What Supreme Court and Court of Appeals decisions have shaped jurisdiction over retired service members under the UCMJ?
Executive summary
Courts and Congress have long upheld that certain retirees—principally regular-component retirees who are “entitled to pay” and members of the Fleet/Fleet Marine Corps Reserve—remain subject to the UCMJ; recent appellate decisions and litigation (e.g., Dinger, Larrabee, and a 10th Circuit decision in 2025) have reaffirmed or tested those limits, while commentators and the Congressional Research Service note continued controversy and possible need for legislative change [1] [2] [3] [4]. Available reporting shows a pattern: military and federal courts generally sustain Congress’s power to include retirees within Article II jurisdiction, but several recent cases have mounted constitutional and equitable challenges that could reshape doctrine if appealed further [5] [2].
1. Historical baseline: Congress’s statute and the CRS framing
Since at least the Civil War era, Congress has placed certain retirees on a military retired list and written them into Article 2 of the UCMJ; the Congressional Research Service summarizes the statutory categories as [6] retired members of a regular component “entitled to pay,” [7] certain reservists receiving hospitalization, and [8] Fleet/Fleet Marine Corps Reserve members—while noting critics argue this enlarges the military justice universe and that changes would likely require Congress [4] [9] [10].
2. Leading appellate decisions that reinforce jurisdiction: Dinger and related precedent
Recent case law cited in practitioner and advocacy pieces treats United States v. Dinger and similar decisions as confirming that retirees who retain formal retired status remain within the “land and naval forces” for purposes of the Make Rules Clause, allowing court-martial jurisdiction over retirees entitled to pay [1] [2]. Defense- and policy-oriented sources stress that courts have repeatedly accepted Congress’s power to subject retirees to the UCMJ [5] [2].
3. Litigation that pushed back: Larrabee and district-court skepticism
Larrabee’s prosecution and appeal drew particular attention: a district judge in Larrabee v. Braithwaite wrote that court-martial jurisdiction must be narrowly limited to fulfill the Constitution’s purposes—arguing overexpansion risks encroaching on civilian courts—though military courts historically have not adopted that narrow theory and some appeals have left the broader statutory regime intact [5] [2].
4. Circuit developments and the 10th Circuit’s 2025 ruling
A notable appellate development is the Tenth Circuit’s September 2025 opinion in Wilson v. Curtis, which the secondary reporting summarizes as holding that formal military status, not active-duty service, controls and thus confirming jurisdiction over retirees—including medically retired members—under the Make Rules Clause [3]. That decision illustrates how some federal circuit courts treat retirement status as sufficient to keep a person within Congress’s rule-making power for the forces [3].
5. Practical consequences emphasized by practitioners and clinics
Legal clinics and defense blogs emphasize practical distinctions: retired status can carry continuous UCMJ vulnerability (including recall and court-martial), different procedural features from civilian courts (e.g., non‑jury panels, different unanimity rules), and rare but consequential prosecutions that make jurisdictional challenges a frequent defense strategy [5] [2] [11].
6. Competing viewpoints and unresolved Supreme Court role
Commentators note a split in emphasis: many military-law authorities and appellate panels defer to Congress’s broad authority, while civil‑liberties-minded judges and scholars press constitutional limits and invite the Supreme Court to clarify [5] [2]. The Supreme Court has not squarely decided the precise constitutional boundary for retirees’ military status; some reporting says the Court has “approvingly noted” that retirees can be subject to the UCMJ but has not issued a definitive ruling resolving current doctrinal tensions [12].
7. Where change is most likely to come from: Congress or higher court
The CRS and multiple analysts conclude that, given longstanding precedent favoring congressional authority and recent appellate affirmations, meaningful doctrinal change is most likely to come from Congress amending Article 2 or from a Supreme Court decision granting review and overturning existing lines of cases—both options remain open and debated in legal commentary [4] [10] [2].
8. Bottom line for retirees and observers
For now, retiree status—especially being “entitled to pay” or member of Fleet reserves—remains the controlling legal hook for UCMJ jurisdiction in the eyes of many courts and the statutory text; litigants continue to press constitutional challenges, and observers should watch appeals like Larrabee and circuit rulings like Wilson for any shift that might prompt congressional revision [1] [5] [3].
Limitations: available sources do not include full opinions of every cited case (some are summarized by secondary outlets) and do not record any new Supreme Court ruling directly resolving the issue as of the documents provided [12] [3].