CAAF will hear oral argument in the Marine Corps case of United States v. Dinger, No. 17-0510/MC (CAAFlog case page), on Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas. The court granted review to determine whether a court-martial may lawfully sentence a retired member to a punitive discharge, with 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?

Gunnery Sergeant (E-7) 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.

The NMCCA affirmed in a published decision (76 M.J. 552) discussed here. The CCA rejected the issue now before CAAF and also rejected a separate claim that the court-martial lacked personal jurisdiction over Dinger, explaining that retired members of the active components of the armed forces remain subject to the UCMJ because “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” 76 M.J. at at 557.

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), the UCMJ applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

The exercise of court-martial jurisdiction over retired members was the #1 Military Justice Story of 2017, and Dinger’s status as a Marine on the retired list seems indisputable. But his brief to CAAF begins by disputing it anyway:

As a civilian, Appellant appeared at his court-martial in civilian clothes.

App. Br. at 3. That Dinger was tried out of uniform is somewhat unsettling (and a better historian could probably count on one hand the number of times that’s happened under the UCMJ), but it doesn’t change the fact that he was a Marine gunnery sergeant on the retired list, entitled to pay, subject to recall, and subject to the UCMJ. In short, he was no civilian.

CAAF, however, granted review to address something else – the meaning of this statute:

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 Secretary may correct any error or omission in his determination as to a member’s grade and years of creditable service. 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.

10 U.S.C § 6332. The operative language (“conclusive for all purposes”) predates the UCMJ, having been enacted in Section 202 of the Naval Reserve Act of 1938, 52 Stat. 1175, 1178 (1938).

Dinger’s argument is simple:

If a retiree’s status is conclusive for all purposes, it follows that the court-martial lacks the legal authority to award punishments inconsistent with the retiree’s status as it would contradict federal statute. With no statute authorizing retirees to be punitively discharged, a punitive discharge cannot be awarded.

App. Br. at 7-8. The Navy-Marine Corps court rejected that argument, however, primarily based on the fact that the UCMJ was enacted after the conclusive for all purposes language and because:

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.

76 M.J. at 559.

The Navy-Marine Corps Appellate Government Division makes largely the same argument to CAAF:

But nowhere has Congress in the Code, or the President by delegation in Part IV, restricted retired servicemembers from receiving a punitive discharge. Congress prohibited dishonorable discharges at special courts-martial. 10 U.S.C. § 819. The President specifically excluded the availability of dishonorable discharges for commissioned officers and warrant officers. R.C.M. 1003(b)(8)(A). Further, the President excluded “punitive separation” from the available punishments for a specific class of individuals based on their status—persons serving with or accompanying an armed force in the field. R.C.M. 1003(c)(4). The President also limited the available punishments for individuals “[b]ased on reserve status in certain circumstances.” R.C.M. 1003(c)(3).

But nowhere in the Uniform Code, Rules for Courts-Martial, or Part IV of the Manual, has the President or Congress limited the punishments available for retired servicemembers at general courts-martial.

Gov’t Div. Br. at 16. Some of the Government Division’s claims are silly – such as the emphasis on no punitive separation for people accompanying an armed force in the field (separation from what, you might ask) and no dishonorable discharge for commissioned and warrant officers (they get dismissals instead) – but the fundamental premise of its argument is sound: Congress enacted the UCMJ, established jurisdiction over retired members, and authorized a general court-martial to adjudge any punishment not otherwise prohibited by the UCMJ or the President. See Article 18. And it did so after enacting the conclusive for all purposes language in § 6332.

But that’s not the Government Division’s primary argument to CAAF. Rather, the Government Division asserts that this issue was waived by Dinger’s pleas of guilty:

The Military Judge informed Appellant and Trial Defense Counsel, prior to his pleas, that a punitive discharge was authorized. (J.A. 49-52; 58-60.) He reminded Appellant multiple times that he could withdraw his pleas based on his Ruling and he ensured Appellant discussed this Ruling with his counsel and knew the potential negative consequences—including affecting his continued retirement pay and benefits. (J.A. 52, 58-60.)

