Petition for Writ of Certiorari — Stephen A. Begani, Petitioner v. United States
Supreme Court briefAug 30, 2021
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No. 21-___
IN THE
Supreme Court of the United States
__________
STEVEN A. BEGANI,
Petitioner,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
__________
PETITION APPENDIX
__________
CAPT. JASPER CASEY, USMC
Navy-Marine Corps Appellate
Review Activity
1254 Charles Morris Street, S.E.
Building 58, Suite 100
Washington, DC 20374
STEPHEN I. VLADECK
Counsel of Record
727 E. Dean Keeton Street
Austin, TX 78705
(512) 475-9198
svladeck@law.utexas.edu
LT DANIEL E. ROSINSKI
JAGC, USN
Defense Service Office Southeast
9620 Maryland Avenue
Suite 100
Norfolk, VA 23511
Counsel for Petitioner
August 30, 2021
TABLE OF CONTENTS
U.S. Court of Appeals for the Armed Forces,
Decision (June 24, 2021) ....................................... 1a
U.S. Court of Appeals for the Armed Forces,
Order Granting Petition for Reconsideration
(Dec. 8, 2020) ......................................................... 34a
U.S. Court of Appeals for the Armed Forces,
Docketing Notice and Order (July 23, 2020) ....... 35a
U.S. Court of Appeals for the Armed Forces,
Order Granting Review (June 25, 2020) .............. 36a
Navy-Marine Corps Court of Criminal Appeals,
En Banc Decision (Jan. 24, 2020)......................... 37a
Navy-Marine Corps Court of Criminal Appeals,
Rescinding Order to Produce (Nov. 14, 2019) ...... 108a
Navy-Marine Corps Court of Criminal Appeals,
Order to Produce Information
Regarding Involuntary Recalls (Oct. 21, 2019) ... 110a
Navy-Marine Corps Court of Criminal Appeals,
Panel Decision (July 31, 2019) ............................. 112a
1a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
UNITED STATES,
Appellee / Cross-Appellant
v.
STEVEN A. BEGANI, Chief Petty Officer
United States Navy (Retired),
Appellant / Cross-Appellee
Nos. 20-0217 & 20-0327
Crim. App. No. 201800082
Argued March 9, 2021—June 24, 2021
Military Judge: Stephen C. Reyes
Chief Judge STUCKY delivered the opinion of the
Court.
We originally granted review to consider whether
subjecting members of the Navy’s Fleet Reserve, but
not members of the Retired Reserve, to Uniform Code
of Military Justice (UCMJ) jurisdiction violates the
equal protection component of the Fifth Amendment.
U.S. Const. amend. V. The Judge Advocate General of
the Navy timely certified an additional issue for
review:
whether
Appellant/Cross-Appellee
(Appellant) waived this claim. After the United States
District Court for the District of Columbia held that
the exercise of court-martial jurisdiction over
members of the Fleet Reserve was unconstitutional,
Larrabee v. Braithwaite, 502 F. Supp. 3d 322 (D.D.C.
2020), we granted review of an additional issue:
whether members of the Fleet Reserve have sufficient
current connection to the military for Congress to
subject them to continuous UCMJ jurisdiction. We
hold: (1) that Appellant did not waive appeal of his
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assigned issue; (2) as a member of the land and naval
forces, Appellant was subject to court-martial
jurisdiction; and (3) that the exercise of jurisdiction
over Appellant did not violate equal protection.
I. Background
The United States Navy-Marine Corps Court of
Criminal Appeals (CCA) summarized the relevant
background as follows:
After 24 years of active-duty service, and
numerous voluntary reenlistments, Appellant
elected to transfer to the Fleet Reserve. He was
honorably discharged from active duty and
started a new phase of his association with the
“land and naval Forces” of our Nation. In short,
for all intents and purposes, he retired. In
addition to receiving “retainer pay,” base access,
and other privileges accorded to his status as a
member of the Fleet Reserve, he remained
subject to the UCMJ under Article 2(a)(6).
After Appellant retired, he remained near
his final duty station, Marine Corps Air Station
(MCAS) Iwakuni, Japan, and worked as a
government contractor. Within a month, he
exchanged sexually-charged messages over the
internet with someone he believed to be a 15year-old girl named “Mandy,” but who was
actually an undercover Naval Criminal
Investigative Service (NCIS) special agent.
When he arrived at a residence onboard MCAS
Iwakuni, instead of meeting with “Mandy” for
sexual activities, NCIS special agents
apprehended him.
The Commander, U.S. Naval Forces Japan,
sought approval from the Secretary of the Navy
to prosecute Appellant at a court-martial, as
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opposed to seeking prosecution in U.S. District
Court under the Military Extraterritorial
Jurisdiction Act (MEJA). Because Appellant
was still subject to the UCMJ, and therefore
ineligible for prosecution under MEJA, the
Secretary authorized the Commander to
prosecute him at court-martial.
After Appellant unconditionally waived his
right to a preliminary hearing under Article 32,
UCMJ, he entered into a pretrial agreement
(PTA). In his PTA, he waived his right to trial by
members and agreed to plead guilty and be
sentenced by a military judge. He also waived all
waivable motions except for one. He argued he
could not lawfully receive a punitive discharge
because he was a member of the Fleet Reserve.
The trial court denied that motion.
United States v. Begani, 79 M.J. 767, 770 (N.M. Ct.
Crim. App. 2020) (footnotes omitted).
The CCA affirmed the findings and sentence,
holding that Appellant “[was] a member of the land
and naval Forces”; “Congress [had] the authority to
make him subject to the UCMJ under its
constitutional power to regulate those Forces”; and
subjecting members of the Fleet Reserve to trial by
court-martial, but not retired reservists, did not
violate equal protection. Id. at 775, 781, 783.
II. Waiver
Recognizing that subject matter jurisdiction
cannot be waived, the Government argues that
Appellant’s equal protection claim only “incidentally”
relates to jurisdiction, and therefore can be, and was,
waived by Appellant’s guilty plea. Whether Appellant
waived the issue is a question of law that we review
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de novo. United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020).
Appellant entered into a pretrial agreement to
plead guilty, in which he waived all waivable motions,
with the exception of his claim that a punitive
discharge is not an authorized punishment for a
retiree. Rule for Courts-Martial (R.C.M.) 705(c)(1)(B)
prohibits a term of a pretrial agreement that deprives
an accused of “the right to challenge the jurisdiction
of the court-martial.” The court-martial had
jurisdiction over Appellant through Article 2(a)(6), 10
U.S.C. § 802(a)(6) (2018)—which Appellant now
alleges violates equal protection. If Appellant
prevails, and Article 2(a)(6) is unconstitutional, the
court-martial has no jurisdiction to try him. He would
therefore have successfully “challenge[d] the
jurisdiction of the court-martial,” which cannot be
waived. R.C.M 705(c)(1)(B). Therefore, this Court
finds that Appellant’s argument that Article 2(a)(6)
violates the equal protection component of the Fifth
Amendment has not been waived.
III. Court-Martial Jurisdiction over the Fleet
Reserve
In Appellant’s second assigned issue, which we
examine first, he argues that court-martial
jurisdiction over members of the Fleet Reserve, and
retired members of the armed forces more generally,
is unconstitutional. Though the Constitution gives
Congress the power to set rules for the “land and naval
Forces,” U.S. Const. art. I, § 8, cl. 14, Appellant argues
that members of the Fleet Reserve are not currently
part of the “land and naval Forces” and so cannot be
subject to the UCMJ.
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A. Standard of Review
The question of jurisdiction is a question of law
that we review de novo. United States v. Hennis, 79
M.J. 370, 374–75 (C.A.A.F. 2020).
B. Law
Congress has plenary authority to “raise and
support Armies” and to “provide and maintain a
Navy.” U.S. Const. art. I, § 8, cls. 12–13. Congress also
has plenary authority to “make Rules for the
Government and Regulation of the land and naval
Forces.” Id. at cl. 14. This power is vast, permitting
even compulsory service. See Selective Draft Law
Cases, 245 U.S. 366 (1918). The “‘land and naval
Forces’” consist of those “persons who are members of
the armed services.” Reid v. Covert, 354 U.S. 1, 19–20
(1957).
Pursuant to this governing authority over the land
and naval forces, “Congress has empowered courtsmartial to try servicemen for the crimes proscribed by
the U.C.M.J.” Solorio v. United States, 483 U.S. 435,
438–39 (1987). An offense need not be military in
nature to be tried by court-martial. Id. The only
question is the “military status of the accused. ...
namely, whether the accused in the court-martial
proceeding is a person who can be regarded as falling
within the term ‘land and naval Forces.’” Id. at 439
(internal quotation marks omitted) (citations
omitted).
As part of maintaining a Navy, Congress created
multiple categories into which naval personnel fall,
one being the Fleet Reserve. 10 U.S.C. § 6330(a)
(2012). The Fleet Reserve is composed of “enlisted
member[s] of the Regular Navy ... who ha[ve]
completed 20 or more years of active service in the
armed forces.” 10 U.S.C. § 6330(b) (2012). Transfer to
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the Fleet Reserve is optional, and members of the
Fleet Reserve are entitled to retainer pay, remain
subject to recall at any time, and are subject to the
UCMJ. See Article 2(a)(6), UCMJ; 10 U.S.C. § 688(a).
Upon completion of thirty years total service, active
and inactive, a member of the Fleet Reserve is retired,
and is thereafter entitled to retired pay. 10 U.S.C.
§ 6331(c).
For well over a hundred years, Congress, the
military, and the Supreme Court have all understood
that retired members of all branches of service of the
armed forces who continue to receive pay are still a
part “of the land and naval Forces” and subject to the
UCMJ or its predecessors. See, e.g., United States v.
Tyler, 105 U.S. 244, 246 (1882) (“It is impossible to
hold that [retirees] who are by statute declared to be
a part of the army, who may wear its uniform, whose
names shall be borne upon its register, who may be
assigned by their superior officers to specified duties
by detail as other officers are, ... are still not in the
military service.”); McCarty v. McCarty, 453 U.S. 210,
221–22 (1981) (acknowledging that “[t]he retired
officer ... continues to be subject to the [UCMJ]”).
Though retirees are still part of the armed forces,
persons who have completely separated from the
military are not. United States ex rel. Toth v. Quarles,
350 U.S. 11, 14–15 (1955) (holding that “civilian exsoldiers who had severed all relationship with the
military and its institutions” could not properly be
subject to court-martial for crimes committed while in
the Army). Neither are civilian dependents of
servicemembers, see Reid, 354 U.S. at 19–20, or
civilian employees. See McElroy v. United States ex
rel. Guagliardo, 361 U.S. 281 (1960); Grisham v.
Hagan, 361 U.S. 278 (1960). “The test for jurisdiction
... is one of status, namely, whether the accused in the
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court-martial proceeding is a person who can be
regarded as falling within the term ‘land and naval
Forces.’” Kinsella v. United States ex rel. Singleton,
361 U.S. 234, 240–41 (1960) (emphasis added). 1
C. Discussion
Appellant agrees that under our current case law,
members of the Fleet Reserve are in the land and
naval forces and subject to the UCMJ. He argues that
those cases were either wrong, or their reasoning has
been vitiated by subsequent Supreme Court case law
and the paucity of examples of involuntary retired
recall. Appellant therefore urges this Court to
supplement the “military status” test with a
“significant connection” test.
This would not be the first time courts have tried
to analyze sufficient “connections” to the military to
determine UCMJ jurisdiction. In O’Callahan v.
Parker, the Supreme Court sharply departed from
earlier precedent and held that a servicemember could
only be court-martialed for crimes that had a
sufficient connection to the military. 395 U.S. 258, 274
(1969). After nearly two decades of attempting to
parse what level of “service connection” was
sufficient—resulting in a myriad of categorical
exceptions and twelve different factors to analyze—
the Supreme Court reversed O’Callahan in Solorio
and held that the only appropriate test is the “military
status of the accused.” 483 U.S. at 436, 439.
1. But see John Warner National Defense Authorization Act
for Fiscal Year 2007, Pub. L. No. 109-364, § 552, 120 Stat. 2083
(2006); United States v. Ali, 71 M.J. 256, 259 (C.A.A.F. 2012)
(holding that Article (2)(a)(10), subjecting to court-martial
nonmilitary persons accompanying armed forces in the field,
does not violate the Constitution).
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Acknowledging that precedent and practice are not
on his side, Appellant nevertheless urges this Court to
hold that the Supreme Court narrowly construes
military jurisdiction, requiring it to be justified by
“certain overriding demands of discipline and duty,”
id. at 440 (internal quotation marks omitted) (citation
omitted), and be “the least possible power adequate to
the end proposed.” Toth, 350 U.S. at 23 (internal
quotation marks omitted) (citation omitted).
We think this is misplaced. First, Solorio’s
discussion of the “‘demands of discipline and duty’”
“concern[ed] the scope of court-martial jurisdiction
over offenses committed by servicemen” and not who is
subject to the UCMJ. 483 U.S. at 440 (emphasis
added) (citation omitted). Solorio’s test for jurisdiction
was the military status of the accused. Id. at 451.
Second, Toth limited the expanse of UCMJ
jurisdiction over civilians, and was not concerned with
whether an individual was a member of the armed
forces. 350 U.S. at 22 (declining to infer that the
Necessary and Proper Clause included the power to
circumvent the Bill of Rights and subject exservicemen to court-martial “when they are actually
civilians”). Neither of these cases addresses the
question here, whether a member of the Fleet Reserve
is part of the “land and naval Forces.” Other cases,
both from our predecessor Court and the Supreme
Court, discuss this explicitly.
In prior cases upholding the military status of
members of the Fleet Reserve, our predecessor Court
identified multiple indicators that members of the
Fleet Reserve retain military status. Appellant, as a
current member of the Fleet Reserve, is not in the
same situation as the appellant in Toth, as he has not
“severed all relationship” with the military. Fleet
Reservists are still paid, subject to recall, and required
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to maintain military readiness. Appellant argues that
these ongoing connections are insufficient to place
Appellant in the “land and naval Forces” because
each, in isolation, is insufficient to confer military
status.
Pay. Once an enlisted member of the Navy has
served for twenty years, he can elect to transfer to the
Fleet Reserve, and receive ongoing retainer pay, or he
can simply leave the service and become a civilian.
Appellant points out that merely receiving pay from
the Department of Defense cannot, standing alone,
confer UCMJ jurisdiction. See, e.g., Kinsella, 361 U.S.
at 249. But of course, members of the Fleet Reserve
are not civilians, like the defendants in Kinsella and
Toth were. Appellant argues that pay cannot place
someone in the armed forces—which is of course true.
But that is not what happened here. Being paid didn’t
confer military status—Appellant is paid because of
his status. Members of the Fleet Reserve receive
retainer pay because they are currently in the Fleet
Reserve, which is a component of the United States
Navy. They have not “severed all relationship” with
the military; rather, they are current members of the
armed forces, though not on active duty, and they are
currently paid for maintaining that status.
Appellant asks us to find that the Supreme Court
implicitly overruled its prior cases on this subject
when it held that, under a federal tax statute, a state
could not treat retired military pay differently from
retired pay for state officials. Barker v. Kansas, 503
U.S. 594, 605 (1992) (holding that “[f]or purposes of 4
U.S.C. § 111, military retirement benefits are to be
considered deferred pay for past services”). Of course,
in that same case, the Court also said, “[m]ilitary
retirees unquestionably remain in the service and are
subject to restrictions and recall.” Id. at 599.
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Appellant dismisses this as dicta, but though UCMJ
jurisdiction was not in question in Barker, it would be
strange indeed to find that the Supreme Court
implicitly held what it explicitly disclaimed. The state
income tax consequences for retainer pay have no
bearing on a retired person’s continuing status as a
member of the federal armed forces.
Military Readiness and Recall. Members of the
Fleet Reserve are not only paid for their current
status; their status also requires that they maintain
readiness for future recall. See Naval Military
Personnel Manual (MILPERSMAN), Article 1830040, CH-38, at 12 (Dec. 19, 2011). They are subject to
recall by the Secretary of the Navy “at any time.” 10
U.S.C. § 688(a). They are also required to “[m]aintain
readiness for active service in the event of war or
national emergency,” to keep Navy leadership
apprised of their home address and “any changes in
health that might prevent service in time of war,” and
remain “subject at all times to laws, regulations, and
orders
governing
[the]
Armed
Forces.”
MILPERSMAN Article 1830-040, CH-38, at 12; 10
U.S.C. § 8333. Members of the Fleet Reserve are
required to inform their branch of travel or residency
outside the United States for any period longer than
thirty days, and can be required to perform two
months of active service every four years.
MILPERSMAN Article 1830-040, CH-38, at 12. If a
member of the Fleet Reserve becomes unfit for any
duty, he will be transferred to the Retired lists of
either the Regular Navy or the Retired Reserve. 10
U.S.C. § 6331(a); MILPERSMAN, Article 1830-030,
CH-13, at 3 (Dec. 7, 2005).
Appellant argues that recall is rare, he has no
“ongoing military responsibilities,” and there is no
“good order and discipline” benefit to being subject to
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the UCMJ while not on active duty. That Congress
could require more is not an argument that it has not
required enough. Congress has the responsibility “for
the delicate task of balancing the rights of servicemen
against the needs of the military.” Solorio, 483 U.S. at
447. Congress has determined that, in order to run an
all-volunteer military and maintain an adequate
supply of qualified retirees to supplement that force,
it needs members of the Fleet Reserve to be subject to
the UCMJ but not to take other steps it requires of
regular members of active-duty components. And as a
factual matter, although the recall of retirees may not
be a frequent event, it is not the rare occurrence that
Appellant suggests. As the lower court noted when
previously considering this very issue, “in both of our
wars with Iraq, retired personnel of all services were
actually recalled.” United States v. Dinger, 76 M.J.
