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