United States v. DingerUnited States v. Dinger
For Appellee: Major Tracey L. Holtshirley, USMC; Lieutenant Taurean Brown, JAGC, USN; Lieutenant Robert J. Miller, JAGC, USN.
PUBLISHED OPINION OF THE COURT
RUGH, Judge:
A military judge sitting as a general court-martial convicted the appellant pursuant to his pleas of 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
The appellant now asserts two assignments of error (AOE): (1) that his court-martial lacked personal jurisdiction over him in light of the U.S. Supreme Court‘s holding in Barker v. Kansas, 503 U.S. 594, 605, 112 S.Ct. 1619, 118 L.Ed.2d 243 (1992), that for tax purposes, military retirement benefits are not current compensation for reduced services; and (2) that Congress’ statement in
Having carefully considered the record of trial, the pleadings, and oral argument, heard on 15 February 2017 at the George Washington University School of Law, we disagree and affirm the findings and sentence as approved by the CA.
I. BACKGROUND
From 1 November 2003 to 1 August 2013, fоllowing his service on active duty in the Marine Corps, the appellant was a member of the Fleet Marine Corps Reserve List (“Fleet Marine Reserve“).2 He was then
Of the offenses to which the appellant pleaded guilty, two were committed solely while he was a member of the Fleet Marine Reserve4 and one was committed solely after his transfer to the retired list.5 The remaining offenses were committed on divers occasions, overlapping the dates he was a member of the Fleet Marine Reserve and on the retired list.6 The appellant committed each of the offenses in Okinawa, Japan, where he and his family lived.
Based on a Naval Criminal Investigative Service investigation, the Secretary of the Navy, per Department of the Navy policy,8 specifically authorized the CA “to apprehend, confine, and exercise general court-martial convening authority” over the appellant while he remained in a retired status.9 At the appellant‘s court-martial, the military judge held, over trial defense counsel‘s objection, “that a punitive discharge is an authorized punishment” for the appellant.107
II. DISCUSSION
A. Court-martial jurisdiction over those in a retired status
Jurisdiction is a legal question we review de novo. United States v. Tamez, 63 M.J. 201, 202 (C.A.A.F. 2006).
By act of Congress, the appellant was subject to the UCMJ when he committed the offenses.
The Supreme Court first tacitly recognized the power of Congress to authorize court-martial jurisdiction in United States v. Tyler, when it held that Tyler, who was retired, should benefit from a Congressionally-authorized military pay increase because, among other reasons, Congress had subjected Tyler “to the ... [A]rticles of [W]ar” and “a military court-martial[] for any breach of those rules[.]” 105 U.S. 244, 244-46, 26 L.Ed. 985 (1882). The Court explained that because Tyler‘s “retirement from active service” came with “compеnsation ... continued at a reduced rate, and the connection” between Tyler and the government thus “continue[d],” Id. at 245. Later courts have cited Tyler for the proposition that receipt of retirement pay is one reason Congress may constitutionally authorize courts-martial of those in a retired status.12
However, three developments have undermined this rationale for court-martial jurisdiction. First, the Supreme Court held that this theory did not justify trial by court-
From these developments it is clear that the receipt of retired pay is neither wholly
The Constitution allows “Congress to authorize military trial of members of the armed services[.]”15 Reid, 354 U.S. at 19, 77 S.Ct. 1222 (emphasis added). The Constitution requires a close relationship between those subject tо court-martial and the military establishment,16 because:
[T]he jurisdiction of military tribunals is a very limited and extraordinary jurisdiction ... and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.
Id. Those subject to trial by court-martial lose some procedural rights guaranteed ordinary citizens.17 They are alsо subject to prosecution for acts or speech otherwise protected from civilian prosecution by the Constitution,18
That said, “judicial deference” is “at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged,”19 and the Court has correspondingly acknowledged that Congress could define “a person [as] ‘in’ the armed services” and subject to court-martial jurisdiction “even [if] he [or she] ... did not wear a uniform“—indeed, evеn if he or she had only been sent a notice of induction and “not [yet] formally been inducted into the military[.]” Reid, 354 U.S. at 22-23, 77 S.Ct. 1222; Billings v. Truesdell, 321 U.S. 542, 544, 556, 64 S.Ct. 737, 88 L.Ed. 917 (1944) (finding “no doubt of the power of Congress to enlist the [citizens] of the nation” into the military, and “to subject to military jurisdiction those who are unwilling” to take the oath of induction into the military, if Congress desired to do so).
