Barker v. Kansas, 503 U.S. 594, 7 (1992)

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600

BARKER v. KANSAS

Opinion of the Court

leaves open the possibility of creating disparities among members of the same preretirement rank. Such disparities cannot be explained on the basis of "current pay for current services," since presumably retirees subject to these benefit differentials would be performing the same "services." Furthermore, military benefits are determined in a manner very similar to that of the Kansas Public Employee Retirement System. Brief for United States as Amicus Curiae 11, n. 16. In terms of calculating retirement benefits, therefore, we see no significant differences between military retirees and state and local government retirees that justify disparate tax treatment by the State.

In holding to the contrary, however, the Kansas Supreme Court found support in some of our precedents. In United States v. Tyler, 105 U. S. 244 (1882), for example, the Court decided that officers retired from active military service were entitled to the same percentage increase in pay that a statute had provided for active officers. The Court reached this result in part by characterizing military retirement pay as "compensation [that] is continued at a reduced rate, and the connection is continued, with a retirement from active service only." Id., at 245.4

The State Supreme Court also found support in McCarty, supra. In that case the California courts considered the applicability of state community property laws to the military retirement benefits for which an officer who had 18 years of service would be eligible 2 years hence. The California courts had held these benefits subject to division upon disso-4 The Court explained: "It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service." United States v. Tyler, 105 U. S., at 246.

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