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).

One Response to “CAAF to review whether a court-martial can sentence a retiree to a punitive discharge”

  1. Dew_Process says:

    The statute at issue only applies to Navy and USMC members transferred to the reserves. In relevant part, it provides:
     

    Conclusiveness of transfers
    When a member of the naval service is transferred by the Secretary of the Navy—
    (1) to the Fleet Reserve;
    (2) to the Fleet Marine Corps Reserve;
    (3) from the Fleet Reserve to the retired list of the Regular Navy or the Retired Reserve; or
    (4) from the Fleet Marine Corps Reserve to the retired list of the Regular Marine Corps or the Retired Reserve;
    the 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 phrase “when not on active duty” seems to imply that one in that status could be re-called to AD.  At that point, depending on one’s status, jurisdictional issues could arise, but as Cloudesley Shovell discussed in the prior thread about this case, most likely not insurmountable.
     
    The other issue here – which hasn’t been discussed to my recollection – is whether the Japanese-American SOFA was in someway triggered giving the Navy jurisdiction. That then of course raises similar and related issues, but I haven’t looked at that SOFA in a number of years.