Sir Cloudesley's riposte on jurisdiction over retirees

Admiral of the Fleet
Sir Cloudesley Shovell, RN

Over at another blog, the late Sir Cloudesley Shovell has posted this spirited response to a blog post by alive-and-kicking retired Maj Gen Charlie Dunlap:

Cloudesley Shovell says:
February 21, 2019 at 10:03 PM 
I remain unpersuaded by Maj. Gen. Dunlap’s article.

One could argue until the cows come home about whether retirees were contemplated to be part of the “land and naval forces” in Art. 1, sec. 8 of the Constitution.  One could also, in the manner of angels dancing on the head of a pin, argue whether retiree jurisdiction is a necessary and proper exercise of the power to provide for the government and regulation of said land and naval forces.  I’d say that discussion is best had in a dimly lit bar, sitting in leather chairs, smoking cigars, and sipping some fine single malt scotch whisky, neat, with perhaps a few drops of water to really open it up.  Next time I’m in Raleigh-Durham, I’ll have to invite Gen. Dunlap (or does he now prefer Professor Dunlap?) to discuss the matter, or anything else that may arise.  But until then, a few comments.

The matter of retiree jurisdiction is a pure policy choice.  It has nothing to do with the actual good order and discipline of the armed forces, and is exercised only in the rarest of circumstances, either to get a second bite and the apple after the “wrong” result in another forum (hello, Hennis), or in response serious felonies that offend the puritan sensibilities of the senior military leadership.  Sex crimes, that is.  (Gen. Grazioplene; Adm. Hooper way back in the day, 1956 or so (sodomy); Larrabee; etc.)  Disclosing classified info to your mistress ain’t enough (Petreaus), nor is fraud and bribery (Adm. Gilbeau convicted in federal court in the Fat Leonard case, retired and collects retired pay, as do other officers convicted in that matter).  Lying to the FBI is insufficient as well (Gen. Flynn). 

So what arguments does Gen. Dunlap make in support of unfettered jurisdiction over retirees of a regular component of the armed forces entitled to pay?  Three things, apparently.  First, the voluntary nature of the continuing relationship between retiree and the armed forces.  Second, tied closely to the first, taking the money.  Third, a misty-eyed appeal to God Bless the USA patriotism, saying that regular component retirees would be insulted by a court ruling that they are no longer subject to the UCMJ.

UCMJ Art. 2(a)(4) authorizes the exercise of jurisdiction not only over those retired for years of service, but in fact over any retiree of a regular component, regardless of the basis for retirement.  A hypothetical–a draftee is inducted into a regular component of the armed forces, completes basic training, gets shipped off to a war zone, and is promptly severely injured and retired for medical reasons after less than six months of service.  Does the fact that he now “voluntarily” accepts retired pay due to his injuries sufficient for lifetime jurisdiction?  Really?  Let’s assume said draftee is injured alongside a young officer who was commissioned into a reserve component.  Said young officer also suffers a severe injury and is medically retired.  But hey, he’s in a reserve component, so no jurisdiction.  Why the distinction?  What is the policy reason?

Consider a regular component retiree who retires for years of service.  Consider a reserve component retiree who retires for years of service.  Both went through basic training at the same time (or were commissioned from the same source), served in the same units, the only difference being that regular guy went to 20, and reserve guy got out at 14 years, and finished his service in the reserves.  Both belong to the VFW, attend all the parades, cry when singing the National Anthem, and both would be insulted if a court considered retirees to no longer be part of the armed forces.  Heck, make them identical twins.  Why jurisdiction over regular guy, but not reserve guy?  Could it possibly be, at the time the UCMJ was drafted not long after WWII, that all those 90-day wonder reserve officers now serving in Congress or in important staff or government positions recoiled at the idea of lifetime UCMJ jurisdiction, as opposed to all those regular “ring-knocker” officers they encountered?  Who knows?  I sure don’t.  I’m just spit-balling (JFK, LBJ, Nixon, and Ford were all Navy reserve officers in WWII).

I found his appeal to patriotism particularly insulting to reserve retirees.  Does Gen. Dunlap still subscribe to the notion that the regular component and the reserve component are two different worlds?  I thought such notions had been put to rest after Sep 11 and the widespread recall of reservists.  Why would a regular retiree be insulted by the severing of UCMJ jurisdiction, but the many reserve component retirees are not?  Are not those in the reserves just as patriotic as their regular component brethren?

Once again, this is all policy.  There’s no inherent res ipsa basis for jurisdiction over retirees.  Voluntariness has nothing to do with it.  Patriotism has nothing to do with it.  The “subject to recall” thing is a total canard (how many regular component retirees were involuntarily recalled compared to reserve component involuntary recalls?)  It’s all a matter of “you’re taking our money, you play by our rules.”  If that’s all it is, why the regular/reserve distinction?

I’m asking questions because I don’t know the answer.  I do know that as a policy matter, I’d terminate jurisdiction over retirees.  It’s got nothing to do with good order and discipline, and its exercise is subject to the pure unfettered discretion of some commander somewhere, and not any rational policy.  It’s also incredibly rare.  Existing federal and state jurisdiction over crimes is plenty sufficient.  If Congress is so concerned about military retirees collecting pensions after convictions for crimes, they can make forfeiture or reduction of said pension a collateral consequence of conviction of a qualifying crime.  UCMJ jurisdiction is unnecessary.

For those vanishingly rare circumstances where a military retiree’s criminal acts do actually affect the good order and discipline of the armed forces, Congress can provide for limited UCMJ jurisdiction, and require actual proof of real and material prejudice to good order and discipline, established through admissible evidence at trial, as Allan suggests above.

Kind regards,
CS

Disclosure: the Editor was one of the petitioner's counsel in Larrabee.