1. Article 26, UCMJ. Military judge shall be a commissioned officer who is a member of the bar of a Federal court or the highest court of a State and who is certified to be qualified for duty as a military judge by TJAG.
2. Member of a bar. Military judge’s “inactive status” with her state bar nevertheless equated to her being a “member of the Bar” of Pennsylvania as contemplated by Article 26(b). United States v. Cloud, ARMY 9800299 (A. Ct. Crim. App., Dec. 14, 2000) (unpub), aff’d, 55 M.J. 164 (C.A.A.F. 2001) (summary disposition); United States v. Brown, ARMY 9801503 (A. Ct. Crim. App. Dec. 11, 2000) (unpub), aff’d, 55 M.J. 366 (C.A.A.F. 2001) (summary disposition) (ACCA also considered fact that judge, although “inactive” in state bar, was a member in good standing of “this [the ACCA] Federal
bar”). See also United States v. Corona, 55 M.J. 247 (C.A.A.F. 2001) (summary
3. Reserve Judges. Change to MCM.
a. Change to RCM 502; Executive Order removed holdover provision
concerning qualifications for military judges.
b. MCM had mandated that military judges be commissioned officers on active
duty in the armed forces. The current RCM 502(c) deletes that requirement,
enabling reserve military judges to try cases while on active duty, inactive duty
training, or inactive duty training and travel.
Issue: Does this mean reservists can try GCM and SPCMs? Generally, no. Only
military judges assigned directly to TJAG and TJAG’s delegate (Trial Judiciary)
may preside at GCMs. AR 27-10, paras. 8-1(c)(2), 8-2(a).
4. Detail. AR 27-10, para. 5-3.
a. Detail is a ministerial function to be exercised by the Chief Trial Judge, U.S.
Army Judiciary, or his or her delegate. The order detailing military judge must
be in writing, included in the record of trial or announced orally on the record.
b. Detailing in a joint environment. Military judges are normally detailed
according to the regulations of the “Secretary concerned.” In a joint
environment, there is no “Secretary concerned.” See Captains William H. Walsh
and Thomas A. Dukes, Jr., The Joint Commander as Convening Authority:
Analysis of a Test Case, 46 A.F. L. Rev. 195 (1999). Detailing should be agreed
upon by convening authority, SJA, and defense. Id.
5. Appellate Judges. United States v. Walker, 60 M.J. 354 (C.A.A.F. 2004). In a
capital case, the CAAF granted the accused’s motion for extraordinary relief regarding
the composition of judges on his N-MCCA panel. In 1995, the accused’s case was
assigned to the N-MCCA panel 3. Over the years the composition of panel 3 changed
resulting in the presence of only one judge in the spring of 2004. Most N-MCCA judges,
to include the Chief Judge, were disqualified in the case. Based on the Chief Judge’s
disqualification the TJAG under Article 66, UCMJ selected a new Chief Judge to handle
the accused’s case. Immediately prior to the TJAG’s appointment, the original Chief
Judge established a new court policy establishing “an order of precedence among judges
on the court for the purpose of exercising the responsibility to make panel assignments in
a particular case in the event of the absence or recusal of the chief judge.” The problem
at issue occurred when the substitute Chief Judge appointed by the TJAG retired
requiring the appointment of another substitute Chief Judge to proceed over the accused’s
case. At that time the N-MCCA attempted to use the new policy letter to select a
substitute Chief Judge with objection from the accused. The CAAF held because the N-
MCCA did not use the policy to select the first substitute Chief Judge it was not
appropriate to use the policy to select the second substitute Chief Judge and a substitute
appointment by the TJAG was necessary.
6. United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006). A Member of Congress may not
serve as an appellate judge for a service court because of the Ineligibility and
Incompatibility Clauses of the United States Constitution. The CAAF reasoned that no
Person holding any office under the United States [i.e., a service court judicial position] should simultaneously serve as a Member of either House during his Continuance in
Office. In the case, Senator Lindsey Graham, a reserve military judge on the AFCCA,
7. Tenure/Fixed Term and Appointment.
a. Settled issue regarding appointment of civilians to Coast Guard Court of
Criminal Appeals. Edmond v. United States, 520 U.S. 651 (1997), aff’g United
States v. Ryder, 44 M.J. 9 (C.A.A.F. 1996) (holding that civilian judges on Coast
Guard Court of Criminal Appeals are inferior officers and do not require
additional presidential appointment; therefore, the Congressional delegation of
appointment authority to Secretary of Transportation to appoint judges is
consistent with Appointments Clause. See also United States v. Graf, 35 M.J.
450 (C.M.A. 1992); United States v. Weiss, 36 M.J. 224 (C.M.A. 1993), aff’d,
510 U.S. 163 (1994). United States v. Grindstaff, 45 M.J. 634 (N-M. Ct. Crim.
App. 1997) (judges of courts of criminal appeals, military judges, and convening
authorities are not principal officers under Appointments Clause and do not
require a second appointment).
b. United States v. Paulk, 66 M.J. 641 (A.F. Ct. Crim. App. 2008). Accused, an
Air Force officer, pled guilty to several offenses and was sentenced to
confinement for 30 days and a dismissal. On appeal, the defense argued that the
Equal Protection component of the Fifth Amendment’s Due Process Clause was
violated because the military judge and the appellate judges serve without a fixed
term of office, while those in the Army and Coast Guard judiciary enjoy such
protection by regulation. “Essentially, the appellant is saying that either all or
none of the services should have fixed terms, but the mixed bag currently
existing violates constitutional imperatives of equal protection.” The court
rejected the defense argument.