As is clear from the Record, Appellant submitted his plea of guilty knowing the Military Judge could adjudge a punitive discharge. Appellant unconditionally pled guilty and waived this issue. (J.A. 61-63.)

Gov’t Div. Br. at 13.

An unconditional plea of guilty waives a great many rights and potential errors, but the argument that it also waives what might otherwise be an unlawful sentence seems extreme. Particularly considering these facts from the Government Division’s brief:

On December 17, 2015, after the Military Judge denied the Motion, Trial Defense Counsel stated: “[t]he mere fact that we are going forward with the plea is not . . . our waiving the issue.” (J.A. 51.) She continued: “we are not consenting or agreeing with the ruling, sir, so I just want to preserve that for the record.” (J.A. 51-52.)

The Military Judge responded: “I recognize your comment on waiver and whether there is waiver or not, obviously would be at the discretion not of me, but of reviewing courts.” (J.A. 52.) He continued: “Based upon my finding that a punitive discharge is authorized . . . does your client still wish to go forward?” (Id.) Trial Defense Counsel conferred with Appellant, then stated “Yes, sir. The client still wishes to proceed.” (Id.) Appellant than directly confirmed to the Military Judge that he had sufficient time to discuss the matter with Trial Defense Counsel, that the guilty plea may “subject [him] to a punitive discharge,” but nevertheless he wanted to plead guilty. (Id.)

Gov’t Div. Br. at 4-5 (marks in original). Waiver mania was the #3 Military Justice Story of 2017, and it’s certainly on display here. Dinger’s defense counsel litigated the issue of whether a punitive discharge was authorized, lost, explicitly said that the plea was not a waiver of the right to appeal the issue, was acknowledged by the military judge, and (presumably) the prosecution did not make a sound, yet the Appellate Government Division now asserts that Dinger intentionally relinquished his right to appeal the issue.

Nine years ago, in United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provision in a pretrial agreement waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. The minority would have rejected waiver because “an accused cannot silently waive appellate review of plain error,” and so “waiver of waivable motions should be done on the record and expressly.” Id. (Baker, J., dissenting). The facts of Dinger, however, are in stark contrast to those of Gladue. Not only was there no waive all waivable motions provision in the pretrial agreement in Dinger, but the defense explicitly said that it was preserving the issue now on appeal. To call that a waiver is to ignore the whole point of a trial, a plea inquiry, and appellate review.

CAAF might ultimately agree with the Government Division’s waiver argument, but the argument stinks of a culture that cares more about winning than justice.

Case Links:
NMCCA decision (76 M.J. 552)
Blog post: NMCCA affirms retired members still in military and subject to UCMJ
Blog post: CAAF grants
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Blog post: Argument preview

49 Responses to “Argument Preview: Whether a court-martial can adjudge a punitive discharge for a retired member (and whether the guilty plea waived the issue), in United States v. Dinger”

  1. John Marshall says:

    Not exactly on point, but it seems like there should be some discussion about this…
    http://www.scotusblog.com/case-files/cases/class-v-united-states/
     

