United States v. Dinger , 76 M.J. 552 ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600108
_________________________
UNITED STATES OF AMERICA
Appellee
v.
DEREK L. DINGER
Gunnery Sergeant (E-7), U.S. Marine Corps (Retired)
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Christopher M. Greer, USMC.
Convening Authority: Commander, Marine Corps Installations
National Capital Region, Marine Corps Base, Quantico, VA.
Staff Judge Advocate’s Recommendation: Major Michael J. Eby,
USMC.
For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
For Appellee: Major Tracey L. Holtshirley, USMC; Lieutenant
Taurean Brown, JAGC, USN; Lieutenant Robert J. Miller, JAGC,
USN.
_________________________
Decided 28 March 2017
_________________________
Before G LASER -A LLEN , R UGH , and H UTCHISON , Appellate Military
Judges
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
RUGH, Judge:
A military judge sitting as a general court-martial convicted the appellant
pursuant to his pleas of 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 Article
United States v. Dinger, No. 201600108
120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006), and
Articles 80, 120c, and 134, UCMJ, 10 U.S.C. §§ 880, 920c, and 934 (2012).
The military judge sentenced the appellant to nine years’ confinement and a
dishonorable discharge. The convening authority (CA) approved the sentence
as adjudged, but suspended all confinement over 96 months pursuant to a
pretrial agreement.
The appellant now asserts two assignments of error (AOE): (1) that his
court-martial lacked personal jurisdiction over him in light of the U.S.
Supreme Court’s holding in Barker v. Kansas, 503 U.S. 594, 605 (1992), that
for tax purposes, military retirement benefits are not current compensation
for reduced services; and (2) that Congress’ statement in 10 U.S.C. § 6332
that the transfer of a member of the naval service to a retired status “is
conclusive for all purposes” precludes the issuance of a punitive discharge to
a retiree.1
Having carefully considered the record of trial, the pleadings, and oral
argument, heard on 15 February 2017 at the George Washington University
School of Law, we disagree and affirm the findings and sentence as approved
by the CA.
I. BACKGROUND
From 1 November 2003 to 1 August 2013, following his service on active
duty in the Marine Corps, the appellant was a member of the Fleet Marine
Corps Reserve List (“Fleet Marine Reserve”).2 He was then transferred to the
active duty retired list (“retired list”).3 He received retirement benefits after
transferring to the Fleet Marine Reserve.
1 This court restyled the AOEs from the appellant’s brief. Oral Argument Order
of 5 Dec 2016.
2 An enlisted member of the Marine Corps may, after 20 years of active duty,
elect transfer to Fleet Marine Reserve. 10 U.S.C. § 6330(b). In this status the
member receives “retainer pay” based primarily on years of active duty service. Id. §
(c)(1). After 30 total years, the member is transferred “to the retired list of
the . . . regular Marine Corps” and receives “retired pay” at “the same rate as the
retainer pay[.]” 10 U.S.C. § 6331(a), (c).
3 We will refer generally to Fleet Marine Reserve and retired list membership as
“retired status,” as military courts have treated the two statuses interchangeably for
purposes of court-martial jurisdiction. See, e.g. Pearson v. Bloss, 28 M.J. 376, 379-80
(C.M.A. 1989) (treating a member of the Air Force “Retired Reserve” as a retiree
because “[w]hile there still may be some difference between the obligations of these
service groups . . . their common pay entitlement, access to military bases and
services, and general duty obligations strongly support” treating both as “part of the
armed forces for purposes of court-martial jurisdiction”) (citations and internal
quotation marks omitted). Since personnel in either status are subject to similar
2
United States v. Dinger, No. 201600108
Of the offenses to which the appellant pleaded guilty, two were committed
solely while he was a member of the Fleet Marine Reserve4 and one was
committed solely after his transfer to the retired list.5 The remaining offenses
were committed on divers occasions,6 overlapping the dates he was a member
of the Fleet Marine Reserve and on the retired list.7 The appellant committed
each of the offenses in Okinawa, Japan, where he and his family lived.
