 This opinion is subject to administrative correction before final disposition.




                                 Before
                  CRISFIELD, FULTON, and HITESMAN,
                        Appellate Military Judges

                         _________________________

                           UNITED STATES
                               Appellee

                                      v.

                        Stephen A. BEGANI
              Chief Petty Officer (E-7), U.S. Navy, Retired
                               Appellant

                              No. 201800082

               Argued: 29 Mar 2019 1—Decided: 31 July 2019.

   Appeal from the United States Navy-Marine Corps Trial Judiciary.
   Military Judge: Captain Stephen C. Reyes, USN. Sentence adjudged 1
   December 2017 by a general court-martial convened at Fleet Activities
   Yokosuka, Japan, consisting of a military judge sitting alone. Sentence
   approved by convening authority: confinement for 18 months and a
   bad-conduct discharge.

   For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN (argued
   and on brief).

   For Appellee: Lieutenant Timothy C. Ceder, JAGC, USN (argued);
   Captain Brian L. Farrell, USMC (on brief); Lieutenant Kimberly Rios
   (on brief).




   1 We heard oral argument in this case at Pennsylvania State University Law
School, State College, Pennsylvania.
                   United States v. Begani, No. 201800082


   Chief Judge CRISFIELD delivered the opinion of the Court, in which
   Senior Judge FULTON and Senior Judge HITESMAN joined.

                         _________________________

                PUBLISHED OPINION OF THE COURT

                         _________________________

CRISFIELD, Chief Judge:
    Congress has determined that some, but not all, military retirees should
remain subject to the Uniform Code of Military Justice (UCMJ) while they
are retired. Retirees from a regular (i.e., active) component, which in the
Navy includes those in the Fleet Reserve, are subject to UCMJ jurisdiction at
all times and in all places for as long as they live. Retirees from a reserve
component are only subject to the UCMJ while receiving hospitalization from
an armed service. The question before us is whether this disparate treatment
offends the Due Process Clause of the Fifth Amendment. Applying strict scru-
tiny to the treatment of these similarly situated groups, we determine that
UCMJ jurisdiction over retirees is not narrowly tailored to accomplish the
goal of good order and discipline in the armed forces. Accordingly, the sec-
tions of the UCMJ subjecting regular component retirees to UCMJ jurisdic-
tion are unconstitutional.

                              I. BACKGROUND

    On 30 June 2017, after 24 years on active duty, the appellant, Chief Petty
Officer Stephen A. Begani retired from active duty and transferred to the
Fleet Reserve. He remained in the area of his final duty station, Marine
Corps Air Station Iwakuni, Japan, and found employment with a contractor
performing aircraft maintenance work for the U.S. military. The appellant
soon began communicating with “Mandy,” whom he believed to be a 15-year-
old female, but was actually an undercover Naval Criminal Investigative
Service (NCIS) agent. They communicated through an online chat platform
and their communications were sexual in nature. On 5 August 2017, NCIS
agents apprehended Mr. Begani when he arrived at an on-base residence on
Marine Corps Air Station Iwakuni. The appellant had come to the residence
with the intent to have sex with “Mandy,” whom he believed was waiting in-
side.
    As a member of the Fleet Reserve, the appellant was subject to UCMJ ju-
risdiction in accordance with Article 2(a)(6), UCMJ. 10 U.S.C. § 802(a)(6)
(2012). Charges were preferred against the appellant and he unconditionally


                                      2
                   United States v. Begani, No. 201800082


waived his right to an Article 32, UCMJ, preliminary hearing. Charges were
then referred to a general court-martial. The appellant and the convening au-
thority reached a pretrial agreement in which the appellant agreed to waive
his right to trial by members and plead guilty. At trial, the appellant pleaded
guilty to, and was found guilty of, one specification of attempted sexual as-
sault of a child and two specifications of attempted sexual abuse of a child, in
violation of Articles 80 and 120b, UCMJ. He raised no motions at trial other
than one arguing that a punitive discharge is not an authorized punishment
for a retired Service Member, which was denied.
    For the first time on appeal, the appellant argues that the UCMJ’s juris-
dictional scheme, whereby he, as a retired regular component member, is
subject to the UCMJ, while retired Navy Reserve members are not, violates
the Fifth Amendment Due Process Clause’s guarantee of equal protection of
the laws. He argues that this unequal jurisdictional scheme unconstitutional-
ly deprived him of his right to a jury of his peers, the right to a grand jury,
and the right to free speech when a similarly situated reserve retiree would
enjoy those rights.
    The appellant also asserts four other assignments of error: (1) that he is a
“former member” of the armed forces and therefore not subject to jurisdiction
under the UCMJ; (2) that he did not receive notice that he was subject to
UCMJ jurisdiction as required by Article 137, UCMJ; (3) that once retired, a
Service Member is no longer subject to a punitive discharge; and (4) that a
retired Service Member cannot be subject to court-martial without first being
recalled to active duty. 2 Based on our resolution of the appellant’s equal pro-
tection claim, we need not reach his other assignments of error.