  2. Former DC says:

    Three things come to mind.
    First, on the UCMJ being enacted second: as I recall (but cannot put my finger on a case immediately), repeals sub silentio are generally disfavored.  Yes, I know, Congress is presumed to know the law (however unrealistic that is), but the same logic applies here as it does in Kelly; if Congress intended to change 10 USC 6332, they would have said so.  It is a hard road to walk to suggest that Congress knowingly created an exception without saying so directly.
    Next, on the interpretation of 10 USC 6332, the canon of “expressio unius est exclusio alterius” seems to apply.  By stating the exception for an error in calculation, Congress excluded all other exceptions.  Thus, reading into the statute, by whatever means, is inappropriate.
    Finally, on the waiver, is there anything that shows why there was not a conditional plea pursuant to RCM 910(a)(2)?  It has been a long time, but my recollection is that the TC and MJ rarely gave too much trouble about conditional pleas when there was a genuine issue of law that needed to be preserved, if only to avoid having to have a contested trial to preserve that single issue (cost, annoyance to the command, and the potential for other, more serious errors at trial, often drove this analysis).  Even if the MJ and TC pushed back, that would be better than nothing.  The availability of the conditional plea mechanism makes this sort of situation, where the DC recognized the issue, but failed to follow the proper procedure, a much tougher argument for the Defense.  Even if you call it IAC, that is still a hard road to walk.
    Sorry for all the Latin.

  3. Tami a/k/a Princess Leia says:

    If you want the punitive discharge then recall him to active duty.  Don’t try to be cheap.  And he doesn’t have to wear the uniform if he isn’t on active duty.

  4. Zachary D Spilman says:

    Yes, I know, Congress is presumed to know the law (however unrealistic that is), but the same logic applies here as it does in Kelly; if Congress intended to change 10 USC 6332, they would have said so.

    It’s actually the exact opposite of Kelly, Former DC

    In Kelly, the CCA read Article 56(b)(1) to mean more than it actually says (leading to absurd results, such as a punitive discharge that can’t be reassessed when the predicate conviction is reversed). 

    In Dinger, however, Article 18 need only be read to mean what it says: a general court-martial “may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter [the UCMJ].” 

    As an additional example, had Congress amended Article 56(b)(1) to say that a person convicted of a predicate offense shall be dishonorably discharged or dismissed (after the conviction is affirmed on appeal, one would hope), then there would be no debate that such definitive language would also override the CCA’s Article 66 power, the President’s Article 71 power, and the Secretary’s Article 74 power. 

    But, of course, Congress didn’t do that.

     

  5. Zachary D Spilman says:

    If you want the punitive discharge then recall him to active duty.

    The problem with that, Tami, is that there is a (small) class of retired regular officers who are not subject to recall absent a declaration of war or national emergency. See 10 U.S.C. § 688(d) and (f). 

  6. stewie says:

    The UCMJ coming after and being so broad will be dispositive…CAAF will uphold the discharge.

  7. Jack says:

    The compelling point here is that I can think of no reason that Congress would have provided for punitive discharges for Army, Air Force and Coast Guard retirees, but prohibited them for the Navy and Marine Corps retirees. Section 6332 can be given broad effect, even with punitive discharges. 

  8. Alfonso Decimo says:

    The problem is the defense entered a conditional plea and the MJ should have stopped and asked the government if they accept the conditional plea and (if so), make the record clear as to what issue was being preserved for appellate review. See U.S. v. Bradley, CAAF 2010.

  9. Zachary D Spilman says:

    There’s a process for entering a conditional plea, Alfonso Decimo. See R.C.M. 910(a)(2). It wasn’t followed in this case. Under Bradley, failure to follow the process means no conditional plea.

    The better question is where the Navy-Marine Corps Appellate Government Division gets the idea that an unconditional plea waives issues unrelated to the factual issue of guilt. Contra R.C.M. 910(j) (unconditional plea waives objections “insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made”).

    The Government Division’s best argument seems to be that because the pretrial agreement said “that [sic] punitive discharge ‘may be approved as adjudged,'” Gov’t Br. at 7 (quoting J.A. 101), Dinger “thus invited, or waived, any error under Gladue,” Gov’t Div. Br. at 7. Gladue, of course, was a case about an explicit waive all waivable motions provision in the pretrial agreement, while invited error and waiver are simply not the same thing. Furthermore, insofar as this is a material term of the pretrial agreement, the defense claim at trial that the issue was not waived creates a misunderstanding regarding that material term. Accordingly, “the accused’s pleas are improvident.” United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citations omitted). 

