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.

In March the NMCCA issued a decision in United States v. Dinger, 76 M.J. 552 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Oct. 16, 2017) (noted here).

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.

Bad move.

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.

34 Responses to “Top Ten Military Justice Stories of 2017 – #1: Exercising court-martial jurisdiction over retired members”

  1. Michael Korte says:

    The teaching point here, and I think it’s very important and try to advise routinely, is that you shouldn’t rape or murder people.

  2. k fischer says:

    I’ll be looking forward to reading CAAF’s review of Dinger.

  3. DCGoneGalt says:

    Michael Korte:  I would also add the following to your teaching point advice . . . “but if you do, don’t tell anyone about it.”

  4. k fischer says:

    DCGG, 
     
    That goes without saying.  Who would ever confess to rape or murder?
     
    A better teaching point would be that if you are inclined to, or actually do, rape or murder someone, and you are given the option of escaping by discharge the jurisdiction of a different sovereign for which double jeopardy does not attach in perpetuity, then take it.

  5. stewie says:

    So wait, now I’m confused…I should or should not rape/murder anyone?
     
    In seriousness, is this really an elevated thing? I get the part where someone was court-martialed for acts while in a reserve status…that seems somewhat new and one wonders why the civilians didn’t handle it (particularly given we are talking child porn), but ordinarily that’s going to be the case 99% of the time.  Otherwise, my crim law shop over half a decade ago brought and convicted two separate folks off retirement for child molestation charges within the space of a year. 

  6. Tami a/k/a Princess Leia says:

    I got it retired members are still subject to the UCMJ, but there are some offenses that still require being in a certain status at the time of the offense. Contempt toward POTUS and other officials for example, require the accused to be “a commissioned officer” at the time.  Disrespecting an officer.  So if a retiree junior to Poppa Panda Sexy Pants disrespects him, is that retiree in trouble even though PPSP is a retiree himself (setting aside the divestiture issue)?
     
    As far as the lesson from Hennis goes, the lesson is if you commit a really bad crime while in the Army, and you have the option to get out of the Army, GET OUT!

  7. Wendy says:

    So, for the purposes of being under military jurisdiction after separation, are retirees and disabled vets under the same umbrella?  I am not a rapist, murderer, thief, etc.  However, neither am I perfect.  I knew that I willingly put myself in a potential situation being tried twice for the same crime while on active duty.  I would like to know if that is still the case, simply because I am compensated. I can only imagine that it is the compensation that allows for jurisdiction.
    Anyone know?

  8. Zachary D Spilman says:

    I feel confident saying that a retired commissioned officer still holds his or her commission, Tami.

    Disabled and medically retired are separate things, Wendy. But a member transferred to a disability retired list (TDRL/PDRL) is a retired member for Article 2 purposes. It is, after all, just a transfer. 

  9. Tami a/k/a Princess Leia says:

    But Zach, a retiree has no authority to order anyone to do anything, and no obligation to obey, unless in uniform.  A retiree is simply getting reduced pay for “reduced services” and is subject to recall.  But until recalled, unless in uniform, has no more authority, or obligation, than any other ordinary citizen.  So as it relates to military-specific crimes, just because a retiree is subject to the UCMJ doesn’t mean the government can prosecute for a UCMJ crime.
     
    Back to PPSP, is he a “commissioned officer” even though he is retired and not in uniform, and is any retiree junior to him in trouble for disrespecting him?  Or anyone on active duty in trouble for disrespecting him for that matter?  And is he allowed to grow Elvis Presley sideburns and a Grizzly Adams beard?  Because if retirees are still subject to the UCMJ by all standards, then the answers to the last question would be no.

  10. stewie says:

    So if I retire as a say an O5, and call an O6 by their first name (or perhaps question their parentage), am I subject to recall for disrespect to a senior commissioned officer?
     
    Academic exercise as the chances of that happening are pretty darn small. AR 27-10 makes it clear that recalls have to happen for exceptional circumstances. So unless you rape, murder, molest, etc you are probably fine as a retiree if your biggest crime is that night to remember at the adult swingers club or that time you toked and didn’t get caught or the stripper you hired during your Vegas TDY (pre-2007ish).

  11. Cloudesley Shovell says:

    It seems to be a common misconception that a retiree must be recalled to active duty before he may be tried before a court-martial.
     
    “Recall” is not required for court-martial jurisdiction over a retiree. 
     