                               II. DISCUSSION

A. Jurisdictional Claim Not Waived by Unconditional Guilty Plea or
Pretrial Agreement
    As a threshold issue we must determine whether, as the appellee asserts,
the appellant waived appellate consideration of his equal protection claim by
failing to raise it at his court-martial, by unconditionally pleading guilty, and
by agreeing to waive all “waivable” motions in his pretrial agreement.
    Ordinarily, motions not raised at trial and not preserved through a not
guilty plea or a conditional guilty plea are waived. RULES FOR COURTS-


   2  The final assignment of error is raised by the appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




                                       3
                    United States v. Begani, No. 201800082


MARTIAL (R.C.M.) 905(e), MANUAL FOR COURTS-MARTIAL (MCM), UNITED
STATES (2016 ed.). Jurisdictional defects are an exception to this general rule
and are never waived. R.C.M. 905(b)(1). The appellee argues that the subject
of the appellant’s claim is equal protection, not jurisdiction. As we view the
issue, however, it is plainly jurisdictional. It concerns the constitutionality of
Article 2, UCMJ, the article that establishes which persons are subject to
personal jurisdiction under the UCMJ. Since jurisdictional challenges are
never waived—even by an unconditional guilty plea—the issue is appropriate
for review. United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (hold-
ing that an unconditional guilty plea waives only nonjurisdictional defects).
    The appellee also argues that the appellant’s pretrial agreement with the
convening authority waives this issue on appeal. This argument is similarly
unconvincing since the Rules for Courts-Martial prohibit any pretrial agree-
ment term that purports to waive the accused’s right to challenge the juris-
diction of the court-martial. R.C.M. 705(c)(1)(B). Accordingly, the appellant’s
jurisdictional claim is not waived.
    We review jurisdictional claims de novo. United States v. Wright, 53 M.J.
476, 478 (C.A.A.F. 2000). We have authority to review the constitutionality of
Article 2(a), UCMJ, (codified as 10 U.S.C. § 802(a)). See United States v. Mat-
thews, 16 M.J. 354, 366 (C.M.A. 1983) (“we are sure that Congress intended
for [the Court of Military Appeals] to have unfettered power to decide consti-
tutional issues – even those concerning the validity of the Uniform Code.”).

B. This Constitutional Issue Cannot be Avoided
    As a secondary issue, we must determine whether there is a way to re-
solve the appellant’s jurisdictional claim without reaching the constitutional
question. Two rules are relevant. The first, a procedural rather than interpre-
tive rule, states that if a case can be decided by resort to statutory construc-
tion or general law, rather than constitutional law, it should be decided on
the former grounds. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (Brandeis, J., concurring); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 247-51 (2012). The second is
the canon of constitutional doubt, which requires us to interpret statutes in a
way that avoids a constitutional question if such an interpretation is possible.
Gomez v. United States, 490 U.S. 858, 864 (1989); see also Scalia & Garner,
supra at 251. With these imperatives in mind, we have explored alternative
interpretations and procedural approaches to the appellant’s issue. We can-
not find, and have not been presented with, any alternative resolution or rea-
sonable alternative interpretation that permits us to avoid an equal protec-
tion analysis of the stark and facially inscrutable lines that Congress has
drawn between classes of retired military personnel in Article 2.



