On November 20, 2020, Judge Richard J. Leon launched what might prove to be a seminal attack on military justice jurisdiction. Since the Uniform Code of Military Justice’s inception in 1950, the code has allowed the military to court-martial certain military retirees. While court-martial proceedings against retirees are rare, “the threat of a court-martial is very real.” But in the civil case Larrabee v. Braithwaite, Judge Leon challenged this longstanding jurisdiction. Now on appeal before the DC Circuit, this case has significant ramifications for military retirees.
Article I of the U.S. Constitution grants Congress the power to “make rules for the government and regulation” of military forces. Congress has promulgated these rules through the Uniform Code of Military Justice (UCMJ).
In addition to outlining the rules and procedures of courts-martial, the UCMJ defines the military justice system’s jurisdiction. Unlike most civilian jurisdictions, UCMJ jurisdiction is not territorially bound. Instead, jurisdiction is predicated upon an individual’s relationship to the military. As one might expect, the code applies at all times to active-duty military members, students at the service academies, prisoners of war, and those serving sentences imposed by a court-martial. It also applies to both reservists and national guardsmen during inactive duty training, so long as the national guardsmen are in federal service. And the UCMJ can apply to certain civilians that interact closely with the military.
But jurisdiction over military retirees stands out as peculiar. Article 2(a)(4) allows for the court-martial of regular component (Army, Navy, Marine, Air Force, Space Force, and Coast Guard) retirees who are entitled to pay, and Article 2(a)(6) allows for the court-martial of retirees who are part of the Fleet Reserve or Fleet Marine Corps Reserve. Moreover, despite their retiree status, these two groups are treated like active-duty members in that they are continuously subject to UCMJ jurisdiction.
The application of UCMJ jurisdiction to retirees is significant because courts-martial are not Article III courts and are therefore not subject to some of the basic protections contained within the Bill of Rights. For instance, court-martialed defendants do not have the right to a jury trial; instead, an eight-person “member panel” selected by a high-ranking officer serves as the trier of fact. Consequently, whether Article 2(a)(4) and (6) are constitutional carries significant implications for individuals court-martialed under these provisions.
Despite many challenges to these provisions, military courts have consistently found that the Constitution allows Congress to extend UCMJ jurisdiction to retirees. For instance, in the 2018 case United States v. Dinger, the Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that it was “firmly convinced that those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Though the U.S. Court of Appeals for the Armed Forces (CAAF), the highest military appellate court, did not squarely address the jurisdictional question, it ultimately affirmed the CCA’s decision, and the Supreme Court denied Dinger’s petition for certiorari.
The court-martial and appeal of Retired Marine Staff Sergeant Steve Larrabee proceeded along similar lines. Larrabee was court-martialed and pled guilty to an offense he committed three months after transferring to the Fleet Marine Corps Reserve. He argued before the Navy-Marine Corps CCA that the prosecution of Fleet Marine Corps Reservists under Article 2(a)(6) for crimes committed after transfer to the Fleet Marine Corps Reserve was unconstitutional because Fleet Marine Corps Reservists are not part of the “land and naval forces”; Congress therefore could not subject them to UCMJ jurisdiction under its Article I power.
The CCA addressed Larrabee’s claim in a footnote, summarily rejecting the claim based on its ruling in Dinger. The CAAF agreed to hear Larrabee, but after the CAAF affirmed the CCA’s ruling in Dinger, it cited Dinger to summarily affirm Larrabee. And, as in Dinger, the Supreme Court denied Larrabee’s petition for certiorari.
Not to be deterred, Larrabee filed suit against the Secretary of the Navy and the United States in the United States District Court for the District of Columbia, again challenging the constitutionality of Article 2(a)(6). For the first time since the UCMJ’s inception, the district court found the provision unconstitutional.
Citing the Supreme Court case U.S. ex rel. Toth v. Quarles, the district court began by arguing that UCMJ jurisdiction must be “limited to the ‘least possible power adequate’” to promote good order and discipline in the armed forces. Thus, whether an individual constitutes a member of the “land and naval Forces” depends on whether “certain overriding demands of discipline necessitate [UCMJ] jurisdiction.”
Though the government contended that Fleet Marine Corps Reservists’ receipt of retainer pay and the ability of the Secretary of the Navy to recall them to active duty at any time necessitated jurisdiction, the district court found these justifications insufficient. Specifically, it found that the pay received by retirees constituted deferred pay from past services, not retainer pay. And it found that Fleet Marine Corps Reservists were “much less likely to be recalled to active-duty service than [r]eservists,” rendering Congress’s distinction between Fleet Marine Corps Reservists and inactive reservists “arbitrary at best.” In consequence, the court found that Congress failed to demonstrate why the application of UCMJ jurisdiction to Fleet Marine Corps Reservists was necessary to the promotion of good order and discipline.
Larrabee v. Braithwaite represents the first break in the consistent line of precedent upholding the military’s ability to court-martial certain retirees. While the district court’s ruling has no precedential effect on the military courts, the United States has appealed the decision to the DC Circuit, whose ruling would have a much broader effect on military retirees who seek to challenge UCMJ jurisdiction. This is especially true because the logic of Larrabee extends beyond Article 2(a)(6) to the more inclusive Article 2(a)(4). Additionally, the CAAF recently agreed to hear United States v. Begani, which addresses the question “whether Fleet Reservists have a sufficient current connection to the military for Congress to subject them to constant UCMJ jurisdiction.” A circuit split between the DC Circuit and the CAAF on this issue could lead to confusion as to who has jurisdiction to prosecute qualifying retirees, especially those who commit crimes overseas. Such confusion would likely require Supreme Court or congressional intervention to resolve.