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Congressional_______
~ Research Service
Military Jurisdiction over Retired
Servicemembers
April 5, 2023
Members of the United States Armed Forces are governed by a distinct criminal legal regime: the military
justice system. (They are also subject to civilian laws and courts.) The purposes of this system, in addition
to pursuing justice, are maintaining good order and discipline in the armed forces and promot[ing]
efficiency and effectiveness in the military establishment . . . to strengthen the national security of the
United States.
The military justice system differs from its civilian counterparts in several key ways, including
(1) extensive military commander authority over legal process; (2) a criminal code-the Uniform Code of
Military Justice (UCMJ)-that includes military-specific offenses in addition to those typically contained
in civilian criminal codes; (3) specialized tribunals called courts-martial; and (4) abrogated constitutional
rights (e.g., no right to grand jury indictment or jury trial). Given the military justice system's
distinctiveness, whether a person is subject to military jurisdiction can be of great consequence to both the
individual and the military.
Unlike most civilian legal systems, in which geography or legal subject matter generally determines
jurisdiction, the military justice system exercises global jurisdiction based on an individual's military
status. Military retirees, for the most part, maintain a legal military status and are therefore subject to
military law. (For information on military retirement, see CRS In Focus IF10483.) This Legal Sidebar
outlines the statutory basis for military jurisdiction over retired servicemembers, how courts have
addressed this issue, and potential considerations for Congress.
Statutory Authority
Under Article I, Section 8, Clause 14 of the U.S. Constitution, The Congress shall have Power .. .To
make Rules for the Government and Regulation of the land and naval Forces. Congress exercised this
authority to create the military justice system, including provisions extending military jurisdiction over
servicemember retirees. (Congress has included military retirees under military jurisdiction since the first
military retired list was promulgated in 1861.)
Article 2 of the UCMJ subjects the following three categories of retired servicemembers to military law:
(1) Retired members of a regular component of the armed forces who are entitled to pay; (2) Retired
Congressional Research Service
https://crsreports.congress.gov
LSB10945
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govelef0001&div=1&collection=&method=preview&ext=.png&size=3)
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