United States v. Dinger ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Derrick L. DINGER, Gunnery Sergeant (Ret.)
United States Marine Corps, Appellant
No. 17-0510
Crim. App. No. 201600108
Argued April 5, 2018—Decided June 18, 2018
Military Judge: Christopher M. Greer
For Appellant: Captain Bree A. Ermentrout, JAGC, USN
(argued).
For Appellee: Captain Brian L. Ferrell, USMC (argued);
Colonel Valerie C. Danyluk, USMC, Major Kelli A. O’Neil,
USMC, and Brian Keller, Esq. (on brief).
Chief Judge STUCKY delivered the opinion of the
Court, in which Judges RYAN, OHLSON, SPARKS, and
MAGGS, joined.
_______________
Chief Judge STUCKY delivered the opinion of the
Court.1
Appellant, a retiree, was convicted by a general court-
martial. His approved sentence includes a dishonorable dis-
charge. We granted review to determine whether such a sen-
tence is prohibited for a Marine Corps retiree by 10 U.S.C.
§ 6332 (2012). We hold that a court-martial is not prohibited
from adjudging a punitive discharge in the case of such a re-
tiree and, to the extent our precedents suggest otherwise,
they are overruled.
1 We heard oral argument in this case at Fort Hood, Killeen,
Texas, as part of the Court’s Project Outreach. This practice was
developed as a public awareness program to demonstrate the
operation of a federal court of appeals and the military justice
system.
United States v. Dinger, No. 17-0510/MC
Opinion of the Court
I. Background
Appellant served on active duty in the United States Ma-
rine Corps from July 18, 1983, until October 31, 2003. He
transferred to the Fleet Marine Corps Reserve on November
1, 2003, and then to the active duty retired list on August 1,
2013. In June 2015, the Secretary of the Navy authorized
the Commander, Marine Corps Installations National Capi-
tal Region, to apprehend and confine Appellant and to exer-
cise general court-martial convening authority in Appel-
lant’s case.
Before entering his pleas, Appellant argued, apparently
in a Rule for Courts-Martial (R.C.M.) 802 conference, that
the maximum sentence that could be adjudged in his case
did not include a punitive discharge. The military judge re-
jected that argument on the record.
As part of a plea agreement, Appellant agreed to plead
guilty to (1) two specifications of indecent acts, in violation
of Article 120, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920 (Supp. II 2008); (2) one specification each of
wrongfully possessing and wrongfully receiving and viewing
child pornography; (3) one specification of attempting to em-
ploy and use a minor for producing child pornography;2 and
(4) two specifications of recording images of the private are-
as of his stepdaughter and wife. Article 120, 134, 80, 120c,
UCMJ, 10 U.S.C. §§ 920, 934, 880, 920c (2012). He also
agreed (1) to waive certain discrete motions and (2) that the
convening authority could approve a punitive discharge if
adjudged. In exchange, the convening authority agreed to
withdraw certain specifications and suspend all confinement
in excess of ninety-six months for the period of confinement
plus twelve months.
During the plea inquiry, the military judge specifically
asked Appellant: “Do you still wish to plead guilty in light of
the fact that I believe a punitive discharge is authorized?”
Appellant answered: “Yes, sir.” The military judge accepted
Appellant’s guilty plea, found him guilty, and sentenced him
2 This specification was merged with wrongfully possessing
child pornography.
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Opinion of the Court
to a dishonorable discharge and confinement for nine years.3
Pursuant to the plea agreement, the convening authority
suspended all confinement in excess of ninety-six months
and waived for six months the automatic forfeitures but oth-
erwise approved the sentence. After considering the same
issue upon which we granted review, the United States Na-
vy-Marine Corps Court of Criminal Appeals (CCA) affirmed
the findings and approved sentence. United States v. Dinger,
76 M.J. 552, 559 (N-M. Ct. Crim. App. 2017).
II. The Law
The issue presented has its origins in the Naval Reserve
Act of 1938, Pub. L. No. 75-732, 52 Stat. 1175 (1938). Title I
of the statute—entitled “Dissolution of Existing Reserve and
Organization of New Reserve”—abolished the Naval Reserve
and Marine Corps Reserve as established under previous
provisions of law and created a new Naval Reserve and a
new Marine Corps Reserve. Id. § 1, 52 Stat. at 1175. It pro-
vided for the establishment of the Fleet Reserve to which
enlisted men were transferred after retirement until they
completed thirty years of service, at which time they could,
at their own request, be transferred to the honorary retired
list with pay. Persons so transferred:
shall at all times be subject to the laws, regula-
tions, and orders for the government of the Navy,
and shall not be discharged therefrom prior to the
expiration of their term of service, without their
consent, except by sentence of a court martial, or,
in the discretion of the Secretary of the Navy, when
sentenced by civil authorities to confinement in a
State or Federal penitentiary as a result of a con-
viction for a felony.