                                        4
                       United States v. Begani, No. 201800082


C. Members of the Fleet Reserve are Similarly Situated with Retired
Members of the Regular and Reserve Components
    A predicate to an equal protection analysis is the existence of similarly
situated groups of people who receive different treatment under the law.
There is little case law to guide our determination of whether these two
groups of retirees are “similarly situated” for equal protection purposes. We
nonetheless feel confident determining that members of the Fleet Reserve,
regular component retirees, and reserve component retirees are similarly sit-
uated because there is no meaningful distinction, legally or factually, be-
tween the groups that is relevant to good order and discipline in the armed
forces. 3
    The Fleet Reserve is a type of retiree status unique to the Navy and Ma-
rine Corps. 4 Enlisted Sailors of the Navy who have completed at least 20
years of active service will be transferred to the Fleet Reserve at their re-
quest. 10 U.S.C. § 6330(b). Members of the Fleet Reserve have no military
duties other than to “[m]aintain readiness for active service in event of war or
national emergency” and to keep Navy authorities apprised of their location
and “any change in health that might prevent service in time of war.” Naval
Military Personnel Manual, Art. 1830-040 (Ch-38, 19 Dec 2011). Fleet Re-
servists are entitled to “retainer pay.” 10 U.S.C. § 6330(c)(1). Once a member
of the Fleet Reserve has reached 30 years of service, they are entitled to
transfer to the Navy’s retired list. 10 U.S.C. § 6326(a).
   With some exceptions—many of which concern disability retirements—
members of the Fleet Reserve, regular component retirees, and reserve com-
ponent retirees have all spent at least 20 years in the armed forces. All three
groups include some members who have served in both the regular and the
reserve components. The members of all three groups are in an inactive sta-



    3 Members of a reserve component on inactive duty training are subject to the
UCMJ. Art. 2(a)(3), UCMJ. The appellant argues that members of a reserve compo-
nent that are not on inactive duty training or active duty (reservists on active duty
would be subject to the UCMJ under Art. 2(a)(1)) should also be considered similarly
situated with the appellant for UCMJ jurisdictional purposes. We disagree, seeing
obvious differences between retired personnel of the active and reserve components
on the one hand, and reservists who are not currently performing any military du-
ties, have not transferred to a retired status, and may not even be eligible to retire,
on the other. In addition to finding that inactive reservists are not similarly situated
with retirees, we can conceive of compelling reasons why Congress would not subject
these reservists to UCMJ jurisdiction.
    4   The Marine Corps’ analogue is called the Fleet Marine Corps Reserve.




                                           5
                   United States v. Begani, No. 201800082


tus and no longer perform any uniformed military duties. They are all subject
to recall to active duty. They are ineligible for further promotion. They are
entitled to retired pay at some point in their retired years. Retirees from an
active component, including the Navy’s Fleet Reserve, begin earning retired
pay (“retainer pay” for the Fleet Reserve) immediately upon retirement. Re-
tirees from a reserve component generally begin receiving retired pay at age
60. For all of them, once they are entitled to retired pay, the pay continues for
the duration of their lives and increases according to a cost of living formula.
Their retired pay is not contingent on their continued military usefulness.
Their actual ability to contribute to the accomplishment of a military mission
is completely irrelevant.
    As we consider whether the three groups at issue are similarly situated,
we look to each group’s current degree of connectedness to the armed forces—
not to past connections. See United States ex rel. Toth v. Quarles, 350 U.S. 11,
22 (1955) (suggesting that retaining jurisdiction over former soldiers, with no
relation to active components, would not improve discipline amongst the ac-
tive ranks). Although not dispositive, the official Department of Defense
(DoD) policy on the utilization of retirees informs our determination that
these three groups are in fact similarly situated.
    The DoD instruction on “Management of Regular and Reserve Retired
Military Members” establishes policy and provides procedures for the activa-
tion and employment of retired members. Dep’t of Def. Instr. 1352.01, Man-
agement of Regular and Reserve Retired Military Members (8 Dec. 2016)
[hereinafter DODI 1352.01]. We first note that the instruction states that the
Navy’s regular component retired members includes members of the Fleet
Reserve. Id., at ¶ 3.1(a)(2). This is consistent with our determination that
members of the Navy’s Fleet Reserve are, in all relevant respects, retired for
purposes of our equal protection analysis. This determination also reflects the
reality in the fleet, where members of the Fleet Reserve refer to themselves
as “retired” and have “retirement ceremonies” upon transfer to the Fleet Re-
serve. Finally, and most convincingly, the Fleet Reserve has to be considered
similarly situated with regular component retirees when one considers that
the Army, Air Force, and Coast Guard have no analogous category to the
Fleet Reserve, yet retirement eligibility rules are uniform across the armed
services.
    We also find it relevant that in describing DoD’s four-part policy on the
utilization of retired members, the instruction makes no distinction between




                                       6
                       United States v. Begani, No. 201800082


retired members of the regular and reserve components. 5 Similarly, in de-
scribing the criteria for retiree mobilization, the instruction does not mention
active or reserve component status as a criterion for mobilization. 6 This for-
mal DoD policy comports with our own experience regarding how the various
armed services seek to integrate their reserve components as seamlessly as
possible with their active components.
   Retired members of both the active and reserve components are similar-
ly—though not identically—subject to involuntary recall to active duty. While
unusual, retired members of both the active and reserve components may be
involuntarily recalled to active duty by a service secretary. The secretary of a
military department has authority to involuntarily order a retired member of
a reserve component to active duty for the duration of a war or national
emergency and for six months thereafter, provided that Congress has de-



