 88 of the Uniform Code of Military Justice.

   Are retired officers subject to court-martial for these acts, even though committed long after they have retired? May the active duty officer be court-martialed for disrespect to the retired officer? Is the status of a retired officer merely honorific, or does the law treat retirees as full-fledged-albeit dormant-members of the armed forces? Although no published cases have addressed these scenarios, the law is sufficiently unclear and undeveloped that a literal reading of existing law would support court-martial jurisdiction over all of these potential accused.

   To the extent the law has some clarity in the retiree arena, it is clear that retired personnel are not civilians but are instead members of the armed forces. They enjoy certain associated privileges and bear numerous responsibilities. Most significantly, as retirees they remain subject to the Uniform Code of Military Justice (UCMJ) with few, if any, legal limitations, and only ambiguous and largely unenforceable policy limitations on the exercise of military jurisdiction over them. However, beyond purely jurisdictional issues, military case law concerning the rights and responsibilities of retired military personnel is sparse.

   This article discusses the status of retired members of the armed forces, reviewing existing case law involving the exercise of court-martial jurisdiction. Further, the authors address the role of retired pay and que

   tion whether modern treatment of retired pay by both Congress and the courts undermines one major justification for UCMJ jurisdiction over retirees. Next, the authors highlight the broad scope of military jurisdiction, examine the narrow class of offenses that may be beyond the reach of military jurisdiction for retirees, and advocate the adoption of a capacity defense in the retiree context. The article also compares the various Service standards for the discretionary exercise of such jurisdiction. Finally, the article reviews recent statutory changes affecting federal criminal jurisdiction to determine what, if any, affect these legislative developments have, or should have, on military jurisdiction over military retirees.

2. Status of Retirees

   The first Army retired list was not established until 1861, and it applied only to officers.3 The legislation provided for retirement of officers for either physical disability or upon the completion of forty years of service.4 In 1878, Congress also drew a distinction between two types of retirement for officers. Some officers received one year's salary as a form of severance pay and were considered completely removed from military service.5 In a system similar to the modern retirement system, other officers received reduced pay-"seventy-five per centum of the pay upon which they retired"-but were "only being retired from active service."6 Further, the 1878 legislation, and subsequent Acts, made it clear that, at least from that time, military officers on the retired list were considered to

   be part of the military.7 Current statutory authorities,8 service regulations,9 and case law10 also make this point no longer subject to dispute.

   It was not until 1885, however, that Congress established a retirement system for enlisted personnel.11 The legislation applied to enlisted members of the Army and Marine Corps.12 Few officers and enlisted men were actually on the retired list. Initially the Army retired list was limited to 300; by 1895 retired officers and enlisted men numbered only 1562.13 In

   1907, Congress extended the retirement system to sailors, providing that

   enlisted men of the Army, Marine Corps, and Navy, who had completed thirty years of service, could be placed on the retired list and receive seventy-five percent of their pay and allowances.14 Soldiers on the retired list were long considered to be part of the Regular Army.15 Currently, retired enlisted members of all the regular components are considered to be members of that component.16

   Military retirees fall into two general categories: those retired for disabilities and those retired for length of service. Service members may be granted a disability retirement on either a permanent or temporary basis.17

   A service member who is unfit to perform his duties because of a permanent disability, which was not caused by the service member's intentional misconduct or willful neglect or while absent without authority, may be retired on that basis if the individual has at least twenty years of service or is at least thirty-percent disabled.18 If an eligible service member's disability is not permanent, the service member may be placed on the Temporary Disability Retired List (TDRL) and receive retired pay.19

   A Regular Army (RA) officer or reserve commissioned officer,20 war-rant officer,21 or soldier22 with at least twenty years of service, may request to retire and receive retired pay.23 Unique to the Department of the Navy, enlisted Marines and sailors with less than thirty years of service are not retired, but instead are transferred to the Fleet Marine Corps Reserve or Fleet Reserve, respectively, receiving "retainer" rather than retired pay.24

   Upon the completion of thirty years of service, these service members are

   placed in a retired status.25 The majority of service members must retire after thirty years of military service.26

   As members of the armed forces, military retirees enjoy a number of

   privileges,27 including a limited right to wear their uniforms,28 greater First Amendment freedoms,29 exchange and commissary rights,30 burial benefits,31 enjoy limited use of their military titles for commercial purposes,32 and may be referred to by their rank.33 Further, as members of the armed forces they bear certain responsibilities. They remain subject to court-martial jurisdiction,34 labor under various employment restrictions,35 and may be recalled to active duty either voluntarily or involuntarily.36 However, a retired officer not recalled to active duty is ineligible to command.37

   Currently, it is the policy of the Department of Defense that "military retirees shall be ordered to active duty (as needed) to fill personnel shortages due to mobilization or other emergencies . . . ."38 Military retirees are grouped into three categories: (1) "[n]on disability military retirees under age 60 who have been retired less than 5 years;" (2) "[n]on disability military retirees under age 60 who have been retired 5 years or more;" and (3) all other military retirees including those retired for disability.39 As a matter of policy, category three retirees are normally assigned only to civilian jobs in the event of mobilization, but "[a]ge or disability alone may not be the sole basis for excluding a retiree from active service during mobiliz

   tion."40 Theoretically, only death cuts off the military's ability to recall its retired members to active duty and/or to subject them to court-martial jurisdiction.41

   Military retirees are neither civilians nor divorced from the military. They are viewed as "an experienced and tested wartime resource"42 and a reservoir of expertise on military issues.43 Advocating the retention of court-martial jurisdiction over officers on the retired rolls, President Woodrow Wilson articulated his view of their status and the role retirees played within the military. Wilson posited that they were "regarded and governed at all times as an effective reserve of skilled and experienced

   officers and a potential source of military strength . . . ."44 They constituted a part of the Army, "members of the Military establishment distinguished

   by their long service, and, as such, examples of discipline to the officers and men in the active Army."45 Wilson believed that these retirees "represent the spirit of the Military Establishment," are "exemplars of discipline, and have in their keeping the good name and good spirit of the entire Military Establishment before the world."46

   Because of their special position and relationship with the military, Wilson believed that such retired personnel had been subject to military jurisdiction as a matter of necessity, "in order that the retired list might not become a source of tendencies which would weaken the discipline of the active land forces and impair that control over those forces which the Constitution vests in the President."47 Further, Wilson advocated a uniform application of military jurisdiction to active duty personnel and those on the retired list, believing such application essential for the Army to be an effective and coherent force once called to war.48

3. The Historical Development of Court-Martial Jurisdiction over Retired Military Personnel

   Although reported courts-martial of military retirees are relatively rare, jurisdiction over retired Army officers has long been a staple of military law.49 Additionally, retired officers of the Navy have been subject to...