Military Jurisdiction over Retired Servicemembers

Military Jurisdiction over Retired Servicemembers

Legal Sidebari

Military Jurisdiction over Retired
Servicemembers
April 5, 2023
Members of the United States Armed Forces are governed by a distinct criminal legal regime: the military
justice system. (They are also subject to civilian laws and courts.) The purposes of this system, in addition
to pursuing justice, are “maintaining good order and discipline in the armed forces” and “promot[ing]
efficiency and effectiveness in the military establishment . . . to strengthen the national security of the
United States.”
The military justice system differs from its civilian counterparts in several key ways, including
(1) extensive military commander authority over legal process; (2) a criminal code—the Uniform Code of
Military Justice (UCMJ)—that includes military-specific offenses in addition to those typically contained
in civilian criminal codes; (3) specialized tribunals called courts-martial; and (4) abrogated constitutional
rights (e.g., no right to grand jury indictment or jury trial). Given the military justice system’s
distinctiveness, whether a person is subject to military jurisdiction can be of great consequence to both the
individual and the military.
Unlike most civilian legal systems, in which geography or legal subject matter generally determines
jurisdiction, the military justice system exercises global jurisdiction based on an individual’s military
status. Military retirees, for the most part, maintain a legal military status and are therefore subject to
military law. (For information on military retirement, see CRS In Focus IF10483.) This Legal Sidebar
outlines the statutory basis for military jurisdiction over retired servicemembers, how courts have
addressed this issue, and potential considerations for Congress.
Statutory Authority
Under Article I, Section 8, Clause 14 of the U.S. Constitution, “The Congress shall have Power . . .To
make Rules for the Government and Regulation of the land and naval Forces.” Congress exercised this
authority to create the military justice system, including provisions extending military jurisdiction over
servicemember retirees. (Congress has included military retirees under military jurisdiction since the first
military retired list was promulgated in 1861.)
Article 2 of the UCMJ subjects the following three categories of retired servicemembers to military law:
(1) “Retired members of a regular component of the armed forces who are entitled to pay”; (2) “Retired
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members of a reserve component who are receiving hospitalization from an armed force”; and
(3) “Members of the Fleet Reserve and Fleet Marine Corps Reserve.”
Regular component servicemembers are generally entitled to retirement pay after completing twenty years
of active duty. They can also be entitled to retirement pay if they qualify for disability retirement before
completing twenty years of service.
Reserve component servicemembers who complete twenty years of qualifying service are eligible for
military medical benefits when they reach the age of sixty. These benefits include being able to receive
care at military medical facilities.
Members of the Fleet Reserve and Fleet Marine Corps Reserve are former members of the regular or
reserve components of the Navy or Marine Corps who have completed between twenty and thirty years of
active duty and have had their requests to transfer to fleet reserve components granted. After completing
thirty years of service, members of fleet reserves are transferred to either regular or reserve retired lists,
depending on their status when they transferred to a fleet reserve. Fleet reserve members are included as
“covered members” under the statute giving the Secretary of Defense authority to order “retired
members” to active duty. Courts have described fleet reserve members as, “for all intents and purposes,
retired” and as “recent retirees.”
Judicial Interpretations
The U.S. Supreme Court has long held that Article I, Section 8, Clause 14 of the U.S. Constitution
“expressly entrust[s]” Congress with crafting the military justice system and that federal civilian courts
must accord Congress and the military great deference on military legal matters. Nevertheless, the
Supreme Court has stated that any “expansion” of military jurisdiction “necessarily encroaches” on that of
federal civilian courts “where persons on trial are surrounded with more constitutional safeguards than in
military tribunals.” Congress’s capacity “to authorize trial by court-martial,” the Court explained, must
therefore be “limit[ed] to the least possible power adequate to the end proposed.”
The Supreme Court has constrained military jurisdiction based “on one factor: the military status of the
accused.” The test is “whether the accused in the court-martial proceeding is a person who can be
regarded as falling within the term ‘land and naval Forces,’” as used in the Constitution. The Court has
relied on two primary considerations when determining military status: (1) the individual’s “connection
with the military”; and (2) the military’s “power over” the person in question. Applying this test, the
Supreme Court has held that the following categories of individuals may not be court-martialed:
servicemembers’ dependents; former servicemembers “who had severed all relationship with the
military”; and civilian employees of the Armed Forces. The Court did not defer to Congress in these
rulings and overrode contrary legislation, notwithstanding Congress’s general authority in this area.
The Supreme Court has not yet specifically ruled on the military status of retired servicemembers, though
it has approvingly noted that they remain part of the Armed Forces and subject to the UCMJ. Federal
appellate courts (e.g., the U.S. Court of Appeals for the District of Columbia and U.S. Court of Appeals
for the Armed Forces [CAAF]), however, have consistently held that military retirees possess a military
status that makes them subject to military law. In finding such status, courts have highlighted several
connections between retired servicemembers and the military: they can be recalled to active duty and,
accordingly, serve as a potential source of supplementary personnel; they are entitled to receive special
pay and other benefits from the military, which are viewed, at least in part, as retainer conferrals; and they
have the right to wear their uniforms and be referred to according to their rank (in certain circumstances).
The U.S. Court of Military Appeals (now the CAAF) articulated a widely adopted position in 1958 in
United States v. Hooper:

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[Those] on the retired list are not mere pensioners in any sense of the word. They form a vital
segment of our national defense for their experience and mature judgment are relied upon heavily
in times of emergency. The salaries they receive are not solely recompense for past services, but a
means devised by Congress to assure their availability and preparedness in future contingencies.
This preparedness depends as much upon their continued responsiveness to discipline as upon their
continued state of physical health. Certainly, one who is authorized to wear the uniform of his
country, to use the title of his grade, who is looked upon as a model of the military way of life, and
who receives a salary to assure his availability, is a part of the land or naval forces.
Critiques of Military Retiree Jurisdiction
While courts have consistently affirmed military jurisdiction over retired servicemembers, some judges
and scholars contest this exercise of military legal authority. Critics of this jurisdiction argue that the
retiree-military connections noted by courts are too tenuous to engender legal military status. Retirees, for
example, do not participate in military activities, are not subject to fitness standards, are not assigned to
specific commands, lack authority to issue orders, and may not serve as panel members for courts-martial.
These critics also contend that military jurisdiction over retired servicemembers, who are generally not
involved in regular military operations, does little to further the unique purposes of military law—mainly,
to promote good order and discipline in the ranks. Finally, some critics argue that military jurisdiction
over retired servicemembers improperly, and dramatically, enlarges the number of individuals subject to
the UCMJ. Millions of retired servicemembers can potentially have their constitutional rights attenuated
and their retirement benefits revoked. According to the FY2021 demographics report published by the
Department of Defense (DOD), there are roughly 2.1 million active duty and ready reserve
servicemembers. In contrast, according to DOD’s FY2020 Statistical Report on the Military Retirement
System, there are roughly two million military retirees receiving retired pay. This number may not include
all individuals eligible for retired pay, which is the legal requirement for military jurisdiction.
In addition to those critics who believe that subjecting retired servicemembers to military jurisdiction is
inappropriate, some argue that the current legal framework is overly expansive and should be narrowed.
They assert that current statutes and service-department regulations governing when and how military
retirees can be court-martialed are inadequately uniform and do not provide sufficient guidance. These
critics think that Congress should further delineate, and curtail, military jurisdiction over retired
servicemembers.
Other commentators support current law in this area. They contend that servicemember retirees’ military
connections, and corresponding potential liabilities, are appropriate and “not a burden to be borne, but an
honor and a privilege to be worn with pride.”
Congressional Considerations
Given the consistent court rulings on military jurisdiction over retired servicemembers upholding the
current regime, it is likely that legal change in this area would only come about through congressional
action. Over the years, there have been several proposals for amending the UCMJ and military
jurisdiction over servicemember retirees. Some recommend repealing Articles 2(a)(4)–(6) to end this
exercise of jurisdiction. Others assert that Congress should restrict military jurisdiction over retirees by
enacting laws requiring courts to consider “the nature, military or civilian, of the offense involved and the
punishment to be inflicted,” and to extend jurisdiction only when the alleged offense and potential
punishment sufficiently uphold the purposes of military law.
Congress could also, some argue, provide for military jurisdiction over retirees in the limited
circumstances “when a military court-martial is the only forum available to bring a military retiree to
justice for extremely serious misconduct” and when “the retiree’s misconduct was of such an egregious

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nature that the retiree would be unsuitable for continued military service even during periods of dire
national emergency.” Additional recommendations endorse legislation that would make certain UCMJ
punitive articles inapplicable to retirees, such as Articles 88, 89, and 90(2), which criminalize,
respectively, contempt toward officials; disrespecting or assaulting a superior commissioned officer; and
willfully disobeying a superior commissioned officer during peacetime.
Finally, some commentators favor current law and the discretion it affords the military. They recommend
making no changes to military jurisdiction over retired servicemembers.

Author Information

Andreas Kuersten

Legislative Attorney

Disclaimer
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