Can Grandpa Really be Court-Martialed? The Constitutionality of Imposing Military Law upon Retired Personnel

Abstract

Since 1861, military retirees have been subjected to military law post-retirement no differently than when they were in active-duty service. While there have only been a few cases since 1861, the issue has gained recent relevancy after different appellate courts—one military and one civilian—came to opposite conclusions about the constitutionality of punishing post-retirement acts under military law. To date, there is no article which looks to the original understanding of the Framers and who would have been understood to be within Congress’s authority under the “make Rules” clause in Article I. This paper looks to fill that gap by reviewing founding era documents, the practice of the Continental Congress, the practice of Britain from which our military law derives, and the text of the Constitution itself to ultimately conclude that the authority over the “land and naval Forces” was originally understood to only extend to those employed in actual service and full pay. Falling outside of the original authority granted to Congress, it is also unnecessary to expand upon Congress’s authority to incorporate military retirees. This has been shown through the treatment of the Reserve component who are only subject to military law while in actual service even though they are of greater importance to our national security structure than retired personnel. To conform the Uniform Code of Military Justice with the authority vested in Congress, the article concludes by recommending that Congress amend the Uniform Code of Military Justice to treat retired personnel in line with reservists—and the original intent of the Framers—by subjecting them to military law only when in actual service.

Keywords: Military, Army, Navy, Marines, Air Force, Retiree, Retired, Personnel, Article 2(a)(4), Article 2(a)(6), UCMJ, Uniform Code of Military Justice, Larrabee, Begani, Jurisdiction, Personal Jurisdiction, Constitution

JEL Classification: K14, K19