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
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.
Notwithstanding Barker 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.
B. Punitive discharge of those in a retired status
The second AOE presents a question of statutory construction, an issue of law reviewed de novo. United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014).
[T]he transfer is conclusive for all purposes. Each member so transferred is entitled, when not on active duty, to retainer pay or retired pay from the date of transfer in accordance with his grade and number of years of creditable service as determined by the Secretary. The Secretary may correct any error or omission in his determination as to a member‘s grade and years of creditable sеrvice. When such a correction is made, the member is entitled, when not on active duty, to retainer pay or retired pay in accordance with his grade and number of years of creditable service, as corrected, from the date of transfer.
In United States v. Allen, our superior court cited this statute, among other factors,23 to support its holding that “because appellant was tried as a retired member, he could not be reduced [in rank] ... by the court-martial[.]” 33 M.J. 209, 216 (C.M.A. 1991) (citing Navy policy, a law review article espousing that retiree “forfeiture of pay, and by аnalogy reduction, was not necessary to satisfy the military interest[,]”24 and a Comptroller General opinion). The appellant claims the statute also precludes punitive discharge of retirees.25 We disagree.
Since then, and with the еnacting of the UCMJ in 1950, Congress has subjected retirees to court-martial.30 It has allowed general courts-martial to, “under such limitations as the President may prescribe, adjudge any punishment not forbidden by this code.”31 Congress has excluded some personnel from prosecution at certain types of courts-martial,32 and entirely prohibited special and summary courts-martial from adjudging dismissals or dishonorable discharges.33 Recently, Congress directed that any “person subject to this chapter” guilty of certain offenses must receive a minimum sentence of a dishonorable or bad-conduct discharge, subject only to exceptions not based on personal status.34
Likewise, under authority delegated by Congress, the President has consistently declined to allow courts-martial to adjudge “administrative separation[s] from the ser-
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 dischаrge within the UCMJ, but not retirees.37
We agree that “[t]he only consistent, contextual reading of [the statute] is that a transfer to the retired list is conclusive in all aspects as to the fact that the member was transferred to the retired list on a certain date, in a certain grade, and with creditable service as determined by the Secretary.”38 We thus find that the statute does not preclude removal from the Fleet Marine Reserve or the retired list of a member who received a punitive discharge or dismissal from court-martial, when approved by the CA and affirmed by our court.
Such a reading harmonizes the statute with the other UCMJ provisions discussed supra. Unlike the reduction in rank of a retiree prohibited by Allen and Sloan, there is neither long-standing Navy policy against the punitive discharge of retirees,39 nor other factors which might support an expansive reading of the statute. Here, the appellant committed felony-level offenses meriting a dishonorable discharge. Collateral effects on issues like retired pay are policy matters within the discretion of Congress.
C. Incorrect court-martial order
Although not raised by the appellant, we note that the court-martial order (CMO) fails to reflect that the military judge consolidated Specifications 1 and 2 of Charge II into one specification after ruling the specifications an unreasonable multiplication of charges as applied to findings.40
Likewise, we note that the consolidated specification of Charge II, Specification 1 of Additional Charge I, and Specifications 1 and 2 of Additional Charge II each erroneously describe the appellant as having exclusively been “on the active duty retired list” through his commission of the offenses. Though, per our discussion supra at note 3, the appellant was equally amenable to court-martial jurisdiction whether as a Fleet Marine Reserve member or on the retired list.
The appellant now does not assert, and we do not find, any prejudice resulting from these errors. Nevertheless, the appellant is entitled to have the CMO accurately reflect the results of the proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order corrective action in our decretal paragraph.
III. CONCLUSION
The findings and sentence, as approved by the CA, are affirmed.
The supplemental court-martial order shall also reflect that the military judge consolidated Specifications 1 and 2 of Charge II into a single specification for findings and sentence, to read as follows:
In that Gunnery Sergeant Derek L. Dinger, U.S. Marine Corps (Retired), on the active duty retired list or on the Fleet Marine Corps Reserve List, did, at or near Okinawa, Japan, between on or about 11 October 2012 and on or about 4 September 2014, knowingly and wrongfully receive, possess and view child pornography, to wit, images and videos of minors engaging in sexually explicit conduct, which conduct was of a nature to bring discredit upon the armed forces.
Chief Judge GLASER-ALLEN and Judge HUTCHISON concur.