Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 5, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
AARON W. WILSON,
Petitioner - Appellant,
v. No. 24-3064
DOUGLAS J. CURTIS, Commandant, United States Disciplinary Barracks,
Respondent - Appellee.
–––––––––––––––––––––––––––––––––––
SEAN J. DILLON,
v. No. 24-3065
DOUGLAS J. CURTIS, Commandant, United States Disciplinary Barracks,
Respondent - Appellee. _________________________________
Appeals from the United States District Court for the District of Kansas (D.C. No. 5:21-CV-03277-JWL) (D.C. No. 5:22-CV-03088-JWL) _________________________________
Stephen I. Vladeck, Washington, D.C. (Kayla Gassmann, Assistant Public Defender, Kansas Federal Public Defender, Kansas City, Kansas, with him on the briefs), for Petitioners-Appellants. Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 2
Graham White, Attorney, Appellate Staff (Brian M. Boynton, Principal Deputy Assistant Attorney General, Kate E. Brubacher, United States Attorney, Sharon Swingle, Attorney, Appellate Staff, with him on the briefs), Civil Division, United States Department of Justice, Washington, D.C., for Respondent-Appellee. _________________________________
Before HARTZ, TYMKOVICH, and EID, Circuit Judges. _________________________________
EID, Circuit Judge. _________________________________
Aaron Wilson and Sean Dillon, both former members of the United States
Army, were convicted by court-martial for engaging in sex crimes during their
active-duty service. Wilson and Dillon filed habeas petitions, arguing that the
statutory grant of military jurisdiction over retired military personnel—particularly,
those who have been medically retired—exceeds Congress’s authority to “make
Rules for the Government and Regulation of the land and naval Forces” because, in
their view, retirees are no longer part of “the land and naval Forces.” U.S. Const.
art. I, § 8, cl. 14 (“Make Rules Clause”). The district court denied their petitions.
We affirm.
“In an unbroken line of decisions,” the Supreme Court has “interpreted the
[Make Rules Clause] as conditioning the proper exercise of court-martial jurisdiction
over an offense on one factor: the military status of the accused.” Solorio v. United
States, 483 U.S. 435, 439 (1987). Medical retirees satisfy that standard: They hold a
military rank, they may wear their uniform under certain circumstances, they receive
disabled pay, and they remain subject to active-duty recall at the military’s
discretion. Unlike separated servicemembers, medical retirees have not “severed all
2 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 3
relationship with the military and its institutions.” United States ex rel. Toth v.
Quarles, 350 U.S. 11, 14 (1955). Accordingly, medical retirees are part of “the land
and naval Forces,” U.S. Const. art. I, § 8, cl. 14, and the statutory grant of military
jurisdiction over them is constitutional.1
I.
A.
The Army is one of six branches in the United States Armed Forces, alongside
the Navy, the Air Force, the Marine Corps, the Space Force, and the Coast Guard. 10
U.S.C. § 101(a)(4). As with the other five branches, Title 10 of the United States
Code governs many of the Army’s organizational practices. See id. §§ 101–5553,
7001–842. This includes the Army’s dealings with servicemembers who decide to
leave active-duty service through retirement or separation. See id. §§ 1161–315.
Retirement and separation are distinct classifications with meaningful
differences. A “retired” servicemember receives retired pay and “may be ordered to
active duty . . . at any time” under “regulations prescribed by the Secretary of
Defense.” 10 U.S.C. § 688. A “separated” servicemember, by contrast, does not
receive retired pay and is not subject to involuntary recall. Retirees are subject to the
Uniform Code of Military Justice (“UCMJ”) and may be tried by court-martial, see
id. § 802(a)(4); separated servicemembers are no longer subject to the UCMJ and
1 Because we conclude that the statutory grant of jurisdiction over medically retired servicemembers is constitutional, we need not address the parties’ dispute about whether Dillon was retired at the time of his court-martialing. Regardless of Dillon’s retirement status, the Army’s exercise of jurisdiction was proper. 3 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 4
may not be tried by court-martial—even for offenses committed while in active
service, see Toth, 350 U.S. at 13–14.2
When the Army determines that a servicemember is “unfit to perform the
duties of the member’s office, grade, rank, or rating because of physical disability,” it
“may retire the member.” 10 U.S.C. § 1201(a). Medical retirees are not exempt from
recall, see id. § 688; rather, the Army may “order any retired regular member” to
perform whatever duties are “deemed necessary in the interests of national defense.”
