Recent Proposals to Change the Traditional Military Retirement System to Mirror the Federal Service Retirement: Eroding Discipline and Civil-military Relations Through Potentially Unlawful and Certainly Questionable Acts

• Publication year: 2022

46 Creighton L. Rev. 369. RECENT PROPOSALS TO CHANGE THE TRADITIONAL MILITARY RETIREMENT SYSTEM TO MIRROR THE FEDERAL SERVICE RETIREMENT: ERODING DISCIPLINE AND CIVIL-MILITARY RELATIONS THROUGH POTENTIALLY UNLAWFUL AND CERTAINLY QUESTIONABLE ACTS

RECENT PROPOSALS TO CHANGE THE TRADITIONAL MILITARY RETIREMENT SYSTEM TO MIRROR THE FEDERAL SERVICE RETIREMENT: ERODING DISCIPLINE AND CIVIL-MILITARY RELATIONS THROUGH POTENTIALLY UNLAWFUL AND CERTAINLY QUESTIONABLE ACTS

Joshua E. Kastenberg, Lt. Col., USAF(fn*)

In a time of budget tightening and sequestration debates, it should be unsurprising that there are proposals to significantly overhaul the military retirement system in the name of "reform." The last four years has seen increasingly contentious debates in the U.S. Congress on the size and scope of federal expenditures, including the U.S. Department of Defense's personnel costs. On August 2, 2011, the President of the United States signed into law the Budget Control Act of 2011.(fn1) That law creates uncertainty to the future Department of Defense budgets, including military pay and benefits, as well as the military pension system. It enables the President to preserve military personnel programs, but at the expense of other defense programs.(fn2)

Military veterans have received pension allotments from the government since the nation's founding.(fn3) Since the mid-1960s there have been efforts to alter the military retirement system, with varying degrees of congressional and public support, or public apathy.(fn4) None of the proposals take into consideration the effect of changing the current pension system on military discipline, a critical component of national security. This Article explores the potential immediate and secondary effects of retirement reform on military discipline, in a manner which has not, to the author's knowledge, been accomplished before. Although historic examples are interspersed throughout this Article, it is helpful to provide context to the most recent and radical of the proposed alterations to the current retirement system.

On January 15, 1969, Secretary of Defense Clark Clifford reported to Congress that the traditional military retirement system had become cumbersome on the economy. Clifford posited that most military retirees were not "true retirees" because of their relative youth in comparison to the nation's workforce. He proposed a two tiered retirement system where a retired veteran would collect "a supplement to the retiree's second career earnings, and later an income adequate for full retirement at the normal age for retiring from the work force."(fn5) He did not call for an abandonment of the government's obligation to ensure a defined pension. Instead, he concluded, "[T]o this end, the retirement system should pay the individual one amount between retirement from military service and the normal retirement age, and a higher amount when he reaches that age."(fn6) Clifford's plan gained no adherents in the Congress, and indeed, Clifford's successor, Melvin Laird, found the proposal an immoral action to impose on a generation of service-members who had served in the Korean and Southeast Asian conflicts.(fn7) For reasons discussed below, the most recent proposals could easily be categorized in Laird's response as well.

Since Laird's tenure, individual members of Congress have, in differing degrees ranging from deferred retirement to the establishment of 401(k) programs, called for changes, but in all cases without considering how their proposals would affect the military discipline aspect of national security. In 2006, 2008, and 2010, the Congressional Research Service ("CRS") also noted that advocates of reform to the traditional twenty year military retirement describe the retirement program as "unsustainable."(fn8) Ultimately, these proposals have gained little traction; perhaps, as a realization of what former Secretary of Defense Caspar Weinberger urged existed as a connection between benefits and veterans treatment and military readiness.(fn9)

