Top Ten Military Justice Stories of 2018 – #6: CAAF holds that retired members can receive punitive discharges
Last year’s the top story was the exercise of court-martial jurisdiction over retired members of the armed forces. Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status and the UCMJ applies to regular retirees who are entitled to pay. But the exercise (and even the acknowledgement) of such jurisdiction was rare prior to events in 2017 that brought new attention to the fact that military retirees face military prosecution (even for post-retirement misconduct).
One such prosecution was the case of Gunnery Sergeant (E-7) Dinger, USMC (Ret.), who retired after completing 20 years of active enlisted service in the Marine Corps. After his retirement, Dinger lived in Okinawa, Japan, and worked as a military contractor. While there Dinger became a suspect in a child pornography investigation, and a search revealed evidence of possession and production of child pornography. Dinger was arrested, returned to the United States, and indicted under the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261.
MEJA, however, generally can’t be used to prosecute a member of the armed forces who is subject to the UCMJ, and Dinger’s retired status put him in that category. So the prosecution moved to dismiss the indictment, and the indictment was dismissed. A court-martial prosecution followed (at which Dinger appeared in civilian clothes), and Dinger agreed to plead guilty in exchange for an eight-year cap on confinement. But the plea deal did not protect Dinger against a punitive discharge, and he received a sentence that included a dishonorable discharge.
Dinger challenged that discharge on appeal but, in 2018, CAAF affirmed the discharge and the Supreme Court rejected Dinger’s petition for review. United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018), pet. denied, __ S.Ct. __ (Nov. 13, 2018) (CAAFlog case page).
CAAF’s holding that a retired member may be sentenced to a punitive discharge is the #6 Military Justice Story of 2018.
Dinger’s challenge to the punitive discharge was based on language in 10 U.S.C § 6332 that states that when a person in the naval service is transferred to the retired list, that transfer is “conclusive for all purposes.” The statute only applies to the Navy and Marine Corps, and it long predates the UCMJ (having been enacted in Section 202 of the Naval Reserve Act of 1938, 52 Stat. 1175, 1178 (1938)). Dinger claimed that because his transfer to the retired list was conclusive for all purposes, the court-martial had no power to adjudge a discharge that could remove him from the retired list.
Not so, concluded a unanimous CAAF. Writing for the court, Chief Judge Stucky explained that “the plain language of the statute does not purport in any way to limit the authority of a court-martial to impose any authorized sentence.” 77 M.J. at 453. And insofar as CAAF’s precedents suggest a different result, they are wrong. “The UCMJ is a self-contained statute . . . Had Congress intended to restrict the court-martial sentences adjudged in retiree cases, and particularly to abandon the principle of uniformity of treatment so essential to the UCMJ, one would expect it to have done so explicitly in either Article 2 or Article 56 of the UCMJ, not in some other statutory provision with no reference to its applicability to courts-martial.” Id.
CAAF did not, however, address the consequences of an executed punitive discharge. While an executed discharge will presumably sever Dinger’s ties to the military and end his entitlement to retired pay, CAAF saw that as a pay question that is properly litigated in other courts:
Although a court-martial is not prohibited from sentencing a retiree to a punitive discharge or any other authorized punishment, the collateral effect of such a sentence on a retiree is a different question that is not within the scope of our review. Congress saw fit to give jurisdiction over pay claims and related matters to other federal courts, and it is to them that such questions should be directed.
77 M.J. at 453-54.
CAAF also did not address Dinger’s other claim; that a court-martial lacked personal jurisdiction over him because in Barker v. Kansas, 503 U.S. 594, 604 (1992), the Supreme Court observed that “Congress for many purposes does not consider military retirement pay to be current compensation for current services.” Many, however, is not the same as all, and Article 2(a)(4) explicitly grants a court-martial personal jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. Furthermore, Barker was about whether the State of Kansas could impose different taxes on military retired pay than on state and local retirements; it did not somehow reclassify military retired pay in a way that wholly prevents court-martial jurisdiction over retired members.
Yet the holding of Barker – and even the validity of Article 2(a)(4) – are at issue in the petition for certiorari filed in Larrabee v. United States, No. 18-306, for which the Court requested a response from the Solicitor General. Staff Sergeant Larrabee is another retired member of the Marine Corps who pleaded guilty to offenses that occurred after he transferred to the retired list. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.), and CAAF summarily affirmed in light of Dinger in August, 2018.
And so court-martial jurisdiction over retired members, and the consequences of such proceedings, will likely remain a hot topic in military justice in 2019.