    5   To wit:
             It is DoD policy that:
             a. Regular retired members and members of the retired Reserve
          may be ordered to active duty (AD) as needed to perform such duties
          as the Secretary concerned considers necessary in the interests of na-
          tional defense as described in Sections 688 and 12301 of Title 10,
          U.S.C.
            b. Regular retired members and members of the retired Reserve
          must be managed to ensure they are accessible for national security
          and readiness requirements.
              c. Regular and Reserve retired members may be used as a man-
          power source of last resort after other sources are determined not to
          be available or a source for unique skills not otherwise obtainable.
             d. Directors of agencies that have Defense related missions . . .
          may identify military and federal civilian positions that are suitable
          for fill by retired military members in time of war or national emer-
          gency. . . .
DODI 1352.01 at ¶ 1.2(a)-(d) (emphasis added). Note that 10 U.S.C. § 12301 (refer-
enced in para. 1.2(a)) places a statutory limitation on the involuntary activation of
retired reservists to times when Congress has declared a time of war or national
emergency and the secretary of the military department has made a finding that
there are not enough qualified active reserves who are readily available.
    6 DODI 1352.01 at ¶ 3.2(c) (“As part of the criteria for deployment of individuals
to specific mobilization billets, the Military Services will consider the criticality of the
mobilization billet, the skills of the individual, and his or her geographic proximity to
the place of mobilization.”).




                                             7
                      United States v. Begani, No. 201800082


clared a time of war or national emergency and the secretary determines
there are not enough qualified reserves in an active status. DODI 1352.01 at
¶ 3.3(b)(1); see also 10 U.S.C. § 12301. In contrast, the secretary of a military
department has authority to involuntarily order a retired regular member to
active duty “at any time to perform duties deemed necessary in the interests
of national defense in accordance with Sections 688, 689, 690, and 12307 of
Title 10, U.S.C.” DODI 1352.01 at ¶ 3.3(b)(2).
    While we have found no precedent in case law standing for the proposi-
tion that retired members of the active and reserve components are similarly
situated, our conclusion is not entirely novel. During testimony on the pro-
posed Article 2, UCMJ, before the House Armed Services Committee, Robert
W. Smart, a professional staff member on the House of Representatives’
Committee on Armed Services, noted with concern that the jurisdictional
scheme would mean “treating two classes of people on the same retired list
differently.” Uniform Code of Military Justice: Hearings on H.R. 2498 Before
a Subcomm. of the H. Comm. on Armed Services, 81st Cong. (1949) [hereinaf-
ter UCMJ Hearing], reprinted in William K. Suter, Index and Legislative His-
tory: Uniform Code of Military Justice 1261 (William S. Hein & Co. 2000)
(1950). As we discuss below in our Equal Protection analysis, Congress ulti-
mately tolerated the disparate treatment in order to accommodate differences
in how the services managed retirees—differences that, as we will see, are no
longer applicable. But we find that this bit of legislative history corroborates
our sense that retirees of the reserve and active components are in fact simi-
larly situated.
   Based on these considerations, we are convinced that members of the
Fleet Reserve, retired members of the regular components, and retired mem-
bers of the reserve components are similarly situated for purposes of equal
protection analysis.

D. Equal Protection Analysis
    Congress has broad power under Article I, Section 8, clause 14 of the Con-
stitution “[t]o make Rules for the Government and Regulation of the land and
naval Forces.” Pursuant to that grant of authority from the people, Congress
has subjected the following categories of people to the UCMJ: active duty mil-
itary personnel, 7 cadets and midshipmen, 8 military prisoners, 9 prisoners of


