United States v. Hevner

20 C.M.A. 80, 20 USCMA 80, 42 C.M.R. 272, 1970 CMA LEXIS 751, 1970 WL 7067

• Court: United States Court of Military Appeals
• Decided: August 28, 1970
• Docket: No. 23,077
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

The appellant was tried at Camp Courtney, Okinawa, by a special court-martial convened by the Commanding Officer, Transient Company, Transient Facility, Marine Corps Base, Camp Smedley D. Butler, Fleet Post Office, Seattle, Washington. According to the appointing order, the commanding officer’s authority to convene the court was based on section 0103b, Manual of the Judge Advocate General, Department of the Navy. Appellant contends and the Government concedes that in light of this Court’s opinion in United States v Greenwell, 19 USCMA 460, 42 CMR 62 (1970), the proceedings were a nullity.

We agree. Here, as in Greenwell, a general officer, acting in accordance with the provisions of section 0103b (5) of the JAG Manual, supra, purported to designate the Transient Company as a separate and detached command and to invest in the commander thereof special court-martial authority. This he cannot do as that power was given exclusively to the appropriate service Secretary by the Congress (Article 23(a)(7), Uniform Code of Military Justice, 10 USC § 823), and is not delegable. As we said in United States v Greenwell, supra, at page 464:

“. . . To the extent that section 0103b (5), JAG Manual, supra, purports to grant this authority to a flag or general officer, it is contrary to the law and of no legal effect. Courts-martial convened under that authority are a nullity. United States v Ortiz, . . . [15 USCMA 505, 36 CMR 3 (1965), rehearing denied, 16 USCMA 127, 36 CMR 283 (1966)].”

The decision of the United States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A new trial may be ordered before a properly appointed court-martial.