    Kind regards,
    CS

  12. Tami a/k/a Princess Leia says:

    Stewie,
     
    Unless that stripper you hired during your Vegas TDY pre-2007ish suddenly remembers that you raped her.  What happens in Vegas doesn’t stay in Vegas.

  13. Zachary D Spilman says:

    They say:

    just because a retiree is subject to the UCMJ doesn’t mean the government can prosecute for a UCMJ crime.

    But:

    “Recall” is not required for court-martial jurisdiction over a retiree. 

    And:

    it has been determined that [Grazioplene] will not be wearing a uniform for the trial.

  14. stewie says:

    It may not be required, but in my experience it’s more the norm than the reverse.

  15. Vulture says:

    With the demise of net neutrality this seem like a great time to rebel and not have an opinion.

  16. Tami a/k/a Princess Leia says:

    There is a difference between being “subject to the UCMJ” and being in a certain status that subjects one to criminal liability for certain offenses that require actual military status.  Retired officers can’t command for example.  So if hypothetically I, as a retiree, tried to give someone junior an order and they refused, are they in trouble for disobeying an order?  Or what if a colonel tried to order me to do something and I said nope, don’t want to, I am enjoying my freedom, am I in trouble?  I may be subject to the UCMJ, but not subject to this colonel’s orders.

  17. Isaac Kennen says:

    The take away: there’s no such thing as a free ride.  Accepting retired pay comes with a corresponding loss of liberty, including the loss of the right to an indictment process and a trial by jury should you be suspected of violating federal law, including uniquely military offenses.
    I’m surprised this is surprising.  

  18. Alfonso Decimo says:

    Personally, now that I’m retired, there is no way I’m calling using military honorifics when I address anyone, unless it’s highly appropriate, like a wounded warrior or the person is actually in uniform and I want him to turn around when I address him.

  19. Keith says:

    A question that arises in training OSI and NCIS agents ….Colonel (Ret.) X is stopped by law enforcement at the base exchange under suspicion for shoplifting. He is known to be a retired SM. Should the colonel be advised per A.31 before being questioned?

  20. Isaac Kennen says:

    Keith asked:

    A question that arises in training OSI and NCIS agents ….Colonel (Ret.) X is stopped by law enforcement at the base exchange under suspicion for shoplifting. He is known to be a retired SM. Should the colonel be advised per A.31 before being questioned?

    Article 31(b) reads:

    No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

     
    Application:
     
     
    Is the AFOSI agent “a person subject to this chapter?”  
     
    If yes, then, is the subject a “person suspected of an offense?”  (Note there is no “under this chapter” qualifier for either the term “person” or “offense,” like there is regarding the status of the questioner.)
     
    If the answer to both questions is yes, then I think the statute should be read to require the agent to accomplish advisement prior to any “interrogation” or “request” for a statement. I think any other interpretation of that statute is driven by a desire to make it more convenient in application, as opposed to a desire to adhere to the plain language of the law as enacted by Congress

  21. Alfonso Decimo says:

    Article 31 applies to situations where, because of military rank, duty, or other relationship, there might be a subtle pressure on a suspect to respond to interrogation. So, NCIS, OSI, and CID agents should advise per Art. 31 when the suspect is military. However, in Keith’s hypothetical, the agent knows the suspect to be a retired senior officer. If the agent failed to advise, I think there would be a strong argument that any admissions should be admissible. I would argue that such a person would feel much less pressure to respond.

  22. Tami a/k/a Princess Leia says:

    I’m surprised before now, no one has noticed the distinction in the UCMJ between terms like:
     
    “Any person who procures his own enlistment, appointment, or separation…”  Article 83 (very inclusive)
     
    “Any commissioned officer who uses contemptuous language…”  Article 88 (limited to commissioned officers, doesn’t apply to enlisted, I don’t see where this would apply to retirees either, since retirees aren’t “commissioned officers”).
     
    “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer….”  Article 89 (may apply to a retiree when interacting with an active duty superior commissioned officer, but not with another retiree, which answers my question about PPSP)
     
    Retirees are still be subject to the UCMJ 24/7, but in some ways, they are civilians, they have earned freedom (though subject to recall), such as free speech.  Retirees cannot “command.”  They have no “authority.”  They hold an “appointment” but they are not “commissioned officers” unless recalled to active duty. 
     
    So even though retirees are subject to the UCMJ 24/7, not every single UCMJ article applies to them.  I don’t see why people have a hard time making this distinction.