Id. § 6, 52 Stat. at 1176.
In Title II—entitled “Fleet Reserve”—the Act stated:
3 None of the offenses of which he was convicted were subject
to the mandatory minimum sentences made applicable to some
offenses by the National Defense Authorization Act for Fiscal Year
2014, Pub. L. No. 113-66, § 1705(a)(1), (2)(A), 127 Stat. 672, 959
(2013), or the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, § 5301(a), § 5542(a), 130 Stat. 2000,
2919, 2967 (2016).
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Opinion of the Court
For all purposes of this Act a complete enlistment
during minority shall be counted as four years’ ser-
vice and any enlistment terminated within three
months prior to the expiration of the term of such
enlistment shall be counted as the full term of ser-
vice for which enlisted; Provided, That all transfers
from the Regular Navy to the Fleet Naval Reserve
or to the Fleet Reserve, and all transfers of mem-
bers of the Fleet Naval Reserve or the Fleet Re-
serve to the retired list of the Regular Navy, hereto-
fore 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 ac-
cordance with their ranks or ratings and length of
service as determined by the Secretary of the Navy:
Provided further, That the Secretary of the Navy,
upon discovery of any error or omission in the ser-
vice, rank, or rating for transfer or retirement, is
authorized to correct the same and upon such cor-
rection the person so transferred or retired shall be
entitled to pay and allowances, in accordance with
his rank or rating and length of service as deter-
mined by the Secretary of the Navy.
Id. § 202, 52 Stat. at 1178.
Two years after enactment of the 1938 legislation, the
Comptroller General was asked to render an opinion on the
Act’s effect on retainer pay for members of the Fleet Reserve
recalled to active duty, who had been reduced in grade by a
summary court-martial. 20 Comp. Gen. 76 (1940). The
Comptroller General ruled that “[i]n the absence of clear and
definite language a court-martial sentence imposing a re-
duction in grade or a forfeiture in pay will be interpreted as
applicable only to the period the man is on active duty.” Id.
at 78.
Congress repealed the Naval Reserve Act of 1938 in
1952, except for Title II and parts of Title III. Armed Forces
Reserve Act of 1952, Pub. L. No. 82-476, § 803, 66 Stat. 505,
505 (1952). Thus, the provision in Title I, § 6, stating that
members of the Fleet Reserve and retirees were subject to
the laws and rules for the government of the Navy and could
not be discharged except by sentence of court-martial, was
deleted. The “unrepealed provisions of the Naval Reserve
Act of 1938, as amended,” were to continue to apply to the
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Opinion of the Court
Marine Corps as well as the Navy. Id. § 803, 66 Stat. at 505.
Therefore, Title II, § 202, of the 1938 act, concerning the
conclusive nature of the transfer to the retired list, remained
in effect.
In 1956, that provision, in a different form, was moved
from Title 34, which at the time covered United States Navy
matters, to Title 10 of the United States Code—Armed Forc-
es—Chapter 571, entitled “Voluntary Retirement,” covering
Navy and Marine Corps personnel. Act of Aug. 10, 1956, ch.
571, 70A Stat. 1, 393 (1956). It currently reads:
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) [f]rom the Fleet Marine Corps Reserve to the re-
tired list of the Regular Marine Corps or the Re-
tired Reserve;
the transfer is conclusive for all purposes. Each
member so transferred is entitled, when not on ac-
tive 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 er-
ror or omission in his determination as to a mem-
ber’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 (2012) (emphasis added).
This Court first considered that statute in United States
v. Allen, a case in which a retired Navy E-8 was convicted,
inter alia, of espionage on behalf of the Republic of the Phil-
ippines under both Article 106a, UCMJ, 10 U.S.C. § 906a,
and 18 U.S.C. 793(d), as a crime or offense not capital under
Article 134, 10 U.S.C. § 934. 33 M.J. 209, 210 (C.M.A. 1991).
