Last month – in advance of the NMCCA withdrawing its opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (decision analyzed here and here) – the Air Force CCA issued a published decision in United States v. Ballard, __ M.J. __, No. 39440 (A.F. Ct. Crim. App. Sep. 30, 2019) (link to slip op.), in which the CCA rejected a constitutional challenge to court-martial jurisdiction over retired members. Writing for a three-judge panel of the CCA, Judge Lewis explained:

We conclude Appellant was undoubtedly a retired member of the regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active duty. We note our superior court has repeatedly upheld the exercise of court-martial jurisdiction in the face of challenges similar to one Appellant makes in this case. See, e.g., United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); Pearson v. Bloss, 28 M.J. 376, 378–80 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417, 421–25 (C.M.A. 1958). We find the Congress acted well within the authority entrusted to them by the Constitution’s Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular component of the armed forces who are entitled to pay in Article 2(a)(4).

Slip op. at 7-8.

Master Sergeant Ballard transferred to the retired list on August 31, 2016. The following month, his daughter reported that he molested her over the course of many years. Ballard was recalled to active duty for trial by court-martial, and he eventually pleaded guilty to numerous child sexual offenses pursuant to a pretrial agreement. The approved sentence included confinement for 40 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

The statutory basis for the court-martial was Article 2(a)(4), which extends court-martial jurisdiction to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964). The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Ballard did not challenge jurisdiction at the court-martial, but on appeal he argued that:

the Make Rules Clause of the United States Constitution, U.S. CONST. art. 1, § 8, cl. 14, restricts court-martial jurisdiction from being exercised against a retiree like Appellant. In Appellant’s view, Congress exceeded its authority in Article 2(a)(4), UCMJ, by applying the UCMJ to “Retired members of a regular component of the armed forces who are entitled to pay.”

Slip op. at 5. The CCA rejected the challenge for three reasons.

First, the CCA rejected application of Supreme Court precedents that limit the reach of the UCMJ. In United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955), the Court held that a discharged Airman with no remaining connection to the military could not be tried by a court-martial for in-service misconduct because such persons “like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution.” Similarly, in Reid v. Covert, 354 U.S. 1, 23 (1957), the Court prohibited trial by court-martial of civilian spouses who were living overseas with their service-member husbands (until they killed those husbands) because “the wives, children and other dependents of servicemen . . . do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier’s family.” Finally, in McElroy v. Guagliardo, 361 U.S. 281 (1960), the Court applied Toth and Covert to prohibit the court-martial of a civilian employee of the Air Force (a limitation that was relaxed by the enactment of Article 2(a)(10)). Judge Lewis explains that each of those cases is inapplicable to Ballard because:

The “classes of civilians connected with the military” in Toth, Reid, and McElroy are different than Appellant. See Noyd v. Bond, 395 U.S. 683, 696 n.8 (1969). Article 2(a)(4) does not attempt to reach these “classes of civilians.” In-stead, the plain and unambiguous language of Article 2(a)(4) reached Appellant as a retired member of a regular component who was entitled to pay.

Slip op. at 7.

Second, the CCA rejected application of the Supreme Court’s decision in Barker v. Kansas, 503 U.S. 594 (1992). Barker is a tax case; the Court invalidated a Kansas tax that applied to military retired pay – but not to the retired pay of state and local government employees – on the basis that the tax violated the non-discrimination rule in 4 U.S.C. § 111. Barker is often cited as a reason to invalidate Congress’ decision to extend court-martial jurisdiction to retired regulars, with the claim that military retired pay is merely deferred compensation for past services (and not “reduced compensation for reduced current services,” as the Court clearly held in McCarty v. McCarty, 453 U.S. 210, 221-22 (1981)), because the Barker court held that “for purposes of 4 U.S.C. § 111, military retirement benefits are to be considered deferred pay for past services.” 503 U.S. at 605. That narrow pronouncement, however, came with an additional caveat, as the Barker court also held that “military retirees unquestionably remain in the service and are subject to restrictions and recall,” 503 U.S. at 599 (emphasis added). Quoting the NMCCA’s decision in United States v. Dinger, 76 M.J. 552, 557 (N.M. Ct. Crim. App. Mar. 28, 2017), aff’d, 77 M.J. 447 (CAAFlog case page), Judge Lewis explained that “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Slip op. at 7.

Finally, the CCA rejected the argument that because Ballard meets the definition of a veteran in 38 U.S.C. § 101(2), he is a former member of the Air Force not subject to court-martial. Judge Lewis observed that “the definition of ‘veteran’ does not attempt to limit the exercise of court-martial jurisdiction over a military retiree and the statute is not even contained in Title 10 of the United States Code.” Slip op. at 7. There’s also the fact that a veteran can re-join the military (including by accepting transfer to the retired list) and thereby become subject to military discipline.

Ballard is just the latest in a long line of cases upholding Congress’ authority to subject retired members to court-martial jurisdiction. Even the NMCCA acknowledged that Congress has that power in its otherwise fundamentally flawed decision in Begani.

Changing that policy is a decision for Congress, not a judge.

4 Responses to “The Air Force CCA affirms court-martial jurisdiction over retired members”

  1. Philip D. Cave says:

    Changing that [law] is a decision for Congress, not a judge.

  2. Zachary D Spilman says:

    My point was that the application of court-martial jurisdiction to retired regulars is a policy choice by Congress. There doesn’t seem to be any real argument that Congress can’t subject retired regulars to court-martial; the arguments all seem to focus on why Congress shouldn’t.

  3. Cloudesley Shovell says:

    There may be a case out there with more sympathetic facts to challenge jurisdiction over retirees, or at least over one particular retiree.  This case wasn’t it.
     
    Nonetheless, I can imagine particular cases where a court could find that exercising jurisdiction over a retiree would be unconstitutional as applied.  However, such cases are incredibly rare.  I’m not sure one reported case even exists.  Example one would be a former servicemember retired for medical reasons after being wounded in combat.  Example two would be a retiree, say 80 years old who’s been retired for 35 years, longer than he ever served on active duty.  Both are unquestionably swept within the ambit of Article 2, UCMJ (assuming they’re not reservists), yet asserting UCMJ jurisdiction would be absurd, at least in the absence of some nexus (like the old service connection test) where the offense committed has a direct, palpable, actual effect on current good order and discipline.  Even then, why is UCMJ jurisdiction necessary when the offenses can be tried by civilian authorities? 
     
    But as you both pointed out, it’s a policy decision.  I would read the necessary and proper clause as a limitation on the legislative power, but Chief Justice Marshall settled that matter 200 years ago in McCulloch v Maryland, and I’m just a lowly peon in these matters.  It would be nice to see Congress revisit and narrow Article 2, UCMJ.
     
    Kind regards,CS
     

  4. stewie says:

    If it were truly a constitutional violation, of course it would be a decision for a judge/courts. Policy decisions can, in theory, be unconstitutional.
     
    But it’s not, so the correct ruling.

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