On 20 November 2020, United States District Court Judge Richard J. Leon ruled that the military’s use of a court-martial against a Fleet Marine Corps Reservist was unconstitutional. Just two months later, a divided en banc Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that courts-martial did have jurisdiction over the same group of military retirees. Now on appeal before the DC Circuit (CADC) and the Court of Appeals for the Armed Forces (CAAF), respectively, these cases have set the courts on a potential collision course.
Despite undergoing a broad overhaul in 2016, the Uniform Code of Military Justice still allows for the prosecution of certain military retirees. Specifically, Article 2(a)(4) and (6) subject Fleet Reservists, Fleet Marine Corps Reservists, and regular component retirees who are entitled to pay to continuous UCMJ jurisdiction. In contrast, reservists are only subject to UCMJ jurisdiction while acting in their capacity as reservists, i.e., during inactive duty training or while on active duty. And retired reservists are never subject to the UCMJ unless they are receiving hospitalization from an armed force.
Whether Article 2(a)(4) and (6) are constitutional carries significant implications for those individuals affected. For instance, how the court answers this question will decide whether an accused retiree will face a civilian trial with a jury or a court-martial with a member panel.
United States v. Begani
Military courts have consistently found the practice of prosecuting qualifying retirees under the UCMJ to be constitutional. After all, the UCMJ has conferred jurisdiction over such individuals since its inception in 1950.
The first crack in this line of precedent, however, came in United States v. Begani.
Retired Navy Chief Petty Officer Stephen Begani, who was serving in the Fleet Reserve at the time of the alleged incident, challenged his prosecution under the Constitution’s Equal Protection Clause. Begani argued that Fleet Reservists and reserve component retirees are similarly situated. Consequently, it violates the Equal Protection Clause to subject Fleet Reservists to the UCMJ while not subjecting reserve component retirees to the UCMJ.
A unanimous three judge NMCCA panel agreed with Begani. The court found that Fleet Reservists, regular component retirees, and retired members of reserve components were similarly situated for the purpose of an Equal Protection inquiry. Because fundamental rights were at stake, the court applied strict scrutiny, rejecting the argument that deference to Congress’s power to regulate the armed forces required a lesser standard. Ultimately, the court found that Article 2(a)(4) and (6) violate the Due Process Clause.
But Begani’s victory was short-lived. The NMCCA granted the government’s request for en banc consideration, and the court held four to three that the court-martial had jurisdiction over Begani.
Two judges—Judge Gaston and Senior Judge King—found that the court-martial “most assuredly” had jurisdiction. But instead of addressing the equal protection claim, the concurrence held that Begani knowingly and intentionally waived the claim when he failed to raise it during the court-martial.
Judge Stephens’ separate opinion, joined by Senior Judge Tang, directly addressed the equal protection claim. He first concluded that Fleet Reserve members and retirees of reserve components were not similarly situated. He then noted that, even if the two groups were similarly situated, “it is far from clear” whether heightened scrutiny would apply: Civilian courts had merely applied rational basis in similar cases, and the Supreme Court has exhorted the lower courts to grant Congress significant deference in areas that effect national security. Consequently, he found that the provision did not violate the Equal Protection Clause.
The three dissenting judges—two of whom served on the panel that ruled in favor of Begani—found that Fleet Reservists and retired members of the regular and reserve components are similarly situated. After applying strict scrutiny, the dissent contended that subjecting Fleet Reservists to the UCMJ while not subjecting reserve component retirees to the UCMJ violates Equal Protection. And, because Begani’s claim was jurisdictional, it could not be waived.
On December 8, 2020, the CAAF agreed to hear Begani’s appeal, which raised the question: Whether fleet reservists have a sufficient current connection to the military for Congress to subject them to constant UCMJ jurisdiction?
Larrabee v. Braithwaite
Civil courts, too, have consistently upheld the UCMJ’s jurisdiction over military retirees. Larrabee v. Braithwaite represents the first break in this steady line of civilian precedent.