552, 557 (N-M. Ct. Crim. App. 2017) (alteration in
original removed) (internal quotation marks omitted)
(quoting Francis A. Gilligan & Fredric I. Lederer,
Court-Martial Procedure § 2-20.00, 24 (4th ed. 2015)),
aff’d, 77 M.J. 447 (C.A.A.F. 2018).
Congress has explicit and extremely broad powers
over the military under Article I of the Constitution
and there is no constitutional requirement that all
members of the armed forces be on continuous active
duty. Congress elected to create two components of the
armed forces in the Department of the Navy
comprised of recent retirees, whom it continues to pay,
in exchange for the potential to be recalled as our
national security demands. These members of the
Fleet Reserve and Fleet Marine Reserve can
constitutionally be considered part of the land and
naval forces, and Congress has determined that they
need to be subject to the UCMJ. To this determination
we defer. See Solorio, 483 U.S. at 447 (“[J]udicial
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deference ... is at its apogee when legislative action
under the congressional authority to raise and
support armies and make rules and regulations for
their governance is challenged.” (alteration in
original) (internal quotation marks omitted) (citation
omitted)).
Appellant asks us to adopt a narrow construction
of Congress’s express authority “[t]o make Rules for
the Government and Regulation of the land and naval
Forces,” U.S. Const. art. I, § 8, cl. 14, by excluding
retirees from that power, but to do so would run
counter to the Supreme Court’s broad deference
towards Congress in enacting federal criminal
statutes pursuant to Congress’s regulatory powers.
Despite there being no express federal civilian police
power in the Constitution, the Supreme Court has
held that “Congress can certainly regulate interstate
commerce to the extent of forbidding and punishing
the use of such commerce as an agency to promote
immorality, dishonesty or the spread of any evil or
harm to the people of other states from the state of
origin.” Brooks v. United States, 267 U.S. 432, 436
(1925). The Supreme Court has repeatedly endorsed
Congress’s decision to subject Americans to new
federal crimes over objections that Congress has no
such authority. See, e.g., Gonzales v. Raich, 545 U.S.
1, 17 (2005) (upholding Congress’s decision to
criminalize the production and use of homegrown
marijuana even if state law allowed for its growth and
use); Perez v. United States, 402 U.S. 146, 156–57
(1971) (upholding Congress’s decision to criminalize
purely intrastate loan sharking). The “make Rules”
clause has long been interpreted as providing
Congress with the power to regulate the trial and
punishment of members of the land and naval forces.
Dynes v. Hoover, 61 U.S. 65, 71 (1857). Given
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Congress’s broad authority to subject civilians to a
federal criminal code based solely on its regulatory
authority, we see no reason to narrowly construe
Congress’s express power to “make Rules” for the
armed forces.
IV. Equal Protection Challenge to Jurisdiction
Having established that Congress can subject
retirees to jurisdiction under the UCMJ, we now
consider Appellant’s other assigned issue—whether it
violates the equal protection component of the Fifth
Amendment to subject members of the Fleet Reserve,
but not retired reservists, to military jurisdiction.
A. Standard of Review
“The constitutionality of a statute is a question of
law; therefore, the standard of review is de novo.”
United States v. Wright, 53 M.J. 476, 478 (C.A.A.F.
2000).
B. Law
The federal government is prohibited from
violating a person’s due process rights by denying him
the equal protection of the laws. Bolling v. Sharpe, 347
U.S. 497 (1954). The “core concern” of equal protection
is to act “as a shield against arbitrary classifications.”
Engquist v. Oregon Department of Agriculture, 553
U.S. 591, 598 (2008). That is, the Government must
treat “similar persons in a similar manner.” United
States v. Gray, 51 M.J. 1, 22 (C.A.A.F. 1999) (internal
quotation marks omitted) (citation omitted).
The initial question then, is whether the groups
are similarly situated, that is, are they “in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10
(1992). As discussed below, Fleet Reservists and
Retired Reservists are, in key aspects, not similarly
situated. They serve a different purpose in our
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national defense scheme and have different benefits
and obligations. They are, therefore, not similarly
situated. 2
C. Discussion
“[I]t is the primary business of armies and navies
to fight or be ready to fight wars should the occasion
arise. The responsibility for determining how best our
Armed Forces shall attend to that business rests with
Congress, and with the President.” Schlesinger v.
Ballard, 419 U.S. 498, 510 (1975) (internal quotation
marks omitted) (citing and quoting Toth, 350 U.S. at
17). To that end, Congress created the Fleet Reserve
to provide a ready supply of highly trained naval
manpower. Members of the Fleet Reserve have served
as active-duty enlisted members of the Navy for
between twenty and thirty years. 10 U.S.C. § 6330(b)
(2012). As members of the Fleet Reserve, they receive
retainer pay, based on that experience. 10 U.S.C.
§§ 6330(c)(1), 6332. They are required to “[m]aintain
readiness for active service in event of war or national
emergency,” MILPERSMAN Article 1830-040, CH-38,
at 12, and may be recalled for training “[i]n time of
peace.” 10 U.S.C. § 8385(b). In fact, they are subject to
recall at any time. 10 U.S.C. § 688(a).
Retired reservists, by contrast, usually served only
a few years on continuous active duty and then served
2. Even if they were similarly situated, we would employ
rational basis review of their distinct treatment, and our analysis
would be the same. We reject Appellant’s contention that the
Sixth Amendment right to a jury trial is implicated and so we
should apply strict scrutiny. As we explained in Section III,
members of the Fleet Reserve and regular retirees are both “part
‘of the land and naval Forces’” and so neither have a Sixth
Amendment right to a jury trial. Therefore, no fundamental right
is implicated by their disparate treatment.
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part-time, for a total of at least twenty years. Once
retired, they need not remain in the military,
(although most do), and receive no pay until they
reach statutory eligibility at age sixty. See, e.g., Dep’t
of Defense, Reg. 7000-14R, Financial Management
vol. 7B, ch. 6, para. 060401 (2020) (“Retired pay
benefits authorized for non-regular members of the
uniformed services in 10 U.S.C., Chapter 1223 are
viewed as a pension and entitlement to retired pay
under 10 U.S.C. § 12731 is not dependent on the
continuation of military status.”). They are not
required to maintain any level of readiness and can be
recalled only in the event of a declaration of war or
national emergency by Congress. 10 U.S.C. § 12301(a)
(2018). Even then, they only may be recalled once
other tiers of available manpower have been
exhausted. Id.
Appellant glosses over these distinctions,
characterizing the pay differences as receiving
“retired pay at some point in their retired years.”
(internal quotation marks omitted) (citation omitted).
This, of course, ignores the critical distinctions: when
they are paid, why they are paid, and how much they
are paid.
Appellant also minimizes the recall distinctions by
claiming the two groups are “similarly subject to
involuntary recall.” But of course, there are important
distinctions as to both when they can be recalled and
why they can be recalled. Members of the Fleet
Reserve can be recalled during a war or national
emergency declared by Congress; a national
emergency declared by the President; or for training
during peacetime. 10 U.S.C. § 8385(a)–(b). Retired
reservists on the other hand, may only be recalled for
the duration of a war or national emergency declared
by Congress (or six months thereafter), and only after
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a determination that there are not enough qualified
active reserves or national guardsmen to fill the need.
10 U.S.C. § 12301(a).
Appellant notes that the Government has not
provided recent examples of involuntary recall of
retirees. This may in part be due to sufficient numbers
of retirees who have volunteered for recall, and
because recent threats have not required that level of
manpower. For that we may be grateful. But Congress
has the duty to ensure the military is ready for future
threats and needs. That the use of the authority has
not been necessary in the recent past hardly means
that it is unconstitutional to be prepared in the event
it is necessary in the future. Appellant was not
required to enter the Fleet Reserve and accept
retainer pay. But once he did, he made himself
available to be recalled, and continued to be subject to
the UCMJ.
In order to maintain our national security,
Congress has created multiple mechanisms through
which interested individuals may volunteer to serve
in the armed forces. These mechanisms have varying
rights and obligations. Congress has determined that
having a class of retired reservists is beneficial, and
their utility does not require a concomitant need for
them to remain subject to the UCMJ while retired.
True, all who have retired from the armed forces in
any capacity remain subject to some level of recall—
and this only makes sense. All else being equal, those
who have trained and extensively served are more
valuable in times of war than those who have not
served or have served far less time. But members of
the Fleet Reserve, being within ten years of full-time,
active-duty service, are arguably much more useful in
an emergency. They are more familiar with the
current systems and can be brought up to speed much
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more quickly. To facilitate this, Congress pays them
to, among other things, maintain readiness, which
includes being subject to the UCMJ.
Congress does not violate equal protection by
having different benefits and obligations for these two
groups. Fleet Reservists volunteered to enter the Fleet
Reserve and accepted current pay in exchange for
maintaining readiness, being subject to recall, and
being subject to the UCMJ. Retired reservists will
only receive a reserve pension once they reach age
sixty and can only be recalled once other sources of
manpower have been exhausted. These two groups are
not similarly situated, and so it does not violate equal
protection to subject one and not the other to the
UCMJ.
Court-martial jurisdiction over members of the
Fleet Reserve does not violate the Constitution, nor
does subjecting members of the Fleet Reserve and not
retired reservists to UCMJ jurisdiction violate equal
protection. Therefore, Appellant, a member of the
“land and naval Forces,” was properly subject to
jurisdiction under Article 2(a)(6), UCMJ.
V. Judgment
The judgment of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
Judge MAGGS, with whom Judge Hardy and
Senior Judge Crawford join, concurring.
The specified issue on which the parties have
submitted supplemental briefs is “whether fleet
reservists have a sufficient current connection to the
military for Congress to subject them to constant
[Uniform Code of Military Justice (UCMJ)]
jurisdiction.” This issue is not new. Appellant/CrossAppellee (Appellant) acknowledges that our decision
18a
in United States v. Overton, 24 M.J. 309, 311 (C.M.A.
1987), has already answered the question in the
affirmative, holding that Congress constitutionally
may subject members of the Fleet Reserve and Fleet
Marine Corps Reserve to trial by court-martial. The
Overton decision is consistent with the longstanding
view that retirees are in the armed forces. See, e.g.,
United States v. Tyler, 105 U.S. 244, 246 (1882) (“We
are of the opinion that retired officers are in the
military service of the government ....”); United States
v. Hooper, 9 C.M.A. 637, 643, 26 C.M.R. 417, 422
(1958) (“[R]etired personnel are a part of the land or
naval forces.”); William Winthrop, Military Law and
Precedents 87 n.27 (2d ed., Government Printing
Office 1920) (1895) (“That retired officers are a part of
the army and so triable by court-martial [is] a fact
indeed never admitted of question.”).
Appellant nevertheless requests that we overrule
Overton and reach a different conclusion. I agree with
the reasons that the Court gives for rejecting
Appellant’s request, and I join the Court’s opinion in
full. I write separately only to address one aspect of
Appellant’s argument in more detail. In his briefs, as
I describe below, Appellant makes some effort to
demonstrate that this Court’s decision in Overton was
incorrect based on the original meaning of U.S. Const.
art. I, § 8, cl. 14, and the Grand Jury Clause of the
Fifth Amendment of the United States Constitution.
I commend Appellant for briefing this Court on
historical sources pertinent to our interpretation of
these provisions. A party urging a court to overturn
its precedent on a constitutional issue at a minimum
should show that the precedent is inconsistent with
the original meaning of the Constitution. Compare
Gamble v. United States, 139 S. Ct. 1960, 1965 (2019)
(declining to overrule precedents establishing the
19a
Dual Sovereignty Doctrine after finding these
precedents to be consistent with the Double Jeopardy
Clause “[a]s originally understood”), with Alleyne v.
United States, 570 U.S. 99, 103 (2013) (overruling
Harris v. United States, 536 U.S. 545 (2002), for being
“inconsistent with ... the original meaning of the Sixth
Amendment”). In this case, however, I ultimately do
not find Appellant’s originalist arguments persuasive.
I. Appellant’s Argument Under U.S. Const. art.
I, § 8, cl. 14
U.S. Const. art. I, § 8, cl. 14 empowers Congress
“[t]o make Rules for the Government and Regulation
of the land and naval Forces.” Appellant argues that
Congress cannot use this power to enact a law that
subjects him to trial by court-martial because he was
no longer part of the “‘land and naval [F]orces’” at the
time of his offenses or his court-martial. Appellant
acknowledges that, as a member of the Fleet Reserve,
he continues to receive pay, he is subject to recall, and
he is still enlisted. But Appellant asserts that these
three facts are insufficient to make him part of the
land and naval forces. On the contrary, Appellant
asserts that he “has no regular military duties or
authority” or, phrased another way, he has no “actual
duties and responsibilities.” And “because [he] has no
ongoing
military
responsibilities,”
Appellant
contends, “he cannot be regarded as part of the ‘land
and naval [F]orces’” within the meaning of U.S. Const.
art. I, § 8, cl.14.
Appellant’s argument appears to rest on two
syllogisms. The major premise of the first syllogism is
that a person is in the “land and naval Forces” within
the meaning of U.S. Const. art. I, § 8, cl. 14, only if the
person has ongoing military duties or authority. The
minor premise of the first syllogism is that Appellant
20a
does not have ongoing military duties or authority as
a member of the Fleet Reserve. The conclusion of the
first syllogism is that Appellant therefore is not in the
“land or naval Forces” within the meaning of U.S.
Const. art. I, § 8, cl. 14.
The major premise of Appellant’s second syllogism
is that Congress may not subject to trial by courtmartial a person who is not in the “land and naval
Forces” within the meaning of U.S. Const. art. I, § 8,
cl. 14. The minor premise of the second syllogism
(which would come from the conclusion of the first
syllogism) is that Appellant is not in the “land and
naval Forces” within the meaning of U.S. Const. art.
I, § 8, cl. 14. The conclusion of the second syllogism is
that Congress therefore may not subject Appellant to
trial by court-martial.
I agree with part of this reasoning. The major
premise of the second syllogism is settled. In United
States ex rel. Toth v. Quarles, the Supreme Court held
that “given its natural meaning, the power granted
Congress ‘To make Rules’ to regulate ‘the land and
naval Forces’ would seem to restrict court-martial
jurisdiction to persons who are actually members or
part of the armed forces.” 350 U.S. 11, 15 (1955)
(quoting U.S. Const. art. I, § 8, cl. 14). And if the minor
premise of the second syllogism were true, then I
would agree that the conclusion of the second
syllogism would also be true.
But I am not convinced that the major premise of
the first syllogism—that a person is in the “land or
naval Forces” within the meaning of U.S. Const. art.
I, § 8, cl. 14, only if the person has ongoing military
duties and authority—is true. As Appellant
acknowledges, this Court held in Overton that retirees
in the Fleet Reserve are part of the land and naval
21a
forces, and thus subject to trial by court-martial,
based on their receipt of pay and the possibility of
their recall to active duty. The Court in Overton did
not identify ongoing military duties and authority as
a requirement for being in the land and naval forces.
Appellant, however, argues that Overton’s
reasoning is incorrect and should be overruled on two
grounds. One ground is that newer understandings of
the purpose of retired pay and recent experience
showing the unlikelihood of his recall to active service
have undermined Overton’s reasoning. The other
ground is that Overton’s interpretation is contrary to
the original meaning of U.S. Const. art. I, § 8, cl. 14.
The Court amply addresses and correctly rejects
Appellant’s first argument. But I believe that
Appellant’s originalist argument merits a closer
inspection.
To prove his assertion that U.S. Const. art. I, § 8,
cl. 14, empowers Congress to regulate persons who do
not have ongoing military duties and authority,
Appellant draws on evidence from the records of the
Continental Congress from the 1780s. I agree with
Appellant that the Continental Congress’s practice
under the Articles of Confederation is relevant in
determining the original meaning of U.S. Const. art.
I, § 8, cl. 14. The constitutional clause was copied from
the Articles of Confederation, which gave Congress
the power of “making rules for the government and
regulation of the said land and naval forces, and
directing their operations.” Articles of Confederation
of 1781, art. IX, para. 4; see also 2 The Records of the
Federal Convention of 1787, at 330 (Max Farrand ed.,
1911) (James Madison’s Notes, Aug. 18, 1787)
(recognizing the clause was borrowed “from the
existing Articles of the Confederation”) [hereinafter
Farrand’s Records]; 3 Joseph L. Story, Commentaries
22a
on the Constitution § 1192 (1833) (“It was without
question borrowed from a corresponding clause in the
articles of confederation.”). 1 Accordingly, the Framers
of the Constitution probably intended, those who
ratified the Constitution probably understood, and the
public probably construed “land and naval Forces” to
have the same meaning in the Constitution as in the
Articles of Confederation. See Baker ex rel. Thomas v.
Gen. Motors Corp., 522 U.S. 222, 231 n.3 (1998)
(reasoning that language in the Constitution has the
same meaning as almost identical language in the
Articles of Confederation); Felix Frankfurter, Some
Reflections on Reading Statutes, 47 Colum. L. Rev.
527, 537 (1947) (“[I]f a word is obviously transplanted
from another legal source ... it brings the old soil with
it.”).