  23. Michael Lowrey says:

    Alphonso Decimo, the less or no pressure to respond argument because not on active duty for not having to give Art. 31 rights was rejected by CAAF in 2014 in United States v. Gilbreath for members of the Individual Ready Reserve:

    Article 31(b), UCMJ, governs official questioning in the military justice system, and absent any statutory command to the contrary, an IRR member who is sufficiently integrated into the military to qualify for court-martial jurisdiction is sufficiently integrated so as to be entitled to the statutory protection of the article.

    Maybe there’s a way to distinguish retirees from IRR members, but I’m skeptical.

  24. Nathan Freeburg says:

    Honestly, I think a lot of folks less wonky than ZS were flabbergasted to discover that a retiree could be court-martialed for acts committed as a retiree.  I realize the argument that retirement pay is reduced pay for services (theoretically) currently rendered.  The reality is that the IRS and family courts treat it as an accrued pension.  There’s also the massive arbitrariness of who actually gets court-martialed.  I assume that retirees commit UCMJ violations every day (many of them publicly — Article 88 anyone?).  But someone really decided to punish a CP – possession in a foreign country just because that country isn’t known to prosecute CP heavily?
    Reservists are generally clear on when they are and are not subject to the UCMJ (leaving aside formerly ambiguous travel scenarios).  Apparently retirees are subject to the UCMJ 24-7 but I bet that’s news to the vast majority of them.

  25. stewie says:

    I think that’s because the vast majority of retirees will not ever be prosecuted for anything they do via C-M.
     
    It’s still an exceedingly rare event that requires something akin to rape/murder/child porn.

  26. Kevin Reinholz says:

    Isaac Kennen says:
    January 3, 2018 at 3:11 AM  
    The take away: there’s no such thing as a free ride.  Accepting retired pay comes with a corresponding loss of liberty, including the loss of the right to an indictment process and a trial by jury should you be suspected of violating federal law, including uniquely military offenses. I’m surprised this is surprising.
     

    Zeke,
    Don’t forget the case of a service member involuntarily subjected to the MEB process, and involuntarily retired for a service unfitting disability, and involuntarily placed on the Permanently Retired List. While most service members in this situation (having a service unfitting disability) would likely prefer to be medically retired, they have no actual say in the matter, and in the case of commissioned officers, lack the power to separate or stop the MEB process (enlisted members can get out at their ETS unless they voluntarily extend to let the MEB process play out). So rather than “accepting retired pay,” our disabled veteran/retiree has been forced into a retired status and lifelong UCMJ jurisdiction.
    I agree with most everyone else in the comments section that unless said disabled retiree commits rape/murder/a child pornography offense, the odds of him/her being court-martialed are slim to none, but I do want to quibble with the notion that all retirees voluntarily accepted military retirement or the receipt of retired pay. And what of the medically retired individuals who waive military retired pay in order to receive VA disability compensation (since they don’t qualify for dual-compensation and dislike paying income taxes)? They didn’t have the choice to separate and take VA compensation–they were forced into a military retiree status, even if they waive every dime of that military retirement. I suspect the court-martial of a person in such a situation would raise more than a few eyebrows and have a really great “CNN effect” for the defense.
    Cheers,
    Kevin

  27. stewie says:

    Interesting question! What if they aren’t receiving retirement pay but instead disability compensation? Does that matter?
    The whole hook is ostensibly the receipt of retiree pay, if I retire and I decline retirement pay, no jurisdiction over me, yes?
    So what about disability?

  28. Cloudesley Shovell says:

    Stewie, et al,
     
    “Retired members of a regular component of the armed forces who are entitled to pay.”  So, one has to be a (1) retired member; (2) regular component; (3) armed forces; (4) entitled to pay.  How about that “entitled to pay” clause?  What does it mean?  It must mean something, because Congress put it there, and basic rules of statutory construction say the clause must be given meaning and effect.  It cannot be rendered a surplusage. 
     
    So what class of retirees are not entitled to pay?  I don’t know.  I don’t think any case addresses it.  I had a retiree case and raised it repeatedly, but every court from trial to CAAF declined to address the issue through nearly a decade of litigation.  Curious, because jurisdiction is always an issue, especially before Article I courts. 
     
