Introduction

In Wilson v. Curtis (10th Cir. Sept. 5, 2025), the United States Court of Appeals for the Tenth Circuit addressed whether Congress may constitutionally subject retired servicemembers—including those retired for medical disability—to trial by court-martial. Petitioners Aaron W. Wilson and Sean J. Dillon, both former Army soldiers convicted of serious sex offenses, collaterally attacked their convictions via habeas petitions, contending that retirees are no longer within “the land and naval Forces” for purposes of the Make Rules Clause (U.S. Const. art. I, § 8, cl. 14). The district court rejected their claims; the Tenth Circuit affirmed.

The case squarely presented two questions:

• Whether Congress’s grant of UCMJ jurisdiction over retired members of the regular components entitled to pay (10 U.S.C. § 802(a)(4)) is constitutional under the Make Rules Clause; and
• Whether medical retirees stand on a different constitutional footing because of the practical limits on their recall to active duty.

In a published opinion by Judge Eid, the Tenth Circuit held that retirees—medical retirees included—retain “military status” because they maintain a formal, ongoing legal relationship with the armed forces that includes a duty to obey orders (most notably, the statutory duty to return to active duty if recalled). As such, they remain part of “the land and naval Forces” and may be tried by court-martial.

Summary of the Judgment

The Tenth Circuit affirmed the denial of habeas relief to both petitioners. Drawing on Solorio v. United States, 483 U.S. 435 (1987), the court reiterated that the constitutionality of court-martial jurisdiction turns on a single factor: the military status of the accused. Retirees satisfy this standard because:

• They remain subject to involuntary recall to active duty (10 U.S.C. § 688);
• They hold rank and may wear the uniform in limited circumstances;
• They receive retired pay (or disability retired pay); and
• They have not “severed all relationship with the military and its institutions,” in contrast to fully separated former servicemembers (United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)).

The court rejected arguments that retirees should be treated as civilians for constitutional purposes, declined to require a showing that courts-martial are “necessary” for good order and discipline, and concluded that the practical likelihood of recall is irrelevant to the constitutional inquiry. It expressly held there is no judicial deference to Congress on the antecedent constitutional question of who may be subjected to courts-martial, citing Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022), and Marbury v. Madison.

As to petitioner Dillon, the court noted that, even if he had been retired at the time charges were preferred (a point the district court rejected and the Tenth Circuit found unnecessary to resolve), the exercise of military jurisdiction would still be constitutional under the rule announced.

The Core Holding

• Retired servicemembers, including those medically retired under 10 U.S.C. § 1201, have “military status” and are part of “the land and naval Forces” for purposes of the Make Rules Clause.
• Accordingly, Congress’s extension of UCMJ jurisdiction to “retired members of a regular component of the armed forces who are entitled to pay,” 10 U.S.C. § 802(a)(4), is constitutional.
• No separate showing of “necessity” is required; the dispositive factor is military status (Solorio).
• The practical likelihood of recall is not constitutionally relevant; the legal duty and formal relationship control (Toth distinguished).

Factual Background and Procedural Posture

Aaron W. Wilson

Wilson enlisted in 1992 and was permanently retired in 2012 for PTSD and bipolar II, with a 30% disability rating and retired pay at the rank of Staff Sergeant. In 2017, he was court-martialed for child sex offenses committed in Korea between 2005–2009. After unsuccessfully challenging jurisdiction, he pleaded guilty, received 17 years’ confinement, and was dishonorably discharged. The Army Court of Criminal Appeals (ACCA) affirmed, and the Court of Appeals for the Armed Forces (CAAF) denied review. Wilson then sought federal habeas relief; the District of Kansas denied the petition.