His offenses occurred while he was in retired status. United
States v. Allen, 28 M.J. 610, 611 (N.M.C.M.R. 1989). The
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Opinion of the Court
court-martial sentenced him to confinement for eight years
and to pay a fine of $10,000. 33 M.J. at 210. The convening
authority approved the sentence and the appellant was ad-
ministratively reduced to the lowest enlisted grade pursuant
to Article 58a, UCMJ, 10 U.S.C. § 858a, which required that
an enlisted person sentenced to confinement be reduced to
the grade of E-1 unless the Secretary concerned had prom-
ulgated a regulation to the contrary. Id. at 210 & n.2. Ap-
parently no such regulation was in effect in the Navy at the
time of the appellant’s court-martial.
As a result of his conviction for violating the Federal
Espionage Act, 18 U.S.C. § 793(d), Allen’s retirement pay
became subject to forfeiture under 5 U.S.C. § 8312.4 33 M.J.
at 215. Within one week of the announcement of the
sentence, Navy officials took action to terminate his pay. Id.
Allen argued that this action was premature as his
conviction was not final, and that his pay grade could not be
reduced by operation of law. Id. at 215–16. The Court of
Military Appeals agreed that the Navy’s termination of his
retired pay was premature but proclaimed it was powerless
to correct the pay issue under Article 67, UCMJ, 10 U.S.C.
§ 867. Id. at 215.
In analyzing whether Allen could be reduced by opera-
tion of law, the Court of Military Appeals relied heavily on a
law review article that discussed the power of courts-martial
over retirees and reservists:
Professor Bishop concluded that forfeiture of pay
(and by analogy reduction) was not necessary to
satisfy the military interests in those cases. Bishop,
Court-Martial Jurisdiction Over Military-Civilian
Hybrids: Retired Regulars, Reservists, and
Discharged Prisoners, 112 U. Pa. L. Rev. 317, 356–
57 (1964). This is consistent with the long-standing
proposition that a transfer of a servicemember to
the retired list is conclusive in all aspects as to
grade and rate of pay based on his years of service.”
10 U.S.C. § 6332. Further, the Comptroller General
4 This statute provides that individuals convicted of certain
enumerated national security offenses under the UCMJ or federal
civilian statutes, including espionage, may not be paid retired pay.
5 U.S.C. § 8312(a)–(c) (2012).
6
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Opinion of the Court
has held that a member of the Fleet Reserve
(legally, an almost identical status) who was court-
martialed during a period of active duty and
reduced in rating was to be paid at the higher rate
once he returned to inactive duty. B–10520, 20
Comp. Gen. 76, 78 (1940); see also A–32599,
10 Comp. Gen. 37 (1930). From this we conclude
that, because appellant was tried as a retired
member, he could not be reduced for these offenses
either by the court-martial or by operation of
Article 58a.
Id. at 216. The Court set aside that portion of the convening
authority’s action administratively reducing the appellant to
the lowest enlisted grade.5 Id. at 217. Senior Judge Everett
concurred but wanted to “qualify some of the majority’s lan-
guage,” concluding that “the effects of our decision on the
accused’s military pay can best be determined in the United
States Claims Court.” Id. at 217 (Everett, S.J., concurring).
The following year, Senior Judge Everett retired and
three new judges were appointed to an enhanced five-judge
Court. The Court reviewed a case of an Army retiree. United
States v. Sloan, 35 M.J. 4 (C.M.A. 1992). Based on his guilty
pleas, the appellant had been convicted of carnal knowledge
and indecent acts, all of which were committed before he re-
tired from active duty. Id. at 5. He was sentenced to a bad-
conduct discharge, confinement for three years, and reduc-
tion to E-1. Id. Pursuant to a plea agreement, the convening
authority approved the sentence, except for the punitive dis-
charge. Id. The Court specified the Allen issue. Id.
The Government asked the Court to overrule Allen. Id. at
11. It further contended that the statute on which Allen was
based was limited to Navy retirees and that Congress had
not enacted a similar statute for the Army. Id.
5 Where the sentence is illegal, it would normally make sense
to send the case back for a rehearing in which the court-martial
would be on notice of the correct maximum punishment. But in
Allen, the court-martial did not adjudge an illegal sentence. The
sentence became illegal only because, in the absence of any regu-
lation to the contrary, Article 58a required the reduction in grade.
