Opinion of the Court
Kilday, Judge:
Appellant was arraigned before a special court-martial convened aboard the U. S. Coast Guard vessel STATEN ISLAND charged with the willful disobedience of an order given by a superior officer (Charge I), two specifications of disrespect toward a superior officer (Charge II), use of provoking speech (Charge III), the willful disobedience of an order given by a superior petty officer (Charge IV), and of being drunk and disorderly aboard ship (Charge V), in violation of Articles 90, 89, 117, 91, and 134, Uniform Code of Military Justice, 10 USC §§ 890, 889, 917, 891, and 934, respectively. He pleaded guilty to Charges I, II, III, and V, and to the specifications thereunder. During the course of the trial proceeding, however, the plea to Charge III was changed to one of not guilty. To Charge IV and its single specification, accused pleaded not guilty. He was found guilty of insubordinate conduct, in violation of Article 91, Uniform Code of Military Justice, 10 USC § 891. Of the remainder, Houston was found guilty as charged. He was sentenced to a bad-conduct discharge and two months restriction to the limits of his vessel. The convening authority approved the sentence. The supervisory authority, however, disap[281]*281proved and dismissed the findings of guilty as to Charges I and IV, suspending for six months the execution of the bad-conduct discharge with provision for remission. The board of review in the oifice of the General Counsel, Department of Transportation, then disapproved and dismissed the finding of guilty as to Charge II, affirming the remaining charges and the sentence. On July 28, 1967, the General Counsel of the Department of Transportation certified to this Court the question:
“WAS THE BOARD OF REVIEW CORRECT IN DETERMINING THAT A LAWFUL court-martial WAS CONSTITUTED ?”
The crux of this issue is whether a special court-martial is lawfully constituted, when convened by a Coast Guard officer for the trial of a Coast Guard enlisted man, if comprised of one Navy and two Coast Guard members.
Appellant’s ship, at times pertinent to this case, was one of three Coast Guard icebreakers in the Ross Sea group of Task Force 43. Popularly known as Operation Deep Freeze, it is said to be a naval support force providing “facilities, materials and services in aid of the United States Antarctic Research Program supervised by the National Science Foundation.”
In addition to the STATEN ISLAND’S normal complement of Coast Guard officers and men, a Navy helicopter detachment of four officers and twelve enlisted men was assigned aboard during this period.
The charges against Houston were sworn on Februrary 16, 1967, at sea, en route to McMurdo Station, Antarctica. On the day following, a special court-martial was formed with the appointment of three Coast Guard officers. The above charges were referred to this court. One day later, a single court member was relieved with a Navy helicopter officer being appointed in his stead. While aboard ship, then operating in the Southern Ross Sea, accused was tried and convicted by the special court as thus composed.
The board of review approached the court’s composition as simply a departure from Manual for Courts-Martial, United States, 1951, rather than Uniform Code of Military Justice provisions, amounting to no more than a non-jurisdictional, nonpre judicial error. Stated briefly, the board of review found the convening authority’s appointive action consistent with the formula set forth in Article 25 of the Uniform Code, 10 USC § 825, for there Congress provided that “Any commissioned officer on active duty is eligible to serve on all courts-martial.” Appointment of the Navy court member did, however, in the board of review’s estimation, violate that portion of paragraph 4p(3), Manual for Courts-Martial, United States, 1951, providing, “In exceptional circumstances, with the concurrence of the Secretaries of the other Departments concerned, the Secretary of a Department may authorize a convening authority responsible to him to appoint personnel of other armed forces to serve on courts-martial in cases not contemplated by the provisions of 4p(2).” It is conceded that in this case Secretarial authorization was not given.
Acknowledging that reciprocal jurisdiction “shall be in accordance with regulations prescribed by the President” (Article 17(a), Uniform Code of Military Justice, 10 USC § 817), the board of review, nevertheless, considered paragraph 4g(3) an expression of that which is “politic and desirable” rather than a regulation having the force of “substantive law.” Finalized was the belief that the restrictive nature of such a Manual provision is inconsistent with the unrestricted terms of Article 25 of the Uniform Code, supra. In sum, it was concluded that the court was not “jurisdictionally defective.”
Appellate Government counsel adopt a more stringent view by contending that paragraph 4g(3) is not concerned with reciprocal jurdisdiction, hence, is beyond the scope of authority granted in Article 17(a), Uniform Code, supra; that being unrelated to “evidentiary rules or trial procedure,” it is beyond the scope of Article 36, Uniform Code of Military Justice, 10 USC § 836, giving the President power to prescribe [282]*282such rules; that “regulations” may not be contrary to, or inconsistent with, the Uniform Code; hence, insofar as paragraph 4g(3) purports to limit the eligibility of court members, it is in direct conflict with an unambiguous Code provision, and, therefore, invalid.
