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 courtmartial. His approved sentence includes a dishonorable discharge. We granted review to determine whether such a sentence 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 retiree 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 

2 

I. Background 

Appellant served on active duty in the United States Marine 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 Capital Region, to apprehend and confine Appellant and to exercise general court-martial convening authority in Appellant’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 rejected 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 employ and use a minor for producing child pornography;2 and 

(4) two specifications of recording images of the private areas 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.
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

3 

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 otherwise approved the sentence. After considering the same 

issue upon which we granted review, the United States Navy-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 provided 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, regulations, 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 conviction 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). 
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

4 

For all purposes of this Act a complete enlistment 

during minority shall be counted as four years’ service 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 service 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 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: 

Provided further, That the Secretary of the Navy, 

upon discovery of any error or omission in the service, rank, or rating for transfer or retirement, is 

authorized to correct the same and upon such correction 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 determined 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 reduction 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 
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

5 

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 Forces—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 retired list of the Regular Marine Corps or the Retired Reserve; 

the 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. 

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 Philippines 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 
United States v. Dinger, No. 17-0510/MC 

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6 

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 administratively 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 promulgated a regulation to the contrary. Id. at 210 & n.2. Apparently 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 operation 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). 
United States v. Dinger, No. 17-0510/MC 

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has held that a member of the Fleet Reserve 

(legally, an almost identical status) who was courtmartialed 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 language,” 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 retired from active duty. Id. at 5. He was sentenced to a badconduct discharge, confinement for three years, and reduction to E-1. Id. Pursuant to a plea agreement, the convening 

authority approved the sentence, except for the punitive discharge. 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 regulation to the contrary, Article 58a required the reduction in grade. 

Thus, there was no reason to send it back for a new sentencing 

hearing. 
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

8 

In the opinion of the Court, Judge Wiss declined to discuss 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 supported,” 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 ‘administrative’ reduction pursuant to Article 58a, whereas appellant’s case involves a reduction in grade imposed as punishment 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 position 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 certain 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, Appellant 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 unconditional guilty plea pursuant to a plea agreement that author-
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

9 

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 dishonorable discharge. We disagree. 

Although an accused may waive many of the most fundamental 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 unlawful.

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 Government argues that § 6332 does not limit the punishments 

available at court-martial, which are established by Congress 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 Article 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 discharges. 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 analyze 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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10 

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) (alterations in original omitted) (citation omitted) (internal 

quotation marks omitted)). This is such a case. 

In evaluating the application of stare decisis, we consider: “whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations 

of servicemembers; and the risk of undermining public confidence 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 conclusive 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 establish 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 
United States v. Dinger, No. 17-0510/MC 

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11 

investigation, trial, and appeal.’ ” United States v. 

Muwwakkil, 74 M.J. 187, 195 (C.A.A.F. 2015) (quoting United 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.” Article 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 courtmartial.” The President has not limited the punishments 

that may be adjudged against retirees. 

Allen and Sloan are badly reasoned. The UCMJ is a selfcontained 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 mandatory sentences for some offenses (Article 106, UCMJ, 

10 U.S.C. § 906 (2012)), and minimum punishments for others (Article 118(1)–(4), UCMJ, 10 U.S.C. § 918(1)–(4) (2012)), 

and authorized the President to set the maximum punishments 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 Article 56 of the UCMJ, not in some other statutory provision 

with no reference to its applicability to courts-martial. Congress 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 general provision and a specific provision, the specific provision pre-
United States v. Dinger, No. 17-0510/MC 

Opinion of the Court 

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We have considered the other factors affecting our application 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 sentencing a retiree to a punitive discharge or any other available 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 sentenced, is the more specific provision.