Sean J. Dillon

Dillon enlisted in 1996. A 2014 board found multiple service-connected injuries (90% disability), and the Army directed retirement by November 30, 2015. The Army issued retirement orders effective November 29, 2015; Dillon signed his DD-214. On November 3, 2015, however, the Army voided the DD-214 and revoked orders due to impending general court-martial. Charges were preferred on November 25, 2015. Dillon was convicted in April 2016 of multiple sexual offenses and sentenced to roughly 30 years’ confinement. ACCA affirmed, concluding he was not yet retired when charges were preferred; CAAF denied review. His subsequent habeas petition was denied.

Analysis

Precedents and Authorities Cited

The Tenth Circuit’s reasoning is anchored in Supreme Court decisions that define the constitutional limits of military jurisdiction by focusing on status, not place or offense:

• Solorio v. United States, 483 U.S. 435 (1987): Court-martial jurisdiction depends on “one factor: the military status of the accused.” The Tenth Circuit takes Solorio’s single-factor test as controlling.
• United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955): Congress cannot subject former servicemembers who have become civilians to courts-martial; such persons have “severed all relationship” with the military. The Tenth Circuit distinguishes retirees as the opposite of Toth’s civilians.
• Reid v. Covert, 354 U.S. 1 (1957): Civilians (e.g., dependents) cannot be tried by court-martial. Reinforces the civilian/military-status divide.
• McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281 (1960): Private contractors are not subject to court-martial absent a voluntary legal tie akin to enlistment. Again, status and legal obligation are key.
• Ex parte Reed, 100 U.S. 13 (1879): A paymaster’s clerk with an oath, uniform, pay, and ship’s duty could be court-martialed, despite no formal induction. Demonstrates that a formal legal relationship entailing obedience suffices.
• Kahn v. Anderson, 255 U.S. 1 (1921): Prisoners in military custody remained subject to military law; also, retired officers are officers “in the military service of the United States” and may sit on courts-martial.
• Billings v. Truesdell, 321 U.S. 542 (1944): Congress may subject those compelled to serve (e.g., draftees) to military jurisdiction; unwillingness does not negate status.
• United States v. Tyler, 105 U.S. 244 (1881); Thornley v. United States, 113 U.S. 310 (1885); Barker v. Kansas, 503 U.S. 594 (1992); McCarty v. McCarty, 453 U.S. 210 (1981): A consistent line that retired personnel “remain in the service,” may be assigned duties, hold rank, and receive pay that attaches to service status.
• Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022): Court upheld UCMJ jurisdiction over a Fleet Marine Corps Reservist, emphasizing a formal relationship and duty to obey orders. The Tenth Circuit expressly aligns with Larrabee’s approach, including its separation-of-powers point that courts, not Congress, say what the Constitution means.
• United States v. Begani, 81 M.J. 273 (C.A.A.F. 2021); United States ex rel. Pasela v. Fenno, 167 F.2d 593 (2d Cir. 1948): Support the proposition that reservists/retirees with ongoing obligations are within military jurisdiction.
• Parker v. Levy, 417 U.S. 733 (1974): Recognizes the special character of the military, supporting differential disciplinary systems for those “in” the forces.

The court also references statutes and regulations demonstrating retirees’ ongoing obligations: 10 U.S.C. § 802(a)(4) (UCMJ jurisdiction over retired regular-component members receiving pay); 10 U.S.C. § 688 (recall to active duty); 10 U.S.C. § 1201 (medical retirement authority); and DoD Instruction 1352.01 (retiree management, including recall and mobilization guidance). Army Regulation 635-200, ¶ 4-4 is noted for the option to seek separation rather than retirement.