The question is whether the evidence that
Appellant cites is on point and persuasive. Appellant
shows that in 1780, the Continental Congress offered
“officers who shall continue in the service to the end
of the war” half-pay for life after their “reduction.” 18
Journals of the Continental Congress 1774-1789, at
958–60 (Worthington Chauncey Ford et al. eds.,
reprints published from 1904–37 by the Government
Printing Office) (Oct. 21, 1789) [hereinafter Journals].
Appellant further shows that in 1781, the Continental
Congress passed a similar law for “hospital
department” officers. 19 Journals at 68–70 (Jan. 13,
1781). Appellant contends that these examples show
1. The most significant difference between the clauses in the
Constitution and the Articles of Confederation is that the
Constitution assigns control over the operations of the armed
forces to the President as the commander-in-chief, rather than to
Congress. See U.S. Const. art. II, § 2, cl. 1. That difference is not
relevant here.
23a
that the Continental Congress provided “for post-duty
compensation without military status.”
These examples, in my view, do not establish the
truth of the major premise of the first syllogism on
which Appellant’s argument rests. The examples do
not show that a person is in the “land and naval
Forces” within the meaning of U.S. Const. art. I, § 8,
cl. 14, only if the person has ongoing military duties
or authority. Instead, the examples show merely that
a person could receive pay for past military service
without being in the land or naval forces. That point
is not contested in this case and is insufficient to show
that Overton was wrongly decided.
In my view, however, other acts of the Continental
Congress are relevant because they provide an
unmistakable counterexample that contradicts, and
thus disproves, the major premise of Appellant’s first
syllogism. The counterexample concerns furloughed
soldiers. The Articles of War originally empowered
unit commanders to grant furloughs. See Articles of
War of 1775 art. LVI, reprinted in 2 Journals at 120
(June 30, 1775). Congress, however, later withheld
this power to higher authorities, and at the same time
standardized the documentation provided to
furloughed and discharged soldiers. 20 Journals at
656–57 (June 16, 1781). The furlough document
specified that the bearer was permitted to be absent
from his regiment, while the discharge document said
that the bearer was discharged from the regiment. Id.
These documents taken together make clear that
furloughed soldiers were still in the Army because
they were not discharged and that they did not have
ongoing duties because they were authorized to be
absent.
24a
Perhaps the most telling instance of furloughs took
place at the end of the Revolutionary War. In May
1783, with the British Army essentially defeated and
a permanent peace treaty expected imminently,
Congress had to decide what to do with the soldiers
remaining in the victorious Continental Army: Should
they be discharged, furloughed, or retained? The
Journals describe the debate as follows:
The Report from Mr Hamilton, Mr Gorham
and Mr Peters, in favor of discharging the
soldiers enlisted for the war, was supported on
the ground that it was called for by Economy and
justified by the degree of certainty that the war
would not be renewed. Those who voted for
furloughing the soldiers wished to avoid
expence, and at the same time to be not wholly
unprepared for the contingent failure of a
definitive treaty of peace. The view of the subject
taken by those who were opposed both to
discharging and furloughing, were explained in
a motion by Mr. Mercer seconded by Mr. Izard
to assign as reasons, first that Sr Guy Carleton
[the commander-in-chief of all British forces in
North America] had not given satisfactory
reasons for continuing at N. York, second, that
he had broken the Articles of the provisional
Treaty.
25 Journals at 966–67 (May 23, 1783). In the end,
Congress decided to furlough a large contingent of
soldiers indefinitely. Id. at 967. As the passage above
shows, these soldiers remained in the Army and were
subject to recall at any time, but they had no ongoing
duties. These soldiers were not discharged until
Congress approved a proclamation after the signing of
the Treaty of Paris, terminating their service effective
November 3, 1783. Id. at 703 (Oct. 18, 1783). “[S]uch
25a
part of the federal armies as ... were furloughed,” the
proclamation stated, “shall, from and after the third
day of November next, be absolutely discharged ...
from said service.” Id.
The May 1783 furlough, and additional furloughs
that soon followed, provoked outrage among many of
the furloughed soldiers, some of whom were owed
considerable
unpaid
wages.
One
historian
sympathized with their ire, noting that “[t]here was
neither provision for a settlement of accounts nor even
a word of appreciation for the soldiers.” Kenneth R.
Bowling, New Light on the Philadelphia Mutiny of
1783: Federal-State Confrontation at the Close of the
War for Independence, 101 Penn. Mag. of Hist. & Biog.
419, 423 (1977). In June 1783, hundreds of these
furloughed soldiers took part in a mutinous
demonstration targeting Congress in Philadelphia.
See Mary A. Y. Gallagher, Reinterpreting the “Very
Trifling Mutiny” at Philadelphia in June 1783, 119
Penn. Mag. of Hist. & Biog. 3, 3–4 (1995).
Underscoring the view that these furloughed
soldiers were still in the Army, despite having no
current or ongoing duties, some of the suspected
participants were charged with mutiny in “breach of
the third article of the second section of the rules and
articles of war.” 25 Journals at 566 (Sept. 13, 1783).
Mutiny was an offense only an “officer or soldier”
could commit. Articles of War of Sept. 20, 1776, § II,
art. 3, reprinted in 5 Journals at 789 (Sept. 20, 1776).
The court-martial found several of the accused guilty,
and adjudged serious punishment. See 25 Journals at
566 (Oct. 13, 1783). “Sentenced to whippings were
gunner Lilly, drummer Horn, and privates Thomas
Flowers and William Carman. Sentenced to death by
hanging were the two sergeants who had led the
demonstration, John Morrison and Christian Nagle.”
26a
Bowling, 101 Penn. Mag. of Hist. & Biog. at 445.
Mercifully, in exercise of its “special grace,” Congress
later pardoned the offenders, noting that no lives were
lost, no property was destroyed, and those convicted
“appear not to have been principals in the said
mutiny.” 25 Journals at 566 (Sept. 13, 1783). In
granting the pardons, however, Congress did not
suggest that the courts-martial lacked jurisdiction
because the furloughed status of the soldiers meant
that they were out of the Army. 2
In conclusion, because Appellant is asking us to
overrule Overton, he should at a minimum
demonstrate that Overton was incorrect as an original
matter. His originalist argument rests on a claim that
the “land and naval Forces” did not include persons
who had no ongoing duties. Assuming that the term
“land and naval Forces” had the same meaning in the
Articles of Confederation as in U.S. Const. art. I, § 8,
cl. 14, Appellant has failed to convince me that his
2. Later evidence provides additional support. In 1787,
Congress asked the Secretary of War Henry Knox whether a
discharged former soldier, John Sullivan, could be tried by courtmartial after his discharge for his participation in the mutiny
“while he with the greater part of the Army were furloughed as
a preparatory step to their being discharged.” 33 Journals at
666–67 (Oct. 12, 1787). It was “a questionable point, whether he
or any other person could be legally tried by a court martial for
crimes committed during the existence of the Army.” Id. at 667.
Knox reported that “were such an attempt to be made at this late
period it might be a considered an unusual stretch of power.” Id.
In addition to the potential jurisdictional problem, Knox also
noted that procuring evidence would be “utterly impracticable.”
Id. Knox’s doubt that a discharged former soldier could be tried
by court-martial for acts committed while he was still in the
Army is consistent with what the Supreme Court would later
hold in Toth, and stands in contrast to the evident understanding
that a court-martial could try soldiers who had been furloughed
but not discharged.
27a
claim is correct because furloughed soldiers provide a
clear counterexample. Furloughed soldiers had no
ongoing duties, but they were in the Army, and they
were subject to court-martial for offenses committed
while furloughed.
I should add that Appellant has not cited evidence
from other sources that courts typically consult to
discern the original meaning of the Constitution. In
my review of several of these other sources, I have
uncovered nothing that suggests that having ongoing
duties and authority was a requirement of
membership in the armed forces. Dictionaries from
the founding era do not define the compounds “land
forces” and “naval forces,” and the definitions of
similar words like “Army” and “Navy” provide no
guidance on whether their members necessarily had
ongoing military duties. 3 The records of the
Constitutional Convention of 1787 show that the
Framers principally discussed the provision that
became U.S. Const. art. I, § 8, cl. 14, on August 18,
1787. See 2 Farrand’s Records at 330–31. Their
discussion of the topic focused mostly on whether to
limit the size of the land and naval forces during
peacetime and did not address the specific issue in
this case. Id.
In The Federalist Papers, attention to the land and
naval forces mostly addressed the President’s role as
the commander-in-chief, the funding of the military,
3. I consulted nine English language dictionaries and four
legal dictionaries from the founding era that the Supreme Court
often considers in attempting to discern the original meaning of
the Constitution. See Gregory E. Maggs, A Concise Guide to
Using Dictionaries from the Founding Era to Determine the
Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358,
382–92 (2014) (listing these dictionaries and providing links for
finding them online).
28a
and the need for some permanent forces despite valid
concerns about standing armies. See, e.g., The
Federalist No. 41, at 119 (James Madison) (in The
Federalist Papers, Roy P. Fairfield ed., Anchor Books
2d ed. 1966) (1788) (noting that the Constitution gives
Congress an “INDEFINITE POWER of raising
TROOPS, as well as providing fleets; and of
maintaining both in PEACE, as well as in war”); The
Federalist No. 23, at 59 (Alexander Hamilton) (in The
Federalist Papers, Roy P. Fairfield ed., Anchor Books
2d ed. 1966) (1787) (noting that there is no “limitation
of that authority which is to provide for the defence
and protection of the community in any matter
essential to its efficacy—that is, in any matter
essential to the formation, direction, or support of the
NATIONAL FORCES”). And while early state
constitutions and the state ratification debates have
some relevance to Appellant’s second argument as
discussed below, I found nothing that specifically
addressed the issue of whether the “land and naval
Forces” include only persons with ongoing duties. 4
These other sources, in short, do not contradict the
evidence and the conclusion obtained from the records
of the Continental Congress concerning the status of
furloughed soldiers.
4. To the extent English practice might be relevant,
Blackstone said that the “military state includes the whole of the
soldiery; or, such persons as are peculiarly appointed among the
rest of the people, for the safeguard and defence of the realm,” a
definition that does not contain an active-duty requirement. 1
William Blackstone, Commentaries on the Laws of England 395
(1st ed. 1765).
29a
II. Appellant’s Argument under the Grand Jury
Clause of the Fifth Amendment
Appellant also presents arguments addressing the
Grand Jury Clause of the Fifth Amendment. This
clause provides: “No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public
danger.” U.S. Const. amend. V. Appellant contends
that this clause bars his trial by court-martial. He
asserts: “[E]ven if [he] remains a member of the ‘land
and naval forces’ for purposes of the Make Rules
Clause, the dispute must still ‘arise[] in the land or
naval forces’ for purposes of the Fifth Amendment’s
Grand Jury Indictment Clause ... for the military to
exercise jurisdiction.” (Third alteration in original.)
Appellant asserts that his case did not arise in the
land or naval forces because the conduct for which he
was found guilty took place after he retired from
active duty, did not constitute a “military-specific”
crime, and bore no connection to either his prior
active-duty service or his future amenability to recall.
As the Court correctly explains, the Supreme
Court already has rejected the view that court-martial
jurisdiction depends on whether the charged offense
has a “service connection.” United States v. Begani, –
–– M.J. –––– (6) (C.A.A.F. 2021). I therefore see no
need to address further Appellant’s contentions that
the alleged offense is not “military-specific” and is not
related to Appellant’s prior active service or possible
future active service. Instead, I will discuss only his
argument that he has a right to a grand jury because
he did not commit his offenses while on active duty.
30a
The text of the Grand Jury Clause makes
Appellant’s argument implausible. The drafters of the
Fifth Amendment distinguished between armed
forces that are in actual or active service and armed
forces that are not. They created a general exception
to the requirement of a grand jury indictment for
members of the “land and naval forces” but a limited
exception for members of the “Militia” that applies
only when members of the “Militia” are “in actual
service.” U.S. Const. amend. V. This distinction leads
to an inference that the exception for the “land and
naval forces” applies without regard to whether a
member of the land and naval forces was in actual
service at the time of the offense. As the Supreme
Court has put it: “All persons in the military or naval
service of the United States are subject to the military
law, — the members of the regular army and navy, at
all times; the militia, so long as they are in such
[actual] service.” Johnson v. Sayre, 158 U.S. 109, 114
(1895) (emphasis added). The term “actual service”
meant that persons have some ongoing duties. See
Story, supra, at § 1208. (“To bring the militia within
the meaning of being in actual service, there must be
an obedience to the call, and some acts of organization,
mustering, rendezvous, or marching, done in
obedience to the call, in the public service.”).
Accordingly, the text of the Grand Jury Clause
indicates that members of the “land and naval forces”
can be tried without a grand jury indictment despite
having no ongoing duties, even though members of the
“Militia” cannot.
History supports this interpretation. At the time of
the framing of the Constitution, the question of who
was subject to trial by court-martial was important.
Three state constitutions expressly limited the
exercise of court-martial jurisdiction over militiamen
31a
to those in actual service without requiring the same
for members of regular forces. The Massachusetts
Constitution provided: “No person can in any case be
subject to law-martial, or to any penalties or pains, by
virtue of that law, except those employed in the army
or navy, and except the militia in actual service, but
by authority of the legislature.” Mass. Const. of June
15, 1780, pt. 1, art. XXVIII, reprinted in 3 The Federal
and State Constitutions, Colonial Charters, and Other
Organic Laws of the States, Territories, and Colonies
Now or Heretofore Forming the United States of
America 1888, 1893 (Francis Newtown Thorpe ed.,
1909) [hereinafter Federal and State Constitutions].
The New Hampshire and Maryland Constitutions had
similar provisions. 5
When the ratifying conventions in Massachusetts
and New Hampshire voted to approve the federal
Constitution, they each requested that a similar
provision be included in a federal Bill of Rights. Both
states proposed the same language: “That no person
5. The New Hampshire Constitution provided: “No person
can in any case be subjected to law martial, or to any pains, or
penalties, by virtue of that law, except those employed in the
army or navy, and except the militia in actual service, but by
authority of the legislature.” N.H. Const. of June 2, 1784, art.
XXXIV, reprinted in 4 Federal and State Constitutions, at 2453,
2457. It also provided: “Nor shall the legislature make any law
that shall subject any person to a capital punishment, excepting
for the government of the army and navy, and the militia in
actual service, without trial by jury.” N.H. Const. of June 2, 1784,
art. XVI, reprinted in 4 Federal and State Constitutions, at 2455.
The Maryland Declaration of Rights similarly provided: “That no
person, except regular soldiers, mariners, and marines in the
service of this State, or militia when in actual service, ought in
any case to be subject to or punishable by martial law.” Md.
Declaration of Rights of Nov. 11, 1776, art. XXIX, reprinted in 3
Federal and State Constitutions, at 1686, 1689.
32a
shall be tried for any crime by which he may incur an
infamous punishment, or loss of life, until he be first
indicted by a grand jury, except in such cases as may
arise in the government and regulation of the land and
naval forces.” 1 The Debates in the Several State
Conventions, on the Adoption of the Federal
Constitution, as Recommended by the General
Convention at Philadelphia, in 1787 at 323 (J. Elliot
ed., 1827–1830) (Massachusetts); id. at 326 (New
Hampshire).
The Fifth Amendment incorporates many of these
same words. In drafting the Fifth Amendment,
Congress pointedly and similarly decided not to
qualify the exception for land and naval forces with an
“actual service” limitation. Instead, Congress placed
that restriction only on the government and
regulation of the “Militia.” Given the importance of
the issue, this distinction must have been intentional
and would have been seen as such. Against this
background, and consistent with the syntax of the
Fifth Amendment, I conclude that those who framed
the Fifth Amendment must have intended, those who
voted to ratify must have understood, and members of
the public would have construed the “actual service”
limitation to apply only to members of the “Militia”
and not to members of federal land and naval forces.
III. Conclusion
As explained above, our decision in Overton has
already answered the specified question. We should
not overturn Overton in this case because Appellant
has not shown that it conflicts with the original
33a
meaning of the Constitution. 6 I concur with the
Court’s opinion.
6. The United States District Court for the District of
Columbia recently reached a different conclusion in Larrabee v.
Braithwaite, 502 F. Supp. 3d 322, 324 (D.D.C. 2020). The
thoughtful opinion of the learned district court, in my view, also
does not demonstrate that our decision in Overton was incorrect
as an original matter.
34a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee / Cross-Appellant
v.
Stephen A. Begani,
Appellant / Cross-Appellee
Nos. 20-0217 & 20-0327
Crim. App. No. 201800082
ORDER
On consideration of the motion to file an out-oftime petition for reconsideration and the petition for
reconsideration, it is, by this Court, this 8th day of
December, 2020,
ORDERED:
That said motion to file an out-of-time petition for
reconsideration is granted, and
The petition for reconsideration is granted on the
following issue:
WHETHER FLEET RESERVISTS HAVE A
SUFFICIENT CURRENT CONNECTION TO
THE MILITARY FOR CONGRESS TO SUBJECT
THEM TO CONSTANT UCMJ JURISDICTION.
Briefs will be filed under Rule 25.
For the Court,*
/s/
Joseph R. Perlak
Clerk of the Court
* Judge Sparks is recused and did not participate.
35a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee / Cross-Appellant
v.
Stephen A. Begani,
Appellant / Cross-Appellee
No. 20-0327/NA
Crim. App. No. 201800082
DOCKETING NOTICE AND ORDER
Notice is given that a certificate for review of the
decision of the United States Navy-Marine Corps
Court of Criminal Appeals was filed under Rule 22 on
this 23rd day of July, 2020, on the following issue:
WHETHER
APPELLANT
WAIVED
OR
FORFEITED THE RIGHT TO ASSERT THAT
HIS COURT-MARTIAL VIOLATED HIS RIGHT
TO EQUAL PROTECTION.
