United States v. Dinger
2017 CCA LEXIS 194
| N.M.C.C.A. | 2017Background
- Appellant, a former Marine, served on active duty, then on the Fleet Marine Corps Reserve List (retainer pay), and later was placed on the active duty retired list (retired pay); offenses occurred while he was in reserve and retired status, largely in Okinawa, Japan.
- He pleaded guilty at a general court-martial to multiple sexual offenses including indecent acts, attempting to produce child pornography, making indecent visual recordings, and receiving/possessing child pornography.
- The military judge allowed a punitive discharge (dishonorable discharge); the CA approved the sentence (9 years confinement and dishonorable discharge) but suspended confinement over 96 months per a pretrial agreement.
- Appellant raised two assignments of error: (1) lack of court-martial personal jurisdiction post-retirement (relying on Barker regarding retired pay as deferred compensation), and (2) 10 U.S.C. § 6332’s “transfer is conclusive for all purposes” language precludes punitive discharge of retirees.
- The Secretary of the Navy authorized the convening authority to apprehend, confine, and convene a general court-martial over the appellant while retired; the court exercised jurisdiction and rejected the appellant’s challenges.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether court-martial had personal jurisdiction over appellant in retired status | Barker undermines retired-pay rationale; retired-pay is deferred, not current compensation, so retirees lack requisite military connection for court-martial | Congress expressly made retirees and Fleet Reserve members subject to the UCMJ; retirees remain ‘‘members’’ with recallability and other ties permitting court-martial jurisdiction | Court held retirees remain subject to UCMJ and that appellant was validly subject to court-martial (de novo review) |
| Whether 10 U.S.C. § 6332 (“transfer is conclusive for all purposes”) prevents punitive discharge of retirees | § 6332’s conclusive transfer language precludes courts-martial from adjudging punitive discharge of a retiree | § 6332 only conclusively fixes date, grade, and creditable service; UCMJ and MCM permit punitive discharges; Congress omitted retiree protections found elsewhere | Court held § 6332 does not preclude punitive discharge; dishonorable discharge permissible for retirees |
Key Cases Cited
- United States v. Tyler, 105 U.S. 244 (1882) (retiree’s continued connection to service and pay supported congressional authority to subject retirees to military rules)
- Reid v. Covert, 354 U.S. 1 (1957) (limits on military jurisdiction: dependents abroad are not subject to court-martial despite governmental benefits)
- Barker v. Kansas, 503 U.S. 594 (1992) (for tax purposes, military retired pay is deferred compensation for past service)
- Solorio v. United States, 483 U.S. 435 (1987) (deference to Congress in defining persons subject to military jurisdiction)
- United States v. Toth, 350 U.S. 11 (1955) (ex-serviceman wholly separated from service cannot be court-martialed for prior active-duty offenses)
- United States v. Allen, 33 M.J. 209 (C.M.A. 1991) (statute cited to limit reduction in grade/pay of retiree; does not control all punitive consequences)
- United States v. Hooper, 26 C.M.R. 417 (C.M.A. 1958) (retirees may be court-martialed in part because retirement pay does not solely compensate past service)