Management of Regular and Reserve Retired Military Members, Dep’t of Defense
Instruction 1352.01, ¶ 3.3(b)(2) (Dec. 8, 2016). Still, medical retirees are “generally
[ ] deployed to civilian defense jobs upon mobilization, unless they have critical
skills or volunteer for specific military jobs.” Id. ¶ 3.2(g)(2); see id. (“The nature and
extent of the mobilization of [a medical retiree] will be determined . . . based on the
retiree’s military skill and, if applicable, the nature and degree of the retiree’s
disability.”). If a disabled servicemember does not wish to accept retirement, he may
instead request voluntary separation from the Army and return to civilian life. See
Active Duty Enlisted Separations, U.S. Dep’t of Army, Reg. 635-200, ¶ 4-4 (Dec. 17,
2009).
2 See generally Denby v. Berry, 263 U.S. 29, 35–36 (1923) (contrasting officers who have “retired from active service” with those who “become a civilian” when they are “wholly retired” and “removed from the service entirely”). 4 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 5
B.
Aaron Wilson enlisted in the Army in 1992. In 2012, a Physical Evaluation
Board concluded that Wilson was suffering from post-traumatic stress disorder and
bipolar disorder II. As a result, the Army permanently retired Wilson under
10 U.S.C. § 1201 and assigned him a disability rating of thirty percent. Wilson
continued to receive fixed pay at the rank of Staff Sergeant.
In 2017—approximately five years after Wilson’s retirement—a court-martial
brought a series of criminal charges against him for crimes he committed while he
was stationed in Seoul, South Korea between 2005 and 2009. The first charge
alleged that Wilson repeatedly “commit[ted] sodomy with . . . a child under the age
of 12,” in violation of Article 125 of the UCMJ. R. Vol. I at 58 (Wilson). The
second charge alleged that Wilson “cause[d] sexual contact with . . . a child who had
not attained the age of 12” by touching the child’s “breast, buttocks, and genitalia,”
in violation of Article 120 of the UCMJ.3 Id.
Wilson contested the court-martial’s jurisdiction, arguing that his status as a
permanently disabled retiree rendered him both statutorily and constitutionally
ineligible for military trial. After the military judge rejected Wilson’s jurisdictional
challenge, Wilson pleaded guilty to both charges, was dishonorably discharged, and
received a seventeen-year sentence in military prison. Wilson then appealed his
3 The court-martial also brought, but ultimately moved to dismiss, two additional charges. Because those charges were dismissed, we do not detail them here. 5 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 6
convictions to the United States Army Court of Criminal Appeals (“ACCA”),
renewing his jurisdictional objections. ACCA affirmed, and the United States Court
of Appeals for the Armed Forces denied Wilson’s petition for discretionary review.
After exhausting his military appeals, Wilson filed a petition for a writ of
habeas corpus in the United States District Court for the District of Columbia,
seeking to collaterally attack his court-martial conviction. The court transferred
Wilson’s petition to the United States District Court for the District of Kansas—the
district in which Wilson is incarcerated.
C.
Sean Dillon enlisted in the Army in 1996. In 2014, a Physical Evaluation
Board concluded that Dillon was suffering from post-traumatic stress disorder,
depression, a traumatic brain injury, and several other bodily injuries, resulting in a
disability rating of ninety percent. The Army directed that Dillon be involuntarily
retired no later than November 30, 2015.
The Army issued Dillon’s retirement orders on September 11, 2015, and
specified that his retirement would go into effect on November 29, 2015. On
September 23, 2015, Dillon signed his Department of Defense Form 214 (“DD-214”),
which likewise included an effective retirement date of November 29, 2015. At the
district court, Dillon claimed—and the government did not dispute—that he
subsequently cleared post, received his retirement orders and a ceremonial flag, and
went on transition leave.
6 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 7
On November 3, 2015—approximately four weeks before Dillon’s effective
retirement date—the Army voided Dillon’s DD-214 and revoked his retirement
orders “due to pending General Court Martial.” R. Vol. I at 60 (Dillon). On
November 25, 2015, a court-martial brought a series of charges against Dillon for
crimes he committed while in active duty. On April 28, 2016, Dillon was found
guilty of three specifications of sexual assault, one specification of aggravated sexual
assault of a child, one specification of aggravated sexual assault, one specification of
sodomy by force and without consent, and one specification of indecent acts, in
violation of Articles 120, 125, and 134 of the UCMJ. Dillon was dishonorably
discharged and sentenced to approximately thirty years’ confinement.
