On Tuesday, in this post, I analyzed the NMCCA’s astonishing opinion in United States v. Begani, __ M.J. __, No. 201800082 (N-M. Ct. Crim. App. Jul 31, 2019), in which a three-judge panel of the court held that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because the UCMJ does not also apply court-martial jurisdiction to retired reservists.

The most important holding in Begani is about three classes of retirees in the Navy and Marine Corps: (1) regular enlisted members in the Fleet Reserve receiving retainer pay (like Begani), (2) regular members on the retired list receiving retired pay, and (3) people receiving reserve (also known as non-regular) retired pay (the CCA did not address disability retirees).

The CCA held that people in those three categories “are similarly situated for purposes of equal protection analysis.” Slip op. at 8. That holding made possible the subsequent equal protection analysis (that found Article 2 unconstitutional). Without that holding, the rest of the opinion collapses.

The holding is based on similarities between the three categories of retirees:

The members of all three groups are in an inactive status and no longer perform any uniformed military duties. They are all subject to recall to active duty. They are ineligible for further promotion. They are entitled to retired pay at some point in their retired years. . . . For all of them, 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. Their actual ability to contribute to the accomplishment of a military mission is completely irrelevant.

Slip op. at 6.

The CCA analyzed “each group’s current degree of connectedness to the armed forces—not to past connections.” Slip op. at 6 (emphases in original). In analyzing how each group is currently connected to the armed forces, the CCA considered “the official Department of Defense (DoD) policy on the utilization of retirees.” Slip op. at 6. That policy includes an instruction that “makes no distinction between retired members of the regular and reserve components,” and that “does not mention active or reserve component status as a criterion for mobilization.” Slip op. at 6-7 (quoting DODI 1352.01 in footnotes). The CCA also considered the fact that “retired members of both the active and reserve components are similarly—though not identically—subject to involuntary recall to active duty.” Slip op. at 7. Because all three categories of retirees are still members of the armed forces, and because the DoD treats all three categories roughly equally, the CCA held that they are similarly situated.

That holding is fundamentally flawed because (unlike regular retirees) reserve retirees need not have any current connection to the service to receive their reserve retired pay. Reserve retired service and reserve retired pay are mutually exclusive. Regular retired pay, however, requires regular retired service. Put differently, while regular retirees must actually be in the military to receive regular retired pay, reserve retirees need not be in the military to receive their reserve retired pay (nor does continued service in the retired reserve create an entitlement to reserve retired pay). That’s an enormous difference in situation.

The bottom line is found in the wording of the statute that creates reserve retired pay, 10 U.S.C. § 12731 (“person”; “entitled”; and no mention of the retired reserve), and in paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD FMR), which states:

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.

(emphasis added). In other words, reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees.

Analysis follows after the jump.

Remember the three categories: (1) regular enlisted members in the Fleet Reserve receiving retainer pay (like Begani), (2) regular members on the retired list receiving retired pay, and (3) people receiving reserve (non-regular) retired pay.

The Fleet Reserve (and Fleet Marine Corps Reserve) is where enlisted Sailors (and Marines) with more than 20 but less than 30 years of active duty are transferred when they retire. It’s a special status that exists only in the Navy and Marine Corps, and Congress specifically applies court-martial jurisdiction to that status in Article 2(a)(6) (whereas jurisdiction for the retired list comes from a different section: Article 2(a)(4)). Regular retirees in the other services go straight to the retired list.

Members in the Fleet Reserve receive retainer pay – which isn’t retired pay (a distinction that, alone, seems to be more than enough to justify court-martial jurisdiction, but the CCA disagrees) – and a member must actually be in that status to get that money. 10 U.S.C. § 8330(c)(1) provides that:

Each member who is transferred to the Fleet Reserve or the Fleet Marine Corps Reserve under this section is entitled when not on active duty, to retainer pay computed under section 8333 of this title.

No other statute provides for retainer pay. An enlisted member remains in that status until they reach 30 years of service, and then they are transferred to the retired list.