Based on a Naval Criminal Investigative Service investigation, the
Secretary of the Navy, per Department of the Navy policy,8 specifically
authorized the CA “to apprehend, confine, and exercise general court-martial
convening authority” over the appellant while he remained in a retired
status.9 At the appellant’s court-martial, the military judge held, over trial
defense counsel’s objection, “that a punitive discharge is an authorized
punishment” for the appellant.10
obligations, we too find no grounds to distinguish between the two categories with
respect to the jurisdiction of a court-martial.
4 Charge I, Specifications 1 and 2, alleging separate instances of indecent conduct
committed by the appellant against his daughter and stepdaughter between on or
about January 2011 and on or about January 2012.
5 Additional Charge II, Specification 2, alleging that the appellant made indecent
recordings of his wife without her consent between on or about 1 June 2014 and on or
about 31 June 2014.
6 See Record at 101; Appellate Exhibit XI (the consolidated Charge II,
Specification 1, alleging that between on or about 11 October 2012 and on or about 4
September 2014, the appellant received, possessed, and viewed child pornography
images and videos); Record at 59, 73-80 (Additional Charge I and its sole
specification, alleging that the appellant between on or about 11 October 2012 and on
or about 4 September 2014, attempted to produce child pornography; and Additional
Charge II, Specification 1, alleging that between on or about 11 October 2012 and on
or about 4 September 2014, the appellant made indecent recordings of his
stepdaughter). The latter specifications were merged for sentencing. Id. at 86, 101-
02.
7 We note that the consolidated specification of Charge II, the specification of
Additional Charge I, and Specifications 1 and 2 of Additional Charge II erroneously
describe the appellant as having exclusively been “on the active duty retired list”
through his commission of the offenses. Per our discussion supra at note 3, the
appellant was equally amenable to court-martial jurisdiction whether as a Fleet
Marine Reserve member or on the retired list. As a result, we find no prejudice from
this error, and we correct the specifications in our decretal paragraph.
8 Manual of the Judge Advocate General, Judge Advocate General Instruction
5800.7F § 0123a.(1) (26 Jun 2012).
9 Appellate Exhibit III.
10 Record at 31.
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United States v. Dinger, No. 201600108
II. DISCUSSION
A. Court-martial jurisdiction over those in a retired status
Jurisdiction is a legal question we review de novo. United States v. Tamez,
63 M.J. 201, 202 (C.A.A.F. 2006).
By act of Congress, the appellant was subject to the UCMJ when he
committed the offenses. Art. 2(a), UCMJ (“The following persons are subject
to this chapter . . . . Retired members of a regular component of the armed
forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and
Fleet Marine Corps Reserve.”). Congress has continually subjected some
Naval retirees to court-martial jurisdiction since long before enactment of the
UCMJ.11
The Supreme Court first tacitly recognized the power of Congress to
authorize court-martial jurisdiction in United States v. Tyler, when it held
that Tyler, who was retired, should benefit from a Congressionally-
authorized military pay increase because, among other reasons, Congress had
subjected Tyler “to the . . . [A]rticles of [W]ar” and “a military court-martial[]
for any breach of those rules[.]” 105 U.S. 244, 244-46 (1882). The Court
explained that because Tyler’s “retirement from active service” came with
“compensation . . . continued at a reduced rate, and the connection” between
Tyler and the government thus “continue[d].” Id. at 245. Later courts have
cited Tyler for the proposition that receipt of retirement pay is one reason
Congress may constitutionally authorize courts-martial of those in a retired
status.12
11 See, e.g. Act of Aug. 3, 1861, Ch. 42, 12 Stat 287 (1861) (enacting that “retired
officers shall be entitled to wear the uniform of their respective grades, shall continue
to be borne upon the navy register, shall be subject to the rules and articles
governing the Navy, and to trial by general court-martial.”)In contrast, Congress has
disclaimed broad court-martial jurisdiction over retired members of the Naval
Reserve. Compare Naval Reserve Act of 1938, ch. 690, 52 Stat. 1175, 1176
(“[M]embers of the Fleet Reserve and officers and enlisted men . . . transferred to the
retired list of the Naval Reserve Force or the Naval Reserve or the honorary retired
list with pay . . . shall at all times be subject to the laws, regulations, and orders for
the government of the Navy and shall not be discharged . . . without their consent,
except by sentence of a court martial[.]”) (emphasis added), with Act of May 5, 1950,
Ch. 169, 64 Stat. 107, 109 (subjecting “[r]etired personnel of a reserve component” to
the UCMJ only if “receiving hospitalization from an armed force), and S. REP. No. 81-
486, at 7 (1949) (describing the UCMJ as “a lessening of jurisdiction over retired
personnel of a Reserve component” since “existing law” gave “jurisdiction over retired
Reserve personnel”).
