Try reading Larrabee v. Braithwaite, 502 F. Supp. 3d 322 (D.D.C. 2020)
https://storage.courtlistener.com/recap/gov.uscourts.dcd.204940/gov.uscourts.dcd.204940.28.0.pdf
Experience has clearly demonstrated the baseline proposition that court-martial jurisdiction must be narrowly limited. The Supreme Court itself has instructed time and time again that "the scope of the constitutional power of Congress to authorize trial by court-martial" must be "limit[ed] to ‘the least possible power adequate to the end proposed.’ " Toth , 350 U.S. at 23, 76 S.Ct. 1 (quoting Anderson v. Dunn , 19 U.S. (6 Wheat.) 204, 230–31, 5 L.Ed. 242 (1821) ). Indeed, trial by court-martial "was intended to be only a narrow exception to the normal and preferred method of trial in courts of law." Reid v. Covert , 354 U.S. 1, 21, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). In the final analysis, "[e]very extension" of court-martial jurisdiction "is an encroachment on the jurisdiction of the civil courts" and "acts as a deprivation of the right to jury trial and of other treasured constitutional protections." Id. ; accord Toth , 350 U.S. at 15, 76 S.Ct. 1 ("any expansion of court-martial jurisdiction ... necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals" ) .
The Constitution created a delicate balance between the military's need to preserve good order and discipline, on the one hand, and an individual's right to due process when accused of crimes, on the other.
...
In evaluating the proper scope of court-martial jurisdiction, the Supreme Court has instructed that the relevant test is "one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ " Kinsella v. United States ex rel. Singleton , 361 U.S. 234, 240–41, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). To answer this question, the Supreme Court has looked to whether "certain overriding demands of discipline" necessitate court-martial jurisdiction over a certain class of individuals. Solorio v. United States , 483 U.S. 435, 440, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987) (quoting Burns v. Wilson , 346 U.S. 137, 140, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953) (plurality opinion)). Obviously, the parties here agree that Congress provided court-martial jurisdiction in the UCMJ over members of the Fleet Marine Corps Reserve and other military retirees. See 10 U.S.C. § 802(a)(4), (6) ; see also Pl.’s Mot. at 10 n.4; Defs.’ Mot. at 4. They disagree, however, over whether Congress can constitutionally subject such military retirees to court-martial jurisdiction.
The Government argues that because Congress has determined military retirees are part of the "land and naval forces" and subjected them to court-martial jurisdiction, they must be so, ipso facto. See Defs.’ Mot. at 13. The Government relies on the Supreme Court's decision in Solorio , which deferred to Congress's judgment in holding that a servicemember can be tried by court-martial for an offense committed on his own time in the civilian community that has no connection to his military service, 483 U.S. at 446–47, 107 S.Ct. 2924.
...
To date, the Government has consistently cited two primary factors as justifying court-martial jurisdiction over military retirees: their receipt of retainer pay and their ability to be recalled to active-duty service. See Defs.’ Mot. at 14–24. Neither factor, however, suffices to demonstrate why military retirees plainly fall within the "land and naval forces" or why subjecting them to court-martial jurisdiction is necessary to maintain good order and discipline.
First, military retirees’ receipt of retainer pay does not suffice to subject them to court-martial jurisdiction. Under 10 U.S.C. § 8330(c)(1), members of the Fleet Marine Corps Reserve receive retainer pay when not on active duty. The Government's position rests on the longstanding, but largely inaccurate, assumption that this retainer pay represents reduced compensation for current part-time services.
...
The Supreme Court reversed course from Tyler in 1992 when it determined that for purposes of tax treatment, military retirement benefits actually represent deferred pay for past services. Barker v. Kansas , 503 U.S. 594, 605, 112 S.Ct. 1619, 118 L.Ed.2d 243 (1992).
...
