Court of Appeals for the Armed Forces Reverses Precedent Holding That Retired Sailors and Marines Can Receive a Punitive Discharge at a Court-Martial

Court of Appeals for the Armed Forces Reverses Precedent Holding That Retired Sailors and Marines Can Receive a Punitive Discharge at a Court-Martial

On 19 June 2018, in US v. Dinger, the Court of Appeals for the Armed Forces set aside some previous precedent suggesting that retired members could not receive a punitive discharge at a court-martial.

10 U.S.C § 6332 states that when a member in the Naval Service is placed in a retired status, that “transfer is conclusive for all purposes.” For that reason, many lawyers and past precedent had concluded that retired members of the Navy and Marine Corps could not be adjudged punitive discharges in a court-martial.

Retired members are rarely tried by court-martial. However, we are seeing a handful of cases where retired members - especially government contractors overseas - are charged with child exploitation offenses. The military will often seek jurisdiction in those cases.

On the issue of punitive discharges for members of the Naval Service, the Court of Appeals for the Armed Forces reasoned that the UCMJ is a self-contained statute. If Congress wanted to exempt retired members from provisions of the UCMJ pertaining to jurisdiction and mandatory sentences, then they would have specifically done so.

It's hard to argue that retired members of the Naval Service should be treated differently in terms of sentencing. This issue is now conclusively decided, however.