Medical Retirees Are Part of “the land and naval Forces”: Tenth Circuit Upholds UCMJ Court‑Martial Jurisdiction Over Retired and Medically Retired Servicemembers

Introduction

In Dillon v. Curtis (consolidated with Wilson v. Curtis), the U.S. Court of Appeals for the Tenth Circuit addressed a fundamental constitutional question about who may be tried by court‑martial under the Uniform Code of Military Justice (UCMJ). Two former soldiers, Aaron W. Wilson and Sean J. Dillon, were court‑martialed for sex offenses committed while they were on active duty. After exhausting their military appeals, each sought federal habeas relief, arguing that the Constitution’s Make Rules Clause does not permit court‑martial jurisdiction over military retirees—especially those retired for medical disability—because retirees are no longer part of “the land and naval Forces.”

The Tenth Circuit affirmed the district court’s denial of habeas relief, holding that retired servicemembers, including medically retired servicemembers, retain “military status” for purposes of Article I, § 8, cl. 14, and may be subjected to court‑martial. The court’s decision adopts and clarifies a status‑based test: the constitutional touchstone for court‑martial jurisdiction is the accused’s continuing military status, evidenced by a formal relationship with the armed forces that includes a duty to obey military orders, such as involuntary recall.

Summary of the Judgment

• The court held that the Make Rules Clause allows Congress to subject retired servicemembers, including medically retired servicemembers, to court‑martial because they remain part of “the land and naval Forces.”
• Relying on Solorio v. United States, the court emphasized that court‑martial jurisdiction turns on a single factor: the military status of the accused. Retirees satisfy this standard because they hold rank, receive retired pay, may wear the uniform in limited circumstances, and remain subject to involuntary recall under 10 U.S.C. § 688.
• The court distinguished retirees from separated former servicemembers who have “severed all relationship with the military and its institutions” (United States ex rel. Toth v. Quarles), who cannot be court‑martialed.
• The court rejected arguments that history forecloses jurisdiction over inactive personnel, finding the record mixed and ultimately resting its decision on text and longstanding Supreme Court precedent.
• As to Dillon’s specific argument that he had already retired by the time charges were preferred, the court found that it need not resolve the retirement-status dispute, because even if Dillon were retired, the constitutional jurisdictional predicate was satisfied.

Analysis

Precedents Cited and How They Shaped the Decision

• Solorio v. United States, 483 U.S. 435 (1987): The Supreme Court established that the constitutionality of court‑martial jurisdiction turns on “one factor: the military status of the accused.” The Tenth Circuit applies this status test, focusing on whether retirees maintain a formal relationship with the military that includes a duty to obey orders.
• United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955): Toth prohibits the court‑martial of separated ex‑servicemembers who have severed all ties with the military. The Tenth Circuit uses Toth to draw the bright line: separation ends jurisdiction; retirement does not.
• Reid v. Covert, 354 U.S. 1 (1957) and McElroy v. Guagliardo, 361 U.S. 281 (1960): Civilians—including dependents and most contractors—cannot be court‑martialed absent a voluntary legal relationship to the military. The Tenth Circuit contrasts these civilians with retirees who remain legally bound to the military by rank, pay, and recall.
• Ex parte Reed, 100 U.S. 13 (1879): A Navy paymaster’s clerk, though not formally inducted, was subject to court‑martial due to an oath, service aboard a Navy vessel, and an obligation to obey orders. This supports the “formal relationship plus duty” framework.
• Kahn v. Anderson, 255 U.S. 1 (1921): The Court upheld jurisdiction over soldiers in military custody and recognized that retired officers remain “officers in the military service of the United States,” reinforcing the concept that retirees remain part of the forces.
• Billings v. Truesdell, 321 U.S. 542 (1944): Acknowledged Congress’s power to subject those bound to serve—including reluctant draftees—to military jurisdiction, underscoring that duty to obey orders can sustain court‑martial power.
• 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), and McCarty v. McCarty, 453 U.S. 210 (1981): Collectively affirm that military retirees “remain in the service,” retain officer status, and are considered part of the armed forces for multiple legal purposes. The Tenth Circuit heavily relies on these authorities.
• Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022): The D.C. Circuit held that a Fleet Marine Corps Reservist could be court‑martialed because he had a formal relationship with the military and a duty to obey orders. The Tenth Circuit aligns with Larrabee’s status‑based rationale and historical treatment.
• United States v. Begani, 81 M.J. 273 (C.A.A.F. 2021) and United States ex rel. Pasela v. Fenno, 167 F.2d 593 (2d Cir. 1948): Other appellate decisions recognizing the continued military status of reservists or retirees (paid, subject to recall, readiness obligations), consonant with today’s holding.
• Parker v. Levy, 417 U.S. 733 (1974): Confirms that the military is a specialized society with distinct disciplinary needs; members may be subject to different procedural regimes than civilians. This addresses fairness and rights‑based objections.
• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): The court emphasizes that, while Congress has plenary authority over offenses subject to court‑martial, the judiciary determines who constitutionally counts as part of “the land and naval Forces.” The Tenth Circuit expressly declines to defer to Congress on that antecedent definitional question, echoing Larrabee.

