Legal Question (by a lawyer) re Post-UPT Service Commitment

[franknd]

The Air Force and Army currently require at least 10 years' service after UPT graduation. The Navy/Marine Corps remain at 8 years. My question is what is the legal basis for the Army and Air Force increasing theirs to 10, which is above the statutory minimum of 8 (and I'm setting aside helos/navigators/NFO for the sake of discussion even though that's only 6)?

10 U.S.C. sec. 653 states:

(a)Pilots.—
The minimum service obligation of any member who successfully completes training in the armed forces as a pilot shall be 8 years, if the member is trained to fly fixed-wing jet aircraft, or 6 years, if the member is trained to fly any other type of aircraft.

(c)Definition.—In this section, the term “service obligation” means the period of active duty or, in the case of a member of a reserve component who completed flight training in an active duty for training status as a member of a reserve component, the period of service in an active status in the Selected Reserve required to be served after—
(1) completion of undergraduate pilot training, in the case of training as a pilot

The statute seems clear and unambiguous to me, to wit: "shall be 8 years." It does not say, "shall be at least 8 years." Thus, the way I read it is that once you graduate UPT, you owe 8 years, and then you may choose to continue beyond that by mutual agreement with the service. What it doesn't mean is, "it's 8 years, but the service can unilaterally make it more at their whim." If that were the intent, then it would say, "shall be at least 8 years." Moreover, I'm dubious that a military service can point to a contract requiring more than 8 because that contract would be void ab initio as purporting to require something beyond what federal law allows.

That said, I'm not an expert in military law, and I don't know if this has ever been challenged in an Article III court. But if it hasn't, my sense (29 years' legal experience, mostly in federal courts) is that particularly now, with Chevron deference under increasing scrutiny, issues like this are vulnerable to be litigated.

Anyone here with particularized knowledge on the subject?

 

[flieger83]

Not being a lawyer, just a lowly Ph.D., I'm hesitant to make a definitive statement.

I look at sentence #1: "The minimum service obligation of any member who successfully completes training in the armed forces as a pilot shall be 8 years, if the member is trained to fly fixed-wing jet aircraft, or 6 years, if the member is trained to fly any other type of aircraft."

This is where the researcher in me comes out and looks "quizzical" and asks: "If it says the minimum shall be, doesn't that leave it open to be more than the minimum? In essence it says you can't do LESS than eight, but more than eight...is possible.

An interesting question you pose.

 

[franknd]

Not being a lawyer, just a lowly Ph.D., I'm hesitant to make a definitive statement.

I look at sentence #1: "The minimum service obligation of any member who successfully completes training in the armed forces as a pilot shall be 8 years, if the member is trained to fly fixed-wing jet aircraft, or 6 years, if the member is trained to fly any other type of aircraft."

This is where the researcher in me comes out and looks "quizzical" and asks: "If it says the minimum shall be, doesn't that leave it open to be more than the minimum? In essence it says you can't do LESS than eight, but more than eight...is possible.

An interesting question you pose.

But it says, "The minimum service obligation . . . shall be 8 years." Note well, it does not say, "The minimum service obligation . . . shall be at least 8 years." If it said the latter, then IMO your reading would have traction, and I think services would be on solid ground requiring more than that up front if they wished. But it doesn't say that, and courts won't read things into statutes that aren't there. Moreover, and generally speaking in the law, "shall" is read as a command. So, yes, while it's a minimum, it's also a command. IOW, Congress has said, "If you graduate UPT, you must serve at least 8 years beyond that. If you want to do more, fine, as long as it's okay with the service." But I don't think the statute, as written, gives any service carte blanche to require more than 8 years up front.

Interestingly, I've spent a good chunk of the day looking further into this, and I'm more skeptical now than when I wrote this post. I found what I believe to be the applicable AF manual, and it cites the quoted statute as its basis. So if that's all the AF has, I think their policy is ripe for a challenge in federal court. And likewise the Army's policy, which only went into effect in August 2020. Apparently the then-Army Secretary issued a memorandum (not available publicly anymore, as evidently it was only disseminated publicly via Twitter, and that account has now been deactivated), but whatever that memo might have said would also run headlong into the quoted statute. The Army's policy, though, isn't yet ripe to be challenged because nobody who would be under it would yet have 8 years post-UPT. But in two-three years, it would also be ripe for a challenge.

Finally, I've done a legal case search, and I've come up with a grand total of 1 case, from the early 2000s, which cites the statute. And that case dealt with a Naval officer who signed a contract for 7 years, which the Navy tried to extend into 8 years based on the statute. The federal district court shot that down and awarded attorney's fees to the service member's attorney. But that's all I can find. So as far as I can tell, nobody from any service has otherwise ever challenged this in a federal court. Curious . . . at least to me.

P.S. Also interesting to me that the Navy/Marine Corps remain at 8 years. Query whether their in-house lawyers might share my reading of the statute.

 

[A1Janitor]

The definition of minimum is the least amount, so saying the minimum shall be at least is redundant.

A few years back I read a court of appeals decision overturning a second degree harassment law (iirc) in NYS because it was void for vagueness because of a similar redundancy.

 

[franknd]

The definition of minimum is the least amount, so saying the minimum shall be at least is redundant.

Yeah, I see the flip side now that I'm looking at this again. If they meant exactly 8 years, they could have said, "The service obligation . . . shall be 8 years." But they threw in the word "minimum." Might have been helpful to include some guidance in the statute concerning the circumstances under which a service could require more than the minimum.