The retired list is where regular members go when they retire and become entitled to retired pay under various statutes. The Navy and Marine Corps statutes are found in 10 U.S.C. Chapter 571. Well-settled caselaw establishes that transfer to the retired list is not separation from the military but rather is merely a change of status in continued military service, and that regular retired pay is not a pension but rather is reduced pay for reduced service. One particularly notable case (cited in the CCA’s opinion in Begani) is the 1957 court-martial of Rear Admiral Selden Hooper, USN, who had retired a decade earlier, in 1948. While in retired status (and without being returned to active status), Hooper was tried by a general court-martial for engaging in homosexual acts in a private residence (not on a base) during his retirement. He was convicted and sentenced to dismissal and total forfeitures.

Hooper challenged jurisdiction at trial and on appeal. Ultimately, the Court of Military Appeals (CAAF’s predecessor) rejected the challenge, ruling:

Officers 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.

United States v. Hooper, 26 C.M.R. 417, 425 (C.M.A. 1958). Hooper then went to the United States Court of Claims to try and preserve his retired pay. That Court reached the same conclusion as the CMA:

we hold that the exercise of jurisdiction by the military tribunal over this plaintiff was constitutionally valid, since we believe that this plaintiff was part of the land or naval forces. We say this because the salary he received was not solely recompense for past services, but a means devised by Congress to assure his availability and preparedness in future contingencies. He had a direct connection with the operation of the “land and naval forces.” Thus, he formed a part of a vital segment of our national defense and it naturally follows that he should be subject to military discipline.

Hooper v. United States, 326 F.2d 982, 987 (1964). The Court of Claims further held that:

Since [Hooper] was validly dismissed from the Navy, his entitlement to retired pay no longer exists.

326 F.2d at 988. The Court of Claims recently reiterated the basic holding of Hooper in a different case, explaining:

“Retirement” in the context of the military is something of a misnomer–retired pay, unlike a typical pension, is not simply compensation for past services, but also “reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 221-22 (1981). To be retired is to be placed on the retired list, subject to recall to active duty. 10 U.S.C. §§ 688. A retired officer therefore remains a member of the armed forces and remains subject to the UCMJ. 10 U.S.C. § 802(a)(4); McCarty, 453 U.S. at 221-22.

Loeh v. United States, 53 Fed. Cl. 2, 5 (2002).

Yet while regular retired pay is unlike a typical pension, reserve retired pay is very much like a typical pension.

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 retired reserve or any other continuing military obligation.

Entitlement to reserve (non-regular) retired pay under 10 U.S.C. § 12731 is, therefore, wholly separate from continued service in any reserve component. That’s clear from the statute, but you don’t have to take my word for it. The DoD recognizes that in its pay regulations:

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.

Paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD FMR).

Now there is a retired reserve, which is part of the reserve component of the armed forces. See 10 U.S.C. § 10141. Reservists may transfer to the retired reserve, but they need not do so to receive reserve retired pay. Furthermore, transfer to the retired reserve does not trigger any entitlement to retired pay; the entitlement comes from 10 U.S.C. § 12731 (which – as discussed above – is a pension statute unconnected to further military service). There are, of course, benefits to being in the retired reserve (military identification, retention of rank, commissary and exchange privileges, Tricare eligibility, etc.), and with those benefits comes the cost of possible involuntary mobilization. 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. It is, however, very much part of the regular retirement bargain.

Another statute further confirms the difference betwen regular and reserve retirement. In 10 U.S.C. § 12740 Congress denies eligibility to reserve retired pay for any person convicted by a court-martial and sentenced to death or a punitive discharge (if the discharge is executed). Without that statute, a reservist with qualifying service could be separated by a court-martial yet still receive reserve retired pay (because reserve retired pay – established in 10 U.S.C. § 12731 – doesn’t require continued service). That statute was enacted in the National Defense authorization Act for FY96, 110 Stat. 186, 365. The provision originated in the Senate Armed Services Committee, and the committee report explained that:

The committee recommends a provision that would authorize the Secretaries of the military departments to deny retired pay to non-regular service members who are convicted of an offense under the Uniform Code of Military Justice and whose sentence includes death, a dishonorable discharge, a bad conduct discharge, or dismissal. The provision would authorize the military departments to treat both regular and non-regular service members equitably.

S. Rept. 104-112, at 257 (1995) (emphasis added). The statute treats regular and reserve retirees equitably (meaning fairly) by making a punitive discharge for a reservist a bar to otherwise-earned reserve retired pay (a pension without a service requirement), just as a punitive discharge for a regular is a bar to regular retired pay (because it terminates the service required for the pay). Such equitable treatment is required because reserve and regular retirees are not equal.