  10. Tami a/k/a Princess Leia says:

    Zach, he isn’t an officer, he is an NFL.
     
    Seems to me the easiest argument to make is that a retiree is similar to a civilian in this circumstance.  There are certain punishments that are just not available when a retiree continues to be in a retirement status at court-martial.  A punitive discharge for a retiree is an unlawful punishment that can always be reviewed on appeal to determine if it is lawful.  It would literally take an act of Congress to change this.  Or bring the accused back onto active duty for purpose of the court-martial.

  11. Tami a/k/a Princess Leia says:

    Stupid auto-correct.  NFL should be NCO.

  12. Alfonso Decimo says:

    Zach – Yes, as usual, your summation is more accurate and complete. I was focused on the MJ and what he could have done to avoid the appellate issue. Thanks. – Alex

  13. Tami a/k/a Princess Leia says:

    When the issue is the lawfulness of a punishment, there is no avoiding an appeal.  If the MJ had taken it off the table, I am sure the government would have done some extraordinary writ application.

  14. stewie says:

    But a retiree isn’t similar to a civilian in this or any other circumstance. There is nothing that says the entire range of punishment are not available. I get it, we don’t necessarily like the idea of a retiree being brought back and tried and losing their benefits (although obviously for more serious offenses, we probably can all agree it’s a good idea). It would require changing that reality though, not arguing that a long ago law, that doesn’t apply to anyone not in the Navy/Marines, controls (clever though that argument is).

  15. Tami a/k/a Princess Leia says:

    But Stewie, being subject to the UCMJ under Article 2 and having certain punishments available are two different things, would you agree with me on that point?  Just because you are subject to the UCMJ doesn’t mean you are also subject to certain punishment.
     
    Civilians in combat zones are subject to the UCMJ and can be court-martialed, but can’t be dismissed or discharged, as there is no authority, even though POTUS sets punishments.  In this case, Congress has acted to remove a punishment.  So where Congress has exercised its authority, that trumps Presidential authority, no pun intended.

  16. stewie says:

    Point me to where it says retirees are treated like civilians when it comes to punishment and I am on-board. Because I don’t see anything that says that. Wanting to equate them to civilians makes the point, but you actually have to get there from here.

  17. Tami a/k/a Princess Leia says:

    Stewie,
     
    Because 10 USC Sec. 6332(4) applies, plain language of the statute rules, so no justification to get into statutory construction and rationale, and statutory provisions regarding punishments trump regulatory provisions regarding punishments.  Therefore, no legal authority to impose a punitive discharge.  Plus no mandatory punitive discharge for child porn.
     
    The “transfer is conclusive for all purposes” is not the issue that creates the question of whether a punitive discharge can be lawfully issued as punishment.  It’s, 

    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.

    If you give him a punitive discharge, he loses his retirement pay, which then contradicts the statute.  THAT is why 10 USC 6332 precludes a punitive discharge.

  18. Tami a/k/a Princess Leia says:

    To be clear, Congress has given Dinger his entitlement to retired pay.  Therefore, only Congress can take it away.  With a punitive discharge, he loses it permanently.

  19. stewie says:

    Congress did take it away…by creating the UCMJ which allows any punishment at court-martial. If this statute had come after the UCMJ, the argument would work, coming before, and only applying to the Navy? It doesn’t, particularly when the UCMJ was clearly intended to apply across the armed forces equally.

  20. Tami a/k/a Princess Leia says:

    Congress created the UCMJ, but who set the punishment?  The President.  When do we get into why Congress passes a law?  Ambiguity.  If the law isn’t ambiguous, then we don’t ask why.
     
    The President can’t allow a punishment Congress disallows in certain situations.  Congress allows Dinger to be court-martialed, and to be confined (and by operation of law to forfeit his retirement pay during confinement), but not to permanently forfeit his retirement pay with a punitive discharge.

  21. stewie says:

    Congress delegated that to the President. I don’t think that argument works either. I think this is going to be a pretty easy call for CAAF, but let’s see what happens.

