Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.
On Monday CAAF granted review, but of a narrow issue:
No. 17-0510/MC. U.S. v. Derrick L. Dinger. CCA 201600108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on 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?
Briefs will be filed under Rule 25.
The same issue is likely raised in Hennis – which is before the court for mandatory review under Article 67(a)(1) – because Hennis was a retiree who was sentenced to death and “a sentence of death includes a dishonorable discharge or dismissal as appropriate.” R.C.M. 1004(e).