Convene What? Military Justice Courts-Martial

Convening a military court-martial

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All SPCMs are “empowered to adjudge a Bad-Conduct Discharge.” United States v. Scott, 59 M.J. 718 (A. Ct. Crim. App. 2004). The case referred to a special court-martial. GCMCA, following SJA’s advice, signed a document referring the case to SPCM empowered to adjudge a BCD. However, the instructions on the charge sheet did not include the words “empowered to adjudge a bad-conduct discharge.”

Based on discussion following RCM 601(e)(1), the court determines that additional words in convening authority’s referral or on the charge sheet are “surplusage.” “We hold that all Army SPCMs are empowered to adjudge a BCD unless the convening authority expressly states that a particular SPCM is not so empowered. The convening authority should expressly state such a limitation in the referral signed by the convening authority, in special instructions on the charge sheet, or in both.”

SPCMCA refers capital offense

United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004). SPCMCA referred to alleged violation of Article 110(a), UCMJ UCMJ (2015) (willfully hazarding a vessel, a non-mandatory capital offense). Article 19, UCMJ provides that an SPCMCA can refer only to non-capital offenses but can refer to non-mandatory capital offenses as noncapital “under such regulations as the President may prescribe.” The President, in RCM 201(f)(2)(c), authorizes an SPCMCA to refer a nonmandatory capital offense only with the permission of the GCMCA. That permission was neither sought nor granted in this case.

The CAAF held the referral was a jurisdictional error. The CAAF rejected three Government arguments: first, that the so-called “evolution” in the law applicable to jurisdictional defects does not extend to this situation; second, that the PTA in the case was a functional equivalent of a referral of a noncapital offense; and third, that the referral of the nonmandatory capital offense was also an implicit referral of the noncapital lesser-included offense. Findings and sentences set aside. But see Executive Order 13387, effective 14 November 2005, amending RCM 201(f)(1)(A)(iii)(b) to read that a special instruction is needed that the case is to be tried capital to adjudge a death sentence.

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SPCMCA Authority

Maximum punishment.

Executive Order RCM 201(f)(2)(B), effective 15 May 2002, increased the maximum punishment at a special court-martial to one-year confinement. In Taylor v. Garaffa, 57 M.J. 645 (N-M. Ct. Crim. App. 2002), the accused used cocaine before the executive order’s effective date, 15 May 2002, but his court-martial was convened and his case was referred after 15 May 2002. Denying his motion for relief, the court held the maximum punishment at his special courts-martial included confinement for up to 12 months.

AR 27-10

Paragraph 5-28(a) authorizes Army SPCMCAs to refer cases to BCD SPCMs. In SPCMs involving confinement in excess of six months, forfeitures of pay for more than six months, or bad-conduct discharges the “servicing staff judge advocate will prepare a pretrial advice, following generally the format of RCM 406(b).”

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