Thus, there was no reason to send it back for a new sentencing
hearing.
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Opinion of the Court
In the opinion of the Court, Judge Wiss declined to dis-
cuss how the Navy statute could apply to Army personnel,
other than to assert that the Court’s decision in Allen did
not depend solely upon 10 U.S.C. § 6332, as “there are other
sound underpinnings of that decision.” Id. (citing 5 U.S.C.
§ 8312). The Court concluded that Allen was not “feebly sup-
ported,” and set aside the reduction in grade. Id. at 12
Chief Judge Sullivan concurred. He thought “that, as a
matter of constitutional law and codal intent,” retirees from
the different services should be treated similarly, but was
willing to reconsider Allen in a Navy case. Id. (Sullivan, C.J.,
concurring).
Judge Gierke, along with Judge Crawford, disagreed.
First, Allen was based on a statute, 10 U.S.C. § 6332, that
applied only to members of the naval service. Id. at 13
(Gierke, J., concurring in part and dissenting in part); see id.
(Crawford, J., concurring with reservations and dissenting
in part). “Furthermore, the Allen case involved an ‘adminis-
trative’ reduction pursuant to Article 58a, whereas appel-
lant’s case involves a reduction in grade imposed as punish-
ment by a court-martial.” Id. at 13 (Gierke, J., concurring in
part and dissenting in part). Judge Gierke also criticized the
majority’s conclusion that 5 U.S.C. § 8312 supported its posi-
tion by “protect[ing] retired pay from being diminished by a
court-martial sentence,” except for specified offenses. Id. at
14. Judges Gierke and Crawford correctly understood § 8312
to actually support the opposite conclusion: the statute
“mandates termination of retired pay upon conviction of cer-
tain offenses, even if the sentence does not include dismissal
or punitive discharge. Furthermore, termination of retired
pay occurs upon conviction rather than, as under the UCMJ,
upon completion of appellate review.” Id. Judge Gierke also
suggested that the Court revisit Allen. Id.
III. Discussion
Whether, as a result of a court-martial conviction, Appel-
lant is subject to a punitive discharge is a question of law we
review de novo. See United States v. Busch, 75 M.J. 87, 92
(C.A.A.F. 2016).
The Government asserts that, by entering an uncondi-
tional guilty plea pursuant to a plea agreement that author-
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Opinion of the Court
ized 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 dishon-
orable discharge. We disagree.
Although an accused may waive many of the most fun-
damental 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 un-
lawful.
Appellant contends that if § 6332 prohibited Allen and
Sloan from being reduced in grade then it surely precludes
him from being sentenced to a punitive discharge. The Gov-
ernment argues that § 6332 does not limit the punishments
available at court-martial, which are established by Con-
gress in the UCMJ and by the President under the authority
granted to him in Article 56(a), UCMJ, 10 U.S.C. § 856(a).
Our decisions in Allen and Sloan held otherwise. In those
cases we concluded that, in light of § 6332, 5 U.S.C. § 8312,
and 20 Comp. Gen. 76 (1940), a retiree “could not be reduced
[in grade] either by the court-martial or by operation of Arti-
cle 58a.” Allen, 33 M.J. at 216; see Sloan, 35 M.J. at 11–12.
The Government asserts that Allen and Sloan are not
applicable because those cases involved reductions in grade,
not punitive discharges. If we disagree, the Government
asks that we overrule those precedents. Our precedents have
not discussed the affect of § 6332 on adjudged punitive dis-
charges. But if the statute’s language applies to reductions
in grade, there is little reason to believe it does not apply to
punitive discharges.
When asked to overrule one of our precedents, we ana-
lyze the matter under the doctrine of stare decisis. United
States v. Blanks, 77 M.J. 239, 240–41 (C.A.A.F. 2018). Stare
decisis is a principle of decision-making, under which a court
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Opinion of the Court
follows earlier judicial decisions when the same issue arises
in other cases. Payne v. Tennessee, 501 U.S. 808, 828 (1991);
Black’s Law Dictionary 1626 (10th ed. 2014). “Although the
doctrine of stare decisis is of fundamental importance to the
rule of law, our precedents are not sacrosanct. We have
overruled prior decisions where the necessity and propriety
of doing so has been established.” Hurst v. Florida, 136 S.