Dillon appealed his conviction to ACCA, arguing (among other things) that the
court-martial lacked jurisdiction to try him because he was medically retired. ACCA
affirmed, concluding that “[a]lthough [Dillon] was close to retirement before any
charges were preferred, he was not, in fact, retired.” Id. at 126 n.2. The United
States Court of Appeals for the Armed Forces then denied Dillon’s petition for
review. After exhausting his military appeals, Dillon filed a petition for a writ of
habeas corpus in the United States District Court for the District of Kansas, seeking
to collaterally attack his court-martial conviction.
7 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 8
D.
The district court denied both Wilson’s and Dillon’s petitions.4 In Wilson’s
case, the court explained that “the Supreme Court has made clear that the proper
exercise of court-martial jurisdiction under the Make Rules Clause depends on the
single factor of ‘the military status of the accused.’” R. Vol. I at 268–69 (Wilson)
(quoting Solorio, 483 U.S. at 439). “[T]he necessary military status,” the court
concluded, “is evidenced by a formal relationship with the military that includes an
obligation to obey orders.” Id. at 270. And because Wilson remained subject to
recall, “chose to maintain his military status as a medical retiree instead of . . .
separat[ing] himself from the military entirely and return[ing] to civilian life,” id.
at 274 n.5, and otherwise “maintained his formal relationship with the military,” id.
at 274, the court held that the Army’s exercise of court-martial jurisdiction over
Wilson was constitutional.
In Dillon’s case, the district court agreed with ACCA that Dillon was not
retired at the time of his court-martial “because his retirement orders were revoked
prior to the effective date of the retirement.” R. Vol. I at 310 (Dillon). The court
further concluded that, even if Dillon was retired, the Army’s exercise of court-
martial jurisdiction over him was constitutional for the same reasons set forth in
Wilson’s case.
Wilson and Dillon timely appealed.
4 The same judge heard both cases. See Wilson v. Payne, 731 F. Supp. 3d 1232 (D. Kan. 2024); Dillon v. Payne, 2024 WL 1885504 (D. Kan. Apr. 30, 2024). 8 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 9
II.
Appellants urge reversal of the district court’s denial of their habeas petitions
on two primary grounds. First, they argue that the Constitution forecloses all courts-
martial of retired servicemembers, rendering their convictions void for lack of
jurisdiction. Second, they argue that, even if the Constitution permits courts-martial
of some retired servicemembers, that authority does not extend to those who have
been permanently retired due to medical disability. We address and reject each
argument in turn.
A.5
We review de novo the district court’s denial of habeas relief. Santucci v.
Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 871 (10th Cir. 2023).
Factual findings, if any, are reviewed for clear error. Stouffer v. Trammell, 738 F.3d
1205, 1213 (10th Cir. 2013).
5 As a preliminary matter, we agree with Appellants that we need not defer to Congress in determining who may be constitutionally subjected to court-martial jurisdiction under the Make Rules Clause. As the D.C. Circuit explained, the Supreme Court has “repeatedly declined to defer to Congress” in determining who falls within the term “land and naval Forces.” Larrabee v. Del Toro, 45 F.4th 81, 87 (D.C. Cir. 2022) (Rao, J., joined by Tatel, J.) (collecting cases). This practice makes sense: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). “Although Congress maintains ‘plenary’ authority under the Make Rules Clause to determine which offenses may be punished by court-martial, it does not possess the anterior authority to define which persons may be constitutionally court-martialed.” Larrabee, 45 F.4th at 87 (Rao, J., joined by Tatel, J.). 9 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 10
1.
The Constitution grants Congress the authority to “make Rules for the
Government and Regulation of the land and naval Forces.” U.S. Const. art. I, § 8,
cl. 14. Exercising this power, Congress has authorized courts-martial to try “[r]etired
members of a regular component of the armed forces who are entitled to pay.”
10 U.S.C. § 802(a)(4). Appellants argue that this extension of jurisdiction violates
the Constitution.6 Based on the text of the Make Rules Clause, as well as relevant
Supreme Court precedents, we disagree.
Whether a class of persons may be constitutionally subjected to court-martial
jurisdiction turns “on one factor: the military status of the accused.” Solorio,
483 U.S. at 439. The Supreme Court has not established a rule for determining a
person’s “military status.” It has, however, provided significant guidance on two
related issues.