It is ordered that this case is hereby consolidated
with United States v. Begani, Docket No. 20-0217/NA.
Appellant/Cross-Appellee shall file a combined
brief on the granted and certified issues on or before
August 24, 2020. The briefing schedule under Rule
19(b)(3) shall apply.
Briefs will be filed under Rule 25.
For the Court,
/s/
Joseph R. Perlak
Clerk of the Court
36a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Stephen A. Begani,
Appellant
No. 20-0217/NA
Crim. App. No. 201800082
ORDER GRANTING REVIEW
On consideration of the petition for grant of review
of the decision of the United States Navy-Marine
Corps Court of Criminal Appeals, it is, by this Court,
this 25th day of June, 2020,
ORDERED:
That said petition is hereby granted on the
following issue:
WHETHER ARTICLE 2, UCMJ, VIOLATES
APPELLANT’S
RIGHT
TO
EQUAL
PROTECTION WHERE IT SUBJECTS THE
CONDUCT OF ALL FLEET RESERVISTS TO
CONSTANT UCMJ JURISDICTION, BUT DOES
NOT SUBJECT RETIRED RESERVISTS TO
SUCH JURISDICTION.
Briefs will be filed under Rule 25.
For the Court,
/s/
Joseph R. Perlak
Clerk of the Court
37a
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
Before THE COURT EN BANC
UNITED STATES,
Appellee
v.
Stephen A. BEGANI
Chief Petty Officer (E-7)
U.S. Navy (Retired),
Appellant
No. 201800082
Argued (Panel): 29 March 2019 1
Reargued (En Banc): 20 November 2019
Decided: 24 January 2020
Appeal from the United States Navy-Marine Corps
Trial Judiciary. Military Judge: Captain Stephen C.
Reyes, JAGC, USN. Sentence adjudged 1 December
2017 by a general court-martial convened at Fleet
Activities Yokosuka, Japan, consisting of a military
judge sitting alone. Sentence approved by the
convening authority: confinement for 18 months and
a bad-conduct discharge.
Judge STEPHENS announced the judgment of the
Court and delivered an opinion in which Senior Judge
TANG joined. Judge GASTON filed a separate
opinion, concurring in part and concurring in the
1. We heard the panel oral argument in this case at
Pennsylvania State University Law School, State College,
Pennsylvania.
38a
result, in which Senior Judge KING joined. Chief
Judge CRISFIELD filed a separate dissenting
opinion, in which Senior Judge HITESMAN and
Judge LAWRENCE joined.
PUBLISHED OPINION OF THE COURT
STEPHENS, Judge:
Appellant was convicted, pursuant to his pleas, of
one specification of attempted sexual assault of a child
and two specifications of attempted sexual abuse of a
child, in violation of Article 80, Uniform Code of
Military Justice (UCMJ). 2 The convening authority
approved the adjudged period of confinement and,
pursuant to a pretrial agreement, commuted the
adjudged dishonorable discharge to a bad-conduct
discharge.
At the time he committed the offenses in Japan,
Appellant was no longer serving in the Regular
component of the United States Navy, but had
transferred to inactive status in the Fleet Reserve. He
asserts five assignments of error (AOEs), which we
renumber as follows: (1) as a member of the Fleet
Reserve, he is no longer a member of the Armed Forces
and therefore cannot constitutionally be subjected to
trial by court-martial under the UCMJ; (2) that
Appellant’s Fifth Amendment Due Process right to
equal protection of the laws was violated because
Article 2, UCMJ, subjects members of the Fleet
Reserve and retirees from Regular components to
court-martial jurisdiction, but not retirees of Reserve
components; (3) he did not receive adequate notice
2. 10 U.S.C. § 880 (2012).
39a
under Article 137, UCMJ, or other authority, that he
was subject to trial by court-martial for misconduct
committed in a foreign country; (4) as a member of the
Fleet Reserve, he cannot be punitively discharged
from the service; and (5) as a member of the Fleet
Reserve, he cannot be subjected to court-martial
jurisdiction without first being recalled to active
duty. 3
In an opinion published on 31 July 2019, a panel of
this Court found merit in Appellant’s second AOE,
concluded that the court-martial lacked jurisdiction
over Appellant due to an equal protection violation,
and dismissed the approved findings and sentence.
We subsequently granted the Government’s request
for en banc consideration and withdrew the earlier
panel decision. We now find no prejudicial error and
affirm.
I. BACKGROUND
After 24 years of active duty service, and numerous
voluntary reenlistments, Appellant elected to transfer
to the Fleet Reserve. 4 He was honorably discharged
from active duty and started a new phase of his
association with the “land and naval Forces” 5 of our
Nation. In short, for all intents and purposes, he
retired. In addition to receiving “retainer pay,” base
access, and other privileges accorded to his status as
3. The final AOE is raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
4. 10 U.S.C. § 6330(b). In 2018, Congress redesignated § 6330
as 10 U.S.C. § 8330, Pub. L. No. 115-232, §§ 807(b)(15), 809(a),
132 Stat. 1836, 1840 (2018). We will hereinafter refer to relevant
portions of Title 10, Part II by their redesignated sections.
5. U.S. Const., Article I, § 8, cl 14.
40a
a member of the Fleet Reserve, he remained subject to
the UCMJ under Article 2(a)(6).
After Appellant retired, he remained near his final
duty station, Marine Corps Air Station (MCAS)
Iwakuni, Japan, and worked as a government
contractor. Within a month, he exchanged sexuallycharged messages over the internet with someone he
believed to be a 15-year-old girl named “Mandy,” but
who was actually an undercover Naval Criminal
Investigative Service (NCIS) special agent. When he
arrived at a residence onboard MCAS Iwakuni,
instead of meeting with “Mandy” for sexual activities,
NCIS special agents apprehended him.
The Commander, U.S. Naval Forces Japan, sought
approval from the Secretary of the Navy to prosecute
Appellant at a court-martial, as opposed to seeking
prosecution in U.S. District Court under the Military
Extraterritorial Jurisdiction Act (MEJA). 6 Because
Appellant was still subject to the UCMJ, and therefore
ineligible for prosecution under MEJA, 7 the Secretary
authorized the Commander to prosecute him at courtmartial.
After Appellant unconditionally waived his right to
a preliminary hearing under Article 32, UCMJ, he
entered into a pretrial agreement (PTA). In his PTA,
he waived his right to trial by members and agreed to
plead guilty and be sentenced by a military judge. He
also waived all waivable motions except for one. He
argued he could not lawfully receive a punitive
discharge because he was a member of the Fleet
Reserve. The trial court denied that motion.
6. 18 U.S.C. § 3261.
7. See 18 U.S.C. § 3261(d).
41a
II. DISCUSSION
Congress has the sole authority under the
Constitution to make regulations for the land and
naval Forces. Implicit in this authority is the power to
determine who is subject to court-martial jurisdiction,
whether by virtue of membership in the land and
naval Forces or some other circumstance that
enhances the orderly operation of the military. Courtmartial jurisdiction, based on the text of the Fifth
Amendment, necessarily deprives an individual of the
fundamental right to a grand jury. Court-martial
jurisdiction also deprives an individual of the
fundamental Sixth Amendment right to a civilian jury
trial. Congress created three different groups of
military retirees, but currently subjects only two of
them to continuous court-martial jurisdiction.
Congress considers these groups different for
purposes of the overall operation of the land and naval
Forces and we owe great deference to its statutory
scheme in this area in recognizing Appellant is subject
to the UCMJ as a member of the Fleet Reserve.
In considering Appellant’s equal protection
argument, we find that members of the Fleet Reserve
are not similarly situated with retirees from the
Reserve Components. Even if they were, Congress has
the constitutional authority to subject one, but not the
other, to court-martial jurisdiction.
A. Court-Martial Jurisdiction over Members of
the Fleet Reserve
1. Congressional authority over the land and
naval Forces
It is unquestioned that Congress has the authority
to “make Rules for the Government and Regulation of
42a
the land and naval Forces.” 8 According to Justice
Story, this power is “a natural incident” 9 to Congress’
constitutional authority to “declare war,” 10 to “raise
and support Armies,” 11 to “provide and maintain a
Navy,” 12 and to provide for “calling forth” 13 and
“organizing, arming, and disciplining the Militia, and
for governing such Part of them as may be employed
in the Service of the United States.” 14 The land and
naval Forces clause was unremarkable and taken
almost directly from the Articles of Confederation. 15
It is also unquestioned that Soldiers, Sailors, and
other Service Members do not possess the same
constitutional rights at court-martial that they would
in civilian court. This reflects an understanding of the
necessity for military discipline—which Washington
once called “the soul of an Army” 16—to be elevated
8. U.S. CONST. art. I, § 8, cl. 14.
9. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES 418 (Ronald D. Rotunda, John E. Novak,
Carolina Academic Press 1987) (1833).
10. U.S. CONST. art. I, § 8, cl. 11.
11. U.S. CONST. art. I, § 8, cl. 12.
12. U.S. CONST. art. I, § 8, cl. 13.
13. U.S. CONST. art. I, § 8, cl. 15.
14. U.S. CONST. art. I, § 8, cl. 16.
15. ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 4.
“The united states, in congress assembled, shall also have the
sole and exclusive right and power of...making rules for the
government and regulation of the said land and naval forces, and
directing their operations.”
16. George Washington, Letter of Instructions to the
Captains of the Virginia Regiments (July 29, 1759), in ROBERT A.
NOWLAN, THE AMERICAN PRESIDENTS, WASHINGTON TO TYLER 69
(2012).
43a
over certain fundamental constitutional rights. And
this is explicitly recognized in the Fifth Amendment
grand jury right for those answering for “a capital, or
otherwise infamous crime ... except in cases arising in
the land or naval forces ... [.]” 17 The very nature of
military service means an abrogation of certain rights
accorded to other persons.
Commensurate with this service concept, the
preamble to the Manual for Courts-Martial (MCM)
has long stated that “[t]he purpose of military law is
to promote justice, to assist in maintaining good order
and discipline, to promote efficiency and effectiveness
in the military establishment, and thereby to
strengthen the national security of the United
States.” 18 Over time, the modern court-martial system
statutorily enacted in 1950 has expanded. For a time,
it was focused on expeditiously adjudicating only
service-related crimes, leaving to civilian courts the
task of adjudicating non-service-related crimes. 19 At
present, both service-related crimes and non-servicerelated crimes may be prosecuted at courts-martial. 20
Today, the military justice system features many of
17. U.S. CONST. amend. V.
18. MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES
(2019 ed.), Part I, ¶ 3. The Preamble first appears in the MCM in
the 1984 edition.
19. See O’Callahan v. Parker, 395 U.S. 258 (1969) (courtsmartial lack jurisdiction to try service members for non-military
offenses lacking a service connection).
20. Solorio v. United States, 483 U.S. 435 (1987) (abandoning
the “service-related” test from O’Callahan, Court held
appellant’s active duty status sufficient for court-martial
jurisdiction in alleged crimes against civilians).
44a
the same protections found in civilian justice
systems. 21
The question before us now is, which members of
the “land and naval Forces” can be subject to the
UCMJ?
2. The statutory scheme of Article 2, UCMJ
At first blush, Article 2 has an odd assortment of
characters who are subject to the UCMJ. Generally
speaking, Article 2 includes anyone actively serving in
uniform, Service Academy students, new enlistees,
paid volunteers performing military duties, military
prisoners, enemy prisoners of war, and certain
persons assigned to serve with the military, or
accompanying the military in combat or outside the
United States or its territories. The list includes some,
but not all, military retirees. It also includes retired
Reservists who are receiving hospitalization from an
armed force. The common thread in Article 2 is to
include those classes of persons Congress has
determined it needs to maintain control over for the
orderly conduct of the land and naval Forces.
Article 2 has an on-again-off-again approach to
Reservists. 22 While they are traveling to and from
21. Ortiz v. United States, 138 S. Ct. 2165, 2170 (2018)
(describing military justice system of trial and appellate courts
as “integrated ‘court-martial’ system that closely resembles
civilian structures of justice”).
22. Prior to implementation of the UCMJ, retirees of the
Reserve Component of the Navy were on the same retired list as
the retirees of the Regular Component. The Navy ceded
jurisdiction over its Reserve Component retirees to mirror the
Army’s practice of not subjecting its Reserve Component retirees
to jurisdiction. See Uniform Code of Military Justice: Hearings on
H.R. 2498 Before a Subcomm. of the H. Comm. On Armed
Services, 81st Cong. (1949) [hereinafter UCMJ Hearing],
45a
inactive-duty training, during those training periods,
and in any intervals for consecutive days of training
periods, they are subject to the UCMJ. When the
travel from the inactive-duty training ends, so does
the Article 2 jurisdiction. For typical Reservist
careers, this is a regular feature of their lives starting
with entry into service and terminating with
discharge from Reserve service or retirement from the
Reserve component. Reservists who retire typically
will not receive any retirement pay until age 60. 23
Absent being hospitalized in a military facility, in
neither the “gray zone” between Reservists’
retirement and age 60, nor when they actually begin
receiving retirement pay, will they ever be subject to
the UCMJ. 24
This was not always the case with Reservists.
Before 1950, the Navy, but not the Army, maintained
jurisdiction over its Reserve retirees. When Congress
enacted the UCMJ, it understood this difference and
expressly understood the Navy recommended
relinquishing jurisdiction over its Reserve retirees. It
also expressly understood it was maintaining
jurisdiction over its Regular retirees but not its
Reserve retirees (except those receiving treatment in
military hospitals). Since then, Congress has
amended and reauthorized Article 2 well over a dozen
reprinted in William K. Suter, Index and Legislative History:
Uniform Code of Military Justice 868-69, 1261-62 (William S
Hein & Co. 2000); see also H.R. Rep. No. 81-491, at 10 (1949); S.
Rep. No. 81-486, at 7 (1949), reprinted in SUTER, supra.1261
(William S Hein & Co. 2000) (1950) at 868, 1261. See also H.R.
Rep. No. 81-491, at 10 (1949); S. Rep. No. 81-486, at 7 (1949)
reprinted in Suter.
23. 10 U.S.C. § 12731(e).
24. Article 2(a)(5), UCMJ.
46a
times. 25 It even amended Article 2 in 2016 so that
Reservists would be subject to the Code traveling to
and from inactive-duty training. 26 Throughout these
myriad changes, Congress has left untouched the
jurisdictional difference between Reservist retirees
and active duty retirees.
Article 2 recognizes different types of active duty
retirees. It is “common knowledge in the military
community” 27 that active duty service members may
elect to “retire” after 20 years of service. The Navy and
Marine Corps have a separate group of enlisted
Sailors and Marines who have more than 20, but less
than 30, years of service. With the clarity that is the
hallmark of defense bureaucracy, these groups of
“retirees” are placed into what is known as the Fleet
Reserve, to which Appellant belongs, and the Fleet
Marine Corps Reserve, though neither has anything
to do with the Reserve components. 28 Members of
these groups transfer to the Navy and Marine Corps
retired list after reaching 30 years of combined active
duty service and Fleet Reserve or Fleet Marine Corps
Reserve membership. The Army and Air Force have
no such comparable “Reserve” pool of active duty
enlisted retirees between 20 and 30 years of service.
All active duty Navy and Marine officers are placed
directly onto their Services’ retired lists when they
retire, along with their retired enlisted counterparts
25. Congress amended Article 2 in 1959, 1960, 1962, 1966,
1979, 1980, 1982, 1983, 1986, 1988, 1996, 2006, 2009, 2013, and
in 2016. See 10 U.S.C. § 802 (2016).
26. Compare 10 U.S.C. § 802(a)(3) (2013) with 10 U.S.C.
§ 802(a)(3) (2016).
27. United States v. Stargell, 49 M.J. 92, 94 (C.A.A.F. 1998).
28. Article 2(a)(6), UCMJ.
47a
with 30 years of service. All active duty retirees who
are “entitled to pay” are subject to the UCMJ. 29
3. Recalling active duty and Reserve retirees to
service
Congress established essentially three different
groups of retirees of the land and naval Forces. The
Regular component retirees; the members of the Fleet
Reserve and Fleet Marine Corps Reserve; and the
retirees of the Reserve components. Commensurate
with these groups’ different treatment under Article
2, Congress developed different mechanisms, which
have different attendant effects, for both paying and
recalling each of them in a time of war or national
emergency.
a. The Fleet Reserve
The Fleet Reserve (and its Marine Corps
equivalent, the Fleet Marine Corps Reserve) was
established under the Naval Reserve Act of 1938, to
serve as a repository to which enlisted members could
voluntarily be transferred upon retirement from
active duty until they completed 30 years of service. 30
The Fleet Reserve was specifically designed to serve
as a trained body of experienced naval Service
Members who could be recalled to active duty when
needed. 31 Consistent with this underlying purpose,
members of the Fleet Reserve are subject to recall to
active duty by the Secretary of the Navy “at any
29. Article 2(a)(4), UCMJ.
30. Pub. L. No. 75-732, 52 Stat. 1175 (1938).
31. Murphy v. United States, 165 Ct. Cl. 156, 160 (Ct. Cl.
Mar. 13, 1964) (citing United States ex rel. Pasela v. Fenno, 167
F.2d 593, 595 (2d Cir. 1948)), cert. denied, 379 U.S. 922 (1964);
Abad v. United States, 144 F. Supp. 951 (Ct. Cl. 1956).
