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
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.
• 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