First, the Court has repeatedly held constitutional the exercise of court-martial
jurisdiction over non-traditional servicemembers who have ongoing duties to the
military. For example, in Ex parte Reed, the Court concluded that a Navy
paymaster’s clerk was amenable to court-martial despite never being formally
6 At the district court, Wilson also advanced a statutory objection to the court- martial’s jurisdiction. Specifically, he argued that he does not fall within the scope of § 802(a)(4) because, in his view, he is not receiving “retired pay.” R. Vol. I at 16– 19. Because Wilson is no longer pursuing that argument, we do not address it. See Aplt. Br. at 7 n.2 (Wilson). 10 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 11
inducted into the Navy because he agreed to serve on a Navy vessel, took an oath,
wore a uniform, and was on the Navy’s payroll. 100 U.S. 13, 19–22 (1879); see id.
at 22 (“If these officers are not in the naval service, it may well be asked who are.”).
Similarly, in Kahn v. Anderson, the Court upheld the exercise of court-martial
jurisdiction over a group of soldiers who had committed crimes after being placed in
military custody. 255 U.S. 1, 7–8 (1921). In doing so, the Court rejected the
soldiers’ argument that, because of their initial convictions, they had “ceased to be
soldiers and were no longer subject to military law.” Id. at 7. And in Billings v.
Truesdell, the Court upheld the exercise of court-martial jurisdiction over a class of
persons who had disobeyed lawful draft orders. 321 U.S. 542, 556 (1944) (“We have
no doubt of the power of Congress to enlist the man-power of the nation for the
prosecution of the war and to subject to military jurisdiction those who are unwilling,
as well as those who are eager, to come to the defense of their nation in its hour of
peril.”).
By contrast, the Court has held unconstitutional the exercise of court-martial
jurisdiction over individuals who owed no duties to the military. In United States ex
rel. Toth v. Quarles, the Court concluded that Congress may not subject
ex-servicemembers to court-martial jurisdiction—even for crimes committed during
active-duty service, see 350 U.S. at 21–23—because ex-servicemembers have
“severed all relationship with the military and its institutions,” id. at 14. Similarly, in
Reid v. Covert, the Court held that Congress may not subject civilian dependents of
active-duty servicemembers to court-martial jurisdiction because they have “never
11 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 12
been members of the army, ha[ve] never been employed by the army, [and] ha[ve]
never served in the army in any capacity.” 354 U.S. 1, 32 (1957). And in McElroy v.
United States ex rel. Guagliardo, the Court held that Congress may not subject
private military contractors to court-martial jurisdiction unless the contractors have
voluntarily bound themselves to the military, as the paymaster’s clerk did in Ex parte
Reed. 361 U.S. 281, 286 (1960).
Second, the Supreme Court has held in other contexts that military retirees are
part of the armed forces because they maintain a formal relationship with the
military. In United States v. Tyler, the Court concluded that, although retirees are
“not required to perform full service, they are [still] part of the [armed forces], and
may be assigned to such duty as the laws and regulations permit.” 105 U.S. 244, 245
(1881) (holding that a retired Army captain was entitled to statutory benefits because
his years as a retired officer qualified as military service); see Thornley v. United
States, 113 U.S. 310, 315 (1885) (“The point on which [Tyler] turned was . . . that an
officer of the army, though retired, was still in the service.”). Similarly, in Barker v.
Kansas, the Court explained that “[m]ilitary retirees unquestionably remain in the
service.” 503 U.S. 594, 599 (1992) (discussing taxation of military retirement
benefits). And in Kahn v. Anderson, the Court concluded that “it is not open to
question . . . that [retired] officers are officers in the military service of the United
States.” 255 U.S. at 6 (rejecting the argument that retired officers are not in the
armed forces and thus may not sit on court-martial panels); see McCarty v. McCarty,
12 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 13
453 U.S. 210, 221–22 (1981) (explaining, in the context of the division of military
retirement pay, that “[t]he retired officer remains a member of the Army”).
Based on these precedents, we conclude that retired servicemembers hold
military status. Like the accused in Ex parte Reed, Kahn, and Billings, retired
servicemembers have an ongoing duty to obey military orders: As Appellants
acknowledge, the military may involuntarily recall retirees to active-duty service at
any time. See 10 U.S.C. § 688. Further, like the retirees in Tyler, Barker, and Kahn,
present-day retired servicemembers maintain a formal relationship with the military:
They may wear their uniform in limited circumstances, see Aplt. Br. at 17 (Wilson);
they hold a military rank, see R. Vol. I at 168 (Wilson); and they receive retired pay.
