United States v. Anderson

10 M.J. 803, 1981 CMR LEXIS 791

• Court: U S Air Force Court of Military Review
• Decided: March 17, 1981
• Docket: ACM S24849
• Status: Published

Opinions

DECISION

MILES, Judge:

We hold that one of the enlisted members of accused’s court-martial panel was a member of accused’s unit for purposes of Article 25(c), Uniform Code of Military Justice, 10 U.S.C. § 825(c). As a result, the court-martial panel which tried the accused was jurisdictionally defective.

Contrary to his pleas, the accused was convicted by a special court-martial, which included officers and enlisted members, of attempted transfer of mescaline and transfer of cocaine and marijuana in violation of Articles 80 and 134, 10 U.S.C. §§ 880, 934, Code, supra.

At the time of trial, the accused was assigned to the 341st Security Police Squadron, one of several squadrons included in the 341st Security Police Group. One of the court members, Chief Master Sergeant Larry E. Larios, was listed on the orders appointing the court as assigned to the 341st Security Police Group. At no time during the trial did the military judge advise the court members that enlisted members of the court could not be a member of the same unit as the accused.¹ No challenge was made to Sergeant Larios’ presence on the court-martial panel. Chief Master Sergeant Larios had been assigned to the 341st Security Police Squadron for a number of years, but at the time of trial he was nominally assigned to the 341st Security Police Group staff. Chief Master Sergeant Larios had daily contact with the security police squadron commander and worked closely with other squadron personnel.

Captain Euler, the commander of the 341st Security Police Squadron and the accuser in the case, testified as a prosecution witness. His testimony included the following:

Q. How many individuals do you have in your squadron?

A. Counting the Group Headquarters, I believe we’re close to about 280 individuals. I have SPS and Security Police Group under me for administrative purposes.

Q. And you’re the Commander of those individuals.

A. Yes, I am.

During our consideration of this case, appellate government counsel agreed that enlisted personnel of the 341st Security Police Group staff such as Chief Master Sergeant Larios were attached to the 341st Security Police Squadron for administrative and disciplinary purposes including the imposition of Article 15 punishments and the exercise of court-martial jurisdiction.² In fact, there was no separate squadron for personnel of the security police group staff.

The precise issue involved here is whether, under such circumstances, enlisted personnel assigned or attached to a squadron for administrative and disciplinary purposes including the imposition of Article 15 punishments and court-martial purposes are members of that same squadron for purposes of Article 25(c), Code, supra. If they are, they are not eligible to serve on a court-martial involving a member of that squadron. Article 25(c) of the Uniform Code of Military Justice, inter alia, provides:

(1) Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial....

(2) In this article, the word “unit” means any regularly organized body as defined by the Secretary concerned, but in no case may it be a body larger than a company, squadron, ship’s crew, or body corresponding to one of them.

The Manual for Courts-Martial, 1969 (Rev.), paragraph 4b, inter alia, provides: “Air Force. A ‘unit’ of the Air Force in the sense of Article 25(c) is a squadron or other organization of the Air Force for which a separate unit military strength balance report is prepared.”

The limitation against enlisted personnel of an accused’s unit serving on his court-martial is jurisdictional in our view.³ Appellate government counsel do not dispute the jurisdictional effect of the limitation but argue that Air Force regulations define unit, for military strength balance reporting purposes, as organizations having separate Personnel Accounting Symbol (PAS) codes.⁴ They assert that since the security police group and the security police squadron have separate PAS codes, Chief Master Sergeant Larios was simply not a member of the same unit as the accused.

However, in our view, an individual attached to a squadron for administrative, disciplinary and court-martial purposes and thus a member of the unit, subject to its discipline, for other purposes under the Code, is equally a member for purposes of Article 25(c). The prohibition against enlisted personnel from the same unit avoids “bias or prejudice either for or against an accused which experience has shown was likely to develop in an integrated body of troops where the members worked and lived in close association with each other.” ⁵ It avoids “a possible mental identification with the supposed interests of his unit in the disposition of the case.”⁶ The limitation also has a salutary effect in insulating enlisted members from possible criticism from other members of the same unit and in avoiding command influence proscribed by Article 37, Code, 10 U.S.C. § 837, supra.

Considering the object and purpose of the codal limitation on eligibility, we hold that Chief Master Sergeant Larios was a member of the 341st Security Police Squadron for purposes of Article 25(c), Code, supra, because he was a member of that same squadron for other administrative and disciplinary purposes under the Code, supra. To hold otherwise would provide a potential device to subvert both the reasons and the salutary benefits of the limits on eligibility. Moreover, no cogent reason exists, in our view, as to why Air Force enlisted members otherwise attached to and therefore considered members of an accused’s squadron need to be available for appointment as court members.⁷ We believe our position is consistent with the language and purpose of the Uniform Code.

In view of our disposition of this case, it is unnecessary to decide the other assertions of error urged by appellate defense counsel. The findings of guilty and the sentence are set aside. A rehearing is ordered.

POWELL, Senior Judge, concurs.

1 . Air Force Pamphlet 111-6, Procedure Guide for Courts-Martial, 19 April 1976, at page 17, provides for the military judge to inquire as to whether any enlisted members of the court are a member of the same unit as the accused. Also see Manual for Courts-Martial, 1969 (Rev.), Appendix 8b, at A8-12.

2 . By the term “court-martial jurisdiction” we are not suggesting that squadron commanders normally convene any courts-martial. However, squadron commanders do, as accusers, normally initiate court-martial charges. See para. 29, Manual for Courts-Martial, supra.

3 . United States v. Timmons, 49 C.M.R. 94 (NCMR 1974); United States v. Perry, 20 C.M.R. 562 (CGBR 1955); United States v. Cook, 16 C.M.R. 404 (NBR 1954). Cf. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902); United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972); United States v. White, 21 U.S.C.M.A. 583, 45 C.M.R. 357 (1972). Contra. United States v. Scott, 25 C.M.R. 636 (A.B.R.1958). Senate Report No. 486, 81st Congress, 1st session, at 14, reprinted Government Printing Office, Index and Legislative History, Uniform Code of Military Justice (1950) states: “Subdivision (c) limits the competency of enlisted personnel to cases where they are not members of the same unit as the accused.” Later, the term “eligible” was substituted during floor debate.

4 . Air Force Regulation 35-40, Military Personnel Strength Accounting Methods, paragraph 1-3, 11 February 1974, Change 8 (5 April 1977).

5 . United States v. Timmons, supra note 3, at 95.

6 . United States v. Scott, supra note 3, at 640.

7 . The inquiry already required, supra, note 1, should be modified to insure prospective enlisted court members are not attached to the same squadron as the accused for administrative and disciplinary purposes.