By Lt. Cmdr. Hunter Abell
Capt. Bree Ermentrout argued an emerging issue before the Court of Appeals for the Armed Forces (CAAF) at Fort Hood, Texas, on April 5. Ermentrout is attached to the Navy’s Reserve Law Program unit which provides support to the Appellate Defense Division (Code 45).
Arguing for the defense in U.S. v. Dinger, No. 17-0510/MC, Ermentrout argued the meaning of a statute in a case that will determine whether a court-martial may lawfully sentence a retired military member to a punitive discharge. With the issue of exercising military jurisdiction over retired members recently listed as the top military justice story of 2017 by the popular CAAFlog, Ermentrout and the Dinger defense team wrote the latest chapter in this ongoing saga.
The case involves retired U.S. Marine Corps Gunnery Sergeant Derrick Dinger, who pled 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 possessing child pornography in violation of Articles 80, 120, 120c, and 134, UCMJ.
Of importance to the issue on appeal, the offenses were committed after Dinger entered a retired status following completion of 20 years of enlisted service. The military judge originally sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of eight years in accordance with a pretrial agreement.
The Navy-Marine Corps Court of Appeals affirmed in a written decision, and CAAF granted review to determine the following issue: “10 U.S.C. § 6332 states that when a person is placed in a retired status, this ‘transfer is conclusive for all purposes.’ Can a court-martial lawfully sentence a retiree to a punitive discharge?”
Ermentrout and the defense team argued that 10 U.S.C § 6332 was unequivocal: “conclusive for all purposes” means “conclusive for all purposes,” including for purposes of receiving a punitive discharge.
“This case was a team effort. It depended on the support and assistance of the active duty attorneys at Appellate Defense and attorneys in my Reserve unit,” said Ermentrout.
Although CAAF ordinarily hears cases in Washington DC, the Dinger case was heard at Fort Hood as part of CAAF’s Project Outreach, which travels nationwide to military installations, law schools, and some civilian installations to conduct oral arguments.
Ermentrout commented on the case being heard outside of the capital: “It’s wonderful to get outside the D.C. Beltway and show how military appellate justice works to a broader audience.”
Attendees for the hearing included roughly 100 judge advocates, paralegals, and civilian attorneys, including Rear Adm. Carol Lynch, Deputy Judge Advocate (Reserve Affairs and Operations). A decision is expected later this year.