Status, Not Necessity: Tenth Circuit Confirms Medically Retired Servicemembers Remain in the “Land and Naval Forces” and Are Subject to UCMJ Court-Martial

Introduction

In a published decision of substantial consequence for military justice and constitutional law, the Tenth Circuit in Wilson v. Curtis (consolidated with Dillon v. Curtis) affirmed the denial of two habeas petitions filed by former Army servicemembers convicted at court-martial of sex offenses. The petitioners argued that Congress exceeded its authority under the Make Rules Clause of Article I by authorizing courts-martial of retired personnel—especially those medically retired—because retirees are allegedly no longer part of the “land and naval Forces.” The court rejected this challenge and held that retirees, including medically retired servicemembers, retain “military status” and therefore fall within the Constitution’s grant of military jurisdiction.

The decision squarely addresses two issues: (1) whether retirees are constitutionally within the “land and naval Forces” such that Congress may subject them to court-martial jurisdiction, and (2) whether there is any principled constitutional distinction for those retired for medical disability. Concluding that the dispositive constitutional criterion is the accused’s military status—not the necessity of using courts-martial—the court held that both traditional and medical retirees remain part of the armed forces because they maintain a formal legal relationship and an ongoing duty to obey orders, including recall to active duty.

Summary of the Judgment

The Tenth Circuit affirmed the district court’s denial of habeas relief to Aaron Wilson and Sean Dillon, who had been convicted by court-martial of sex offenses committed during active-duty service.
Relying on Solorio v. United States, the court reiterated that the constitutionality of court-martial jurisdiction turns on one factor: the military status of the accused.
The court held that military retirees—by virtue of holding rank, receiving retired pay, being permitted limited uniform wear, and remaining subject to involuntary recall—retain military status and thus fall within the Constitution’s “land and naval Forces.”
The same conclusion applies to medically retired servicemembers; the possibility or likelihood of their recall is not constitutionally determinative.
Addressing arguments rooted in Toth v. Quarles and Founding-era historical practices, the court rejected the notion that courts must find “necessity” for military jurisdiction over retirees and found the historical record too equivocal to overcome the constitutional text and Supreme Court precedents.
Because retirees remain in service, they are not analogous to civilians (separated former members or dependents/contractors) whom the Supreme Court has placed outside the reach of military jurisdiction.
The panel did not need to resolve whether Dillon was actually retired at the time of his court-martial; jurisdiction was proper either way.

Case Background

Aaron Wilson served from 1992 until he was medically retired in 2012 after a Physical Evaluation Board found him unfit due to PTSD and bipolar disorder II. In 2017, he was tried and convicted by court-martial for sexual offenses against a child committed in Korea between 2005 and 2009, while on active duty. He raised constitutional and statutory objections to jurisdiction; after exhausting military appeals, he sought habeas relief.

Sean Dillon enlisted in 1996 and was directed to be involuntarily retired due to multiple disabilities with a 90% rating. Although retirement orders specified an effective date, the Army revoked his DD‑214 and retirement orders before that date due to pending court-martial charges. He was convicted in 2016 of multiple sexual offenses. Military appellate courts concluded he was not yet retired, and he also filed for habeas relief after military appellate review ended.

Analysis

Precedents Cited and Their Influence

Solorio v. United States, 483 U.S. 435 (1987) — The cornerstone for the court’s framework. Solorio holds that the constitutionality of court-martial jurisdiction “turns on one factor: the military status of the accused.” The Tenth Circuit applies Solorio’s status-based test, rejecting any “service-connection” or necessity requirement and focusing on whether retirees have military status under Article I.
United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) — Toth forbids court-martial of ex-servicemembers who have “severed all relationship with the military and its institutions.” The Tenth Circuit distinguishes retirees from ex-servicemembers: retirees have not severed ties, but instead retain rank, pay, and recall obligations.
Reid v. Covert, 354 U.S. 1 (1957) and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960) — These decisions exclude civilian dependents and (absent special circumstances) civilian contractors from military jurisdiction. The Tenth Circuit leverages them to reaffirm the bright line between civilians and those with a continuing legal duty to the armed forces.
Ex parte Reed, 100 U.S. 13 (1879); Kahn v. Anderson, 255 U.S. 1 (1921); Billings v. Truesdell, 321 U.S. 542 (1944) — Each supports jurisdiction over non-traditional or irregular categories of servicemembers or those in custody/induction contexts who nonetheless owed ongoing duties to the military. These authorities reinforce that “status” flows from a legal obligation to obey military orders, even if daily duties are atypical.
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) — These cases, in non-jurisdictional contexts (benefits, taxation, domestic relations), repeatedly characterize retirees as still “in the service.” The Tenth Circuit synthesizes these holdings to conclude that retirees retain military status by maintaining a formal legal relationship with the armed forces.
Parker v. Levy, 417 U.S. 733 (1974) — Recognizes that the military is a “specialized society” with distinct disciplinary needs, legitimating differences in procedural rights. The Tenth Circuit cites Parker to dismiss arguments that courts-martial are per se inadequate for retirees; the constitutional inquiry is whether a person is in the forces, not whether military justice mirrors Article III courts.
Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022) — The D.C. Circuit upheld court-martial jurisdiction over a Fleet Marine Corps Reservist (a retiree category), articulating a “formal legal relationship plus duty to obey orders” test. The Tenth Circuit embraces Larrabee’s reasoning and, importantly, agrees that courts—not Congress—decide the meaning of “land and naval Forces,” invoking Marbury v. Madison.
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) — Both support jurisdiction over retirees or closely analogous inactive-duty personnel because they remain paid, recallable, and tethered to military discipline.