   7   Art. 2(a)(1), UCMJ.
   8   Art. 2(a)(2), UCMJ.
   9   Art. 2(a)(7), UCMJ.




                                        8
                       United States v. Begani, No. 201800082


war and certain other detainees, 10 members of government agencies when
assigned to the armed forces, 11 and certain civilians under limited circum-
stances. 12 Article 2, UCMJ, also includes the following groups that are rele-
vant to our equal protection analysis:
    Art. 2(a)(3): Members of a reserve component while on inactive duty train-
ing.
  Art. 2(a)(4): Retired members of a regular component of the armed forces
who are entitled to pay.
   Art. 2(a)(5): Retired members of a reserve component who are receiving
hospitalization from an armed force.
   Art. 2(a)(6): Members of the Fleet Reserve and Fleet Marine Corps Re-
serve.
    The disparate treatment provided to retirees from the active and reserve
components is plain on the face of Article 2. The appellant claims that the
distinction violates his right to equal protection because Article 2 deprives
him of his constitutional rights to free speech, grand jury indictment, and a
jury of his peers, while preserving those rights for similarly situated retirees
from reserve components.
    There is no equal protection clause in the text of the Fifth Amendment,
but in Bolling v. Sharpe, 347 U.S. 497, 500 (1954), the Supreme Court deter-
mined that an equal protection guarantee exists in the amendment’s Due
Process clause. “In view of our decision that the Constitution prohibits the
states from [violating the 14th Amendment’s guarantee of equal protection],
it would be unthinkable that the same Constitution would impose a lesser
duty on the Federal Government.” Id. Thus, the Fifth Amendment’s Due Pro-
cess Clause also guarantees the right of equal protection to those affected by
Federal statutes.
    Court-martial jurisdiction has always been considered a special type of
criminal jurisdiction significantly different from civil courts and responsive to
the special needs of the armed forces that do not exist in civil society. “Every
extension of military jurisdiction is an encroachment on the jurisdiction of
the civil courts, and, more important, acts as a deprivation of the right to jury
trial and of other treasured constitutional protections.” Reid v. Covert, 354



   10   Art. 2(a)(9), (13), UCMJ.
   11   Art. 2(a)(8), UCMJ.
   12   Art. 2(a)(10), (11), (12), UCMJ.




                                           9
                     United States v. Begani, No. 201800082


U.S. 1, 21 (1957). Military jurisdiction was always intended “to be only a nar-
row exception to the normal and preferred method of trial in courts of law.”
Id. Therefore, notwithstanding Congress’ broad constitutional power, the Su-
preme Court has held that due to the perceived inadequacies of courts-
martial compared to Article III courts, Congress must limit its exercise of
court-martial jurisdiction to “the least possible power adequate to the end pro-
posed.” Quarles, 350 U.S. at 23 (emphasis in original) (quoting Anderson v.
Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821)). 13
    The appellant urges us to apply strict scrutiny to Congress’ Article 2 ju-
risdictional scheme because he claims that the unequal treatment he received
under Article 2 deprived him of fundamental rights. Strict scrutiny analysis
requires the challenged statute to serve a “compelling governmental inter-
est,” and the means taken to be “narrowly tailored” to accomplish this goal.
Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
    Counter-balancing the proposition that strict scrutiny is the appropriate
level of review when fundamental rights are in the balance, we have a judi-
cial duty to provide Congress with great deference when it legislates pursu-
ant to its Article I, Section 8 powers. “[J]udicial deference . . . is at its apogee
when legislative action under the congressional authority to raise and sup-
port armies and make rules and regulations for their governance is chal-
lenged.” Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (quoting Rostker v.
Goldberg, 453 U.S. 57, 70 (1981)); see also Solorio v. United States, 483 U.S.
435 (1987).
   We do not see any contradiction in performing a strict scrutiny analysis
while providing Congress with great deference. Judicial deference “does not
mean abdication.” Rostker, 453 U.S. at 70. For instance, in Nat’l Coal. for
Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), the district
court recognized that “the court’s deference to Congress’s ‘studied choice’ is
potentially at its height” but still used intermediate-level scrutiny to analyze
a gender-based equal protection challenge to Congress’ decision to require
males, but not females, to register for the Selective Service. Id., at 580.
   Equal protection case law supports the proposition that strict scrutiny is
the appropriate level of judicial review of governmental action that impinges



   13 “There are dangers lurking in military trials which were sought to be avoided
by the Bill of Rights and Article III of our Constitution. Free countries of the world
have tried to restrict military tribunals to the narrowest jurisdiction deemed abso-
lutely essential to maintaining discipline among troops in active service.” Quarles,
350 U.S. at 22.




