CAAF decided the Marine Corps case of United States v. Dinger, 77 M.J. 447, No. 17-0510/MC (CAAFlog case page) (link to slip op.), on Monday, June 18, 2018. The court holds that a retired member of the armed forces can be sentenced to a punitive discharge, affirming the decision of the Navy-Marine Corps CCA and the adjudged sentence in this case.

Chief Judge Stucky writes for a unanimous court.

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to a number of child exploitation offenses, all of which were committed after Dinger entered retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. A general court-martial composed of a military judge alone 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 military judge rejected a trial-stage argument that the sentence could not lawfully include a punitive discharge (because of Dinger’s retired status), and the Navy-Marine Corps CCA again rejected the argument on appeal. CAAF then granted review of a single 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?

In yesterday’s opinion Chief Judge Stucky explains that CAAF agrees with the military judge and the NMCCA, overruling precedent insofar as it supports a different outcome.

Dinger’s appeal was based on language in 10 U.S.C § 6332 that states that the transfer of a member of the naval service to the retired list is “conclusive for all purposes.” Dinger claimed that since the transfer was conclusive, he could not be later discharged by the court-martial.

CAAF considered that statute in United States v. Allen, 33 M.J. 209, (C.M.A. 1991), and United States v. Sloan, 35 M.J. 4 (C.M.A. 1992), and Chief Judge Stucky begins the opinion with a review of those cases. But that review really just provides context for the court’s decision to reverse them insofar as they support Dinger’s argument.

Chief Judge Stucky begins the analysis with a rejection of the Government Division’s argument that this issue was waived by Dinger’s unconditional guilty pleas:

The Government asserts that, by entering an unconditional guilty plea pursuant to a plea agreement that authorized the convening authority to approve a punitive discharge if adjudged, and specifically agreeing to plead guilty despite the military judge’s ruling on the maximum punishment, Appellant voluntarily waived his right to appeal the dishonorable discharge. We disagree.

Although an accused may waive many of the most fundamental constitutional rights, he “does not waive his right to appeal a sentence that is unlawful because it exceeds the statutory maximum.” United States v. Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009); see United States v. Lee, 73 M.J. 166, 170 (C.A.A.F. 2014) (concluding there is no waiver “where on the face of the record the court had no power to … impose the sentence.” (citation omitted) (internal quotation marks omitted)). If § 6332 prohibits retirees from being sentenced to a punitive discharge, Appellant’s sentence would be unlawful.

Slip op. at 8-9. Then, Chief Judge Stucky explains that Allen and Sloan are badly reasoned and can’t be saved by stare decisis because:

The UCMJ is a self-contained statute that both defines criminal offenses and promulgates the procedures by which those offenses are to be prosecuted and adjudicated. In it, Congress specifically provided for the court-martial of “[r]etired members of a regular component of the armed forces who are entitled to pay.” Article 2(a)(4), UCMJ. Congress also established mandatory sentences for some offenses (Article 106, UCMJ, 10 U.S.C. § 906 (2012)), and minimum punishments for others (Article 118(1)–(4), UCMJ, 10 U.S.C. § 918(1)–(4) (2012)), and authorized the President to set the maximum punishments for the remainder. Article 56, UCMJ. Had Congress intended to restrict the court-martial sentences adjudged in retiree cases, and particularly to abandon the principle of uniformity of treatment so essential to the UCMJ, one would expect it to have done so explicitly in either Article 2 or Article 56 of the UCMJ, not in some other statutory provision with no reference to its applicability to courts-martial. Congress has not done so.

Slip op. at 11.

Accordingly, the punitive discharge is a lawful sentence.

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
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: A retired member can be sentenced to a punitive discharge, in United States v. Dinger”

  1. k fischer says:

    Appellant seems to consider the word “conclusive,” as used in § 6332 to mean permanent, final, or immutable. It does not. It means “[a]uthoritative; decisive; convincing.” Black’s Law Dictionary 351 (10th ed. 2014).

    In my BLD, (Abridged 6th ed. 1991) conclusive is defined as:

    Shutting up a matter; shutting out all further evidence; not admitting of explanation or contradiction; putting an end to an inquiry; final; irrefutable; decisive.


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

    Did he argue before that a punitive discharge was unduly severe based on him being retired?  Now that CAAF has ruled appellate courts CAN disapprove mandatory punitive discharges under Article 66, will he have a chance to argue that, or request reconsideration if he previously made that argument?

  3. Zachary D Spilman says:

    Now that CAAF has ruled appellate courts CAN disapprove mandatory punitive discharges under Article 66, will he have a chance to argue that, or request reconsideration if he previously made that argument?

    The CCA’s decision identifies only two assignments of error, neither of which were sentence appropriateness. 

    The Army CCA was the only court to hold that a CCA didn’t have the power to change a mandatory minimum punitive discharge. 

    So, I think the issue is lost for Dinger. 

  4. Comrade says:

    He still keeps his retirement, right?