Legal Reasoning

The court’s reasoning proceeds in three principal steps.

Reaffirmation of the “status” test. Echoing Solorio, the court holds that the Constitution allows court-martial jurisdiction if the accused has military status. It rejects a “necessity” overlay (urged by appellants from Toth) and underscores that Toth’s bar applies to those who truly became civilians—i.e., separated servicemembers who have severed all ties.
Retirees, including medical retirees, retain military status. The court identifies concrete indicators of status:
- Retain military rank and are permitted limited uniform wear.
- Receive retired pay (including disability retired pay).
- Remain subject to involuntary recall to active duty at the discretion of the military (10 U.S.C. § 688).
These features reflect an ongoing, formal legal relationship and an obligation to obey orders—decisive markers that retirees remain within the “land and naval Forces.”
History is not dispositive and does not negate the textual/precedential conclusion. Addressing criticisms of the D.C. Circuit’s historical account in Larrabee (e.g., British “half-pay” officers and the Pennsylvania Mutiny), the court finds the historical record equivocal and ultimately unnecessary to its holding. The text of the Make Rules Clause and the Supreme Court’s consistent treatment of retirees as still “in service” are sufficient.

The court also rejects several targeted arguments:

No necessity showing required: Toth does not require the government to prove that courts-martial are “necessary” to maintain discipline over retirees; the constitutional question is one of status, not prudence.
“One-order-only” objection fails: Even if retirees primarily face a single binding obligation—recall—they still differ from civilians (like Selective Service registrants) because retirees consciously continue a preexisting legal relationship with the military and must obey orders if recalled.
Functional vs. formal analysis: The court clarifies that “formal legal relationship plus duty to obey orders” is not empty formalism but the very criterion the Supreme Court uses to differentiate members of the forces from civilians.
Medically retired status is not an exception: Even if medically retired personnel are less likely to be recalled to combat roles, the regulations and statutes preserve the power to recall them as needed (including to suitable duties), and likelihood does not govern constitutionality.
Institutional role: The court agrees with Larrabee that defining who is in the “land and naval Forces” is a judicial, not legislative, question; courts do not defer to Congress on the constitutional boundary of military jurisdiction (Marbury’s principle).

Impact and Prospective Significance

The ruling has immediate and broad implications for military justice, habeas review, and the administration of retiree benefits and discipline.

Alignment across jurisdictions: By joining the D.C. Circuit (Larrabee) and military appellate courts (e.g., Begani), the Tenth Circuit contributes to a strong consensus that retirees remain subject to UCMJ jurisdiction. This reduces the likelihood of successful constitutional challenges by retirees and narrows the prospect of a circuit split that would invite Supreme Court review.
Medically retired servicemembers: The opinion expressly includes those medically retired under 10 U.S.C. § 1201. It forecloses arguments that disability status or lower recall likelihood removes such retirees from military jurisdiction. Expect more reliance on this decision when jurisdictional challenges are raised by medically retired accused.
Habeas landscape in the Tenth Circuit: The U.S. Disciplinary Barracks at Fort Leavenworth (in Kansas) sits within the Tenth Circuit; many military habeas petitions are filed there. This published ruling will be a controlling authority for federal habeas challenges to retiree jurisdiction going forward.
No necessity calculus: Counsel can no longer plausibly argue in this circuit that a “necessity” showing (beyond status) is required under the Make Rules Clause for retirees. The constitutional inquiry is categorical once status is established.
Administrative practice on retirement status: Although the panel did not need to resolve Dillon’s exact status at the time charges were brought (because jurisdiction was proper either way), the underlying facts reinforce that the Army can and does revoke retirement documentation prior to its effective date when court-martial charges are pending. Practitioners should advise clients that status turns on effective orders, and revocation before the effective date can maintain active-duty jurisdiction.
Statutory coverage nuances remain important: This decision addresses the constitutional question and assumes statutory coverage (10 U.S.C. § 802(a)(4) and related provisions). Some categories—such as “gray-area” Reserve/Guard retirees not yet receiving pay—implicate different statutory hooks and were not resolved here. Statutory eligibility (e.g., “entitled to pay”) remains a distinct threshold issue in particular cases.

