Sunday, April 2, 2017

The NMCCA affirms that retired service members are still in the military and still subject to the UCMJ

In a published issued yesterday, in United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affirms a concept that I last noted here: Military retirement isn't really retirement, it's merely a change in duty status-

Notwithstanding Barker [v. Kansas, 503 U.S. 594, 605 (1992)] and its implications regarding the tax status of retired pay, we are firmly convinced that those in a retired status remain "members" of the land and Naval forces who may face court-martial. As the appellant was in a retired status during the offenses and the proceedings, he was validly subject to court-martial.

Slip op. at 8.

The appellant, Gunnery Sergeant 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.

Writing for the panel Judge Rugh explains that:

By act of Congress, the appellant was subject to the UCMJ when he committed the offenses. Art. 2(a), UCMJ ("The following persons are subject to this chapter . . . . Retired members of a regular component of the armed forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and Fleet Marine Corps Reserve.").

Slip op. at 4 (link to Article 2).

The CCA considers arguments that "the receipt of retired pay is neither wholly necessary, nor solely sufficient, to justify court-martial jurisdiction." Slip op. at 5. But Dinger's relationship with the military – like all persons who retire from an active component – involved more than just receipt of retired pay:

The appellant had a closer relationship with the military than the pre-induction draftee, whom the Supreme Court has repeatedly suggested is subject to court-martial jurisdiction. Unlike the wholly discharged veteran in Toth whose connection with the military had been severed, a "retired member of the . . . Regular Marine Corps" and a "member of the . . . Fleet Marine Corps Reserve" may be "ordered to active duty by the Secretary of the military department concerned at any time." "[I]n both of our wars with Iraq, retired personnel of all services were actually recalled," demonstrating Congress' continued interest in enforcing good order and discipline amongst those in a retired status.
As the Court stated in Tyler:

It is impossible to hold that [retirees] 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, . . . are still not in the military service.

105 U.S. at 246.

Slip op. at 7-8.

Having confirmed that Dinger was subject to court-martial for his purely post-retirement offenses, the CCA then considers whether a dishonorable discharge may be adjudged under such circumstances. This question is based on 10 U.S.C. § 6332 which provides, in part, that transfer to retired status "is conclusive for all purposes." But Judge Rugh finds that:

Neither Congress—through the UCMJ—nor the President—through the RULES FOR COURTS-MARTIAL— has directly limited the authority of a court-martial to adjudge a discharge for a member in a retired status.

For this reason, we decline to override long-standing, military justice-specific provisions in the MCM subjecting those in a retired status to courts-martial and broadly authorizing those courts-martial to adjudge a punitive discharge. We make this decision particularly in light of the fact that Congress expressly exempted other classes of personnel from dismissal or dishonorable discharge within the UCMJ, but not retirees.

Slip op. at 11 (emphasis in original). The reference to "other classes of personnel," however, seems to be an error, as the opinion discusses types of courts-martial not authorized to adjudge dismissal or dishonorable discharge (summary and special courts), but not individuals who are exempt from such punishment.

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