Acting Commanders/successors in command
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).
1. Service Regulations. Army, AR 600-20; Navy/U.S.M.C., JAGMAN – JAGINST 5800.7C; Air Force, AFR 35-34.
2. 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).
3. 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.”) 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.”
4. 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.”).