Complex Concepts Simplified

Make Rules Clause: Article I, § 8, cl. 14 empowers Congress to make rules for governing the armed forces. It is the constitutional basis for the UCMJ and the court-martial system.
“Military status” (the Solorio test): The Supreme Court has said the constitutionality of court-martial jurisdiction turns on whether the accused has military status. Status is shown by a formal legal relationship with a duty to obey military orders, not by whether the offense was “service-connected” or whether a court-martial is “necessary.”
Retired vs. separated:
- Retired members keep rank, may wear the uniform in limited circumstances, receive retired pay, and are subject to recall to active duty. They remain in the service.
- Separated members receive no retired pay, are not recallable, and become civilians. They have “severed all relationship with the military.”
Medical retirement: A form of retirement under 10 U.S.C. § 1201 for those unfit to perform duties due to disability. Despite disability, medically retired members still hold rank, receive disability retired pay, and remain subject to recall (usually to duties suited to their condition).
Recall authority (10 U.S.C. § 688): The Secretary of Defense may order retired regular members to active duty when necessary for national defense. Department of Defense policy guides how and when various retiree categories may be mobilized.
Status at offense vs. status at trial: Solorio focuses on status for offense jurisdiction, while Toth bars trying a civilian at the time of trial even for in‑service offenses. Wilson resolves the Toth problem by holding retirees are not civilians; they remain in service at the time of trial, preserving jurisdiction.
Who decides “land and naval Forces”? Courts do. While Congress has broad power to regulate the forces, defining the constitutional scope of who counts as being in the forces is a judicial function (Marbury principle). The Tenth Circuit expressly declines to defer to Congress on that definitional question.

Unanswered Questions and Limits

Offenses committed after retirement: The panel’s reasoning strongly suggests retirees can be tried for post‑retirement offenses (consistent with Larrabee), but Wilson itself involved offenses committed during active duty. The holding is about status, not timing of the offenses, yet the question did not need to be definitively resolved here.
Reserve/Guard “gray‑area retirees”: Members with retired status but not yet drawing retired pay present distinct statutory issues; this decision deals with constitutional status and those “entitled to pay.” How § 802 applies to various Reserve/Guard retiree categories was not at issue.
Purely statutory questions (e.g., whether disability retired pay qualifies as “retired pay” under § 802(a)(4)) were not decided because they were not pressed on appeal (Wilson had abandoned a statutory argument below).

Why the Decision Matters

Wilson cements an important constitutional principle in the Tenth Circuit: retirees—traditional and medical—remain in the forces for purposes of the Make Rules Clause and may be tried by court‑martial. The court firmly rejects efforts to import a necessity test into the Make Rules Clause analysis and aligns with modern precedent emphasizing legal status and continuing obligations as the dividing line between members of the forces and civilians. For military justice practitioners, defendants, and policymakers, the ruling provides a clear, administrable rule grounded in statutory structure and Supreme Court case law.

Conclusion

Wilson v. Curtis establishes a clear and durable constitutional rule: because retirees, including those medically retired, retain a formal legal relationship with the armed forces and an obligation to obey orders—most notably, recall to active duty—they remain in the “land and naval Forces” within the meaning of Article I’s Make Rules Clause. The court thus affirms that Congress’s statutory extension of UCMJ jurisdiction to retirees is constitutional. By embracing the status-based test of Solorio, rejecting attempts to graft a necessity requirement from Toth, and treating historical evidence as ultimately equivocal, the Tenth Circuit provides a principled, text-and-precedent-driven resolution that will influence retiree‑jurisdiction challenges in habeas proceedings and beyond. The decision aligns federal appellate authority, clarifies the position of medically retired servicemembers, and reinforces the military’s ability to enforce discipline over those who have chosen retirement rather than separation.