                                         10
                     United States v. Begani, No. 201800082


on a fundamental right. Phyler v. Doe, 457 U.S. 202, 217 n. 15 (1982) (“In de-
termining whether a class-based denial of a particular right is deserving of
strict scrutiny under the Equal Protection Clause, we look to the Constitution
to see if the right infringed has its source, explicitly or implicitly, therein.”);
see also United States v. Marcum, 60 M.J. 198, 204-05 (C.A.A.F. 2004) (ana-
lyzing the nature and scope of the right identified by the Supreme Court in
Lawrence v. Texas, 539 U.S. 558 (2003) and Lawrence’s applicability to Article
125, UCMJ). When a law impinges upon the “exercise of a fundamental
right,” courts may treat the law as “presumptively invidious.” Plyler, 457 U.S.
at 216-17; see also Quarles, 350 U.S. 11 (1955) (invalidating a law that would
subject a separated Service Member to court-martial jurisdiction, in spite of
traditional deference to Congress on military matters).
    Court-martial jurisdiction deprives a defendant of the right to a present-
ment of the charges to a grand jury under the Fifth Amendment. 14 It also de-
nies a defendant his Article III 15 and Sixth Amendment 16 right to trial by a
jury of his peers. “A service member has no right to have a court-martial be a
jury of his peers, a representative cross-section of the community, or random-
ly chosen.” United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004) (citing
Ex parte Quirin, 317 U.S. 1, 39-41 (1942)).
    We are certain that these rights—explicitly described in the Constitu-
tion—constitute “fundamental rights” for equal protection purposes. In the
context of determining the proper scope of court-martial jurisdiction, the Su-
preme Court has stated: “[I]n view of our heritage and the history of the
adoption of the Constitution and the Bill of Rights, it seems peculiarly anom-
alous to say that trial before a civilian judge and by an independent jury
picked from the common citizenry is not a fundamental right.” Reid v. Covert,
354 U.S. 1, 9 (1957). “Trial by jury in a court of law and in accordance with
traditional modes of procedure after an indictment by grand jury has served
and remains one of our most vital barriers to governmental arbitrariness.
These elemental procedural safeguards were embedded in our Constitution to




   14 “No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces . . . .” U.S. CONST. amend. V.
   15    “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury
. . . .” U.S. CONST. art. III, § 2, cl. 3.
   16 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed . . . .” U.S. CONST. amend. VI.




                                         11
                       United States v. Begani, No. 201800082


secure their inviolateness and sanctity against the passing demands of expe-
diency or convenience.” Id. at 10.
   We find that these rights are undoubtedly fundamental. The appellant
was denied their protection by virtue of being subject to the UCMJ.
    To avoid application of the strict scrutiny standard, the government con-
tends that court-martial jurisdiction does not burden any fundamental right.
Citing United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004), the govern-
ment argues that the rights to grand and petit juries are not fundamental
rights because “Appellant, subject to court-martial jurisdiction, has no Sixth
Amendment right to a jury chosen from a fair cross-section of the community.
His argument for strict scrutiny review fails.” 17 This argument, however,
starts with the presumption that the appellant is subject to court-martial ju-
risdiction—the very notion he challenges here. That Article 2, UCMJ, sub-
jects the appellant to court-martial jurisdiction does not alter the fundamen-
tal character of these rights for purposes of our analysis. Under the UCMJ as
it then existed, neither Robert Toth nor Clarice Covert had a right to trial by
jury. Yet in Toth v. Quarles and Reid v. Covert the Supreme Court’s analysis
began with the understanding that the rights to grand and petit juries are
fundamental. 18
   Having concluded that fundamental rights are at stake, we must deter-
mine whether Article 2’s different treatment of similarly situated retiree
groups is narrowly tailored to advance a compelling government interest.
    We find that the purpose of military justice is to maintain good order and
discipline in the armed forces. 19 When Congress legislates in the field of mili-
tary justice, its objective is to promote good order and discipline in the armed
forces, which is undoubtedly a compelling governmental interest.
   There is no doubt that Congress can lawfully subject military retirees to
court-martial jurisdiction. United States v. Dinger, 76 M.J. 552, 557 (N-M. Ct.
Crim. App. 2017) (relying on the fact that retired members are “part of the
land or naval forces” to support continuing jurisdiction over retirees), aff’d on
other grounds, 77 M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492



    17   Government Brief at 10.
    18See Toth, 350 U.S. at 16 (“This right of trial by jury ranks very high in our cat-
alogue of constitutional safeguards.”); Covert, 354 U.S. at 9 (“[I]t seems peculiarly
anomalous to say that trial before a civilian judge and by an independent jury picked
from the common citizenry is not a fundamental right.”).
    19   See MCM, Preamble, ¶ 3.




