Retirees-Update

History is replete with servicemembers who are injured but who are voluntarily or involuntarily returned to duty after they are made whole--sorta.

Nelson at Trafalgar https://tinyurl.com/tvwt4tth

But I digress.

Today we have a system where severely ill or injured servicemembers may be retired with (tax-free) disability pay--the Temporary Disability Retired List (TDRL) and the Permanent Disability Retired List (PDRL).

Article 2, UCMJ, 10 U.S.C. § 802, subjects (many, many, many) retirees to court-martial jurisdiction until they die. You may remember the litigation in Larrabee, et. al., regarding Navy and Marine Fleet Reserve retirees (aka non-Regular retirees). In Morser, ACCA takes up the story of another type of non-regular retiree--those on the PDRL and finds someone on PDRL (with less than 20 years active service) are subject to court-martial on Article 120 charges. ACCA notes that "We are aware of no appellate opinions directly addressing UCMJ jurisdiction over a servicemember medically retired for permanent disability before serving twenty years."

But first, CAAF has previously opined in several cases involving those on the TDRL, which may be of interest in the event a CAAF petition is granted.

• United States v. Bowie, 14 U.S.C.M.A. 631, 34 C.M.R. 411 (1964).  A TDRL case. "[T]he Uniform Code does not distinguish between retirees, on the basis of the reason for retirement; all retirees receiving pay are subject to its provisions." Id. at 632.
• United States v. Stevenson, 53 M.J. 257 (C.A.A.F. 2000). A TDRL case. The Military Rules of Evidence apply to a servicemember on the temporary disability retired list.

Keep in mind Larrabee, et., al, that retirees are an additional ready reserve to be involuntarily recalled under certain conditions. So, like Larrabee's 75-year-old shoplifting retiree (who is receiving "pay" or a "pension") example, someone on the PDRL may be involuntarily recalled to active duty. "“Theoretically,” under current law, “only death cuts off the military’s ability to recall its retired members to active duty and/or to subject them to court-martial jurisdiction.” Larrabee Pet.

What do you think of this point made by Steve Vladeck in the Larrabee petition?

And current Defense Department regulations all but preclude the involuntary recall to active military duty any former servicemember who retired due to disability or who has reached the age of 60. See DoD Instruction 1352.01.

Does it matter that the recall event is unlikely to arise? Likely CAAF might say no, because the policy for or against when and if there will be a recall does not alter the law. That might be an amendment to Appendix 2.1 when considering a prosecution? Again, from the Larrabee petition.

[T]he understanding that retirees face a reasonable likelihood of recall to active duty, “like
Cincinnatus from the plow,” Bishop, supra, at 357, is generally anachronistic—and has been for decades. Since Vietnam, if not earlier, the reserve components, rather than the services’ retired lists, have been the primary mechanism for augmenting active-duty troops. See, e.g., Library of Congress, supra, at 15–17. Thus, the future activation-based argument in favor of military jurisdiction “seems rather more plausible when applied to reservists, who are in reality [more] likely to be called to service in emergencies.” Bishop, supra, at 357.

Rear Admiral Hooper appears to have been the first and oldest retiree prosecuted at court-martial; and lost on appeal, Hooper v. Commandant. Unless then Major General Grazioplene (now 1st Lt.) was older.