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.