Three months after transferring to the Fleet Marine Corps Reserve, Marine Staff Sergeant Steve Larrabee was court-martialed and pleaded guilty. Larrabee argued before the NMCCA that the prosecution of Fleet Marine Corps Reserve members 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. Both the NMCCA and the CAAF had rejected a nearly identical argument in United States v. Dinger, and both courts refused to reconsider their decision. The Supreme Court then 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 (DDC). He again challenged the constitutionality of Article 2(a)(6), asserting that retired military personnel are not part of the “Land and Naval Forces” and therefore are not subject to Congress’s Article I power. He pointed to the fact that members of the Fleet Marine Corps Reserve “are not realistically subject to involuntary recall,” and they have “no regular (or even irregular) military duties.”
The government centered its argument around the fact that Fleet Marine Corps Reservists receive pay and remain legally subject to recall. It contended that in light of these facts and considering the deference courts owe to Congress, Larrabee was a member of the land and naval forces and thus subject to UCMJ jurisdiction.
The District Court rejected the government’s arguments, finding that “Congress’s present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.”
Whether Congress can subject an individual to UCMJ jurisdiction depends upon the individual’s status, i.e., “whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’” The court then suggested that whether an individual constitutes a member of the “land and naval Forces” depends on whether “certain overriding demands of discipline necessitate court-martial jurisdiction.” However, these inquiries are tempered by the Supreme Court’s instruction that the UCMJ’s jurisdiction must be “limited to the ‘least possible power adequate to the end proposed.’”
The court ruled that neither retainer pay nor eligibility for recall adequately demonstrates that Fleet Marine Corps Reservists fall within the land and naval forces. In rejecting the government’s reliance on Fleet Marine Corps Reservists’ receipt of retainer pay, the judge pointed to Barker v. Kansas, where the Supreme Court held that military retirement benefits constitute deferred pay from past services, not retainer pay. The court then noted that the disparate treatment of inactive reservists and members of the Fleet Marine Corps Reserves—namely, subjecting inactive reservists to UCMJ jurisdiction only when training yet subjecting Fleet Marine Corps Reservists to constant UCMJ Jurisdiction—calls into question whether Article 2(a)(6) “is necessary to maintain good order and discipline.” In fact, the court 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.”
The court ultimately held that Congress failed to demonstrate why the application of the UCMJ to Fleet Marine Corps Reservists was necessary to the promotion of good order and discipline. And “in the absence of a principled basis [sic] promoting good order and discipline, Congress’s present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.”
The government filed an appeal in the CADC on 22 January 2021.
The Collision Course
The questions before the CAAF and the CADC are slightly different, but each court’s answer to its respective question could effectively lead to a ‘circuit split’ necessitating Supreme Court intervention.
As noted, the CAAF has already found that “those in a retired status remain ‘members’” of the military and may therefore face court-martial, rejecting many of the same arguments that the court in Larrabee accepted. Consequently, a CADC ruling that upholds the lower court’s decision may directly conflict with CAAF precedent. That conflict would matter significantly less, however, if the CAAF finds that the current UCMJ scheme violates the Equal Protection Clause. Thus, the Article would be unconstitutional whether that unconstitutionality stems from Article I limits or Fourteenth Amendment restrictions.
Contradictory rulings, however, might necessitate Supreme Court review. For instance, habeas claims lodged in the CADC by servicemembers convicted under Article 2(a)(4) and (6) would place the CADC and the CAAF in a direct confrontation. Moreover, conflicting decisions could lead to confusion in other areas of law, such as who has jurisdiction to prosecute qualifying military retirees who commit crimes oversees.
Finally, if the Supreme Court did ultimately rule against the government, there exists the question of whether such a rule would be retroactive under Teague.
Regardless of these cases’ outcomes, 2021 will be a big year for UCMJ jurisdiction.
ENS Jacob Weaver
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