On Friday the en banc Navy-Marine Corps CCA issued this opinion on reconsideration in United States v. Begani, __ M.J. __, No. 201800082, splitting 4-3 to affirm the validity of Articles 2(a)(4) and 2(a)(6), which apply court-martial jurisdiction to retired members of the regular components and to members of the Fleet Reserve (Navy) and Fleet Marine Corps Reserve.
The decision is a dramatic (but not unexpected) reversal of the decision of a three-judge panel of the court issued back in July and discussed here. If you’re not familiar with this case then you should probably read that post before continuing.
The panel had held that Articles 2(a)(4) and 2(a)(6) violate the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists. I wrote in this second post that the panel’s decision was fundamentally flawed because the panel overlooked the fact that reserve retirees need not have any current connection to the service to receive their reserve retired pay. Citing numerous statutes, regulations, and court decisions, I explained that reserve retired service and reserve retired pay are mutually exclusive statuses, while regular retired pay is a direct consequence of regular retired service. That is a significant distinction between reserve and regular retirees that eliminates any equal protection argument (and if you’re not familiar with reserve retirement then you should also read that second post before continuing).
In Friday’s decision Judge Stephens
writes for announced the judgment of the court and holds that members of the Fleet Reserve (like Begani) are not similar situated with retired members of reserve components. Slip op. at 15. That is true, writes Judge Stephens, whether the comparison between the groups is “‘identical or directly comparable in all material respects’ or ‘prima facie identical’ or even a more ‘colloquial’ phrasing of ‘apples to apples.’” Slip op. at 15 (citations omitted). Judge Stephens observes:
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, re-callability, 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.
Slip op. at 17 (emphasis added). A footnote cites paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD Financial Management Regulation), which explicitly states that reserve retirement is a pension that “is not dependent on the continuation of military status.”
The three dissenters, however, “find the Financial Management Regulation’s interpretation unconvincing.” Slip op. at 36. Chief Judge Crisfield (who wrote the original panel decision) writes the dissenting opinion now and cites paragraph 7 of Article 1820-030 of the Navy’s Military Personnel Manual (the MILPERSMAN) as identifying a host of “obligations and benefits of retired reservists.” Slip op. at 36-37. The Chief Judge also identifies that members of the retired reserve are subject to recall to active duty.
Unfortunately, Chief Judge Crisfield’s analysis begs the question. The MILPERSMAN identifies obligations and benefits for members of the Navy’s Retired Reserve, and such members are indeed – in a remote sense – subject to recall. But neither the MILPERSMAN nor the statutes and regulations governing recall mean that a person entitled to a reserve retirement must also be a member of the retired reserve.
Rather – as I wrote previously – the reality is quite the opposite. Reserve retired pay and membership in a retired reserve are totally separate things. Reserve retired pay is established by one statute: 10 U.S.C. § 12731. In that statute, Congress provided that “a person is entitled, upon application, to retired pay” if the person meets the age and years of service requirements for reserve retirement (generally reaching age 60 and completing 20 qualifying years). The statute’s wording is important: it refers to a person (not a member of the armed forces) and it says that the person is entitled to retired pay upon application (not transfer). The statute’s silence is even more important; it says nothing about the person being a member of the retired reserve or having any other continuing military obligation or connection to the armed forces. Accordingly, the DoD (quite rightly) treats reserve retired pay as a pension.
There is, of course, a retired reserve, which is part of the reserve component of the armed forces. See 10 U.S.C. § 10141. People may join the retired reserve, but that’s not a prerequisite to receipt of reserve retired pay. There are certainly benefits to being in the retired reserve (military identification, retention of rank, commissary and exchange privileges, Tricare eligibility, etc.), and with those benefits comes obligations (as Chief Judge Crisfield notes), but – unlike the regular retired list – service in the retired reserve does not confer court-martial jurisdiction because – also unlike the regular retired list – service in the retired reserve does not generate an entitlement to reserve retired pay. Reserve retired pay is simply not part of the retired reserve status bargain.
The error in the Chief Judge’s analysis is particularly clear in this reference to Article 2(a)(5):
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.)
Slip op. at 37. Yet Article 2(a)(5) only applies to “retired members of a reserve component who are receiving hospitalization from an armed force” (emphasis added). Such membership is military status that is wholly separate from receipt of reserve retired pay.
And while Begani’s equal protection claim involves the retired reserve (and not just persons receiving a reserve retired pay), his claim required a finding that members of a retired reserve are similarly situated with both regular retirees and members of the fleet reserve (a status that is even closer to active duty). Yet of those three statuses – fleet reserve, regular retired list, and retired reserve – only the first two confer an entitlement to pay, and with that entitlement comes court-martial jurisdiction. The only way to make all three groups similarly situated would be for Congress to eliminate regular retirement (and force regular retirees to wait until they turn 60 to receive retired pay) and then subject no retirees to court-martial jurisdiction, or for Congress to grant immediate retired pay to a member of the retired reserve (regardless of age) and then subject all retirees to court-martial jurisdiction.
Judge Stephens’ opinion
for the court does not, however, actually win support from a majority of the CCA, as only only one other judge joins Judge Stephens’ equal protection analysis. But two other judges concur with the result because they find that Begani waived his equal protection claim by stipulating to his status as a member of the Fleet Reserve and then voluntarily pleading guilty before a military judge.
Begani did not raise his equal protection claim at trial, and on appeal he couched it in jurisdictional terms (because jurisdictional issues cannot be waived). Judge Gaston (joined by Senior Judge King) rejects that jurisdictional veneer, writing:
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.
Slip op. at 27. Judge Gaston concludes:
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 Constitution does not afford to someone of Appellant’s military status. The issue is therefore waived.
Slip op. at 31.
Finally, Judge Stephens’ opinion highlights absurd results if the CCA were to conclude that equal protection compels an all-or-nothing approach:
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 oth-erwise 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.
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 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.
Slip op. at 21-22. The Chief Judge’s dissent takes issue with those claims, writing in a footnote:
The majority also opines that subjecting all retirees to UCMJ jurisdiction would lead to an absurd result: retired reservists, who were not subject to the Code during their years of active participation in the reserves except when they were performing duties, would be subject to the Code as retirees even when not performing duties. This example is accurate, but could be easily solved by tying UCMJ jurisdiction to entitlement to retired pay. This would also solve the equal protection problem.
Slip op. at 47 n.22. But, again, there is the problem that entitlement to reserve retired pay is entirely separate from any continuing military status (membership in a retired reserve). Absent a separate connection to the armed forces, persons receiving reserve retired pay are wholly civilian.
• Oral argument audio
• NMCCA opinion (withdrawn)
• Blog post: The NMCCA torpedoes Article 2
• Blog post: The fundamental flaw in the NMCCA’s decision in Begani
• Blog post: NMCCA withdraws opinion, grants reconsideration
• Oral argument audio (reconsideration)
• NMCCA opinion on reconsideration