Gonzalez & Waddington – Attorneys at Law

Who is in command at the time the action was taken

Service regulations govern, but violation of regulation may not spell defeat for Government. Court engages in a functional analysis looking to who actually was in command at the time the action was taken. United States v. Yates, 28 M.J. 60 (C.M.A. 1989).

Service Regulations

Army, AR 600-20; Navy/U.S.M.C., JAGMAN – JAGINST 5800.7C; Air Force, AFR 35-34.

Functional analysis

United States v. Gait, 25 M.J. 16 (C.M.A. 1987) (concern is for realities of command, not intricacies of service regulations). See also United States v. Jette, 25 M.J. 16 (C.M.A. 1987).

Successor in command

United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005). ACCA, in a published opinion, clarifies its position, stating “[a]bsent evidence to the contrary, adaptation can be presumed from the convening authority’s action in sending the charges to a court-martial whose members were selected by a predecessor in command.” No requirement exists for a convening authority or an acting convening authority to expressly adopt panel members selected by his predecessor. See also United States v. Starks, No. 20020224 (A. Ct. Crim. App. Mar. 10, 2004) (unpub.) (concurring with NMCCA in Brewick that “while there is no explicit statement of adoption of the selection of court members by the successor-in-command, we are not aware of any authority that so requires.”)

Court Martial231 Gonzalez &Amp; Waddington - Attorneys At Law

Contrary ACCA opinions requiring explicit selection overruled by the Gilchrist decision. See United States v. Meredith, No. 20021184 (A. Ct. Crim. App. Jan. 27, 2005) (unpub.); United States v. Jost, No. 20030975 (A. Ct. Crim. App. Mar. 29, 2005) (unpub.). These cases held that a successor in command must expressly select members selected by the previous commander. “By the simple expedient of including and correctly referencing the predecessor’s recommended CMCO in the referral document, the SJA can ensure that the codal responsibilities of the convening authority are clearly met. See also United States v. Brewick, 47 M.J. 730 (N-M. Ct. Crim. App. 1997) (holding “[t]o the extent an ‘adoption’ is required [where a successor in command refers a case to a CMCO who members were selected by a predecessor] or helpful, we can presume as much from [the successor’s] action in sending the charge to that court-martial, absent
evidence to the contrary.”).

Limitations on Joint Commanders

United States v. Egan, 53 M.J. 570 (A. Ct. Crim. App. 2000). In a special court-martial convened by Air Force colonel (commander of a EUCOM joint unit), the accused Soldier was convicted of drug use and distribution. SPCMCA approved the sentence, which included a BCD. ACCA held the SPCMCA did not have the authority under the applicable joint service directive to convene a special court-martial empowered to adjudge a BCD in the case of an Army soldier. BCD set aside; case further modified on other grounds.

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