Legal Reasoning

The court grounds its decision in constitutional text and Supreme Court precedent:

• Textual anchor – Make Rules Clause: Article I, § 8, cl. 14 empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” The Tenth Circuit interprets this as allowing court‑martial jurisdiction over those who are part of the forces at the time of trial.
• Status‑based test from Solorio: The single constitutional determinant is “military status,” not the nature, place, or timing of the offense. The court rejects any additional “necessity” requirement to justify jurisdiction over retirees.
• What constitutes “military status”: The court synthesizes Supreme Court cases to fashion a workable standard: a person is part of the forces when he or she has a formal legal relationship that includes a present obligation to obey military orders. Retirees meet this definition because:
  • They hold military rank.
  • They receive retired pay.
  • They may wear the uniform in limited circumstances.
  • They are subject to involuntary recall under 10 U.S.C. § 688.
  This set of features distinguishes retirees from separated ex‑servicemembers (Toth), who have no remaining duty to the military.
• Application to medical retirees: Medical retirees share the same defining attributes. Although Department of Defense policy often deploys medically retired personnel to civilian defense roles and may limit recall in practice, the legal authority to recall remains, and that legal duty—not the likelihood of recall—carries constitutional significance. The court thus treats medical retirees like other retirees for Article I purposes.
• Historical evidence: The court acknowledges mixed historical practice concerning “half‑pay” officers and the Pennsylvania Mutiny, and it declines to let these materials control the constitutional inquiry. Because the historical record is inconclusive, the court rests on the constitutional text and the Supreme Court’s unbroken line of cases recognizing retirees as remaining in service.
• No “necessity” showing and no Selective Service analogy: The court rejects a requirement that the government prove court‑martial is necessary to good order and discipline. It also rejects the analogy to Selective Service registrants: retirees are former active‑duty servicemembers who chose retirement (retaining legal ties and duties), not civilians who acquire obligations only upon induction.
• Process and rights objections: While recognizing differences between court‑martial and Article III processes, the court reiterates that the constitutional question is one of congressional power and status; it is settled that military members may be subject to distinct procedures (Parker v. Levy).