Ct. 616, 623 (2016) (overruling Hildwin v. Florida, 490 U.S.
638 (1989), and Spaziano v. Florida, 468 U.S. 447 (1984) (al-
terations in original omitted) (citation omitted) (internal
quotation marks omitted)). This is such a case.
In evaluating the application of stare decisis, we consid-
er: “whether the prior decision is unworkable or poorly rea-
soned; any intervening events; the reasonable expectations
of servicemembers; and the risk of undermining public con-
fidence in the law.” United States v. Andrews, __ M.J. __, __
(7) (C.A.A.F. 2018) (citation omitted) (internal quotation
marks omitted).
Appellant argues that the language of 10 U.S.C. § 6332
“plainly states that a retiree’s status on the retired list is
‘conclusive for all purposes.’ ” “If a retiree’s status is conclu-
sive 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 a federal statute.”
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). Although
§ 6332, like the UCMJ, is part of Title 10, entitled “Armed
Forces,” it is not part of the integrated UCMJ, nor does it
mention the UCMJ, courts-martial, or sentences adjudged at
courts-martial. The plain language of the statute does not
purport in any way to limit the authority of a court-martial
to impose any authorized sentence.
The Constitution grants Congress the authority to estab-
lish the “ ‘regulations, procedures, and remedies related to
military discipline.’ ” Weiss v. United States, 510 U.S. 163,
177 (1994) (quoting Chappell v. Wallace, 462 U.S. 296, 301
(1983)); U.S. Const. art. I, § 8, cl. 14. Congress exercised that
authority by enacting the UCMJ “ ‘an integrated system of
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investigation, trial, and appeal.’ ” United States v.
Muwwakkil, 74 M.J. 187, 195 (C.A.A.F. 2015) (quoting Unit-
ed States v. Dowty, 48 M.J. 102, 106 (1998)).
“Retired members of a regular component of the armed
forces who are entitled to pay” are subject to the UCMJ and,
therefore, trial by court-martial. Article 2(a)(4), UCMJ,
10 U.S.C. § 802(a)(4) (2012); Pearson v. Bloss, 28 M.J. 376,
380 (C.M.A. 1989). A general court-martial “may adjudge
any punishment not forbidden by” the UCMJ. Article 18(a),
UCMJ, 10 U.S.C. § 818(a) (2012). “The punishment which a
court-martial may direct for an offense may not exceed such
limits as the President may prescribe for that offense.” Arti-
cle 56(a), UCMJ. The President has decreed in R.C.M.
1003(a) that: “Subject to the limitations in this Manual, the
punishments authorized in this rule may be adjudged in the
case of any person found guilty of an offense by a court-
martial.” The President has not limited the punishments
that may be adjudged against retirees.
Allen and Sloan are badly reasoned. 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 man-
datory sentences for some offenses (Article 106, UCMJ,
10 U.S.C. § 906 (2012)), and minimum punishments for oth-
ers (Article 118(1)–(4), UCMJ, 10 U.S.C. § 918(1)–(4) (2012)),
and authorized the President to set the maximum punish-
ments 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 Arti-
cle 56 of the UCMJ, not in some other statutory provision
with no reference to its applicability to courts-martial. Con-
gress has not done so.6
6 This analysis is consistent with application of the canon of
statutory interpretation that if there is a conflict between a gen-
eral provision and a specific provision, the specific provision pre-
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We have considered the other factors affecting our appli-
cation of stare decisis and concluded that they do not save
Allen and Sloan from being overruled. We hold that in
§ 6332 Congress did not prohibit a court-martial from sen-
tencing a retiree to a punitive discharge or any other availa-
ble punishment established by the President.
IV. Conclusion
Insofar as Allen and Sloan support a different outcome,
they are overruled. Although a court-martial is not
prohibited from sentencing a retiree to a punitive discharge
or any other authorized punishment, the collateral effect of
such a sentence on a retiree is a different question that is
not within the scope of our review. Congress saw fit to give
jurisdiction over pay claims and related matters to other
federal courts, and it is to them that such questions should
be directed.
V. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
vails. Edmond v. United States, 520 U.S. 651, 657 (1997); United
States v. Yarbrough, 55 M.J. 353, 356 (C.A.A.F. 2001). The UCMJ,
which authorizes the court-martial of retired military members
and does not limit punishments to which a retiree may be sen-
tenced, is the more specific provision.
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