Replacement Members

1. Sloppy paper trailsUnited States v. Gebhart, 34 M.J. 189 (C.M.A. 1992). “The administration of this court-martial…can best be described as slipshod.” “Such a lack of attention to correct court-martial procedure cannot be condoned.” The amended CMCO mistakenly removed member who actually sat on panel. Order also included member who was not present without explanation for the absence. The amending order also
incorrectly referred to the original order by the wrong number. Held: errors were administrative and not jurisdictional. Issue was waived by defense failure to object. See also United States v. Sargent, 47 M.J. 367 Fidell’s CAAF Rules Guide (C.A.A.F. 1997) and United States v. Larson, 33 M.J. 715 (A.C.M.R. 1991).

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2. Triggering mechanismsUnited States v. Mack, 58 M.J. 413 (C.A.A.F. 2003). SJA
memorandum approved by convening authority concerning operation of convening order
provided that, when accused requested panel of at least one-third enlisted members,
alternate enlisted members would be automatically detailed without further action by the
convening authority if, among other triggering mechanisms, “before trial, the number of
enlisted members . . . falls below one-third plus two.” Prior to trial, two officer and one
enlisted members were excused, leaving five officer and four enlisted members (a total of
nine members, of which one-third plus two, or five, were enlisted). At trial, two
additional enlisted members sat, which appeared to be inconsistent with the above
triggering mechanism. The defense did not object. ACCA remanded on its own for a
DuBay hearing concerning the presence of the additional two enlisted members. CAAF
held that, “When a convening authority refers a case for trial before a panel identified in a

specific convening order, and the convening order identifies particular members to be

added to the panel upon a triggering event, the process of excusing primary members and
adding the substitute members involves an administrative, not a jurisdictional matter.
Absent objection, any alleged defects in the administrative process are tested for plain
error.” Here there was no error. Excusal of one officer and the one enlisted member
prior to the excusal of the other officer would have reduced the panel to ten members,
five of who were officers and five of whom were enlisted. This triggered the one-third
plus two triggering event. Even if there was error in the triggering event, so long as the
members were listed on the convening order and the panel met the one-third requirement,
any error in the operation of the triggering mechanism was administrative, not

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