Impact and Implications

• Firming the constitutional foundation for Article 2(a)(4): The decision strengthens the constitutional footing of 10 U.S.C. § 802(a)(4) (UCMJ Article 2(a)(4)), which subjects “[r]etired members of a regular component of the armed forces who are entitled to pay” to court‑martial.
• Parity with other appellate rulings: Aligning with Larrabee (D.C. Circuit) and Begani (CAAF), the Tenth Circuit’s ruling contributes to an emerging consensus that retirees remain within the forces due to rank, pay, and recall authority. This reduces forum uncertainty and the risk of disparate regional outcomes.
• Practical consequences for servicemembers: The retirement/separation election carries major legal consequences. Retirees remain subject to the UCMJ, potentially years after leaving active duty, for both pre‑retirement and post‑retirement misconduct (as Larrabee demonstrates). Separated veterans, by contrast, are beyond court‑martial reach for offenses not tried before separation.
• Medical retirement specifically: Counsel advising medically disabled servicemembers should emphasize that medical retirement—despite limited practical recall—preserves a legal duty to obey orders and thus preserves UCMJ exposure. The decision removes a constitutional shield previously urged by retirees in habeas challenges.
• Habeas strategy for retirees: After Dillon/Wilson, constitutional attacks in the Tenth Circuit on personal jurisdiction over retirees under the Make Rules Clause are significantly narrowed. Challenges will likely pivot to statutory interpretation, procedural due process within courts‑martial, or case‑specific defects rather than categorical constitutional bars.
• Open questions left for another day: The court did not decide whether all other categories of non‑active personnel (e.g., certain reservists not covered by § 802(a)(4)) fit the same analysis; it also did not need to resolve Dillon’s precise retirement status because jurisdiction would exist either way. Future litigation may explore margins (for example, other UCMJ subsections and distinct classes of retirees).
• Potential for Supreme Court review: Given the recurring character of the issue and Larrabee’s prominence, this line of cases could attract further attention, but the Tenth Circuit’s holding rests on Supreme Court precedent and textual analysis likely to be viewed as orthodox.

Complex Concepts Simplified

• Make Rules Clause: A constitutional provision authorizing Congress to make rules for the “Government and Regulation” of the armed forces. It is the source of court‑martial authority.
• Military status: A legal condition that places a person within the armed forces. Under Solorio, whether someone is subject to court‑martial depends on status, not on where or when the offense occurred. Retirees have status; separated veterans do not.
• Retirement vs. Separation: Retirees receive pay, hold rank, and are subject to involuntary recall (10 U.S.C. § 688). Separated servicemembers receive no retired pay, hold no military status, and cannot be recalled. Only the former remain within UCMJ jurisdiction under Article 2(a)(4).
• Medical retirement: A statutory retirement when a member is unfit for duty due to disability (10 U.S.C. § 1201). Despite disability, medical retirees retain rank, pay, and recall liability, keeping them within the armed forces for constitutional purposes.
• UCMJ Article 2(a)(4) (10 U.S.C. § 802(a)(4)): The statute that subjects retired members of a regular component entitled to pay to the UCMJ. Dillon confirms this provision’s constitutionality as applied to retirees, including medical retirees.
• Court‑martial: A military court proceeding to try offenses under the UCMJ. Members of the armed forces are subject to this system, which differs in some respects from Article III courts but is constitutionally valid for those with military status.
• Habeas corpus in this context: A collateral challenge in federal court to the legality of detention following a court‑martial conviction. The Tenth Circuit reviews legal questions de novo but gives no special deference to Congress in defining who is part of the “land and naval Forces.”

Conclusion

Dillon v. Curtis establishes a clear and consequential rule in the Tenth Circuit: retired servicemembers—including those medically retired—remain part of “the land and naval Forces” and therefore may be tried by court‑martial. Anchored in the Make Rules Clause and an unbroken chain of Supreme Court decisions, the court endorses a status‑based inquiry that looks to a servicemember’s continuing formal relationship with the military and the ongoing duty to obey orders, particularly the statutory obligation to submit to recall. By drawing a decisive line between retirement (which preserves military status) and separation (which severs it), the court ensures constitutionally sound, uniform application of the UCMJ to retirees and aligns the Tenth Circuit with other appellate authorities.

The practical message for servicemembers is unambiguous: retirement is not civilianization. It carries benefits and enduring obligations—including exposure to military justice. For military justice practitioners, Dillon provides a robust, text‑and‑precedent‑driven framework that will guide jurisdictional analysis in future cases, reduce uncertainty in habeas challenges by retirees, and reinforce Congress’s authority to regulate the armed forces consistent with Article I.