48a
time.” 32 To that end, they are required to “[m]aintain
readiness for active service in event of war or national
emergency” and to keep Navy authorities apprised of
their location and “any change in health that might
prevent service in time of war”; remain “subject at all
times to laws, regulations, and orders governing [the]
Armed Forces”; and even in peacetime can be required
to perform up to two months of active service every
four years. 33 In exchange for remaining ready for any
rapid recall, they receive a regular salary called
“retainer pay,” 34 which at least one State court has
viewed aspayment for current, not past, services
rendered. 35
b. Retired members of the Regular (active duty)
components
Once members of the Fleet Reserve have reached
30 years of service, they may transfer to the Navy’s
retired list and join the ranks of retired members of
Regular (active duty) components. 36 Like members of
the Fleet Reserve, these retirees remain subject to
being recalled “at any time” to active duty by the
Secretary of the relevant military department. 37 In
exchange, they receive a regular salary in the form of
retirement pay. 38 While the Supreme Court has
32. 10 U.S.C. § 688.
33. Naval Military Personnel Manual, Art. 1830-040 (Ch-38,
19 December 2011); 10 U.S.C. § 8333.
34. 10 U.S.C. § 8330(c).
35. See Sprott v. Sprott, 576 S.W.2d 653 (Tx. Civ. App.
Beaumont 1978).
36. 10 U.S.C. § 8326(a).
37. 10 U.S.C. § 688.
38. 10 U.S.C. § 8333.
49a
viewed, for tax purposes, this salary as deferred pay
for past services, 39 the salary such retirees receive has
generally been viewed not as a mere pension but as “a
means devised by Congress to assure their availability
and preparedness for future contingencies.” 40
c. Retired members of Reserve components
Members of Reserve components may retire once
they meet the time in service and other eligibility
requirements. 41 Even when eligible to retire, however,
reservists typically are not entitled to retirement pay
until they reach age 60. 42 In the interim, they may
request to be transferred to inactive status, during
which time they are not required to participate in any
training or other program connecting them to their
Reserve components. 43 Once in such an inactive or
retired status, reservists may not be ordered to active
duty unless, “[i]n time of war or of national emergency
declared by Congress, or when otherwise authorized
by law,” the Secretary of the military department,
with the approval of the Secretary of Defense,
“determines that there are not enough qualified
Reserves in an active status ... who are readily
39. Barker v. Kansas, 503 U.S. 594, 605 (1992).
40. United States v. Hooper, 9 U.S.C.M.A. 637, 645 (C.M.A.
1958); see also United States v. Tyler, 105 U.S. 244, 244-46 (1882);
Hooper v. United States, 326 F.2d 982, 987 (Ct. Cl. 1964) (finding
“the salary [the active duty retiree] received was not solely
recompense for past services”); McCarty v. McCarty, 453 U.S.
210, 221-22 (1981) (finding “military retired pay differs in some
significant respects from a typical pension or retirement plan”).
41. 10 U.S.C. § 12731.
42. 10 U.S.C. § 12731(e).
43. 10 U.S.C. § 12735.
50a
available.” 44 Otherwise, between the time they retire
and the time they become eligible to start receiving
retirement pay, they receive no pay and have very
little ongoing connection with the Armed Forces.
4. Judicial deference to Congress
This collection of statutes and Department of
Defense instructions portrays Congress’ (and the
Executive Branch’s) clear view that the three groups
of retirees are separate and distinct when considered
in the context of national military policy—a
determination which the Constitution plainly
authorizes Congress to make (and the Executive
Branch to implement). It is well-settled that “judicial
deference” to Congress is “at its apogee” when
Congress legislates under its authority to raise and
support armies. 45 Judicial deference is not blind, nor
is it unlimited, and cannot be used to vouchsafe
actions that exceed the Constitution’s limitations
imposed on Congress. In the area of military affairs,
Congress remains subject to the limitations of the Due
Process Clause.
For most of our Nation’s history, the Supreme
Court took a “hands-off” approach to courts-martial.
One early case, Martin v. Mott, 46 arose from Jacob
Mott’s refusal to muster when President James
Madison called forth the militia during the War of
1812. Mott disagreed with the President that there
was a danger of imminent invasion. He was courtmartialed for his refusal. Justice Story, writing for the
Court, declined to conduct any substantive review of
the President’s decision. The Court did not just merely
44. 10 U.S.C. § 12301(a).
45. Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
46. 25 U.S. (12 Wheat.) 19 (1827).
51a
invoke “prompt and unhesitating obedience to
orders” 47 between a militiaman and his commander,
but considered the consequences of individual, and
judicial, second-guessing of the President and
Congress when enacting military policy.
Soon after Congress enacted the UCMJ in 1950,
the Supreme Court in United States ex rel. Toth v.
Quarles 48 held that an honorably discharged Airman
could not be court-martialed, despite Article 2’s
assertion of jurisdiction over him, for a murder he
committed in Korea about 10 weeks before his
discharge. The UCMJ allowed for prosecution at
court-martial of anyone who had been discharged, but
was subject to the Code when they committed an
offense punishable by confinement of five years or
more, and who could not be tried in any State or
Federal court for that offense. The Court reasoned
that the fully discharged (not retired) Toth was no
longer “in” the land and naval Forces for purposes of
subjecting him to court-martial jurisdiction pursuant
to Congress’ constitutional powers.
Two years after Toth, the Court reached a similar
conclusion in Reid v. Covert. 49 The Court held that
Article 2(a)(11)’s grant of jurisdiction over persons
“accompanying the armed forces without the
continental limits of the United States” and its
territories could not constitutionally be applied to the
wife of an Air Force sergeant charged with murdering
her husband while stationed in England. As in Toth,
the Court found the jurisdictional provision
constitutionally infirm because “civilian wives,
47. Id. at 30.
48. 350 U.S. 11 (1955).
49. 354 U.S. 1 (1957).
52a
children, and other dependents” are not members of
the “land and naval Forces” subject to Congress’ power
to regulate. Appellant now asks us to compare him to
the discharged Airman in Toth and consider him
“wholly separated from the service.” 50 We cannot.
As discussed above, Appellant is a member of the
Fleet Reserve. This makes him, in Congress’ view, a
member of the land and naval Forces. He is subject to
recall “almost at the scratch of” 51 the Secretary of the
Navy’s pen. And, however likely or unlikely our
current national defense posture makes it, he may
still be required to perform duties. There may be valid
arguments as to whether or not Mr. Toth or Mrs.
Covert could be subjected to the Code due to the
potential for their actions to impact good order and
discipline. 52 But the salient point in those cases is that
they were simply not in any discernable way “in” the
armed forces and could not fall under Congressional
authority to regulate their behavior as such. We look
just as much to Congress’ explicit constitutional grant
of authority for regulating the land and naval Forces
when evaluating who is subject to the Code as to
whether the person’s actions could impact good order
and discipline. It should not be lost in our analysis
that there are other classes of people who are not “in”
the armed forces, but who nevertheless fall under the
ambit of Article 2 jurisdiction because Congress
50. Id. at 85.
51. United States v. Wheeler, 10 U.S.C.M.A. 646, 655 (C.M.A.
1959).
52. Both cases had vigorous dissents. Toth was decided 6-3
with a lengthy dissent by Justice Reed and a brief one by Justice
Minton. Covert was decided 6-2 with a dissent by Justice Clark,
who joined the Court’s opinion in Toth.
53a
desires to regulate their behavior for the efficiency of
the operation of the land and naval Forces. 53
We decline Appellant’s invitation to overrule our
recent decision in United States v. Dinger, where we
held that members of the Fleet Marine Corps Reserve
are subject to the Code. 54 We also note the binding
precedent of our superior court’s similar holding in
United States v. Overton, which reinforced decades of
case precedent on this very issue. 55 We are satisfied
that as a member of the Fleet Reserve, Appellant is a
member of the land and naval Forces and that
Congress has the authority to make him subject to the
UCMJ under its constitutional power to regulate
those Forces.
B. Equal Protection
We now turn to whether Congress violated
Appellant’s right to equal protection when it made
him, along with other members of the Fleet Reserve,
subject to the Code, but declined to do the same for
retirees from the Reserve components. While the
Fourteenth Amendment on its face prohibits only the
States from “deny[ing] any person within its
jurisdiction the equal protection of the laws,” 56 the
Supreme Court has held its equal protection
component applies to the Federal government via the
53. Prisoners of war are subject to the Code under Article
2(a)(9) and (13). Under Article 2(a)(7), military prisoners, even
after they receive their DD-214s (Certificate of Discharge from
active duty), are subject to the Code if they are still in a military
brig serving a sentence imposed by a court-martial.
54. 76 M.J. 552 (N.M. Ct. Crim. App. 2017), aff’d, 77 M.J. 447
(C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018).
55. 24 M.J. 309 (C.M.A. 1987).
56. U.S. CONST. amend. XIV § 1.
54a
Fifth Amendment Due Process Clause. 57 The Fifth
Amendment, in pertinent part, states:
No person shall be held to answer for a
capital, or otherwise infamous, crime, unless on
a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service,
in time of War, or public danger ... nor be
deprived of life, liberty, or property, without due
process of law ... [.] 58
The text of the Fifth Amendment—the source for
Appellant’s alleged equal protection violation—
reveals several features. First, the amendment treats
“cases arising in the land and naval forces” as
categorically separate and distinct from those tried in
civilian courts concerning the fundamental right to a
grand jury. Second, with respect to that right, it
differentiates between the standing “land and naval
forces” and the temporary “Militia.” Finally, it
declares that the right to a grand jury is excepted from
the Militia only during times of actual service, time of
war, or public danger. 59
Taken together, this language reveals a design
whereby the Constitution explicitly allows Congress,
as the creator of all Federal tribunals and courtsmartial, to withhold certain otherwise fundamental
constitutional rights from those in the profession of
arms, and for the circumstances of their service to be
57. Bolling v. Sharpe, 347 U.S. 497 (1954).
58. U.S. CONST. amend. V (emphasis added).
59. Johnson v. Sayre, 158 U.S. 109, 115 (1895) (holding the
three modifying phrases apply only to the word, “Militia”).
55a
considered when so doing. As the Supreme Court long
ago explained,
[I]n pursuance of the power conferred by the
Constitution, Congress has declared the kinds of
trial, and the manner in which they shall be
conducted, for offenses committed while the
party is in the military or naval service. Every
one connected with these branches of the public
service is amenable to the jurisdiction which
Congress has created for their government, and,
while thus serving, surrenders his right to be
tried by the civil courts. 60
While there is no question the right to a grand jury
and the right to a trial by jury are fundamental
constitutional rights, they are only fundamental to the
extent (and to the persons to whom) the Constitution
grants them in the first place.
This intentional design, found on the face of the
Constitution, is of vital importance in this case for two
reasons. First, it impacts how we view whether
Appellant is indeed “similarly situated” with a retired
Reservist. The law of equal protection leaves to the
legislature the initial discretion to determine what is
“different” and what is “the same,” and also broad
latitude to establish classifications depending on the
nature of the issue, the competing public and private
concerns it involves, and the practical limitations of
addressing it. 61 Generally, these discretionary
60. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).
61. Plyler v. Doe, 457 U.S. 202, 216 (1982) (under Fourteenth
Amendment’s Equal Protection clause, children living in Texas,
but not legally admitted to the United States, could not be denied
enrollment in public schools solely on the basis of their
citizenship).
56a
legislative decisions are valid and enforceable as long
as the classification is drawn in a manner rationally
related to a legitimate governmental objective. 62 As
we shall see, the broad deference owed to Congress in
the area of military affairs makes this an area we do
not lightly second-guess.
Second, this constitutional design evidenced by the
Fifth Amendment impacts how we view the
fundamental nature of the rights involved, which is
important because the equal protection component’s
general rule of deference only gives way when laws
involve suspect classifications (which is not at issue
here) or impinge on fundamental personal rights
protected by the Constitution. 63 Laws burdening
fundamental rights are subjected to strict scrutiny
and will be sustained only if they are “necessary to
promote a compelling governmental interest.” 64 As the
Supreme Court has found, however, the only
fundamental right Appellant now claims he is being
deprived of—the Sixth Amendment right of trial by
jury—has the same constitutional breadth as the
grand jury right. 65 Hence, it only applies under
62. Schweiker v. Wilson, 450 U.S. 221, 230 (1981) (statute
governing subsistence funds to qualifying individuals in certain
hospitals, nursing homes, and other care facilities does not
unfairly discriminate based on mental health but on whether
institution receives Medicaid funds).
63. See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535 (1942).
64. Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (emphasis
in original) (citations and internal quotation marks omitted)
(Tennessee durational residence laws for voting infringed on
fundamental right) (citations omitted).
65. Ex parte Milligan, 71 U.S. at 123. (“[T]he framers of the
Constitution, doubt-less, meant to limit the right of trial by jury,
57a
circumstances in which the grand jury right would
apply.
1. Similarly situated
We first take up whether members of the Fleet
Reserve are similarly situated with retired members
of Reserve components. In doing so, we take all
relevant factors into consideration asking the basic
question as to whether the subject classes are
“materially identical.” 66 While not a perfect scientific
test, whether two groups are similarly situated has
been described by various Federal Courts of Appeal as
“identical or directly comparable in all material
respects” or “prima facie identical” or even a more
“colloquial” phrasing of “apples to apples.” 67 We
conclude that under any of these tests the two groups
are not similarly situated.
While both are generally subject to recall,
members of the Fleet Reserve are more so and with
less process involved. It appears plain that Congress
intended for Fleet Reservists to be among the first
“retired” Service Members to be drawn from. No
declaration of war or national emergency is required
by Congress. No other legal precursors are required.
The Secretary of the Navy can return Appellant, and
any other members of the Fleet Reserve, to active duty
with a mere signature.
in the sixth amendment, to those persons who were subject to
indictment or presentment in the fifth.”).
66. Kolbe v. Hogan, 813 F.3d 160, 185 (4th Cir. 2016).
67. The Fourth Circuit in Kolbe cites, respectively, LaBella
Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942 (7th Cir.
2010); Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264 (11th
Cir. 2010); and Barrington Cove Ltd. P’ship v. R.I. House. &
Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001).
58a
The stated purpose of the Fleet Reserve is to
“provide an available source of experienced former
members of the Regular Navy or Navy Reserve.” 68
These members “could be organized without further
training to fill billets requiring experienced personnel
in the first stages of mobilization during an emergency
or in time of war.” 69 While this indicates that Navy
Reservists could become members of the Fleet
Reserve, it does not include retired Reservists as
members in the Fleet Reserve.
Finally, we would be remiss if we did not consider
the typical career path of each group in historical
context. In this regard, we decline to follow
Appellant’s line of argument that Toth prohibits
context—past or future—from being taken into
consideration when assessing whether groups are
similarly situated. While the Court in Toth declined to
look at Toth’s past connections to the service, we think
that is the wrong question to ask here. It made sense
to do so in Toth because the argument that he very
recently used to be in the Air Force was central for the
government. The natural response from Toth, and
adopted by the Court, was that his current, and not
past, association was what mattered. And that would
be true for someone who no longer had any association
with the armed forces. Because Appellant still has a
current, though decreased, association with the armed
forces, the question of his past association is relevant
68. DoD Fin Mgmt. Reg. Vol 7B, Ch 2, § 10201. The “or Navy
Reserve” language indicates that someone affiliated with the
Navy Reserve may somehow have enough qualifying service time
to transfer to the Fleet Reserve. This does not mean that retired
Navy and Marine Corps Reservists under 10 U.S.C. § 12731 are
members of the Fleet Reserve or Fleet Marine Corps Reserve.
69. Id.
59a
in a way which Toth’s was not. Appellant’s current
continuing association is a direct result of his
voluntary past associations. They are interwoven in a
way that Toth’s, with his clean break from the Air
Force, were not. We are not compelled to blindly follow
the reasoning in Toth on this particular issue.
Members of the Fleet Reserve, like Appellant, have
typically been career active duty enlisted Sailors. That
means they have been on continuous, salaried active
military service for at least two decades, and subject
to the UCMJ throughout that entire time. Their
transfer to the Fleet Reserve is but an extension of
this continuity, in terms of salary, readiness
requirements, recallability, and jurisdiction.
Retired Reservists, by contrast, typically served on
active duty only sporadically. Accordingly, they were
only sporadically subjected to UCMJ jurisdiction.
Their transfer into retirement further highlights this
lack of continuity. Most end up in the so-called “gray
zone” for several years until they reach age 60. During
this time, they are not required to maintain any
readiness, they are far less subject to any form of
imminent recall, and they receive no pay. Practically
the only thing that changes when they reach age 60 is
that they start to receive pay, which is essentially an
annuity for service they provided years before. And in
order to receive that retired pay, the Reservists do not
need to maintain any military status whatsoever,
including being a member of the Retired Reserve. 70
70. See Department of Defense Financial Management
Regulation 7000.14-R, Vol 7B, Ch 6. para. 0604, “Foreign
Citizenship After Retirement.” The dissent enlists the
“obligations and benefits” of retired Reservists from the Navy’s
Military Personnel Manual (MILPERSMAN 1820-0303(7)) as
evidence that retired Reservists are “very similar” to Regular
60a
2. Deference to Congress regarding fundamental
right to jury trial
Assuming that Appellant and Reserve component
retirees are similar enough to require an equal
protection analysis, we recognize the practical effect
of jurisdiction on Appellant, or anyone within Article
2 jurisdiction for that matter, is a deprivation of
certain fundamental rights. As we stated above, that
is often the very nature of the profession of arms.