12See, e.g. United States v. Hooper, 26 C.M.R. 417, 425 (C.M.A. 1958) (allowing
the court-martial of a retired admiral for offenses he committed while in a retired
status in part because “[o]fficers on the retired list” continue to “receive[] a salary”);
4
United States v. Dinger, No. 201600108
However, three developments have undermined this rationale for court-
martial jurisdiction. First, the Supreme Court held that this theory did not
justify trial by court-martial of military dependents. Reid v. Covert, 354 U.S.
1, 19-20, 23 (1957) (denying court-martial jurisdiction over “civilian wives,
children and other dependents” stationed overseas, even though “they may be
accompanying a serviceman abroad at Government expense and receiving
other benefits from the Government.”) (emphasis added). Second, in 1992 the
Supreme Court decided in Barker that at least for tax purposes, “military
retirement benefits are to be considered deferred pay for past services”
instead of “current compensation” to retirees “for reduced current services.”
503 U.S. at 605. Third, recent decisions have allowed courts-martial of former
members of the active duty military who, rather than separating, remain in
the Active Reserves or the Individual Ready Reserve in a “nonduty, nonpay
status”13 (albeit only for offenses previously committed on active duty).14
From these developments it is clear that the receipt of retired pay is
neither wholly necessary, nor solely sufficient, to justify court-martial
jurisdiction. As a result, we must call upon first principles to assess the
jurisdiction of courts-martial over those in a retired status.
Hooper v. United States, 326 F.2d 982, 987 (Ct. Cl. 1964) (holding in a review of a suit
brought by the accused in United States v. Hooper, supra, that “jurisdiction by
military tribunal” over the appellant was “constitutionally valid,” because “the salary
he received was not solely recompense for past services”).
13United States v. Nettles, 74 M.J. 289, 290, 292-93 (C.A.A.F. 2015) (noting that
the convening authority had ordered the appellant from the “Individual Ready
Reserve” to “active duty for [court-martial] proceedings,” and then “allowed him to
return to a nonduty, nonpay status”); see also Lawrence v. Maksym, 58 M.J. 808, 814
(N-M. Ct. Crim. App. 2003) (denying application for extraordinary writ by “the
inactive reserve petitioner” because he “is subject to court-martial jurisdiction under
Articles 2 and 3[, UCMJ] for offenses alleged to have been committed while on
reserve active duty”). Cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 21-22
(1955) (denying court-martial jurisdiction over crimes allegedly committed while
Toth was on active duty, because he was prosecuted while an “ex-servicem[a]n”
already “wholly separated from the service”).
14 These members must be recalled to active duty for court-martial proceedings,
while those in a retired status like the appellant, by contrast, need not be recalled to
active duty as a prerequisite to prosecution at court-martial. See United States v.
Morris, 54 M.J. 898, 900 (N-M. Ct. Crim. App. 2001) (“If a member of the Fleet
Marine Corps Reserve needed to be ordered to active duty to be subject to the
jurisdiction of a court-martial, there would be no need to separately list members of
the Fleet Marine Corps Reserve as being persons subject to the UCMJ.”).