                                          12
                    United States v. Begani, No. 201800082


(2018); see also United States v. Hooper, 9 U.S.C.M.A. 637, 645 (C.M.A. 1958).
The question for us is whether the jurisdictional scheme that Congress has
created in Article 2 is narrowly tailored to its compelling interest in main-
taining good order and discipline in the armed forces.
   The legislative history of the creation of the UCMJ provides insight as to
why Congress structured Article 2 the way it did. 20 We find that in creating
the UCMJ in 1949, Congress was attempting to tailor the law’s jurisdiction to
two military services with different administrative structures. 21
    Prior to the adoption of the UCMJ, the Articles for the Government of the
Navy and the Articles of War governed the separate justice systems of the
Navy and Army, respectively. Each system was tailored to the specific needs
of its service. In the Navy, retired members of the regular and reserve com-
ponents were on the same retired list. All retirees were managed and paid by
the Navy and amenable to jurisdiction under the Articles for the Government
of the Navy. In the Army, on the other hand, regular retirees were adminis-
tered by the Army and reserve retirees were administered by the Veteran’s
Administration. The Army did not consider its retired reservists as subject to
the Articles of War. This discrepancy needed to be resolved by Congress in
order to put the “U” in the UCMJ.
    The solution was for the Navy to relinquish court-martial jurisdiction over
retired reservists in order to be consistent with the Army:
            Mr. Smart. 22 It appears to me—I just cannot tell for cer-
        tain—that this [draft Article 2] is a relaxation of jurisdiction
        over Navy retired officers on the retired list. Is that correct?
           Admiral Russel. 23 That is correct.
           Mr. Larkin. 24 That is correct.



   20The current versions of the Article 2 subsections in issue here are nearly un-
changed from their 1950 origins.
   21 While the Department of the Air Force was formed under the National Security
Act of 1947, it derived from, and was structured most similarly to, the Army.
   22  Robert W. Smart was a Professional Staff Member on the House of Representa-
tives’ Committee on Armed Services.
   23  Rear Admiral George L. Russel, U.S. Navy, was testifying about the formation
of a legal corps within the Navy.
   24Felix Larkin was Assistant General Counsel in the Office of the Secretary of
Defense.




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                   United States v. Begani, No. 201800082


           Mr. Smart. You see the point there, Mr. Chairman, is that
       the physically retired Navy Reserve officer is on the same re-
       tired list as the regular officer of the Navy. The physically re-
       tired Army officer is certified to VA as being authorized to draw
       retirement pay—not retired pay but retirement pay.
           So there has been a great difference in the past as between
       physically retired Navy Reserves and Army retired Reserve of-
       ficers. I just wanted to make certain here that the Navy was re-
       linquishing courts-martial jurisdiction over retired reserve of-
       ficers. And they say that that is correct.
UCMJ Hearing, supra, at 868.
    The inequity of subjecting active, but not reserve, retirees to court-martial
jurisdiction was not lost on the House of Representatives committee staff:
           Mr. Smart. I am reluctant to say, Mr. Chairman, what my
       recommendation [regarding jurisdiction over retirees] would
       be.
           I would point this one thing out to you: It seems a little in-
       consistent to me that retired personnel of a Regular component
       are subject when as a matter of fact you have non-Regular per-
       sonnel in the Navy who are on the same retired list and enti-
       tled to the same rights and benefits as the regular.
           The Navy apparently here has waived their right to their
       jurisdiction, so that the retired non-Regular Navy officer, even
       though he is on the retired list of the Navy will not be any more
       subject to the code than the non-Regular Army officer who is
       drawing retirement pay from the Veteran’s Administration.
          It is treating reserves alike, I will admit, but it is treating
       two classes of people on the same retired list differently too.
Id. at 1261.
   The Committee Report from the House of Representatives succinctly laid
out the rationale for the difference in treatment:
           Paragraph (5) [draft Article 2(a)(5), UCMJ] represents a
       lessening of jurisdiction over retired personnel of a Reserve
       component. Under existing law, the Navy retains jurisdiction
       over retired Reserve personnel since such personnel are on the
       same retired list as members of a regular component. The Ar-
       my has no such jurisdiction since retirement benefits for non-
       regular officers are administered by the Veteran’s Administra-
       tion. This paragraph relinquishes jurisdiction over its Reserve