Legal Reasoning

1. Jurisdiction hinges on status, not necessity. The court applies Solorio’s “single factor” test. It rejects an additional “necessity for discipline” showing urged by petitioners and declines to import such a requirement from Toth, which involved civilians who had entirely severed ties with the military.
2. Retirees have a formal legal relationship that includes a duty to obey orders. The opinion catalogs the features of retiree status: rank, pay, limited uniform privileges, and, centrally, a statutory duty to return to service if recalled (10 U.S.C. § 688). These features render retirees categorically different from separated former servicemembers who are wholly civilian (Toth).
3. Medical retirees are not constitutionally distinct. The court treats medical retirees the same as other retirees for constitutional purposes. It rejects arguments that the practical rarity of recall or a general policy of mobilizing them into civilian defense roles diminishes their “military status.” The dispositive point is the legal duty and retained status, not frequency or likelihood of recall.
4. History offers no contrary command; text and precedent control. The court reviews Founding-era and British practices involving “half-pay” officers and furloughed soldiers (as canvassed in Larrabee), acknowledges complexities and mixed signals, and ultimately concludes that historical materials do not foreclose Congress’s choice. Given the textual grant and longstanding Supreme Court precedents treating retirees as “in” the service, the constitutional extension of jurisdiction stands.
5. No deference to Congress on “who” is within the forces. Echoing Larrabee (and Marbury), the court clarifies that while Congress has plenary power to prescribe offenses, it does not have the “anterior” authority to define, for constitutional purposes, who is in “the land and naval Forces.” That is a judicial question, and the court answers it by adopting the formal-relationship-and-duty-to-obey standard.
6. Rejection of the Selective Service analogy. The court distinguishes selective service registrants from retirees. Registrants begin any military relationship upon induction; retirees have an ongoing, preexisting legal tie and current duty to obey the recall order—status that continues day-to-day in retirement.

Historical Context and Use

The court reviews, but does not rest its holding upon, two episodes:

• British half-pay officers. Their status and amenability to courts-martial varied over the 18th century as Parliament adjusted the Mutiny Acts. The historical record is mixed and not decisive.
• The Pennsylvania Mutiny (1783). Some furloughed soldiers were tried by court-martial for mutiny late in the Revolutionary War. Petitioners argue those trials involved soldiers who had not accepted furlough and thus remained active; the court finds any implications uncertain.

The Tenth Circuit ultimately places predominant weight on constitutional text and the Supreme Court’s sustained recognition that retired members remain part of the armed forces.

Disposition of the Parties’ Arguments

• Necessity of court-martial jurisdiction: Not required; status alone controls (Solorio).
• “Only one order” objection: Even if the recall order is the sole standing command, that suffices—status is binary and depends on a legal obligation to obey military orders, not on how many such obligations exist.
• Selective Service comparison: Inapt, because registrants lack any ongoing legal military relationship until called; retirees already have one.
• Due process objections to courts-martial: Not a constitutional bar to retiree jurisdiction; the Constitution distinguishes military from civilian justice systems (Parker v. Levy).
• Medical retiree distinctiveness: Not constitutionally relevant; the legal power to recall and the retained status are dispositive, not the probability or form of mobilization.

Impact and Implications

Doctrinal Impact

• Binding within the Tenth Circuit: The decision cements that all retirees of the regular components who receive retired pay—including those medically retired—are subject to the UCMJ and may be tried by court-martial for offenses committed either during active service or in retirement, consistent with the statute.
• Convergence with other courts: The ruling aligns with Larrabee (D.C. Cir.) and decisions from CAAF (e.g., Begani) holding that retirees/Reservists retained in a status with obligations are within the forces.
• Clarified test: The controlling inquiry is whether the person maintains a formal legal relationship with the military that includes an extant duty to obey military orders. Likelihood of recall is immaterial; necessity is not required.
• Separation vs. retirement: The decision heightens the practical significance of choosing separation in lieu of retirement. Separation ends the legal relationship (Toth), whereas retirement preserves it.