Taken together, these factors distinguish retirees from separated servicemembers,
who have “severed all relationship with the military and its institutions.” Toth,
350 U.S. at 14.
In so holding, we join the conclusion of all three appellate courts that have
addressed the issue. See Larrabee v. Del Toro, 45 F.4th 81, 83 (D.C. Cir. 2022)
(upholding the exercise of court-martial jurisdiction over Fleet Marine Corps
Reservist); United States v. Begani, 81 M.J. 273, 278 (C.A.A.F. 2021) (upholding the
exercise of court-martial jurisdiction over Navy Fleet Reservists in part because
reservists “are still paid, subject to recall, and required to maintain military
readiness” and have not “‘severed all relationship’ with the military”); United States
ex rel. Pasela v. Fenno, 167 F.2d 593, 595 (2d Cir. 1948) (similar).
13 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 14
Appellants argue that the historical treatment of retired servicemembers is
inconsistent with this conclusion. Specifically, they argue that the D.C. Circuit’s
historical analysis in Larrabee is “both factually and methodologically mistaken,”
thus tainting the D.C. Circuit’s holding. Aplt. Br. at 32 (Wilson); Aplt. Br. at 37
(Dillon). We disagree. As we explain, there are few examples of how Founding-era
Americans understood the Make Rules Clause. And those that we have identified do
not foreclose our conclusion that, under the text of the Make Rules Clause and
relevant Supreme Court precedents, Congress may constitutionally subject military
retirees to court-martial jurisdiction.
In Larrabee, the D.C. Circuit detailed two historical events that, in its view,
support Congress’s authority to subject retired officers to military jurisdiction. The
first involved the pre-Revolutionary example of “half-pay” officers.7 In the
seventeenth century, the British government offered reduced salaries to certain
officers during peacetime. See John Childs, The British Army of William III, 1689–
1702, at 70 (1987). These officers were permitted to live ordinary civilian lives, with
one exception—a requirement to return to active-duty service if ordered. N.A.M.
Rodger, Commissioned Officers’ Careers in the Royal Navy, 1690–1815, 3 J. for
Mar. Rsch. 85, 90–91 (2001). Based on the officers’ military connection, Parliament
7 See Loving v. United States, 517 U.S. 748, 760 (1996) (“We have undertaken before . . . the difficult task of interpreting [the Make Rules Clause] by drawing upon English constitutional history.”). 14 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 15
considered them part of “his Majesty’s land forces and marines.” 9 Geo. 2 c. 34,
§ 21 (1735).
For some time, there was “considerable debate about whether these officers
should be subjected to the jurisdiction of peacetime courts-martial.” Larrabee,
45 F.4th at 92 (collecting sources). Parliament alternated its practices, initially
subjecting half-pay officers to court-martial jurisdiction, see 22 Geo. 2 c. 5 (1749),
and later repealing that authority, see Marc J. Emond, Can Grandpa Really be Court-
Martialed? The Constitutionality of Imposing Military Law upon Retired Personnel,
231 Mil. L. Rev. 165, 184–86 (2024); 24 Geo. 2 c. 6 (1751). Eventually, Parliament
elected to subject only certain half-pay officers to court-martial jurisdiction. Emond,
supra, at 185 n.33.
Years later, the Continental Congress tried to institute a similar system,
pledging to give half pay to retired American officers at the end of the Revolutionary
War. See 11 Journals of the Continental Congress, 1774–1789, at 502–03
(Worthington Chauncey Ford ed., 1908) [hereinafter Journals]. Consistent with
Parliament’s earlier practices, Congress directed the Continental Army to make
certain officers amenable to involuntary recall. See 21 Journals, at 1180. Based on
these records, the D.C. Circuit concluded that “[t]he idea that an inactive-duty soldier
might be part of the Continental Army’s ‘forces’ was [ ] not foreign to Founding-era
Americans.” Larrabee, 45 F.4th at 93–94.
The court’s second historical example involved Founding-era American
courts-martial of furloughed officers for mutiny. Id. at 94. Near the end of the
15 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 16
Revolutionary War, Congress furloughed many soldiers in the Continental Army.