5
United States v. Dinger, No. 201600108
The Constitution allows “Congress to authorize military trial of members
of the armed services[.]”15 Reid, 354 U.S. at 19 (emphasis added). The
Constitution requires a close relationship between those subject to court-
martial and the military establishment,16 because:
[T]he jurisdiction of military tribunals is a very limited and
extraordinary jurisdiction . . . and, at most, was intended to be
only a narrow exception to the normal and preferred method of
trial in courts of law. Every extension of military jurisdiction is
an encroachment on the jurisdiction of the civil courts, and,
more important, acts as a deprivation of the right to jury trial
and of other treasured constitutional protections.
Id. Those subject to trial by court-martial lose some procedural rights
guaranteed ordinary citizens.17 They are also subject to prosecution for
acts or speech otherwise protected from civilian prosecution by the
Constitution.18
15 There are other theories of jurisdiction which are not generally applicable to
those in a retired status, and thus outside the scope of this opinion. E.g. Art. 2(a)(10),
UCMJ (claim over those “serving with or accompanying an armed force in the field”).
16See Reid, 354 U.S. at 30 (“The Constitution does not say that Congress can
regulate . . . ‘all other persons whose regulation might have some relationship to
maintenance of the land and naval Forces.’”).
17For instance, there is “no right to have a court-martial be a jury of peers, a
representative cross-section of the community, or randomly chosen,” all of which are
guarantees in civilian trials by jury. United States v. Dowty, 60 M.J. 163, 169
(C.A.A.F. 2004).
18 E.g. Art. 88, UCMJ (prohibiting “contemptuous words” against some public
officials). For an historical example of a retiree court-martialed for such conduct, see
Closson v. United States, 7 App. D.C. 460, 470-71 (D.C. Cir. 1896) (considering
petition of a retired Army officer charged at court-martial for an “intemperate and
improper letter written . . . to the general commanding the army”). And note, that
even the potential for such prosecutions can have a chilling effect on the behavior of
those in a retired status. See UCMJ: Hearings on H.R. 2498 Before a Subcomm. of the
H. Comm. On Armed Services, 81st Cong. 706-07 (1949) (statement of Col. Melvin J.
Maas, President, Marine Corps Reserve Association) (recounting how after a military
retiree had published an article critical of the War Department, an official warned
the retiree against “mak[ing] any public statement[,] under penalty of being court-
martialed and losing his retired pay”); UCMJ: Hearings on S. 857 and H.R. 4080
Before a Subcomm. of the S. Comm. On Armed Services, 81st Cong. 99 (1949)
(statement of Col. Maas) (“You certainly ought not to put the retired military
personnel under this control. . . . [T]hey get their retirement because they earned
it. . . . [To] prevent dictatorship, you must unmuzzle them . . . .”).
6
United States v. Dinger, No. 201600108
That said, “judicial deference” is “at its apogee when legislative action
under the congressional authority to raise and support armies and make
rules and regulations for their governance is challenged,”19 and the Court has
correspondingly acknowledged that Congress could define “a person [as] ‘in’
the armed services” and subject to court-martial jurisdiction “even [if] he [or
she]. . . did not wear a uniform”– indeed, even if he or she had only been sent
a notice of induction and “not [yet] formally been inducted into the
military[.]” Reid, 354 U.S. at 22-23; Billings v. Truesdell, 321 U.S. 542, 544,
556 (1944) (finding “no doubt of the power of Congress to enlist the [citizens]
of the nation” into the military, and “to subject to military jurisdiction those
who are unwilling” to take the oath of induction into the military, if Congress
desired to do so).
The appellant had a closer relationship with the military than the pre-
induction draftee, whom the Supreme Court has repeatedly suggested is
subject to court-martial jurisdiction. Unlike the wholly discharged veteran in
Toth whose connection with the military had been severed, a “retired member
of the . . . Regular Marine Corps” and a “member of the . . . Fleet Marine
Corps Reserve” may be “ordered to active duty by the Secretary of the
military department concerned at any time.”20 “[I]n both of our wars with
Iraq, retired personnel of all services were actually recalled,”21 demonstrating
Congress’ continued interest in enforcing good order and discipline amongst
those in a retired status.
As the Court stated in Tyler:
It is impossible to hold that [retirees] who are by statute
declared to be a part of the army, who may wear its uniform,
whose names shall be borne upon its register, who may be
assigned by their superior officers to specified duties by detail
as other officers are, . . . are still not in the military service.