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                   United States v. Begani, No. 201800082


       personnel except when they are receiving hospitalization from
       an armed force. This standardizes jurisdiction of the armed
       forces over Reserve personnel.
H.R. Rep. No. 81-491, at 10 (1949) reprinted in Suter, supra. An identical ex-
planation appeared in the corresponding Senate report. S. Rep. No. 81-486, at
7 (1949) reprinted in Suter, supra.
    If Article 2 was originally tailored by Congress, however awkwardly, to
the administrative needs of the Army and Navy, it appears that those needs
no longer exist. Instead, it appears that each service now manages and ad-
ministers its own reserve retirees. See, e.g., 10 U.S.C. § 12731(b) (“Application
for [non-regular] retired pay under this section must be made to the Secre-
tary of the military department, or the Secretary of Homeland Security, as
the case may be, having jurisdiction at the time of application over the armed
force in which the applicant is serving or last served”). See also 10 U.S.C.
§ 12731(f)(3) (“The Secretary concerned shall periodically notify each member
of the Ready Reserve . . . of the current eligibility age for retired pay of such
member under this section, including any reduced eligibility age by reason of
the operation of that paragraph. Notice shall be provided by such means as
the Secretary considers appropriate taking into account the cost of provision
of notice and the convenience of members.”). Each service now administers its
retirees, both active and reserve.
    Furthermore, we find that the structure of Article 2 jurisdiction over cur-
rent retirees is not narrowly tailored to the compelling government interest
in maintaining good order and discipline in the armed forces. UCMJ jurisdic-
tion is simply not related to a retiree’s connectedness to the armed forces or
ability to effectively contribute to military missions. An elderly and infirm
active component retiree is less likely to be able to contribute to the accom-
plishment of military missions than a middle-aged reserve component retiree
in good health. Yet, the active component retiree of questionable military
utility may be court-martialed for violations of the UCMJ, and suffer the dep-
rivation of fundamental rights that such jurisdiction entails, while a younger
and more physically fit reserve component retiree is immune from UCMJ ju-
risdiction.
    Article 2(a)(4) states that a retired member of a regular component “enti-
tled to pay” is subject to the UCMJ. Such language indicates that Congress
may have viewed entitlement to pay as a useful criterion for determining
UCMJ jurisdiction. Entitlement to pay fails entirely as a narrowing criterion,
however, because many reserve component retirees are also entitled to pay




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                    United States v. Begani, No. 201800082


and yet remain outside UCMJ jurisdiction. 25 The retired pay structure for
reservists is also completely disconnected from a reservist’s actual ability to
contribute to military missions. Indeed, for reserve component retirees the
relationship between entitlement to pay and military utility is essentially in-
verted. When a reserve retiree is younger, they are more likely to be able to
withstand the physical rigors of active military service and less likely to be
receiving retired pay. When older, they are more likely to be receiving retired
pay and less likely to be militarily useful. For both regular and reserve retir-
ees, once they are entitled to retired pay, the entitlement continues for the
duration of their lives and increases according to a set formula. Neither’s re-
tired pay is contingent on their continued military usefulness. We find that
entitlement to pay does not help tailor Article 2’s jurisdictional scheme to
Congress’ compelling interest in maintaining good order and discipline in the
armed forces.
    Our review indicates that Article 2 is not narrowly tailored to the achieve-
ment of a compelling government interest. Instead, it appears that Article 2’s
retiree jurisdiction structure is an anachronistic vestige of Congress’ effort to
create a uniform code of military justice for military services that traditional-
ly had different administrative needs. Article 2’s retiree jurisdiction rules re-
flect an administrative compromise that has outlived its necessity and is not
tailored to current governmental interests.
    It is clear to us that Congress could lawfully subject all retirees of the
armed forces to UCMJ jurisdiction. Conversely, it could subject no retirees of
the armed forces to jurisdiction. It could also narrowly tailor retiree jurisdic-
tion in such a way to satisfy the compelling interest in maintaining good or-
der and discipline in the armed forces. Article 2 as structured, however, is not
narrowly tailored to that interest. Accordingly, we find that the UCMJ’s ju-
risdictional structure for retirees violates the right of equal protection imput-
ed to the Fifth Amendment.

                                III. CONCLUSION

    After careful consideration of the record and briefs and oral argument of
appellate counsel, we hold that Articles 2(a)(4) and 2(a)(6) of the UCMJ vio-
late the Due Process Clause’s guaranty of equal protection of the laws and



   25  Retirees from a reserve component are generally entitled to retired pay, but
they do not start receiving it until age 60. Some retired reservists can earn retired
pay as early as age 50 if they qualify under rules that reduce the age at which they
start receiving pay. See 10 U.S.C. § 12731(f).




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                  United States v. Begani, No. 201800082


are therefore unconstitutional. Accordingly, the findings and sentence as ap-
proved by the convening authority are DISMISSED.
   Senior Judges FULTON and HITESMAN concur.

                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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