    I have an opinion, though.  I think “entitled to pay” (the statute used to read “entitled to receive pay” by the way), means those retirees who by operation of law are getting retired pay under Title 10.  Disability retirees who don’t get any Title 10 money, but only get VA compensation under Title 38 aren’t “entitled to pay” because the money they get is compensation, not pay (thus not taxable).  They also aren’t “entitled to pay” because, at least in the case of 100% disability, you cannot get both pay and compensation.  Only one or the other.  A person less than 100% disabled is another matter; he is still getting at least partial pay.
     
    Can one decline retirement pay?  I don’t know.  If it’s possible, does one escape UCMJ jurisdiction under Art. 2(a)(4)?  I don’t know. 
     
    Kind regards,
    CS
     
     

  29. Duderino says:

    I believe several of the members that were granted release in 2017 following Hills are in the posistion that they now may retire. I know of one for sure. Talk about a huge decision. Imagine being innocent but convicted on the whole unproven propensity BS then spending years in prison, set free from prison, but then end up playing it safe and losing all that money and benefits. 
     
    I for one chose separation after acquittal and I still had many friends and family questioning me walking away after 15 years , but after prosecution a man cannot ignore that the military has become the most significant threat to his freedom, especially when based on false allegations. Ditto on the VA disability compensation though.
     
    (Another gee whiz being that military time still counts towards federal retirement if you didn’t retire and you “buy” your time back with HR once hired as a civilian) maybe DOJ is better than DoD …..?
     
    *** as for the medically retired members. They cannot be recalled because they are unfit, and that was significant part of the logic in the wording in the decision. 
     

  30. Alfonso Decimo says:

    Cloudesley – I believe that anyone entitled to retired pay who gets more than 50% disability is entitled to full retired pay w/o offset against VA disability pay, so your category of a retired member not receiving retired pay does not exist.

  31. BuccoBucs says:

    The list this year was a bit off. For instance, the issue in Dalmazzi is not an important UCMJ issue.
    Baker and Bergdahl shouldn’t be conflated. UCI probably should have been higher on the list. 
    As far as retiree jurisdiction. Wasn’t Hennis tried in a uniform? Why the difference between him and the retired GO?

  32. Kevin Reinholz says:

    Alfonso Decimosays:
    January 4, 2018 at 8:13 AM

    Cloudesley – I believe that anyone entitled to retired pay who gets more than 50% disability is entitled to full retired pay w/o offset against VA disability pay, so your category of a retired member not receiving retired pay does not exist.

    Interesting discussion! Actually, I believe concurrent receipt only applies to members retired for disability who also have at least 20 years of creditable service, and could therefore retire “regularly.” Those medically retired with less than 20 years are not entitled to concurrent receipt (unless Congress later changes the law) so in some cases (especially lower ranking enlisted members) I could see VA disability compensation easily exceeding whatever their pension would be based on high-3 and their disability rating used as their base pay multiplier.
    I think Duderino makes a fair point about medically retired members being considered “unfit” and therefore it not being appropriate to recall them.
    Still, my personal view of the law is that yes, a medically retired military member, even one with fewer than 20 years, who waives military retired pay for VA disability compensation, is still “entitled to pay” even though s/he waived it, and therefore is subject to the UCMJ just like any other retiree. I do not think this is remotely “fair” or “just,” but I believe that’s how many military judges, the service courts, and even CAAF would view the jurisdictional issue. Maybe the Supremes would take a different view if such a case ever arose and somehow the defense team got SCOTUS to grant cert!

  33. Some DC says:

    BroncoBucs, I think one difference between Hennis and the GO is that Hennis was recalled to active duty for trial, whereas the GO is not being recalled.  Also, Hennis was (or should have been) aware of the potential to be retried by the military when he came back in, and because of his prior civilian trials, much of the evidence had been preserved.  I think they even used transcripts of some of the testimony in his civilian trials at the court-martial.  The GO, on the other hand, is being tried for decades-old allegations for which no evidence was likely preserved or prior sworn testimony taken.  And, while a GO should have constructive knowledge that he or she could be tried in retired status, I imagine the reality is that no retiree actually expects to be charged more than a decade after retirement for “new” old allegations.  Of course, I could be wrong, and the GO might have been expecting these charges for years.

  34. Marcus Burnett says:

    Michael Lowrey is correct. But with retirees, the requirement to provide a 31b rights warning is even more clear.  
    In GILBREATH the Government’s (failed) argument was that IRR members were not expressly listed under Art. 2. Not so with retirees who are listed, in black and white, under Art 2.    
    But I suppose the CAAF could unanimously reverse the NMCCA again…