19 Solorio v. United States, 483 U.S. 435, 447 (1987) (citations and internal
quotation marks omitted).
20 10 U.S.C. § 688. This is also similar to the scenario of the inactive Reservist
who was subject to court-martial in Lawrence, 58 M.J. at 814. See 10 U.S.C. §
12304(a) (stating that the President “may authorize the Secretary of Defense . . .
without the consent of the members concerned, to order. . . any member in the
Individual Ready Reserve . . . under regulations prescribed by the Secretary
concerned . . . to active duty for not more than 365 consecutive days”).
21 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Procedure, § 2-20.00,
24 (4th ed. Matthew Bender & Co. 2015) (“In recent years, for example, the Army has
instituted a policy of issuing recall orders to selected retired personnel with the
orders to be effective in case of national emergency.”).
7
United States v. Dinger, No. 201600108
105 U.S. at 246.22
Notwithstanding Barker and its implications regarding the tax
status of retired pay, we are firmly convinced that those in a retired
status remain “members” of the land and Naval forces who may face
court-martial. As the appellant was in a retired status during the
offenses and the proceedings, he was validly subject to court-martial.
B. Punitive discharge of those in a retired status
The second AOE presents a question of statutory construction, an issue of
law reviewed de novo. United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F.
2014). Title 10 U.S.C. § 6332 provides that “[w]hen a member of the naval
service is transferred by the Secretary of the Navy” from active duty to a
retired status or transferred from one retired status to another:
[T]he 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.
In United States v. Allen, our superior court cited this statute, among
other factors,23 to support its holding that “because appellant was tried as a
retired member, he could not be reduced [in rank]. . . by the court-martial[.]”
33 M.J. 209, 216 (C.M.A. 1991) (citing Navy policy, a law review article
espousing that retiree “forfeiture of pay, and by analogy reduction, was not
necessary to satisfy the military interest[,]”24 and a Comptroller General
22See also Barker, 503 U.S. at 599 (“Military retirees unquestionably remain in
the service and are subject to restrictions and recall . . . .”); Kahn v. Anderson, 255
U.S. 1, 6-7 (1921) (allowing those in a retired status to serve as members at courts-
martial because “retired . . . officers are officers in the military service of the United
States”).
23 See United States v. Sloan, 35 M.J. 4, 11 (C.M.A. 1992) (“Allen itself clearly
reflects [that] our decision there was not dependent solely upon this statutory
provision”).
24 Joseph W. Bishop, Jr., Court-Martial Jurisdiction Over Military-Civilian
Hybrids: Retired Regulars, Reservists, and Discharged Prisoners, 112 U. PA. L. REV.
317, 356-57 (1964). Of note, Bishop suggested that punitively discharging a retiree
was a more appropriate punishment than reduction in rank. Id. at 353 (“[T]he
8
United States v. Dinger, No. 201600108
opinion). The appellant claims the statute also precludes punitive discharge
of retirees.25 We disagree.
We define terms in a statute based on their “ordinary meaning” and the
“broader statutory context.” United States v. Pease, 75 M.J. 180, 186
(C.A.A.F. 2016). “We are also guided by the following rules of statutory
construction: (1) a statute will not be dissected and its various phrases
considered in vacuo; (2) it will be presumed Congress had a definite purpose
in every enactment; (3) the construction that produces the greatest harmony
and least inconsistency will prevail; and (4) statutes in pari materia will be
construed together.” United States v. Ferguson, 40 M.J. 823, 830 (N.M.C.M.R.
1994) (citing United States v. Johnson, 3 M.J. 361 (C.M.A. 1977)).
Title 10 U.S.C. § 6332 has its origins in legislation creating the United
States Naval Reserve,26 in which Congress provided that “[m]en transferred
to the Fleet Naval Reserve shall be governed by the laws and regulations for
the government of the Navy and shall not be discharged from the Naval
Reserve Force without their consent, except by sentence of a court-martial.”27
But, Congress replaced those provisions with language similar to the present
statute in 1938,28 which it re-enacted in 1952.29
appropriate punishment should . . . be distinctively military. Practically speaking, in
the case of retired personnel, this means dismissal . . . or dishonorable discharge
. . . .”)