Additionally, receipt of military retirement benefits has never been enough, by itself, to subject a class of individuals to court-martial jurisdiction. In Reid , the Supreme Court rejected the Government's position that civilian dependents of servicemembers who received military benefits were therefore part of the "land and naval Forces" and subject to court-martial jurisdiction.
...
Second, the possibility of recall to active-duty service does not suffice to subject military retirees to court-martial jurisdiction. Indeed, the Supreme Court itself emphasized early in its jurisprudence regarding court-martial jurisdiction that the right to trial by jury—"one of the most valuable in a free country—is preserved to every one accused of [a] crime who is not attached to the army, or navy, or militia in actual service." Ex parte Milligan , 71 U.S. (4 Wall.) 2, 122–23, 18 L.Ed. 281 (1866). Yet despite that instruction, Congress has steadily expanded court-martial jurisdiction over time, reaching its current scope in 1950 when it explicitly included retirees in the Fleet Marine Corps Reserve and individuals on retirement lists who are not in active-duty service or on active-duty training. See 10 U.S.C. § 802(a)(4), (6). The Government not surprisingly contends that the mere possibility of recall to active-duty service suffices to subject military retirees to court-martial jurisdiction.
...
While both sides are correct in some ways, the bottom line remains the same: military retirees are highly unlikely to be recalled, even though their service may be necessary in some future national emergency. This disagreement, however, loses sight of the ultimate question: whether the Government has adequately demonstrated that court-martial jurisdiction over military retirees is necessary to maintain good order and discipline. See Toth , 350 U.S. at 22, 76 S.Ct. 1 ("Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service." ) . Indeed, Congress's current treatment of inactive members of the Reserve components calls into question whether court-martial jurisdiction over military retirees is actually necessary to such end. Under Article 2(a) of the UCMJ, members of the Reserve components are subject to court-martial jurisdiction only while serving on their regular active-duty periods and while on inactive-duty training, but not when in inactive status. See 10 U.S.C. § 802(a)(3). Because military retirees are much less likely to be recalled to active-duty service than Reservists are, the distinction in whether these two similar groups are subject to court-martial jurisdiction seems arbitrary at best. Indeed, under the current regime, a retired member of the Army and an inactive member of the Army Reserve who get into a bar brawl would face two entirely different systems of justice: the Army retiree could be hauled before a court-martial and tried by a military judge and active military officers, whereas the Army Reservist would be entitled to indictment by a grand jury and trial by a civilian jury of his peers overseen by an impartial judge. Please!
...
Moreover, the current scope of court-martial jurisdiction disregards the obvious fact that some military retirees face virtually no prospect of recall to military service at all, whether because of their age, physical condition, or disability. See DoD Instruction 1352.01, ¶ 3.2(g)(2) (2016) (limiting recall of "Category III retirees"—those who are retired due to disability or who are over 60 years of age—to civilian defense jobs). Further, the Government readily acknowledges that, absent court-martial jurisdiction, military retirees who face state or federal criminal prosecution for offenses committed after retirement could still be administratively separated from the service.
To say the least, it is difficult to square these distinctions with the demands of good order and discipline that are the principal objectives of their military's court-martial jurisdiction. To be clear, I am not concluding today that Congress could never authorize the court-martial of some military retirees, but merely that Congress has not shown on the current record why the exercise of such jurisdiction over all military retirees is necessary to good order and discipline. Indeed, the Government points to no clear statements by members of Congress upon passing the Uniform Code of Military Justice that explain the necessity of subjecting all military retirees to court-martial jurisdiction. Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circumscribed, e.g. , Toth , 350 U.S. at 23, 76 S.Ct. 1, I must conclude that in the absence of a principled basis promoting good order and discipline, Congress's present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.
----------
TL;DR - the US District Court for the District of Columbia found the exercise of court martial jurisdiction over military retirees to be unconstitutional last year.
Unless and until they are reversed, they are going to find the same thing again.
= new reply since forum marked as read