24 Journals, at 267–71, 364–65, 390. In June 1783, a large group of furloughed
soldiers staged a violent protest in Philadelphia. After the mutiny, Congress
instructed the Army to “confine and bring to trial” any active participants. Id.
at 412–13. Pursuant to this directive, some furloughed soldiers were court-martialed
for mutiny. 25 Journals, at 565–66. This, the D.C. Circuit concluded, showed that
Founding-era Americans understood inactive-duty soldiers to be “part of ‘the land
and naval forces.’” Larrabee, 75 F.4th at 94.
Appellants contend that each of these examples omits key information that
proves that Founding-era practices actually “rejected the ability of courts-martial to
try inactive military personnel for offenses committed while they were inactive.”
Aplt. Br. at 40 (Wilson); Aplt. Br. at 45 (Dillon). First, Appellants note that
Parliament subjected half-pay officers to court-martial jurisdiction only briefly, and
“quickly repealed” that authority “entirely in response to popular opposition” to that
practice. Aplt. Br. at 36 (Wilson); Aplt. Br. at 41–42 (Dillon). This, Appellants
argue, shows that “British practice rejected military jurisdiction over half-pay
officers at the time of the Founding.” Aplt. Br. at 38 (Wilson); Aplt. Br. at 43
(Dillon). Second, Appellants argue that the only “furloughed” soldiers who were
court-martialed for mutiny had “refused to accept the furloughs,” indicating that they
were “still on active duty” at the time of their courts-martial. Aplt. Br. at 40
(Wilson); Aplt. Br. at 46 (Dillon). This, Appellants argue, renders any reference to
the Pennsylvania Mutiny unhelpful.
16 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 17
We agree with Appellants that these historical facts reduce the weight that
should be given to the examples of half-pay officers and furloughed soldiers in the
Pennsylvania Mutiny. Perhaps that is why the government does not rely heavily on
these events, instead resting its briefing primarily on the text of the Make Rules
Clause and longstanding Supreme Court precedents.8 See Aple. Br. at 16–25
(discussing in detail the Supreme Court’s treatment of military retirees and other
non-active-duty servicemembers); id. at 26–27 (briefly explaining the D.C. Circuit’s
discussion of half-pay officers but omitting any discussion about the court-martialing
of furloughed soldiers during the Pennsylvania Mutiny).
But we cannot agree with Appellants that history favors their position. As the
D.C. Circuit explained, half-pay officers were court-martialed throughout the
eighteenth century “beginning in the early 1700s under the Mutiny Act adopted in
1689.” Larrabee, 45 F.4th at 92. Thus, Parliament’s 1749 amendment of the Act did
not introduce the practice of court-martialing, but instead “ma[de] clear that half-pay
8 The government also references Congress’s historical authorizations of court- martial jurisdiction in the years since the Founding to support its position. See, e.g., Aple. Br. at 29 (explaining that Congress has subjected retired naval officers to military jurisdiction since 1857); id. (same, for Army and Marine Corps officers, beginning in 1861); id. (claiming that retirees have been a part of the military by statute since 1878); id. at 30 (discussing the court-martialing of retirees in the nineteenth and twentieth centuries); id. at 30–31 (referencing Congress’s decision to retain court-martial jurisdiction over retirees after some discussion). Because these examples are from the mid-to-late nineteenth century, they are not probative of the original meaning of the Make Rules Clause. They do, however, bolster the conclusion that the Supreme Court has not previously taken issue with the exercise of court-martial jurisdiction over retirees. See generally United States v. Fletcher, 148 U.S. 84 (1893) (affirming the court-martial sentence of a retiree without questioning the constitutionality of the military proceedings). 17 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 18
officers were subject to court-martial jurisdiction” because “the Act’s [original]
terms furnished uncertain legal grounds for those proceedings.” Id. And although
Parliament repealed that amendment a few years later, it again subjected half-pay
officers who held brevet rank to court-martial jurisdiction in 1786. See Emond,
supra, at 185 n.133. At a minimum, this shows that “[t]he idea that an inactive-duty
soldier might be part of the Continental Army’s ‘forces’ was [ ] not foreign to
Founding-era Americans.” Larrabee, 45 F.4th at 93–94.
Because decisive historical evidence in either direction is lacking, we rest our
conclusion on the text of the Make Rules Clause, along with centuries of Supreme
Court precedents indicating that servicemembers remain part of the “land and naval
Forces” when they choose to retire, rather than separate.9 See supra Part II.A.1.i.
iii.
Despite the textual and precedential support for our conclusion, Appellants
insist that the Constitution forecloses courts-martial over retirees for several
additional reasons. As we explain, none is persuasive.