25 Critically, in Sloan, our superior court recognized the potential for disparate
treatment between the branches of service when 10 U.S.C. § 6332, a Department of
Navy-only statute, was read to limit the reach of the UCMJ. While the court resolved
the disparity through other means in Sloan (see n. 24, supra), it remained a concern
of Chief Judge Sullivan, who wrote in concurrence, “I join the principal opinion today
in its decision not to overturn that portion of [Allen] concerning the reduction in
grade and pay of court-martialed retired members. However, I am not adverse to
revisiting this issue in a Navy case. As for appellant [an Army retiree], I think that,
as a matter of constitutional law and codal intent, he is entitled to equal treatment.”
35 M.J. at 12 (Sullivan, C.J., concurring).
26Naval Appropriations Act of 1916, Ch. 417, 38 Stat. 589, 590 (“[T]he Secretary
of the Navy is authorized to transfer to the Fleet Naval Reserve at . . . his discretion
any enlisted man of the naval service with twenty or more years naval service . . . .”).
27 Id. at 591 (emphasis added).
28 Naval Reserve Act of 1938, ch. 690, 52 Stat. 1175, 1178 (“Provided, That all
transfers from the Regular Navy to the Fleet Naval Reserve or to the Fleet Reserve,
and all transfers of members of the Fleet Naval Reserve or the Fleet Reserve to the
retired list of the Regular Navy, heretofore or hereafter made by the Secretary of the
Navy, shall be conclusive for all purposes, and all members so transferred shall, from
the date of transfer, be entitled to pay and allowances, in accordance with their ranks
or ratings and length of service as determined by the Secretary of the Navy . . . .”).
9
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Since then, and with the enacting of the UCMJ in 1950, Congress has
subjected retirees to court-martial.30 It has allowed general courts-martial to,
“under such limitations as the President may prescribe, adjudge any
punishment not forbidden by this code.”31 Congress has excluded some
personnel from prosecution at certain types of courts-martial,32 and entirely
prohibited special and summary courts-martial from adjudging dismissals or
dishonorable discharges.33 Recently, Congress directed that any “person
subject to this chapter” guilty of certain offenses must receive a minimum
sentence of a dishonorable or bad-conduct discharge, subject only to
exceptions not based on personal status.34
Likewise, under authority delegated by Congress, the President has
consistently declined to allow courts-martial to adjudge “administrative
separation[s] from the service[s.]”35 The President has provided that a
“dishonorable discharge… may be adjudged only by a general court-
martial. . . for those who should be separated under conditions of dishonor,
after having been convicted of offenses usually recognized in civilian
jurisdictions as felonies, or of offenses of a military nature requiring severe
punishment.”36
29 Armed Forces Reserve Act of 1952, ch. 608, 66 Stat. 481, 505 (“The unrepealed
provisions of the Naval Reserve Act of 1938 . . . continue to apply . . . .”).
30 Act of May 5, 1950, Ch. 64 Stat. 107, 109.
31 Id. at 114. The current article, Article 18(a), UCMJ, remains substantially the
same.
32 Id. (“[S]ummary courts-martial shall have jurisdiction to try persons subject to
this code except officers, warrant officers, cadets, aviation cadets, and
midshipmen . . . .”). The current article, Article 20, UCMJ, remains substantially the
same.
33 Id. Articles 19 and 20 of the current version of the UCMJ retain the same
prohibitions.
34 National Defense Authorization Act (NDAA) for Fiscal Year 2014, Pub. L. No.
113-66, 127 Stat. 672, 959 (2013). As none of the appellant’s offenses occurred
exclusively after its effective date of 24 June 2014, we cite this provision for
interpretative purposes only, and not as substantive law dictating the appellant’s
sentence. See FY 2015 NDAA, Pub. L. No. 113-291, 128 Stat. 3292, 3365 (2014).