It is far from clear that we are compelled to review
Article 2 under any heightened scrutiny. Other courts
have merely applied a rational basis test in
considering Congress’ different treatment of Regular
and Reserve retirees.
In 1963, the District Court for Washington, D.C.
issued an opinion in Taussig v. McNamara. 71 Taussig,
retirees. The retired Reservists are required to inform the Navy
of their physical address, they are cautioned to show discretion
in using their name and military rank to not appear to imply
official DoD or DON endorsement, they and their families have
eligibility for health insurance and health care services, etc.
Some of the items in this list resemble the obligations for another
group of Service Members—those in the Individual Ready
Reserve (IRR). See BUPERSINST 1001.39F and Marine Corps
Order 1235.1A. The IRR Service Members, “the primary force of
trained individuals for replacement and augmentation in
emergencies” are unquestionably not subject to the Code, even
though Article 31(b), UCMJ, warnings may apply to them
depending on the facts and circumstances of the questioning. See
United States v. Gilbreath, 74 M.J. 11, 23-24, n. 4 (C.A.A.F.
2014). Congress chose not to make this group subject to the Code,
either. Obligations and benefits—or taxation of income, see
Barker v. Kansas, 503 U.S. 594 (1992)—should not drive analysis
of whether Article 2 violates the Constitution’s guarantee of
equal protection.
71. Taussig v. McNamara, 219 F. Supp. 757 (D.D.C. 1963).
61a
a retired Regular component Naval officer, sued the
Federal government. He alleged various actions and
policies were unconstitutionally interfering with his
right to conduct certain business with the Federal
government. He specifically alleged a violation of his
right to follow his chosen profession as violations of
his “liberty” and “property” rights within the Fifth
Amendment where retirees of the Reserve
components were not similarly prohibited. He also
made a facial challenge to his being subject to the
UCMJ under Article 2, where the Reserve component
retirees were not. The District Court held that it was
“plainly in the power of Congress to distinguish
between the Regular and the Reserve retired officer” 72
when it came to selling to the service in which he held
a retired status. The District Court explained:
It is plainly for Congress to decide which
categories of retired members of the Armed
Forces should be subject to the Code. There is
clearly a rational distinction between the
careerist, who is subject to recall at any time
during war or national emergency, see 10 U.S.C.
§ 6481 (applying to retired officers of the regular
Navy and Marine Corps) and the reservist, who
is subject to recall only as a second-line of
manpower, see 10 U.S.C. § 672(a). In view of the
repeated applications [Article 2] to regular
retired officers ... this Court is in no position to
say that the determination by Congress that
retired reserve officers (unless hospitalized...)
shall not be subject to the Code is anything but
completely proper. 73
72. Id. at 761–62.
73. Id. at 762.
62a
In 1964, Congress passed the Dual Compensation
Act that required Regular component retirees to have
reduced retired pay if they worked for the Federal
government. 74 The Act made no such provision for
Reserve component retirees. A group of retired
Regular component officers sued the Federal
government over the decrease in their retired pay
arguing the Act violated the equal protection
component of the Fifth Amendment’s Due Process
clause. The U.S. Court of Claims denied the officers’
claim because it found a rational basis for the Act. One
of the reasons was the differences between the offices
held by the Regular and Reserve component retirees:
A regular officer who has retired status remains
a member of the regular armed services. A
retired reserve officer’s status is different—he
can be ordered to active duty only in time of war
or national emergency after all active reservists
have been called. A retired regular officer,
therefore, continues at all times to hold an office
in the military—he is already a federal
officeholder. 75
Of course, both of these cases were based on “pure”
equal protection claims and did not directly infringe
on fundamental rights. They also involve officers and
not the more similar comparison between the enlisted
retirees in the Fleet Reserve, such as Appellant, and
the enlisted retirees of the Reserve Component. But it
still strikes us as odd that in one scenario, Congress
would be free to legislate based on the differences
between the two dissimilar groups and courts would
74. 5 U.S.C. § 5532 (1966) (repealed 1999).
75. Puglisi v. United States, 215 Ct. Cl. 86, 97, 564 F.2d 403
(Ct. Cl. 1977).
63a
be satisfied with some rational reason for
Congressional action, but in the present scenario, we
would not only find the groups suddenly similar, but
would be compelled to apply strict scrutiny.
We also must keep in mind we are delving into
“Congress’ authority over national defense and
military affairs, and perhaps no other area has the
[Supreme] Court accorded Congress greater
deference.” 76 In Rostker v. Goldberg, the Court held
that a military draft that excluded women on the basis
of sex did not violate equal protection. In doing so, the
Court
focused
significantly
on
Congress’
constitutional authority to make such regulations for
the armed forces. The Court eschewed a heightened
scrutiny analysis, specifically the usual intermediate
scrutiny test for sex-based differences. At that time,
women were barred from combat roles. Because the
draft was to provide combat troops, the registration of
only men was “closely related” to Congress’ purpose.
The Court held that “the sexes are not similarly
situated” for the purposes of the draft and the
“Constitution requires that Congress treat similarly
situated persons similarly, not that it engage in
gestures of superficial equality.” 77
We look to the Supreme Court for guidance in
whether to formally apply strict scrutiny analysis or
to generally defer to Congress in military matters.
Rostker, and other cases concerning the military,
arose in more pure equal protection categories, such
as sex discrimination, rather than cases more focused
on the fundamental rights aspect of the equal
protection component of the Due Process clause. But
76. Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).
77. Id. at 79.
64a
we believe the same sort of deference is due to
Congress in military matters for equal protection
challenges based on the deprivation of a fundamental
right.
In Frontiero v. Richardson, 78 the Court invalidated
regulations that awarded increased military benefits
to married men, but not married women. Because
these differences were based on sex, and “solely for the
purpose of achieving administrative convenience” 79
the regulations were unable to withstand the Court’s
heightened scrutiny review. But then, just two years
later, in Schlesinger v. Ballard, 80 the Court declined
to apply any heightened scrutiny to Naval regulations
that discriminated based on sex. Congress mandated
involuntary separation for male Naval officers who
failed to promote to Lieutenant Commander after nine
years, but allowed female officers an additional four
years. The Court eschewed a heightened scrutiny test
not only because the disparate treatment of the men
and women was not based on “archaic and overbroad
generalizations” 81 but also because it was based on
some operational need and concern of the Navy. The
Court found the regulations to have “complete
rationality.” 82 The Court concluded that “it is the
primary business of armies and navies to fight or be
ready to fight wars should the occasion arise. The
78. 411 U.S. 677 (1973).
79. Id. at 690 (emphasis in the original).
80. 419 U.S. 498 (1975).
81. Id. at 508.
82. Id. at 509 (emphasis added). Justice Brennan, the author
of Frontiero, wrote a lengthy dissent arguing the Court should
have applied “close judicial scrutiny.” Id. at 511 (Brennan J.,
dissenting).
65a
responsibility for determining how best our Armed
Forces shall attend to that business rests with
Congress, and with the President.” 83
As outlined above, Congress clearly sees Appellant
and other members of the Fleet Reserve (and Fleet
Marine Corps Reserve), retirees from the Regular
component, and retirees from the Reserve component,
as having meaningful differences in the context of the
overall land and naval Forces. This expresses itself
most clearly in recall procedures in the event of a
major war. While we are currently in a post-Cold War
era and have seen high operating tempo with the
Global War on Terror, it is Congress’ duty to be
prepared for the kind of catastrophic military
necessity that could threaten our Nation’s very
existence. This certainly qualifies as a significant and
compelling governmental interest. It also appears
that Congress, in giving effect to its overall national
security structure, decided to only subject those to
UCMJ jurisdiction, (and only under the necessary
circumstances) that it believes are required for the
efficient regulation of the land and naval Forces.
Whether subjecting Appellant and all other
retirees, Regular or Reserve components, to the Code,
has the same de minimus impact on good order and
discipline is not the sole focus of our analysis. It is also
not the sole way, or even the relevant way, Congress
views these groups. If we were to find otherwise and
conclude that equal protection compels Congress to
subject either all retirees to the Code or none of them,
we would arrive at absurd results.
83. Id. at 510 (citing and quoting Toth v. Quarles, 350 U.S.
11 (1955)) (internal quotations omitted).
66a
If all retirees were subject to the UCMJ, this would
mean that Reservists would have spent their whole
career only sporadically being subject to the Code
during in-active duty training or some other active
service, but in all other respects of daily life, being
civilians. Then, upon retirement, these same
Reservists—even in the “gray zone” before retirement
pay commenced at age 60—would suddenly be
continually subject to the UCMJ in a way they never
were prior to retirement. It would be one thing if
Congress could explain this to retired Reservists that
it had some considered judgment, held hearings, or
studied the issue. It would be quite another to just
philosophically invoke “equal protection” as an
explanation.
We reach an equally absurd result in not
subjecting any retirees to the UCMJ. If Congress
desired to recall a significant number of retirees to
active duty for a war or other large-scale contingency
(without amending Article 2 to make the Fleet
Reserve, Fleet Marine Corps Reserve, and Regular
Component retirees subject to the UCMJ the moment
they received orders to return to service) 84 the
84. The dissent believes this would be obviated by Article
2(a)(1)’s grant of jurisdiction over “other persons lawfully called
or ordered into, or for duty in or for training in, the armed
forces . . . .” This reading renders this portion of Article 2 to be
surplusage. Congress need not rely on this subsection of Article
2 to recall the retired members of the Regular component and
members of the Fleet Reserve and Fleet Marine Corps Reserve
because it can rely on Article 2(a)(4) and 2(a)(6), respectively.
Taking Article 2 as a whole, this means the Article 2(a)(1)
language is not intended for Congress to have jurisdiction over a
Regular component retiree who refuses orders to return to active
service. The dissent’s legislative (re)drafting by judiciary goes
well beyond Chief Justice Marshall’s famous maxim for the
judicial department to merely “say what the law is.” Marbury v.
67a
government would have to prosecute any who refused
to return to service in the Article III courts and not
have the option of a more expedient court-martial.
This would bring us back to the problems pointed out
by Justice Story in Mott, where every individual (even
those already “in” the armed forces) could challenge
whether or not Congress’, or the President’s, recall
was valid—and this would all be done in the civilian
court system during a time of war or national
emergency. Congress already has a tidy recall system
for its different entities. Active Component retirees
are already subject to the UCMJ and Reserve
Component Retirees are subject to the Code once they
get recall orders. Excluding all retirees, in the name
of equal protection, would require Congress to amend
Article 2 if it wished to preserve its recall scheme.
In closing on this matter, we note that in 1949,
prior to enacting the UCMJ, Congress held extensive
hearings. In particular, Congress heard testimony
strongly advocating for the removal of all retirees from
court-martial jurisdiction, not just the retirees of the
Reserve components. 85 Some of the strongest
Madison, 5 U.S. 137, 177 (1803) and, in context, violates a
“cardinal rule of statutory interpretation that no provision
should be construed to be entirely redundant.” Kungys v. United
States, 485 U.S. 759, 778 (1988) (Scalia, J., plurality opinion).
85. Then-Colonel Melvin Maas, U.S. Marine Corps, (who
later retired as a Major General in the Reserve Component and
was a member of Congress for 16 years) testified to the House
Armed Services Committee as President of the Marine Corps
Reserve Association. He urged removal of jurisdiction over
retired personnel. “Now I want to urge something on this
committee that is perhaps revolutionary. This is the time to
consider it, however. That is removing retired personnel from
military control completely.” When asked about “fleet Reserves
and fleet Marine Corps Reserves,” Colonel Maas replied, “Exactly
the same principle. There is no reason why they should be
68a
advocates came from, or on behalf of, professional
officers who themselves could expect to be subject to
the UCMJ in retirement. Congress heard, and
rejected, their concerns. Since then, Congress has had
34 general elections. It has passed Goldwater-Nichols
transforming many important aspects of the land and
naval Forces. It has also updated the UCMJ many
times, including a recent partial revision of Article 2—
specifically concerning Reservists, no less 86—and has
restricted [subject to jurisdiction]. It is un-American.” See
Uniform Code of Military Justice, Hearings on H.R. 2498 Before
a Subcomm. of the H. Comm. On Armed Services, 81st Cong.
(1949), reprinted in William K. Suter, Index and Legislative
History: Uniform Code of Military Justice 706-07 (William S.
Hein & Co. 2000) (1950). Col Maas expressed the same sentiment
to the Senate Armed Services Committee. See Hearings on S. 857
and H.R. 4080 at 99-101. He was joined by Colonel John P.
Oliver, Judge Advocate General Reserve, in arguing against
jurisdiction over retirees. See Hearings on S. 857 and H.R. 4080
at 147. Years later, the Army commissioned a study of the new
UCMJ and made recommendations to Congress. “The Powell
Report,” named for Lieutenant General Herbert B. Powell, USA,
Deputy Commanding General, United States Continental Army
Command for Reserve Affairs, and head of “The Committee on
the Uniform Code of Military Justice Good Order and Discipline
in the Army” was apparently provided to Congress. See Captain
John T. Willis, The United States Court of Military Appeals: Its
Origin, Operation and Future, 55 MIL. L. REV. 92 n.284 (1972).
It strongly argued for removing jurisdiction over retirees. Powell
Report at 7, 8, 175, 179. The Legislative History is merely
remarked upon to show Congress was aware of the opinion from
individual Service Members and the Services that retirees
should not be subject to the UCMJ and not to “interpret” Article
2’s meaning. See Conroy v. Aniskoff, 507 U.S. 511 (1993) (Scalia,
J., concurring) (“We are governed by laws, not by the intentions
of the legislators.”).
86. Supra, n. 25.
69a
continued to reject the input it received almost 70
years ago.
Now this Court is faced with a novel interpretation
of the interplay of Article 2, UCMJ, and Fifth
Amendment equal protection. This court is now asked
to “find” in the Constitution the same favored policy of
other professional military officers which was rejected
by Congress, and continually rejected since. This
would be a remarkable act of judicial activism. It is
possible not subjecting Regular component retirees or
members of the Fleet Reserve and Fleet Marine Corps
Reserve, or both, to court-martial jurisdiction is the
best policy. That is for Congress to decide.
C. Appellant Waived Any Lack of Notice: He Was
Subject to Trial by Court-Martial Under the
UCMJ for Misconduct Committed in a Foreign
Country
For the first time on appeal, Appellant argues the
Government violated his Fifth Amendment Due
Process right to fair notice when it failed to inform him
under Article 137, UCMJ, or otherwise, that he was
still subject to the Code while in the Fleet Reserve for
misconduct committed in a foreign country. We hold
Appellant waived any review of this issue by not
raising it with the court below.
Waiver is the “intentional relinquishment or
abandonment of a known right.” 87 A plea of guilty
generally waives any nonjurisdictional errors that
occurred in the earlier stages of the proceedings. 88
87. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)
(citations omitted).
88. United States v. Lee, 73 M.J. 166, 170 (C.A.A.F. 2014)
(citations omitted).
70a
Appellant’s claim to lack of notice prior to entering
his guilty pleas does not amount to a claim of lack of
jurisdiction over the offenses or a challenge to the
voluntary and intelligent character of his pleas. We
find these voluntary actions waived any due process
violation or other issue related to his claimed lack of
notice. Because Appellant waived this issue, there is
no error for this Court to review on appeal. 89
D. Punitive Discharge
Appellant asserts that under 10 U.S.C. § 6332,
Fleet Reserve members cannot be punitively
discharged from the service. This Court considered
and rejected such a claim in United States v. Dinger,
where, after examining the statute in its historical
and statutory context, we
decline[d] to override long-standing, military
justice-specific provisions in the [Manual for
Courts-Martial] subjecting those in a retired
status to courts-martial and broadly authorizing
those courts-martial to adjudge a punitive
discharge. We ma[de] this decision particularly
in light of the fact that Congress expressly
exempted other classes of personnel from dismissal or dishonorable discharge within the
UCMJ, but not retirees. 90
Nor do we find the application of our holding in
Dinger, decided prior to Appellant’s trial, violates his
89. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017).
90. 76 M.J. 552, 559 (N.M. Ct. Crim. App. 2017), aff’d, 77
M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018)
(citations omitted) (emphasis in original); Dinger, 76 M.J. at 559
(citations omitted) (emphasis in the original).
71a
rights against ex post facto laws. 91 It is clear from
Appellant’s motion made during trial that he was on
notice that he could receive a punitive discharge. This
Court’s decision in Dinger, recognizing the “longstanding” practice of subjecting retirees subject to the
Code to the possibility of a punitive discharge, was
issued before Appellant’s punitive discharge was
adjudged. 92 Even though our superior court’s opinion
in the same case was issued after Appellant’s trial,
that opinion affirmed this Court’s holding that in 10
U.S.C. § 6332 “Congress did not prohibit a courtmartial from sentencing a retiree to a punitive
discharge or any other available punishment
established by the President.” 93
We find this AOE to be without merit.
E. Recall to Active Duty as a Jurisdictional
Prerequisite
Finally, Appellant asserts that Fleet Reserve
members must first be recalled to active duty to be
subjected to trial by court-martial. But Appellant’s
argument does not comport with the plain language of
Article 2, UCMJ. It would render Article 2(a)(6)
meaningless surplusage, and has been squarely
rejected by both this Court and our superior court. 94
91. See Bouie v. Columbia, 378 U.S. 347, 353 (1964) (finding
that judicial rulings operating to expand criminal laws may
violate the Ex Post Facto Clause).
92. Appellant’s punitive discharge was adjudged on 1
December 2017. This Court’s opinion in Dinger was issued on 28
March 2017.