  22. Tami a/k/a Princess Leia says:

    I don’t think this will be an easy call.  I think this will be a great argument.  Congress doesn’t hesitate to step in to areas traditionally covered by POTUS discretion.  Mandatory DD/dismissal for certain offenses, for example.  Now it could be they didn’t consider the consequences of this particular statute until this particular case, but wouldn’t be the first time that happened.  And if CAAF sides with Dinger, I’m sure Congress will “fix” it, just like they did with Article 60.

  23. Adlaw Guy says:

    The defense brief overlooks that the “change” in law dropping the limiting language was part of the title 10 codification in 1956.  I hope the government and the court is not so dense.  In 1956, many public laws and bits related to the Armed Forces were reduced to uniform code and language was aligned within various provisions to try and make the rules for the departments more uniform.  In addition, attempts were made to remove language deemed unnecessary.  The UCMJ 10 USC 856 has the same passage date as 10 USC 6332.  This makes me think that the rule of construction that calls for the code to be read as a harmonious whole is brought to the front.  In this case, I seriously doubt the Congress intended to remove retirees in the Navy from dismissal by court-martial.  Indeed you would have to believe they only wanted to do so for enlisted retirees.  I say this because the same time they codified this section 6332 of title 10, they also passed section 1161.  This section notes that officers may be dismissed from an “armed force” in peacetime by sentence of court-martial.  Defense is not arguing that the client is not part of an armed force, but only that the retired list offers a special protection.  1161 is a special protection the purports to limit the President from dismissing officers at this pleasure.  In doing so, it explicitly authorizes dismissal of officers by court-martial.  There is no similar enlisted provision that simplifies the question.  Still, if I were the Navy, I would argue that the NCO is in an armed force and subject to punitive discharge by the legislative scheme enacted on 10 August 1956.  The language in the 6332 should be read narrowly as a protection consistent with the doctrine of administrative finality.  That is to say, the movement from the active list to the reserve/retired list is administratively final and cannot be undone by administrative action that relies on the discretion of the Secretary of the Navy.  However, punitive removal remains available as provided for in the UCMJ.  10 USC 6332 is meant to do nothing more than bar the administrative separation of a Navy NCO in a retired status.  The man is in an armed force.  Individuals in an armed force are subject to discharge for the commission of certain serious offenses.  This was the intent of Congress.  10 USC 6332 was part of the larger project to codify title 10 and all armed forces law.  According, it should be read in concert with the rest of the code related to personnel management and the authority to discharge retired persons at court-martial should be upheld. 

  24. Tami a/k/a Princess Leia says:

    Frankly, I have no problem arguing that no retiree can be punitively discharged because they have already been honorably separated.

  25. Adlaw Guy says:

    But retirees have only been separated from their original component and not finally discharged.  Your suggestion islike arguing a reservist is no longer subject to UCMJ because he has a DD 214 honorably separating him from his last activation.   Just as in the case of a reservist released from the active duty list to the reserve active service list, the ‘transfer’ of the retiree to the retiree list need not be disturbed because the court is not trying to undo the transfer.  It is perfectly consistent to say a court-martial has no power to undo the retiree list transfer and at the same time say a court-martial does have the power to effect a full discharge from any list be it RASL, ADL, or retiree list.  The word in 6332 is transfer.  The transfer can be viewed as conclusive with no authority to remove the NCO to another list and yet a general authority to effect a full discharge may remain.

  26. Anonymous says:

    So, if a retiree hasn’t been finally discharged, even though they’re given a DD-214, when are they finally discharged?  Or are they never finally discharged until they die or another reason why their retired pay stops?