Practical Consequences

• Habeas strategy: Challenges to UCMJ jurisdiction by retirees are now substantially foreclosed in the Tenth Circuit, absent a showing that the petitioner was not in a retiree category covered by § 802(a)(4) (e.g., was truly separated, or not “entitled to pay”).
• Prosecution posture: Judge advocates can proceed against retirees for qualifying offenses without proving “necessity” or a realistic prospect of recall. The government need only establish retiree status covered by the statute.
• Medical retirees: Arguments premised on disability-based impracticality of recall will not defeat jurisdiction. The DoD’s own instructions (e.g., DoDI 1352.01) preserve discretionary recall authority and allow mobilization into roles as needed.
• Future litigation: Open questions may remain at the margins, such as the scope of jurisdiction over certain reserve retirees not “entitled to pay” until a certain age, or unique statutory carve-outs (outside the facts here). But as to regular-component retirees entitled to pay, the constitutional question is settled in this circuit.

Complex Concepts Simplified

• Make Rules Clause (Art. I, § 8, cl. 14): Gives Congress power to set rules for the armed forces, including establishing the military justice system. The Clause does not itself define who is “in” the forces—that is determined by constitutional interpretation.
• UCMJ (Uniform Code of Military Justice): The body of federal law that creates crimes, procedures, and courts-martial for the military. It applies to categories listed in 10 U.S.C. § 802, including certain retirees.
• Retired vs. Separated:
  • Retired: Continues a legal military status with rank, pay, and recall obligation. Subject to the UCMJ as specified by statute.
  • Separated: Ends the military status and all obligations; becomes a civilian not subject to the UCMJ.
• Medical Retiree: A member retired because a service-connected disability renders them unfit for duty (10 U.S.C. § 1201). Despite disability, they retain retiree status and the legal duty to return to service if recalled.
• Military Status: For constitutional purposes, a person has “military status” if they have a formal legal relationship with the armed forces that includes a duty to obey military orders (Solorio). This is the touchstone for UCMJ jurisdiction.
• Habeas Corpus in this context: A collateral attack in federal court on a court-martial conviction. The Tenth Circuit reviews the district court’s denial de novo on legal questions.
• ACCA and CAAF: The intermediate and highest military appellate courts, respectively. Exhaustion of these avenues commonly precedes federal habeas review.
• DD-214: The certificate of release or discharge from active duty. Its issuance and effective dates can bear on whether a member is still on active duty or has shifted to retiree status at a particular time.

Key Precedents: How They Shaped the Decision

The Tenth Circuit’s opinion is best viewed as a synthesis of two Supreme Court lines:

1. Status-Centric Jurisdiction: Solorio’s “military status” rule displaces place-of-offense tests. Toth and progeny mark the civilian boundary: those who have fully exited the military relationship cannot be tried by court-martial. Thus, defining status is the constitutional fulcrum.
2. Retirees Are “In” the Service: Tyler, Thornley, Barker, McCarty, and Kahn consistently characterize retirees as still in the armed forces because of enduring legal ties—rank, pay, recall, and assignment potential. This line provides doctrinal scaffolding for concluding that retirees meet Solorio’s status requirement.

Larrabee and Begani implement these Supreme Court principles in modern retiree contexts, rejecting attempts to exclude Fleet Reservists/retirees from UCMJ jurisdiction and reinforcing the “formal relationship + duty to obey” test. The Tenth Circuit expressly joins this approach.

Conclusion

Wilson v. Curtis establishes a clear, administrable constitutional rule in the Tenth Circuit: retirees—including those retired for disability—remain within “the land and naval Forces” for purposes of the Make Rules Clause because they retain a formal, ongoing legal relationship with the armed forces that includes a duty to obey orders, especially recall to active duty. Solorio’s single-factor status test governs; neither a showing of “necessity” nor the practical likelihood of recall is required. Toth’s prohibition on court-martial of civilians who have completely severed ties does not extend to retirees.

The decision brings the Tenth Circuit into alignment with the D.C. Circuit and military appellate authorities, stabilizing the jurisdictional landscape for prosecutions of retirees under the UCMJ. For servicemembers, the choice between retirement and separation remains a legally consequential fork: retirement preserves military status—and with it, amenability to court-martial—while separation marks the return to full civilian status and Article III protections.