Top Ten Military Justice Stories of 2017 – #1: Exercising court-martial jurisdiction over retired members
For a retired member of the armed forces, court-martial jurisdiction is like Hotel California:
You can check out any time you like,
But you can never leave!
Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), 10 U.S.C. § 802(a)(4), the Uniform Code of Military Justice applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).
Prohibitions against things like contempt towards the President and other officials (Article 88), using marijuana (Article 112a), intentionally writing a bad check (Article 123a), and service discrediting conduct (Article 134) continue to apply to these servicemembers during their retirement. Jurisdiction is worldwide and – ever since the Supreme Court’s decision in Solorio v. United States, 483 U.S. 435, 439-441 (1987) – applies to conduct that is otherwise totally unrelated to military service.
But the exercise (and even the acknowledgement) of such jurisdiction was rare. That changed in 2017 with events that put court-martial jurisdiction over retirees in the headlines and make it our #1 Military Justice Story of 2017.
Dinger is a remarkable case because not only does it involve a retiree, but the offenses occurred post-retirement and the retiree pleaded guilty at a court-martial.
Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ. All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.
At the CCA, Dinger challenged both the existence of personal jurisdiction and the ability of the court-martial to sentence him to a punitive discharge. The CCA rejected both challenges, and CAAF granted review of only the discharge issue.
In August, an Article 32 preliminary hearing was held to consider allegations of rape of a child by retired Army Major General James J. Grazioplene.
The allegations date back to 1983, when Grazioplene was on active duty. That’s different from the purely post-retirement offenses in Dinger, but the passage of so much time and the differences between a court-martial and a jury trial raise separate concerns.
At the end of December the charges against Grazioplene were referred for trial and he was arraigned before a general court-martial. According to this Washington Post story, the military judge “said that it has been determined that [Grazioplene] will not be wearing a uniform for the trial.”
There were also developments in what is perhaps the most famous case involving a retiree subject to court-martial: Hennis.
Timothy Hennis – a soldier stationed at Fort Bragg, NC – was accused of a triple-murder and rape in 1985, tried by the state of North Carolina, convicted, and sentenced to death. But the conviction was reversed on appeal, and Hennis was acquitted at a retrial. He then chose to stay in the Army until retirement.
Forensic DNA came around and a state detective submitted evidence from the case for analysis. That analysis revealed compelling evidence of Hennis’ guilt. The Army exercised jurisdiction under Article 2(a)(4) and (unencumbered by the Double Jeopardy clause because the federal government is a separate sovereign from the state) prosecuted Hennis for the murders. His subsequent conviction and death sentence was the #2 story of 2010, and the Army CCA’s opinion affirming the findings and sentence was part of the #2 story of 2016.
In 2017 CAAF rejected a motion to compel funding for appellate resources in Hennis, concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the request. United States v. Hennis, __ M.J. __ (C.A.A.F. Nov. 20, 2017) (CAAFlog case page).
At the beginning of FY2017 there were 1,588,281 DoD retirees subject to the UCMJ (report). That’s more than the current number of people on active duty (1,337,648 including Coast Guard). After these events in 2017, the possibility of a court-martial for a military retiree seems a lot more likely. That makes the exercise of court-martial jurisdiction over retired members our #1 Military Justice Story of 2017.