  27. anon2 says:

    Adlaw Guy and Zack,
    You guys are confusing being in the military with court-martial jurisdiction. One does not equal the other: contractors accompanying the force or civilians subject to military tribunals by Geneva Conventions / law of occupation / martial law would be subjected to court-martial jurisdiction without losing their status as civilians. Equating military status with court-martial jurisdiction scrambles the core principle of distinction in armed conflict. Retirees are included in Art 2 but aren’t in the military. DD214s aren’t leave slips. 
    MG(R) Grazioplene also showed up to court-martial in civilian clothes. For good reason: retirees on inactive status can only wear their military uniform for a specified number of circumstances listed in Army Regulation 670-1 and are prohibited from wearing beyond those reasons, none of which include appearance at a court-martial. Facing a military more eager than ever to bring charges against retirees based on dubious decisional criteria, it is no surprise that retirees seek to avoid self-inflicted wounds by appearing in uniform. 
     

  28. Zachary D Spilman says:

    anon2 says:

    DD214s aren’t leave slips. 

    No, they’re certificates of release or discharge from active duty. Plenty of people receive a DD-214 and remain in the military. Most are called reservists; others retirees.

    I’ve taken a firm stand on this issue because over and over again I encounter people who are smart enough to know that retired members are still in the military – and are still subject to the UCMJ – yet have convinced themselves otherwise. It’s as if they believe that the lifetime of pay and benefits that (usually, but not necessarily) follows 20 years of active duty service is just a bonus from the taxpayers, given freely with no strings attached. A lifetime of free lunches, if you will.

    anon2 says:

    Equating military status with court-martial jurisdiction scrambles the core principle of distinction in armed conflict.

    And yet that’s not at all what I’m doing. Rather, as I wrote in the post above:

    That Dinger was tried out of uniform is somewhat unsettling (and a better historian could probably count on one hand the number of times that’s happened under the UCMJ), but it doesn’t change the fact that he was a Marine gunnery sergeant on the retired list, entitled to pay, subject to recall, and subject to the UCMJ. In short, he was no civilian.

    (emphasis added).

  29. Anon3 says:

    It’s always these cases that bring me to wonder who why Congress allows division of retired pay in a divorce as if it’s a vested property interest, yet they classify retirement pay as compensation for an indefinite IRR service. Just food for thought. 

  30. Zachary D Spilman says:

    It’s perfectly obvious once you consider the history, Anon3.

    The Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, was a direct response to the Supreme Court’s decision in McCarty v. McCarty, 453 U.S. 210 (1981).

  31. Tami a/k/a Princess Leia says:

    And I have said multiple times, I take no issue with a retiree being subject to the UCMJ, Article 2 clearly states they are.  What I have trouble with is the argument that retirees are automatically subject to punitive discharges because they are retirees.  In Dinger’s case, there seems to be a statute on this issue.  But more importantly, as it applies to all retirees, doesn’t an honorable discharge legitimately issued remit a punitive charge for the same period of service?
     
    So if the government doesn’t, or can’t, yank a retiree back to active duty for court-martial, then doesn’t an accused get to wave the DD214 and say do what you want with other punishments, but you can’t give me a punitive discharge because I already have an honorable discharge?

  32. Tami a/k/a Princess Leia says:

    Adlaw guy, 
     
    I think you’re conflating jurisdiction with punishment.  Reservists aren’t subject to the UCMJ unless on active duty, ADT, or IDT. Otherwise the are ordinary civilians.  But someone who gets a punitive discharge isn’t just kicked out of their component, they are kicked out.
     
    And while Dinger was subject to recall, he wasn’t recalled.  Which explains the civilian clothes.

  33. Anon2 says:

    You’re exactly right, Tami. 
    In sum: retirees are civilians. They are subject to court-martial jurisdiction. If the military recalls them to active duty, it is a trial of a military member. If the military does not recall them to active duty, it is a trial of a civilian. 

  34. AdlawGuy says:

    Anon2,
    DoD OGC disagrees with you.  http://ogc.osd.mil/defense_ethics/resource_library/emoluments_clause_applications.pdf
    Retirees hold an office of profit or trust under the Constitution.  They are employees not civilians.  
    OGC’s opinion is consistent with COL Winthrop’s opinions on the matter.  That makes for 140 years of consistent Army opinion on the issue.