9 We disagree with Appellants’ assertion that the example of half-pay officers was “[a]t the heart of the [D.C. Circuit’s] analysis” in Larrabee. Aplt. Br. at 36 (Wilson); Aplt. Br. at 41 (Dillon). Indeed, the D.C. Circuit based its holding primarily on an examination of Supreme Court precedents. Larrabee, 45 F.4th at 91 (concluding that the Supreme Court’s “decisions construing the scope of the Make Rules Clause, read together, suggest that a person is part of the ‘land and naval Forces’ and may be subject to court-martial jurisdiction if he has a formal relationship with the armed forces that includes a duty to obey military orders.”). Accordingly, we do not understand Larrabee to be in tension with our analysis. 18 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 19
First, Appellants claim that, under the Supreme Court’s decision in Toth, the
government bears the burden to demonstrate that court-martial jurisdiction is
necessary to maintain good order and discipline. We disagree. In Toth, the Court
addressed whether a former servicemember who had become a civilian—in other
words, separated from the service—could be court-martialed for crimes he committed
while in military service. 350 U.S. at 22–23. In concluding that he could not, the
Supreme Court did not impose any limitations on the exercise of court-martial
jurisdiction over persons who hold “military status” and are part of “the land and
naval Forces.” See id. And, as we have explained, the Court has not required the
government to show necessity in any previous cases. See supra Part II.A.1.i. To the
contrary, it has made clear that the constitutionality of court-martial jurisdiction turns
“on one factor: the military status of the accused.” Solorio, 483 U.S. at 439.
Second, Appellants claim that retired servicemembers cannot be subjected to
court-martial jurisdiction because they are subject to only one order during
retirement—the obligation to return to active-duty service, if called. This, Appellants
argue, makes retired servicemembers akin to the millions of civilians who are
registered with the Selective Service System. We disagree. To begin, Appellants do
not explain “why a servicemember who must obey one order is less a part of ‘the land
and naval Forces’ than his peer who must obey two.” Larrabee, 45 F.4th at 98
(citing Toth, 350 U.S. at 17 (“[I]t is the primary business of armies and navies to
fight or be ready to fight wars should the occasion arise.” (emphasis added))). And
unlike Selective Service Registrants—whose relationship with the military begins
19 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 20
only after being ordered to serve—servicemembers who retire (rather than separate)
from active-duty military service consciously choose not to sever their preexisting
relationship with the armed forces.
Third, Appellants argue that the Supreme Court has consistently avoided a
“formalistic” approach and focused instead on the “functional question—whether the
accused could actually be regarded as falling within the term ‘land and naval
forces.’” Aplt. Br. at 22 (Wilson) (quotation omitted); Aplt. Br. at 28 (Dillon)
(quotation omitted). Specifically, they claim that the Supreme Court’s decisions
have asked “whether, at the time of their court-martial, the accused had any current
authority or obligation to act in a military capacity.” Aplt. Br. at 24 (Wilson); Aplt
Br. at 29 (Dillon). This argument misconstrues Supreme Court precedents. As the
D.C. Circuit correctly explained, “[t]o determine the status of a person tried at court-
martial, the Court has consistently analyzed whether [a servicemember] has a legal
relation to the military that entails an obligation to obey military orders—or whether,
by contrast, he is a ‘civilian[] . . . entitled to [the] safeguards afforded . . . by
Article III of the Constitution.’” Larrabee, 75 F.4th at 98 (quoting Toth, 350 U.S.
at 23).
Finally, Appellants contend that courts-martial “do not adequately protect the
rights of those not in actual service.” Aplt. Br. at 11 (Wilson); Aplt. Br. at 17
(Dillon) (explaining that courts-martial lack some of the constitutional protections
afforded by Article III courts). But our sole responsibility is to ensure that Congress
acts within the bounds of its authority—not to determine whether congressional
20 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 21
decisions are wise or fair. Further, as all agree, the Constitution permits disciplinary
differences between civilians and members of the armed forces. See generally
Parker v. Levy, 417 U.S. 733, 743–44 (1974) (“[T]he military is, by necessity, a
specialized society different from civilian society. . . . [T]he rights of men in the
armed forces must [ ] be conditioned to meet certain overriding demands of discipline
and duty.” (cleaned up)). And, as we have established, unlike their separated
counterparts, military retirees are in the “actual service.” Aplt. Br. at 11 (Wilson);
Aplt. Br. at 17 (Dillon).