So, let’s return to the CCA’s opinion in Begani:

The members of all three groups are in an inactive status and no longer perform any uniformed military duties. They are all subject to recall to active duty. They are ineligible for further promotion. They are entitled to retired pay at some point in their retired years. . . .

Slip op. at 6. The CCA’s reference to all of the people in all three groups is the the fundamental flaw in the decision. As discussed above, only two of the groups necessarily involve military status: the Fleet Reserve and the regular retired list. People receiving reserve retired pay need not have any connection to the military whatsoever (except, of course, as pensioners). Reserve retired pay and reserve retired status are simply not the same things (nor have the same association) as regular retired pay and regular retired status.

Yet there’s one loose end: people in the retired reserve who – while they don’t have to be there to get their reserve retired pay – have reserve status and reserve retired pay but are still not subject to jurisdiction. Aren’t they – at least functionally – similarly situated to regular retiree?

No. The CCA’s discussion of currently-serving reservists provides the answer for that situation:

Members of a reserve component on inactive duty training are subject to the UCMJ. Art. 2(a)(3), UCMJ. The appellant [Begani] argues that members of a reserve component that are not on inactive duty training or active duty (reservists on active duty would be subject to the UCMJ under Art. 2(a)(1)) should also be considered similarly situated with the appellant for UCMJ jurisdictional purposes. We disagree, seeing obvious differences between retired personnel of the active and reserve components on the one hand, and reservists who are not currently performing any military duties, have not transferred to a retired status, and may not even be eligible to retire, on the other. In addition to finding that inactive reservists are not similarly situated with retirees, we can conceive of compelling reasons why Congress would not subject these reservists to UCMJ jurisdiction.

Slip op. at 5 n.3 (emphasis added). Undoubtedly, one such reason is that few people would agree to be reservists if it meant continuous court-martial jurisdiction without continuous pay. The retired reserve – where the pay is a preexisting entitlement – is exactly the same circumstance. Congress incentivizes continued reserve service in the retired reserve with certain benefits, but not pay. That’s an obious reason to not apply court-martial jurisdiction to the retired reserve. Were Congress to impose court-martial jurisdiction on the retired reserve (as the CCA seems to say it must if it wants to maintain jurisdiction over regular retirees), it would create an enormous disincentive to joining the retired reserve without any countervailing benefit.

3 Responses to “The fundamental flaw in the NMCCA’s decision in Begani”

  1. Cloudesley Shovell says:

    You may be on to something.
     
    I’ve been pondering this decision for a couple days.  I’m not versed enough in the intricacies of the relevant due process law to make an informed decision on whether the court chose the proper standard of review.  It just seems to me that the court erred in subjecting to strict scrutiny Congress’s decision on how far to extend court-martial jurisdiction.  Given that Congress has pretty clear and unambiguous power to regulate the land and naval forces, how it does so should only be subject to rational basis review. 
     
    Furthermore, given the court’s conclusion that subjecting some retirees to court-martial violates fundamental rights, then why is it not also true that subjecting any retiree to court-martial jurisdiction violates fundamental rights?  State courts and Article III federal courts are all open and operating, so why tolerate any infringement on fundamental rights? 
     
    Kind regards,
    CS

  2. RobS says:

    It’s hard to understate just how flawed is the reasoning in Begani. First, the application of strict scrutiny is absolutely incorrect here.  As Zach notes, the groups at issue are not similarly situated.  It’s a fairly embarrassing and conclusory Constitutional argument by the court. 
    We can certainly argue about the propriety of holding retirees subject to the UCMJ, and maybe the only value in this decision is to draw some discussion to the issue. If I were waiving a magic wand, I think the right answer is something like a nexus test to evaluate the retiree misconduct, i.e., is there any obvious connection between their act and military service? If not, leave it to the civilians. It’s fair to say that most of the services have adopted something like this evaluation at least implicitly if not overtly. (You don’t see too many retirees being haled into court-martial for using/investing in marijuana.) I think I would also specifically exempt them from prosecution for certain offenses that impinge on 1st Amendment rights (e.g., Art. 88). 

  3. Vulture says:

    If I were a judge reviewing this case, my first question would be, “Is a reservist with 20 years experience eligible for the Fleet Reserve?”
     
    If he/she isn’t, this argument collapses.