  35. AdlawGuy says:

    If they are employees, then Dinger is proposing that he is been transferred to magical office that is guaranteed by law for life with no possibility of removal.  That seems ridiculous to me.  It sounds akin to getting a noble title.  He is not Lord Dinger.
    There is a lot of MJ knowledge on this blog but a lack of personnel law understanding evident in the commentary.  A reservist on recall for trial does not move from the reserve to active list for trial.  Those lists relate to the component you are assigned to, not the active nature of your status.  Whether on active duty orders or not, the retiree stands trial while on the retiree list.  You change lists in your career when at various points.  The most common is when an enlistee ends regular service with a remaining service obligation and so moves to the reserves to serve out the obligation.  This is documented as a transfer on the DD 214.  This happens with all enlistees who do not reenlist but are separated from their regular component and transferred to the reserves to complete their initial eight year obligation.  Such individuals may freely transfer back to the active list by enlisting in a regular component anew.  Again, 10 USC 6332 prevents transfers, not discharges.  It prevents a retiree from executing a new enlistment or accepting a new commission.  If we hold that it prevents discharge, then Dinger is in a magical office from which he can never be fired.  

  36. Tami a/k/a Princess Leia says:

    Adlaw guy,
     
    Perhaps you are missing my argument that it is the entitlement to retired pay under 10 USC 6332 that prevents the punitive discharge?  Reading the statute in its entirety, which is the requirement, Dinger is entitled to retired pay as a result of his transfer to the retired list, so long as he is not on active duty, which then triggers a requirement to pay him active duty pay and allowances, etc.  He was not recalled to active duty for the court-martial. 
     
    Maybe the government did not recall him to active duty because they read the statute “conclusive for all purposes” as precluding them from recalling him to active duty.  I don’t think that’s what the statute says, as the statute contemplates the possibility of recall to active duty, which then would have raised the question of whether his honorable discharge remits a punitive discharge.  But the bottom line is that he was not recalled to active duty.  Therefore, he cannot be punitively discharged because that permanently severs his entitlement to retired pay, contrary to 10 USC 6332, which says he IS entitled to it because of the transfer to the retired list, which is “conclusive for all purposes.”  Because statutory authority trumps regulatory authority, only Congress can take away something Congress has said Dinger is entitled to receive.
     
    And Zach, I think every military justice practitioner gets it that retirees gets “reduced pay for reduced services” for the rest of their lives, but that comes with “strings attached,” namely still being subject to the UCMJ.  But that is a completely separate issue from whether a retiree is eligible for a punitive separation, especially when they haven’t been recalled to active duty.

  37. Charlie Gittins says:

    I am loving these cases since I have a couple of cases at the Court of Federal Claims where the issue is whether a panel composed entirely of retirees or 2/3 military retirees is a “civilian” Board through which the Secretary may act according to statute (or whether  such a panel can act to deny an Application, which is more to the point).  While court-martial jurisdiction is interesting, it is the rulings on status of the retirees as still members of the military (and, therefore not “civilians”) that interests me and provides me the issues to go through the Fed Circuit and potentially seek cert.  You all keep providing me with grist for my briefs, or at least for my formulation of my thoughts, and for that, I thank you all.   

  38. anon2 says:

    Tami, you picked exactly the right text to bold and highlight. Well done!
     
    Hi, Charlie. You’re on the right path. I hope you will share more of your arguments and observations on this thread.
     
    Adlaw guy, nothing about being an employee, or being subject to emoluments rules, erodes civilian status.
     
    The UCMJ speaks to “retirees” as “civilian.” UCMJ Article 142, the law on CAAF judges:
     
    (b)(1) Each judge of the court shall be appointed from civilian life by the President…

    (b)(4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.
     
    Civilian!