93. United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018).
94. United States v. Morris, 54 M.J. 898, 900 (N.M. Ct. Crim.
App. 2001) (“If a member of the Fleet Marine Corps Reserve
needed to be ordered to active duty to be subject to the
72a
We find this AOE to be without merit.
III. CONCLUSION
After careful consideration of the record and briefs
of appellate counsel, we have determined the
approved findings and sentence are correct in law and
fact and that no error materially prejudicial to
Appellant’s substantial rights occurred. Arts. 59 and
66, UCMJ. The findings and sentence as approved by
the convening authority are AFFIRMED.
Senior Judge TANG concurs.
GASTON, Judge, with whom KING, Senior Judge,
joins (concurring in part and in the result):
I agree with the principal opinion’s treatment of
Appellant’s first, third, fourth, and fifth Assignments
of Error (AOEs).
With respect to Appellant’s equal protection claim,
I believe he waived this claim when, after stipulating
to his status as a member of the Fleet Reserve at the
time of the offenses and at trial, he voluntarily
pleaded guilty before a military judge, waived all
waivable motions, and specifically conditioned his
pleas only on preserving his asserted AOE that a
member of the Fleet Reserve cannot be awarded a
punitive discharge (which was litigated before the
trial court and denied). Under these circumstances,
Appellant’s failure to raise his equal protection claim
before the trial court was an “intentional
relinquishment or abandonment of a known right.”
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009) (citations and internal quotation marks
jurisdiction of a court-martial, there would be no need to
separately list members of the Fleet Marine Corps Reserve as
being persons subject to the UCMJ.”).
73a
omitted). Since the equal protection issue was waived,
there is no error for this Court to review on appeal.
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F.
2017).
While questions of jurisdiction are never waived, a
plea of guilty generally waives any non-jurisdictional
errors in the proceedings. RULE FOR COURTS-MARTIAL
(R.C.M.) 905(e), 907(b), MANUAL FOR COURTSMARTIAL, UNITED STATES (2016 ed.); United States v.
Lee, 73 M.J. 166, 170 (C.A.A.F. 2014) (citations
omitted). There are some limitations to the waiver
doctrine, but as our superior court has explained,
those limits are narrow and relate to situations
in which, on its face, the prosecution may not
constitutionally be maintained. Such limits do
not arise where an appellant merely complains
of antecedent constitutional violations or a
deprivation of constitutional rights that
occurred prior to the entry of the guilty plea,
rather they apply where on the face of the
record the court had no power to enter the
conviction or impose the sentence.
Id. at 170 (citations and internal quotations marks
omitted) (emphasis added). There is no colorable claim
that either on its face the prosecution could not
constitutionally be maintained against Appellant or
that on the face of the record the court-martial had no
power to enter the conviction or impose the sentence.
To the contrary, under clear case precedent from both
this Court and our superior court, a prosecution at
court-martial may constitutionally be maintained
against a member of the Fleet Reserve, and nothing
on the face of the record suggests the court-martial
lacked the power to accept Appellant’s pleas, enter his
convictions, or impose his sentence. See United States
74a
v. Overton, 24 M.J. 309, 311 (C.M.A. 1987) (noting
“[t]his type of exercise of court-martial jurisdiction
[over a member of the Fleet Marine Corps Reserve]
has been continually recognized as constitutional”)
(citations omitted); United States v. Dinger, 76 M.J.
552 (N.M. Ct. Crim. App. 2017) (upholding a courtmartial’s power to both try and punitively discharge a
member of the Fleet Marine Corps Reserve), aff’d, 77
M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492,
(2018). 1
As Appellant’s equal protection claim leaves
untouched this binding case precedent grounding his
court-martial’s jurisdiction over him as a member of
the Fleet Reserve, his equal protection claim is
fundamentally not about a lack of jurisdiction, but
about challenging Article 2(a)(6), UCMJ, as “a
deprivation of constitutional rights that occurred prior
to the entry of [his] guilty plea.” Lee, 73 M.J. at 170.
Appellant’s opening brief asserts that his courtmartial deprived him variously of his Sixth
Amendment right to trial by jury, First Amendment
1. See also Solorio v. United States, 483 U.S. 435, 438 (1987)
(“In an unbroken line of decisions from 1866 to 1960, this Court
interpreted the Constitution as conditioning the proper exercise
of court-martial jurisdiction over an offense on one factor: the
military status of the accused.”) (internal quotation marks and
citations omitted); United States v. Tyler, 105 U.S. 244, 246
(1882) (finding, in regard to military retirees, “[i]t is impossible
to hold that men who are by statute declared to be a part of the
army, who may wear its uniform, whose names shall be borne
upon its register, who may be assigned by their superior officers
to specified duties by detail as other officers are, who are subject
to the rules and articles of war, and may be tried, not by a jury,
as other citizens are, but by a military court-martial, for any
breach of those rules, and who may finally be dismissed on such
trial from the service in disgrace, are still not in the military
service”).
75a
freedoms, and constitutional right to protection
against unequal punishments. These claims simply
re-frame old challenges to the military justice system
that the Supreme Court has long rejected based on the
text and design of the Constitution and “the
differences between the military and civilian
communities [that] result from the fact that ‘it is the
primary business of armies and navies to fight or be
ready to fight wars should the occasion arise.’” Parker
v. Levy, 417 U.S. 733, 743 (1974) (quoting United
States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955))
(emphasis added); see also Ex parte Milligan, 71 U.S.
2, 123 (1866) (explaining why the Sixth Amendment
right to a jury trial is, commensurate with the
language of the Fifth Amendment right to a grand
jury, excepted from those in the land and naval
forces).
Narrowed at the en banc oral argument,
Appellant’s claim now focuses solely on an asserted
deprivation of the Sixth Amendment right to be tried
by randomly chosen peers who are a representative
cross-section of the community. 2 It is well settled that
this right does not apply to Service Members tried by
court-martial, who instead have the closely-resembled
right to be tried by a fair and impartial panel of their
fellow Service Members. United States v. Dowty, 60
M.J. 163, 169 (C.A.A.F. 2004) (citations omitted);
Article 25, UCMJ, 10 U.S.C. § 825. The Supreme
Court recently examined the rights afforded to Service
Members at court-martial—a judicial institution it
noted is “older than the Constitution”—and found that
2. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975)
(accepting “the fair cross-section requirement as fundamental to
the jury trial guaranteed by the Sixth Amendment”).
76a
[e]ach level of military court decides criminal
“cases” as that term is generally understood,
and does so in strict accordance with a body of
federal law (of course including the
Constitution). The procedural protections
afforded to a service member are virtually the
same as those given in a civilian criminal
proceeding, whether state or federal.
Ortiz v. United States, 138 S. Ct. 2165, 2174-75 (2018)
(citation and internal quotation marks omitted)
(emphasis added). Appellant asserts that in affording
him a jury right that is virtually, but not exactly, the
same as what the Sixth Amendment affords to
civilians—i.e., the same right Appellant elected to give
up by voluntarily pleading guilty before a military
judge—his court-martial violated his right to equal
protection.
Attacking a statute on grounds of equal protection
in this manner must be done at the trial level, or else
is subject to waiver. In United States v. Cupa-Guillen,
for example, the appellant asserted for the first time
on appeal that 8 U.S.C. § 1326 violated constitutional
equal protection because it sought to punish him
based on his status as an “alien”—a suspect
classification—after he was deported for a felony
conviction and thereafter found again in the United
States. 34 F.3d 860, 862-63 (9th Cir. 1994), cert.
denied, 513 U.S. 1120 (1995). The Court of Appeals for
the Ninth Circuit held this facial attack on the
statute’s constitutionality, on grounds of equal
protection, was waived because it was not raised with
the trial court. Id. at 864. The Court of Appeals for the
Sixth Circuit reached the same conclusion regarding
a facial equal protection challenge to a state criminal
statute, declining to consider such a challenge raised
for the first time on appeal based on the “well
77a
established principle of appellate review that
appellate courts do not address claims not properly
presented below.” Chandler v. Jones, 813 F.2d 773,
777 (6th Cir. 1987).
The Supreme Court has addressed this issue in the
context of a defendant who pleads guilty to a charge
and then later claims a violation of the constitutional
protection against double jeopardy. The general rule
in such cases is that “[w]here the state is precluded by
the United States Constitution from haling a
defendant into court on a charge, federal law requires
that a conviction on that charge be set aside even if
the conviction was entered pursuant to a counseled
plea of guilty.” Menna v. New York, 423 U.S. 61, 62
(1975). However, the Court established an important
exception to this general rule:
We do not hold that a double jeopardy claim
may never be waived. We simply hold that a
plea of guilty to a charge does not waive a claim
that—judged on its face—the charge is one
which the State may not constitutionally
prosecute.
Id. at 62 n.2 (emphasis added). Thus, if on the face of
the indictment and the existing record, the charge
does not appear to violate the constitutional
protection against double jeopardy, the appellant’s
failure to develop the issue at the trial level waives it
on appeal. United States v. Broce, 488 U.S. 563, 576
(1989).
Similarly, Appellant’s assertion here is that
constitutional equal protection precludes him from
being tried by court-martial for violations of the
UCMJ. This challenge cannot be determined on the
78a
face of the attacked statute. 3 And Appellant’s failure
to lodge this claim with the court below leaves us thin
means in the record to address such a weighty
constitutional claim of first impression. 4 We have
some authority to consider additional extrinsic
evidence at this level. See, e.g., United States v. Oliver,
57 M.J. 170, 172 (C.A.A.F. 2002) (considering
unchallenged medical documentation submitted to
appellate court to address jurisdictional challenge
brought for first time on appeal). But piecemeal, adhoc supplementation of the record at the appellate
level was never designed to take the place of litigating
these issues before the trial court. To the contrary, the
waiver rule exists precisely to avoid this sort of novel
constitutional issue from being asserted for the first
time on appeal. 5 See United States v. King, 58 M.J.
110, 114 (C.A.A.F. 2003) (explaining that the “raiseor-waive” rule is designed “to promote the efficiency of
the entire justice system by requiring the parties to
3. Equal protection requires that “all persons similarly
circumstanced shall be treated alike.” Plyler v. Doe, 457 U.S. 202,
216 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S.
412, 415 (1920)). But the determination of whether the persons
at issue are “similarly circumstanced” cannot be made without
comparative evidence of what their circumstances are, which is
not contained in the language of Article 2.
4. This predicament is compounded where, as here,
Appellant seeks heightened constitutional scrutiny for his claim,
which if applicable would impose an additional evidentiary
burden on the Government to develop regarding the attacked
statute.
5. In this very case, we initially ordered the Government to
produce various “adjudicative facts” based on involuntary recall
data for the Navy and Marine Corps.
79a
advance their claims at trial, where the underlying
facts can best be determined”). 6
Finally, while our superior court has held “there is
a presumption against the waiver of constitutional
rights,” that presumption is overcome where it is
“clearly established that there was an intentional
relinquishment of a known right or privilege.” United
States v. Sweeney, 70 M.J. 296, 303-04 (C.A.A.F. 2011)
(quoting United States v. Harcrow, 66 M.J. 154, 157
(C.A.A.F. 2008)). To make this determination, “we
look to the state of the law at the time of trial, and we
will not find waiver where subsequent case law
‘opened the door for a colorable assertion of the
[constitutional] right ... where it was not previously
available.’” Sweeney, 70 M.J. at 304 (quoting Harcrow,
66 M.J. at 157-58).
Looking to the state of the law at the time of
Appellant’s trial, we find no subsequent development
in the law that opened the door for his equal
protection claim in a way that was not previously
available. To whatever extent his claim is colorable
now, it was colorable to no less a degree at the time of
6. Respectfully, the dissent’s position both that strict
scrutiny applies and that this issue can nevertheless be resolved
“on almost exclusively legal grounds, requiring little factual
development,” does not acknowledge the protracted litigation of
such issues that routinely occurs at the trial level, where initial
decisions often turn on the presence or absence of evidence in
support of the claim asserted. See, e.g., Nat’l Coal. For Men v.
Selective Serv. Sys., 355 F. Supp. 3d 568, 579 (S.D. Tex. 2019)
(pointing to lack of certain “demonstrable facts” and other
evidence as justification for the court’s legal conclusions on an
equal protection claim). Imposing an evidentiary requirement
(heightened or otherwise) at a forum level unsuitable for
developing evidence on the issues involved seems merely a recipe
to strike down a statute.
80a
his trial. Thus, in light of his voluntary decision to
plead guilty before a military judge, waive all
waivable motions, and specifically condition his pleas
only on preserving a different issue, Appellant’s
failure to raise his equal protection claim at trial was
a clear, intentional relinquishment of a known right. 7
This claim is fundamentally not about whether his
court-martial had jurisdiction over him—which it
most assuredly did, based on both the existing record
and binding case precedent from our superior court—
rather, it is about whether exercise of that jurisdiction
deprived him of a discrete procedural right—which
equally-binding precedent has long established the
7. The dissent argues that applying waiver in this case
“would diverge from the Court’s recent practice regarding retiree
challenges,” citing our decisions in United States v. Dinger, 76
M.J. 552, 555 (N.M. Ct. Crim. App. 2017), aff’d, 77 M.J. 447
(C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018), and United
States v. Larrabee, No. 201700075, 2017 WL 5712245, 2017 CCA
LEXIS 723 (N.M. Ct. Crim. App. 29 Nov. 2017) (unpub op.), aff’d,
78 M.J. 107 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 1164 (2019),
wherein, despite an unconditional plea of guilty, we addressed
the issue, raised for the first time on appeal, of whether a courtmartial may punitively discharge a member of the Fleet Marine
Corps Reserve. But neither of those cases actually addressed the
issue of waiver, and Larrabee did little more than cite Dinger in
summarily denying the assertion of error. Practice is not
precedent, and even if it were, the application of waiver is and
must always be a case-by-case determination. See United States
v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (discussing that review
by the military courts of criminal appeals under Article 66,
UCMJ, must include an evaluation of the entire record in each
case, including such factors as a “waive all waivable motions”
provision or unconditional plea of guilty, in determining whether
to approve a finding or sentence). Thus, Dinger and Larrabee
offer little support for the view that this Court must entertain a
facial equal protection challenge to a decades-old statute that
was never brought in the court below.
81a
Constitution does not afford to someone of Appellant’s
military status. The issue is therefore waived.
Senior Judge KING concurs.
CRISFIELD,
Chief
Judge,
with
whom
HITESMAN, Senior Judge, and LAWRENCE, Judge,
join (dissenting):
I respectfully dissent from the principal opinion’s
holding that the Uniform Code of Military Justice’s
(UCMJ) jurisdictional scheme for retirees satisfies an
equal protection analysis and disagree with the
concurring opinion that Appellant waived his equal
protection claim. I believe that the disparate
treatment of retirees from the active and Reserve
components offends the Due Process Clause of the
Fifth Amendment and that Appellant’s claim is a
jurisdictional issue which cannot be waived.
I. MEMBERS OF THE FLEET RESERVE ARE
SIMILARLY SITUATED WITH RETIRED MEMBERS OF
THE REGULAR AND RESERVE COMPONENTS
The principal opinion holds that retired members
of the Fleet Reserve are not similarly situated for
purposes of maintaining good order and discipline in
the armed forces with retired members of the Regular
and Reserve components. I acknowledge that there is
little case law to guide our determination of whether
these groups of retirees are similarly situated for
equal protection purposes. I nonetheless feel confident
determining that members of the Fleet Reserve,
Regular component retirees, and Reserve component
retirees are similarly situated because there is no
meaningful distinction, legally or factually, between
the groups that is relevant to good order and discipline
in the armed forces.
82a
Enlisted Sailors of the Navy who have completed
at least 20 years of active service will be transferred
to the Fleet Reserve at their request. 10 U.S.C. § 8330.
Both active and Reserve component enlisted Sailors
who meet the criteria can transfer to the Fleet
Reserve. Officers are not eligible. Members of the
Fleet Reserve have no military duties other than to
“[m]aintain readiness for active service in event of war
or national emergency” and to keep Navy authorities
apprised of their location and “any change in health
that might prevent service in time of war.” Naval
Military Personnel Manual, Art. 1830-040 (Ch-38, 19
Dec 2011). Fleet Reservists are entitled to “retainer
pay.” DoD Financial Management Regulation, DoD
7000.14-R, para. 020404, Nov. 2013. Once a member
of the Fleet Reserve has reached 30 years of total
service, they are entitled to transfer to the retired list
of the Regular Navy if they were a member of the
Regular Navy at the time of their transfer to the Fleet
Reserve, or to transfer to the appropriate retired
Reserve if they were a member of the Reserve
Component at the time of their transfer to the Fleet
Reserve. 10 U.S.C. § 6331.
With some exceptions—many of which concern
disability retirements—members of the Fleet Reserve,
Regular component retirees, and Reserve component
retirees have all spent at least 20 years in the armed
forces. All three groups include some members who
have served in both the Regular and the Reserve
components. The members of all three groups are in
an inactive status and no longer perform any
uniformed military duties. 1 They are all subject to
1. Although members of the Fleet Reserve notionally have
an obligation to “[m]aintain readiness for active service in event
of war or national emergency” and may be required to perform
active duty every four years, the Government has not
83a
recall to active duty. They are all ineligible for further
promotion. They are all entitled to retired pay at some
point in their retired years. Retirees from an active
component begin receiving retired pay immediately
upon retirement. Retirees in the Fleet Reserve—
whether they were in the active or Reserve
components—begin
receiving
“retainer
pay”
immediately upon retirement. Retirees from a
Reserve component who do not transfer to the Fleet
Reserve generally begin receiving retired pay at age
60. For all of these retirees, once they are entitled to
retired pay, the pay continues for the duration of their
lives and increases according to a cost of living
formula. Their retired pay is not contingent on their
continued military usefulness or employability. Their
actual ability to contribute to the accomplishment of a
military mission is completely irrelevant to their
status.