Part I of this Article presents the most recent proposal, articulated in 2011 by the Defense Business Board ("DBB"), and analyzes its inherent shortcomings.(fn10) Part II provides an interlocking broad view analysis as to why the conversion of retirements in a 401(k) model could prove disastrous to discipline.(fn11) This is an important issue because there will invariably exist a nexus between the questionable legality of such a conversion, and the trust of long-serving service-members in the military establishment. This interlocking analysis addresses: (1) the potential for erosion of the civil-military relationship, (2) the relationship between the Takings Clause(fn12) of the Fifth Amendment and military retirements, (3) the principle of detrimental reliance, and (4) the inapplicability of case law to support the radical alteration scheme for military retirements posed by the DBB. The analysis also addresses the legal impediment of unlawful orders to the proposed scheme. Part III of this Article analyzes two potential direct impacts that would likely undermine discipline through weakening the Uniform Code of Military Justice ("UCMJ").(fn13) It must be remembered that military retirements are not true retirements. The receipt of military retirements is the instrument in which the government may recall its veterans to active service in time of national emergency, or for the individualized purpose of bringing a criminal to justice.

I. THE DEFENSE BUSINESS BOARD PROPOSAL OF 2011

In 2011, a Department of Defense study group, the Defense Business Board ("DBB"), called for a conversion of the military retirement system into a 401(k) type retirement mirroring the federal workforce.(fn14) The premise of the DBB proposal was based on a claim of unsustainability in the costs of military retirements without referencing whether Congress might seek to increase tax revenues or reallocate resources, thereby making the program sustainable.(fn15) Nor did the DBB's methodology appear to have considered the legal implications of their proposal. The DBB claimed that the current system of retirements is unfair because it excludes individuals who serve for less than twenty years, but this is a relatively new or invented concern. A century of judicial precedent has never held the current retirement system to be unfair. The DBB's proposed change, then, was truly based on an economic model and not on morality or fairness. Indeed, that their proposal did not "grandfather" current serving members, provides tangential falsity to the DBB's stated concerns of fairness.(fn16)

What set the DBB's proposal apart from most of the other calls for reform was its push for immediate implementation. There was no true "grandfathering" of current forces to the twenty year retirement. During this period, Congress convened a committee of twelve members, consisting of six Republicans and six Democrats. This committee essentially met without full transparency as to how it intended to arrive at its conclusions.(fn17) The committee may have considered the DBB's proposal and adopted it in some form as its own. Although that committee failed to produce any consensus, Congress might as yet adopt the DBB's proposal or some other variant of it. If it does so, Congress will, in turn, be required to vote on the draft legislation without the ability of individual legislators to offer amendments.(fn18) This Article does not address the wisdom of the legislative methods employed as a result of the so-called "debt compromise," but it does point out three areas of concern for military readiness, and more pointedly, military discipline. The premise of this part of the Article is that a 401(k) program, as envisioned by the DBB, based on mandatory contributions to the Thrift Savings Program ("TSP") would be an unlawful policy, and the implementation of such a policy will irreparably weaken military discipline.

To contextualize the potential ramifications of the DBB's proposed mandatory 401(k) contributions, as well as other 401(k) type proposals, it is helpful to reflect on the nation's military history. A Saint Louis Reporter during a news conference on May 23, 1956 asked President Eisenhower whether persistent in-fighting about funding between the service-branches and Congress eroded military discipline. Broadening his answer beyond the question, Eisenhower responded, "the day that discipline disappears from our armed forces, we will have no forces, and we would be foolish to put a nickel in them."(fn19) Eisenhower diligently worked to decrease defense budgets, but he understood that legislative manipulations had the potential to undermine the military's discipline, and this is as true today as it was in Eisenhower's time. Moreover, Eisenhower's determination to decrease the defense budget was predicated on an intelligent understanding of the nation's military culture and history. In the aftermath of the Civil War, congressional acts to decrease the Army's budget were targeted at pay and retirement with disastrous consequences to morale.(fn20)

A decade prior to Eisenhower's pronouncement, during a War Department committee deliberation on whether to recommend implementing a proposed President's Advisory Commission on Universal Training, President Harry Truman addressed the initial session, stating:

The great republics of the past always passed out when their people became

...