35 MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES, 1968, ¶ 126a. The rule
applicable at the appellant’s court-martial, RULE FOR COURTS-MARTIAL (R.C.M.)
1003(b)(8), MCM (2012 ed.), was substantially the same.
36 R.C.M. 1003(b)(8)(B).
10
United States v. Dinger, No. 201600108
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.
For this reason, we decline to override long-standing, military justice-
specific provisions in the MCM subjecting those in a retired status to courts-
martial and broadly authorizing those courts-martial to adjudge a punitive
discharge. We make this decision particularly in light of the fact that
Congress expressly exempted other classes of personnel from dismissal or
dishonorable discharge within the UCMJ, but not retirees.37
We agree that “[t]he only consistent, contextual reading of [the statute] is
that a transfer to the retired list is conclusive in all aspects as to the fact that
the member was transferred to the retired list on a certain date, in a certain
grade, and with creditable service as determined by the Secretary.”38 We thus
find that the statute does not preclude removal from the Fleet Marine
Reserve or the retired list of a member who received a punitive discharge or
dismissal from court-martial, when approved by the CA and affirmed by our
court.
Such a reading harmonizes the statute with the other UCMJ provisions
discussed supra. Unlike the reduction in rank of a retiree prohibited by Allen
and Sloan, there is neither long-standing Navy policy against the punitive
discharge of retirees,39 nor other factors which might support an expansive
reading of the statute. Here, the appellant committed felony-level offenses
meriting a dishonorable discharge. Collateral effects on issues like retired
pay are policy matters within the discretion of Congress.
C. Incorrect court-martial order
Although not raised by the appellant, we note that the court-martial order
(CMO) fails to reflect that the military judge consolidated Specifications 1
and 2 of Charge II into one specification after ruling the specifications an
unreasonable multiplication of charges as applied to findings.40
37 See United States v. Wilson, 66 M.J. 39, 45-46 (C.A.A.F. 2008) (‘“[Where]
Congress includes particular language in one section of a statute but omits it in
another section . . . it is generally presumed that Congress acts intentionally and
purposely in the disparate . . . exclusion.’”) (quoting Russello v. United States, 464
U.S. 16, 23 (1983)) (alterations in original) (additional citation omitted).
38 Appellee’s Brief of 7 Sep 2016 at 13 (citation omitted).
39See, e.g. United States v. Overton, 24 M.J. 309 (C.M.A. 1987); Hooper, 26
C.M.R. at 419.
40 Record at 101; Appellate Exhibit XI.
11
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Likewise, we note that the consolidated specification of Charge II,
Specification 1 of Additional Charge I, and Specifications 1 and 2 of
Additional Charge II each erroneously describe the appellant as having
exclusively been “on the active duty retired list” through his commission of
the offenses. Though, per our discussion supra at note 3, the appellant was
equally amenable to court-martial jurisdiction whether as a Fleet Marine
Reserve member or on the retired list.
The appellant now does not assert, and we do not find, any prejudice
resulting from these errors. Nevertheless, the appellant is entitled to have
the CMO accurately reflect the results of the proceedings. United States v.
Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order
corrective action in our decretal paragraph.
III. CONCLUSION
The findings and sentence, as approved by the CA, are affirmed.
The supplemental court-martial order shall reflect that in the
consolidated specification of Charge II, the specification of Additional Charge
I, and Specifications 1 and 2 of Additional Charge II, the appellant was “on
the active duty retired list or on the Fleet Marine Corps Reserve List.”
The supplemental court-martial order shall also reflect that the military
judge consolidated Specifications 1 and 2 of Charge II into a single
specification for findings and sentence, to read as follows:
In that Gunnery Sergeant Derek L. Dinger, U.S. Marine Corps
(Retired), on the active duty retired list or on the Fleet Marine Corps
Reserve List, did, at or near Okinawa, Japan, between on or about 11
October 2012 and on or about 4 September 2014, knowingly and
wrongfully receive, possess and view child pornography, to wit, images
and videos of minors engaging in sexually explicit conduct, which
conduct was of a nature to bring discredit upon the armed forces.
Chief Judge GLASER-ALLEN and Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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