  39. Adlaw Guy says:

    It seems to me that US v Tyler, 105 US 244 (1882) disposes of the this case in favor of the government.  The Supreme Court has ruled those on the retired list remain in the military service.  The are transfer to the list but not discharged from military service and like all others in military service may be discharged in disgrace by a court-martial.

  40. anon2 says:

    Art 142(b)
      Art 142(b)
        Art 142(b)
     
    Adlaw Guy, good luck with your challenge to disqualify Judge Sparks from CAAF on the basis that as a regular retiree he is not a civilian. 
     
    Tami, you have got lots of experience. What if you were defending a reservist where the government didn’t bother to take the proper steps, including those at the Secretary level, to have the reservist properly placed back on active duty. Wouldn’t you be sharpening your knives and looking for an easy win? Likewise, the government is getting away with outrageous jurisdictional errors in these retiree cases. Too bad we won’t get to see this developed in Grazioplene by his excellent military defense team. 

  41. Adlaw Guy says:

    anon2 good luck ignoring Supreme Court precedent in applying the law.  Your reference to appointments at CAAF, while clevet, is not helpful to exploring the military status of the retiree. There really isn’t an inconsistency  with the proposition that a individual in inactive military status is both living in civilian life and is a member.  DoJ OLC provided a fulsome 2009 opinion on appointments from civilian life that holds the retired officer holds a position in the military but also is in civilian life as the position held is not an active one.  I agree with DoJ that the issue of appointment eligibility is distinct from military status.
     https://www.justice.gov/file/18481/download

  42. Zachary D Spilman says:

    anon2 says:

    [Article 142](b)(1) Each judge of the court shall be appointed from civilian life by the President…

    (b)(4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

    Civilian!

    The biggest drawback of anonymous comments is that we sometimes get analysis this bad.

    In 2013, Congress amended Article 142(b)(4). The old language read:

    (4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.

    The new (current) language reads:

    (4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

    See 2013 Changes to the UCMJ – Part 1: Overview.

    Suggesting that this recent change in eligibility for appointment to CAAF is also a wholesale change in the status of retired members of the armed forces – rather than merely a modification of the meaning of the term civilian life as it is used in Article 142(b)(1) – is truly uninformed.

  43. Tami a/k/a Princess Leia says:

    We can’t compare “reservists” to “retirees,” that’s apples and oranges.  The first is a jurisdictional issue, while the second is a punishment issue.

  44. Tami a/k/a Princess Leia says:

    Adlaw guy makes a great point with the Tyler case.

  45. Zachary D Spilman says:

    Except that the statute at issue – even cited in the granted issue – was enacted after Tyler

  46. Tami a/k/a Princess Leia says:

    This would make a great law review article.

  47. anon2 says:

    Sorry to see your insults, Zach, but you sometimes do that when challenged after taking a provocative stance, in this case that retirement does not sever active military status and create a civilian. Yes, Tami, this is good law review fodder. Thanks for the links and cases, Adlaw Guy. 

  48. k fischer says:

    Zack/anon2, 
     

    The biggest drawback of anonymous comments is that we sometimes get analysis this bad.
     

    Don’t forget about me!!!  I sign my name all the time to really bad analysis.  Take, for instance, my last comment on this post about Robinson
     
     

  49. Tami a/k/a Princess Leia says:

    Well, we all make mistakes, even me sometimes.  Sometimes what seems like an easy issue turns out to be extremely complicated when you dig down deep.  Charlie Gittens’ point is well taken.  Is a retiree a civilian or military for purposes of a board?  What about certain offenses under the UCMJ?  Particularly Articles 88-91?  Notwithstanding Pugh, could a retiree eat all the Strong & Kind bars they want, as the ban on hemp products no longer applied?  What about Article 133 for retired officers?
     
    What about the benefits they earned during retirement?  Do they have to pay those back, or are they still considered earned and not subject to payback if the retiree is dismissed/punitively discharged?