Military courts have noted the legal similarity
between Fleet Reservists and retired personnel. In
United States v. Allen, 33 M.J. 209 (C.M.A. 1991), our
superior court stated that the Fleet Reserve is
“legally, an almost identical status” to retirees. Id. at
216 (citing United States v. Overton, 24 M.J. 309
(C.M.A. 1987), cert. denied, 484 U.S. 976 (1987)).
In this Court’s Dinger opinion, 2 we treated
members of the Fleet Marine Corps Reserve as
similarly situated to retired members. “We will refer
generally to Fleet Marine Reserve and retired list
membership as ‘retired status,’ as military courts
represented that they bear any actual duties such as periodic
training, musters, medical exams, or physical fitness tests; that
they are ever called to active duty; or that there is any
consequence for failure to maintain readiness.
2. The Marine Corps analogue to the Fleet Reserve.
84a
have treated the two statuses interchangeably for
purposes of court-martial jurisdiction.” United States
v. Dinger, 76 M.J. 552, 554 n.3 (N.M. Ct. Crim. App.
2017), aff’d, 77 M.J. 447 (C.A.A.F. 2018), cert. denied,
139 S. Ct. 492 (2018).
The Supreme Court has not rendered an opinion
on whether these groups of retirees are similarly
situated, but in Barker v. Kansas, 503 U.S. 594 (1992),
the Court made no effort to differentiate them. 3
Retiree pay has traditionally been considered reduced
pay for reduced services—i.e., a retainer pay. See, e.g.,
United States v. Tyler, 105 U.S. 244 (1882). But in
Barker, the Supreme Court characterized retiree pay
as “deferred compensation” for services rendered
during active duty for purposes of 4 U.S.C. § 111, a
law permitting states to tax Federal employees’ pay.
Barker, 503 U.S. at 605. The Court overturned the
Kansas Supreme Court’s ruling that military retiree
pensions can be taxed differently than state
government retiree pensions due to the military
pension’s nature as “retainer pay,” and other nuances
of military retiree status. Id. Although the Barker
Court characterized retiree pay as “deferred
compensation,” it emphasized that “[m]ilitary retirees
unquestionably remain in the service and are subject
to restrictions and recall.” Id. at 599, 602. The Court
made no effort to differentiate between Regular and
Reserve retirees within the class and implicitly held
3. Barker was a taxpayers’ class-action lawsuit in which the
class was defined as: “[A]ll retired members of the federal or
United States armed forces who are recipients of federal armed
forces retirement benefits [under applicable provisions of Title 10
or Title 14 or the United States Code] subject to Kansas state
income taxation ....” Barker v. State, 249 Kan. 186, 815 P.2d 46,
48 (1991) (first and second alterations in original), rev’d, Barker
v. Kansas, 503 U.S. 594 (1992).
85a
them to be similarly situated with regard to the
characterization of their retired pay.
As we consider whether the three groups at issue
are similarly situated, we should look to each group’s
current degree of connectedness to the armed forces—
not to past connections. See United States ex rel. Toth
v. Quarles, 350 U.S. 11, 22 (1955) (suggesting that
retaining jurisdiction over former soldiers, with no
relation to active components, would not improve
discipline amongst the active ranks). The official
Department of Defense (DoD) policy on the utilization
of retirees reinforces our opinion that these three
groups are in fact similarly situated.
The DoD instruction on “Management of Regular
and Reserve Retired Military Members” establishes
policy and provides procedures for the activation and
employment of retired members. Dep’t of Def. Instr.
1352.01: Management of Regular and Reserve Retired
Military Members (2016) [hereinafter DoDI 1352.01].
I first note that the instruction states that the Navy’s
Regular component retired members includes
members of the Fleet Reserve. Id., at ¶ 3.1(a)(2). This
is consistent with my view that members of the Navy’s
Fleet Reserve are, in all relevant respects, retired for
purposes of this Court’s equal protection analysis. It
also reflects the reality in the Fleet, where members
of the Fleet Reserve refer to themselves as “retired”
and have “retirement ceremonies” upon transfer to
the Fleet Reserve. Finally, and most convincingly, the
Fleet Reserve should be considered similarly situated
with Regular component retirees when one considers
that the Army, Air Force, and Coast Guard have no
analogous category to the Fleet Reserve, yet
retirement eligibility rules are uniform across the
Services.
86a
I also find it relevant and noteworthy that in
describing DoD’s four-part policy on the utilization of
retired members, the instruction makes no distinction
between retired members of the Regular and Reserve
components. 4 Similarly, in describing the criteria for
retiree mobilization, the instruction does not mention
active or Reserve component status as a criterion for
mobilization. 5 This formal DoD policy comports with
4. To wit:
It is DoD policy that:
a. Regular retired members and members of the
retired Reserve may be ordered to active duty (AD) as
needed to perform such duties as the Secretary concerned
considers necessary in the interests of national defense
as described in Sections 688 and 12301 of Title 10, U.S.C.
b. Regular retired members and members of the
retired Reserve must be managed to ensure they are
accessible for national security and readiness
requirements.
c. Regular and Reserve retired members may be used
as a manpower source of last resort after other sources
are determined not to be available or a source for unique
skills not otherwise obtainable.
d. Directors of agencies that have Defense related
missions ... may identify military and federal civilian
positions that are suitable for fill by retired military
members in time of war or national emergency. ...
DoDI 1352.01 (8 Dec. 2016) at ¶ 1.2(a)-(d) (emphasis added). Note
that 10 U.S.C. § 12301 (referenced in para. 1.2(a)) places a
statutory limitation on the involuntary activation of retired
reservists to times when Congress has declared a time of war or
national emergency and the secretary of the military department
has made a finding that there are not enough qualified active
reserves who are readily available.
5. DoDI 1352.01 at ¶ 3.2(c) (“As part of the criteria for
deployment of individuals to specific mobilization billets, the
Military Services will consider the criticality of the mobilization
87a
my experience regarding how the various Services
seek to integrate their Reserve components as
seamlessly as possible with their active components. 6
The principal opinion agrees with Appellee’s
argument that retired members of the Reserve
components are dissimilar from Regular retirees
because they are not required to maintain any
military status. They cite Department of Defense
Financial Management Regulation 7000.14-R, Vol.
7B, Ch. 6, para. 0604, for this proposition. This
chapter concerns “Foreign Citizenship After
Retirement” and I find the Financial Management
Regulation’s interpretation unconvincing. Instead, I
would find that the status and obligations of retired
reservists are very similar to Regular retirees.
The Navy’s Military Personnel Manual describes
the obligations and benefits of retired reservists:
Retired
reservists
must
keep
NAVPERSCOM (PERS-912) advised of their
current mailing address and of any temporary
or permanent changes of residence ....
Reservists receiving pay must also update
address changes with Defense Finance and
Accounting Services ....
billet, the skills of the individual, and his or her geographic
proximity to the place of mobilization.”).
6. See, e.g., Chief of Naval Operations General
Administrative Message, NAVADMIN 121/05, dtd 3 June 2005,
Subject: Active-Reserve Force Integration (“We will now refer to
all of our sailors, active and reserve, as United States Navy
Sailors. This shared title will strengthen the bond between our
active and reserve components, and enhance the culture of
integration needed to most effectively deliver decisive power
from the sea.”).
88a
... Retired Navy reservists who plan to
travel or reside in any country not within the
jurisdiction of an area commander should, upon
arrival in and departure from each country
(except for brief tours), notify their presence to
the nearest U.S. naval attaché, as a matter of
courtesy, by personal visit or by letter. In the
absence of a naval attaché, notify the U.S.
military or air attaché, or the civilian
representative of the American embassy or
consulate.
... [C]ivil employment and compensation
with any foreign government, or any concern
controlled in whole, or in part, by a group of
governments (including the United States) is
subject to the approval of SECNAV and the
Secretary of State. ...
... [R]etired personnel not on active duty will
be entitled to wear the prescribed uniform of
the rank or rating, in which retired, when the
wearing of the uniform is considered to be
appropriate. ...
... Retired personnel may use their military
titles subject to certain restrictions and the
exercise of good judgment. Considerable
discretion should be shown by members in
permitting the use of their name and military
title to endorse any commercial enterprise
which might, in any way, be perceived as
indicating that the Department of the Navy
approves of the enterprise and especially to
avoid an endorsement or contract which would
bring discredit upon the Navy. All reserve
members transferred to the Retired Reserve are
89a
eligible to use “United States Navy–Retired” in
their title.
....
... Retired members of the Navy Reserve and
former members receiving retired pay from the
Navy are eligible for TRICARE Prime,
Standard, or Extra (from ages 60 through 64)
and TRICARE for Life (TFL) (with Medicare
Parts A and B coverage) at age 65.
... Family members, survivors of retired
members, and “former members” are eligible
for TRICARE Prime, Standard, or Extra. ...
....
... Retired members and their family
members, including those age 65 and over, are
eligible for the Uniform Services Family Health
Plan (USFHP), a TRICARE Prime option.
Naval Military Personnel Manual, Art. 1820-030,
para. 7 (Ch-53, 1 Dec 2015). Retired reservists are also
entitled to the use of the military exchange system,
morale welfare and recreation facilities, military
commissaries, and space available transportation on
military aircraft. Id. Retired reservists may also be
voluntarily recalled to active duty in a retired status
as authorized by the Secretary of the Navy. DoDI
1352.01.
The fact that Article 2(a)(5), UCMJ, subjects
retired reservists receiving hospitalization from an
armed force to court-martial jurisdiction also hints at
some military status for this group. (If Congress’
concern was merely to maintain good order and
discipline in military hospitals, then it would subject
all persons receiving military hospitalization to the
Code.) Finally, and most importantly, the fact that
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retired reservists are subject to immediate recall into
active service under certain circumstances runs
counter to the argument that they have no military
status whatsoever.
Retired members of both the active and Reserve
components are similarly—though not identically—
subject to involuntary recall to active duty. While
unusual, retired members of both the active and
Reserve components may be involuntarily recalled to
active duty by a service secretary. The secretary of a
military department has authority to involuntarily
order a retired member of a Reserve component to
active duty for the duration of a war or national
emergency and for six months thereafter, provided
that Congress has declared a time of war or national
emergency and the secretary determines there are not
enough qualified reserves in an active status. DoDI
1352.01 at ¶ 3.3(b)(1); see also 10 U.S.C. § 12301. In
contrast, the secretary of a military department has
authority to involuntarily order a retired Regular
member to active duty “at any time to perform duties
deemed necessary in the interests of national defense
in accordance with Sections 688, 689, 690, and 12307
of Title 10, U.S.C.” DoDI 1352.01 at ¶ 3.3(b)(2).
Appellee argues that two groups must be “virtually
identical” for us to determine that they are similarly
situated for equal protection purposes. The principal
opinion adopts a “materially identical” standard. I
think those standards are too simplistic. Instead, I
believe that the particular governmental interest in
issue is highly relevant to whether groups are
similarly situated and has to be factored into the
analysis. Two groups of people may be similarly
situated for the purpose of one governmental interest
but not for a different interest. The Supreme Court’s
case law regarding the military’s treatment of
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servicemen and servicewomen leads to this
conclusion. In Schlesinger v. Ballard, 419 U.S. 498
(1975), the Court held that male and female Navy
officers were not similarly situated for purposes of a
statute that treated them differently regarding
mandatory discharge after failure to be selected for
promotion. The Court contrasted the governmental
purpose they were examining with the purpose the
Court had analyzed in Frontiero v. Richardson, 411
U.S. 677 (1973), that held that servicemen and
servicewomen were similarly situated when being
treated differently under the law. The particular
governmental interest in issue must be considered
when analyzing whether groups are similarly
situated.
Given that this is an issue of first impression, I
have found no precedent in case law standing for—or
against—the proposition that retired members of the
active and Reserve components are similarly situated
for equal protection purposes, but my view is not
entirely novel. During testimony on the proposed
Article 2, UCMJ, before the House Armed Services
Committee, Robert W. Smart, a professional staff
member on the House of Representatives’ Committee
on Armed Services, noted with concern that the
jurisdictional scheme would mean “treating two
classes of people on the same retired list differently.”
Uniform Code of Military Justice: Hearings on H.R.
2498 Before a Subcomm. Of the H. Comm. on Armed
Services, 81st Cong. (1949) [hereinafter UCMJ
Hearing], reprinted in William K. Suter, Index and
Legislative History: Uniform Code of Military Justice
1261 (William S. Hein & Co. 2000) (1950). As I discuss
below, Congress ultimately tolerated the disparate
treatment in order to accommodate differences in how
the Services managed retirees—differences that are
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no longer applicable. But I would find that this bit of
legislative history corroborates my sense that retirees
of the Reserve and active components are in fact
similarly situated.
Based on these considerations, I am convinced that
members of the Fleet Reserve, retired members of the
Regular components, and retired members of the
Reserve components are similarly situated for
purposes of equal protection analysis.
II. THE DISPARATE TREATMENT OF REGULAR AND
RESERVE RETIREES VIOLATES THE GUARANTEE OF
EQUAL PROTECTION UNDER THE LAW
Military and civilian courts have long held that
Congress can lawfully subject military retirees to
court-martial jurisdiction. This Court has so held on
multiple occasions. I believe, however, that this is the
first case in any court in which a military retiree has
challenged that jurisdiction by claiming that the
UCMJ’s differing treatment of different categories of
retirees violates the equal protection guarantee.
Congress undoubtedly has broad power under
Article I, Section 8, clause 14 of the Constitution “[t]o
make Rules for the Government and Regulation of the
land and naval Forces.” Nonetheless, that expansive
power is constrained by the Fifth Amendment’s
guarantee of Due Process and the imputed guarantee
of Equal Protection.
The disparate treatment provided to retirees from
the active and Reserve components is plain on the face
of Article 2. Appellant claims that the distinction
violates his right to equal protection because Article 2
deprives him of his constitutional rights to free
speech, grand jury indictment, and a jury of his peers,
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while preserving those rights for similarly situated
retirees from Reserve components. 7
Court-martial jurisdiction has always been
considered a special type of criminal jurisdiction
significantly different from civil courts and responsive
to the special needs of the armed forces that do not
exist in civil society. “Every extension of military
jurisdiction is an encroachment on the jurisdiction of
the civil courts, and, more important, acts as a
deprivation of the right to jury trial and of other
treasured constitutional protections.” Reid v. Covert,
354 U.S. 1, 21 (1957). Military jurisdiction was always
intended “to be only a narrow exception to the normal
and preferred method of trial in courts of law.” Id.
Therefore,
notwithstanding
Congress’
broad
constitutional power, the Supreme Court has held
that due to the perceived inadequacies of courtsmartial compared to Article III courts, Congress must
limit its exercise of court-martial jurisdiction to “the
least possible power adequate to the end proposed.”
Quarles, 350 U.S. at 23 (emphasis in original) (quoting
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31
(1821)). 8
Appellant urges us to apply strict scrutiny to
Congress’ Article 2 jurisdictional scheme because he
claims that the unequal treatment he received under
7. During the second oral argument Appellant stated that
he had narrowed his claim and now only complains that he was
deprived of the right to a jury trial.
8. “There are dangers lurking in military trials which were
sought to be avoided by the Bill of Rights and Article III of our
Constitution. Free countries of the world have tried to restrict
military tribunals to the narrowest jurisdiction deemed
absolutely essential to maintaining discipline among troops in
active service.” Quarles, 350 U.S. at 22.
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Article 2 deprived him of fundamental rights. Strict
scrutiny analysis requires the challenged statute to
serve a “compelling governmental interest,” and the
means taken to be “narrowly tailored” to accomplish
this goal. Grutter v. Bollinger, 539 U.S. 306, 326
(2003).
Counter-balancing the proposition that strict
scrutiny is the appropriate level of review when
fundamental rights are in the balance, we have a
judicial duty to provide Congress with great deference
when it legislates pursuant to its Article I, Section 8
powers. “[J]udicial deference ... is at its apogee when
legislative action under the congressional authority to
raise and support armies and make rules and
regulations for their governance is challenged.”
Goldman v. Weinberger, 475 U.S. 503, 508 (1986)
(quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981));
see also Solorio v. United States, 483 U.S. 435 (1987).
I do not see any contradiction in performing a strict
scrutiny analysis while providing Congress with great
deference. Judicial deference “does not mean
abdication.” Rostker, 453 U.S. at 70. For instance, in
Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp.
3d 568 (S.D. Tex. 2019), the district court recognized
that “the court’s deference to Congress’s ‘studied
choice’ is potentially at its height” but still used
intermediate-level scrutiny to analyze a gender-based
equal protection challenge to Congress’ decision to
require males, but not females, to register for the
Selective Service. Id., at 580.
Equal protection case law supports the proposition
that strict scrutiny is the appropriate level of judicial
review of governmental action that impinges on a
fundamental right. Plyler v. Doe, 457 U.S. 202, 217
n.15 (1982) (“In determining whether a class-based
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denial of a particular right is deserving of strict
scrutiny under the Equal Protection Clause, we look
to the Constitution to see if the right infringed has its
source, explicitly or implicitly, therein.”); see also
United States v. Marcum, 60 M.J. 198, 204-05
(C.A.A.F. 2004) (analyzing the nature and scope of the
right identified by the Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003) and La
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