Executive Power

Summary: Executive Order Allowing Pentagon to Recall Retired Service Members

By Sarah Grant
Tuesday, October 24, 2017, 12:38 PM

Last Friday, President Donald Trump issued an executive order (EO) amending President George W. Bush’s Executive Order 13223, originally issued on Sept. 14, 2001. In short, the amendment allows military service secretaries (the secretaries of the Air Force, Army, and Navy), subject to regulation by the secretary of defense, to recall retired service members to active duty. The order’s stated purpose is to “provide the Secretary of Defense additional authority to manage personnel requirements,” in recognition of “the continuing and immediate threat of further attacks on the United States.” Though the language of the amendment is broad, Navy Cmdr. Gary Ross, a Pentagon spokesman, released a statement the same day explaining that the order primarily seeks to enable the Air Force to address a critical shortage of fighter pilots by recalling “up to 1,000 retired pilots for up to three years.” On Sunday, Ann Stefanek, chief of Air Force media operations, said the Air Force does not “currently intend to recall retired pilots.”

Three days after the Sept. 11 terrorist attacks, Bush declared a national emergency and issued EO 13223, which in relevant part authorized the Department of Defense to recall and retain various categories of service members to meet emergency requirements:

Section 1. To provide additional authority to the Department of Defense and the Department of Transportation to respond to the continuing and immediate threat of further attacks on the United States, the authority under title 10, United States Code, to order any unit, and any member of the Ready Reserve not assigned to a unit organized to serve as a unit, in the Ready Reserve to active duty for not more than 24 consecutive months, is invoked and made available, according to its terms, to the Secretary concerned, subject in the case of the Secretaries of the Army, Navy, and Air Force, to the direction of the Secretary of Defense ...

Last month, as Presidents Bush and Obama did annually after 2001, President Trump renewed the national emergency. In Friday’s EO amendment, he added retired service members to the pool of individuals who the military may recall:

The authorities available for use during a national emergency under sections 688 and 690 of title 10, United States Code, are also invoked and made available, according to their terms, to the Secretary concerned, subject in the case of the Secretaries of the Army, Navy, and Air Force, to the direction of the Secretary of Defense.

Section 688 authorizes the service secretaries to order retirees and members of the Fleet Reserve and Fleet Marine Corps Reserve to active duty as “necessary in the interests of national defense.” In general, the provision limits which officers can be recalled and the period for which all covered individuals can be ordered to active duty. In times of declared national emergency, however, those restrictions are waived.

Section 690 caps the number of recalled officers that can serve on active duty concurrently—not more than 15 general and flag officers and not more than 25 officers of other ranks per service—but again, only under peacetime conditions. Pursuant to the national emergency exception in Section 690, the Air Force can now recall up to 1,000 retired fighter pilots if it so chooses.

The remaining limitation on the services’ ability to recall retired service members is financial: The amendment specifies that it is “subject to the availability of appropriations.” The original EO 13223 lays out the method of funding, pursuant to 10 U.S.C. 2201(c):

Upon a determination by the President that it is necessary to increase (subject to limits imposed by law) the number of members of the armed forces on active duty beyond the number for which funds are provided in appropriation Acts for the Department of Defense, the Secretary of Defense may provide for the cost of such additional members as an excepted expense under section 6301(a) and (b)(1)–(3) of title 41.

Section 6301, in turn, exempts from the appropriation stipulation: “contract[s] or purchase[s] made by a defined [service] Secretary for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies.” Both Section 2201 and Section 6301 require the secretary of defense or service secretary, respectively, to immediately notify Congress when they exercise the spending authority therein granted. Section 6301 further requires the service secretary to provide a quarterly report to Congress on estimated additional financial costs incurred.

While the Pentagon, at least publicly, seems focused on the possible application of the amendment to addressing Air Force pilot shortages, the EO is not so restricted. The general terms of the provision equally allow for the other services to take similar action in the future, with the approval of the secretary of defense. As of Oct. 24, the White House has not separately commented on the amendment.