***
Based on the text of the Make Rules Clause, as well as the holdings of relevant
Supreme Court precedents, we conclude that retired servicemembers hold military
status and are thus amenable to court-martial jurisdiction. Retired servicemembers
have an ongoing duty to obey military orders: As Appellants acknowledge, the
military may involuntarily recall retirees to active-duty service at any time. Further,
retired servicemembers maintain a formal relationship with the military: They may
wear their uniform in limited circumstances, they hold a military rank, and they
receive retired pay. Taken together, these factors distinguish retirees from separated
servicemembers, who have “severed all relationship with the military and its
institutions.” Toth, 350 U.S. at 14.
For the same reasons, we conclude that medically retired servicemembers hold
military status and are thus amenable to military jurisdiction. Like traditional
21 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 22
retirees, medical retirees maintain their relationship with the military: They may
wear their uniform in certain circumstances, Aplt. Br. at 22 (Dillon); they hold a
military rank, see R. Vol. I at 168 (Wilson) (noting Wilson’s retirement rank of Staff
Sergeant); they receive disability benefits, Aplt. Br. at 46 (Wilson); and they are
subject to active-duty recall at the military’s discretion, see 10 U.S.C. § 688.
Appellants identify several reasons why medical retirees should not be subject
to court-martial jurisdiction. To begin, they argue that, under current government
regulations, it is “practically impossible” for medically retired servicemembers to be
“involuntarily recalled to active-duty military service.” Aplt. Br. at 46 (Wilson);
Aplt. Br. at 51 (Dillon). Appellants also note that, even if the military wished to
recall medical retirees, government regulations instruct that medical retirees
“generally should be deployed to civilian defense jobs upon mobilization,” and not to
active-duty service. Management of Regular and Reserve Retired Military Members,
Dep’t of Defense Instruction 1352.01, ¶ 3.2(g)(2) (Dec. 8, 2016).
We are sympathetic to Appellants’ policy arguments. But, as we have
explained, our sole task is to determine whether Congress may constitutionally
subject medical retirees to court-martial jurisdiction—and not to determine whether
Congress’s decision to do so is wise or fair. The constitutional inquiry turns on
whether medical retirees are in “the land and naval Forces,” U.S. Const. art. 1, § 8,
cl. 14, or have “severed all relationship with the military and its institutions,” Toth,
22 Appellate Case: 24-3064 Document: 57-1 Date Filed: 09/05/2025 Page: 23
350 U.S. at 14; it does not ask us to analyze the likelihood of an officer’s recall.10
Further, the same regulations Appellants cite in support of their position also instruct
that disabled retirees may be placed in a military role if “they have critical skills or
volunteer for specific military jobs.” Management of Regular and Reserve Retired
Military Members, Dep’t of Defense Instruction 1352.01, ¶ 3.2(g)(2) (Dec. 8, 2016).
And, as Appellants concede, those regulations also allow the Army to “order any
retired regular member” to perform whatever duties are “deemed necessary in the
interests of national defense.” Id. ¶ 3.3(b)(2) (emphasis added).
Because Wilson and Dillon hold “military status,” Solorio, 483 U.S. at 439,
and have not “severed all relationship with the military and its institutions” through
separation, Toth, 350 U.S. at 14, they are part of “the land and naval Forces,” U.S.
Const. art. I, § 8, cl. 14. Accordingly, the statutory grant of military jurisdiction over
them is constitutional. We therefore AFFIRM the district court’s denial of Wilson’s
and Dillon’s habeas petitions.
10 Even if the likelihood of recall informed the constitutional analysis, we disagree with Appellants that the prospect of recalling retirees is “entirely illusory.” Aplt. Br. at 44 (Wilson); Aplt. Br. at 49 (Dillon). “[I]n both of our wars with Iraq, retired personnel of all services were actually recalled.” United States v. Dinger, 76 M.J. 552, 557 (N-M. Ct. Crim. App. 2017) (quotation omitted), aff’d, 77 M.J. 447 (C.A.A.F. 2018). And, when necessary, the armed forces have “occasionally recalled even permanently disabled military retirees to active duty.” United States v. Reynolds, 2017 WL 1506062, at *4 (N-M. Ct. Crim. App. Apr. 27, 2017); see Akol v. United States, 167 Ct. Cl. 99, 102–03 (1964) (discussing the recall of a medically retired servicemember to “active duty ashore” in December 1941). 23