Appellate defense counsel, on the other hand, argue that, prior to the Uniform Code, Coast Guardsmen had the right to be tried by a court-martial composed of their own officers in addition to a limited number of Public Health officers. Moreover, the legislative history of the Uniform Code is said to reflect no dilution of such preexisting right without a showing of overriding military necessity. Where the Code has expanded the right to peremptory challenge, it would be incongruous, so argue the defense, to presume that Congress intended to confer upon a commanding officer the power to negate this conferred right by enabling him to appoint court members from another service regardless of officer availability. To the contrary, it is argued that the problems of concurrent jurisdiction and court-martial composition were treated in the legislative history in a manner showing that supplemental regulations were intended to have mandatory adherence.
Independent assessment of these matters confirms our belief that Article 25 of the Uniform Code, and paragraph 4g(3) of the Manual, both supra, are neither inconsistent nor contradictory. “Eligibility” of court members, the concern of Article 25, is clearly set apart from their subsequent “appointment,” the subject of paragraph 4g(3). Who is better aware of this distinction than the service officer who has become “eligible,” i.e., selected for promotion but who must, nonetheless, await his “appointment.”
Neither can we agree that paragraph 4g(3) is beyond the scope of Article 17 (a). The latter provides:
“Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President.”
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Opinion of the Court
Kilday, Judge:
Appellant was arraigned before a special court-martial convened aboard the U. S. Coast Guard vessel STATEN ISLAND charged with the willful disobedience of an order given by a superior officer (Charge I), two specifications of disrespect toward a superior officer (Charge II), use of provoking speech (Charge III), the willful disobedience of an order given by a superior petty officer (Charge IV), and of being drunk and disorderly aboard ship (Charge V), in violation of Articles 90, 89, 117, 91, and 134, Uniform Code of Military Justice, 10 USC §§ 890, 889, 917, 891, and 934, respectively. He pleaded guilty to Charges I, II, III, and V, and to the specifications thereunder. During the course of the trial proceeding, however, the plea to Charge III was changed to one of not guilty. To Charge IV and its single specification, accused pleaded not guilty. He was found guilty of insubordinate conduct, in violation of Article 91, Uniform Code of Military Justice, 10 USC § 891. Of the remainder, Houston was found guilty as charged. He was sentenced to a bad-conduct discharge and two months restriction to the limits of his vessel. The convening authority approved the sentence. The supervisory authority, however, disap[281]*281proved and dismissed the findings of guilty as to Charges I and IV, suspending for six months the execution of the bad-conduct discharge with provision for remission. The board of review in the oifice of the General Counsel, Department of Transportation, then disapproved and dismissed the finding of guilty as to Charge II, affirming the remaining charges and the sentence. On July 28, 1967, the General Counsel of the Department of Transportation certified to this Court the question:
“WAS THE BOARD OF REVIEW CORRECT IN DETERMINING THAT A LAWFUL court-martial WAS CONSTITUTED ?”
The crux of this issue is whether a special court-martial is lawfully constituted, when convened by a Coast Guard officer for the trial of a Coast Guard enlisted man, if comprised of one Navy and two Coast Guard members.
Appellant’s ship, at times pertinent to this case, was one of three Coast Guard icebreakers in the Ross Sea group of Task Force 43. Popularly known as Operation Deep Freeze, it is said to be a naval support force providing “facilities, materials and services in aid of the United States Antarctic Research Program supervised by the National Science Foundation.”
In addition to the STATEN ISLAND’S normal complement of Coast Guard officers and men, a Navy helicopter detachment of four officers and twelve enlisted men was assigned aboard during this period.
The charges against Houston were sworn on Februrary 16, 1967, at sea, en route to McMurdo Station, Antarctica. On the day following, a special court-martial was formed with the appointment of three Coast Guard officers. The above charges were referred to this court. One day later, a single court member was relieved with a Navy helicopter officer being appointed in his stead. While aboard ship, then operating in the Southern Ross Sea, accused was tried and convicted by the special court as thus composed.
The board of review approached the court’s composition as simply a departure from Manual for Courts-Martial, United States, 1951, rather than Uniform Code of Military Justice provisions, amounting to no more than a non-jurisdictional, nonpre judicial error. Stated briefly, the board of review found the convening authority’s appointive action consistent with the formula set forth in Article 25 of the Uniform Code, 10 USC § 825, for there Congress provided that “Any commissioned officer on active duty is eligible to serve on all courts-martial.” Appointment of the Navy court member did, however, in the board of review’s estimation, violate that portion of paragraph 4p(3), Manual for Courts-Martial, United States, 1951, providing, “In exceptional circumstances, with the concurrence of the Secretaries of the other Departments concerned, the Secretary of a Department may authorize a convening authority responsible to him to appoint personnel of other armed forces to serve on courts-martial in cases not contemplated by the provisions of 4p(2).” It is conceded that in this case Secretarial authorization was not given.
Acknowledging that reciprocal jurisdiction “shall be in accordance with regulations prescribed by the President” (Article 17(a), Uniform Code of Military Justice, 10 USC § 817), the board of review, nevertheless, considered paragraph 4g(3) an expression of that which is “politic and desirable” rather than a regulation having the force of “substantive law.” Finalized was the belief that the restrictive nature of such a Manual provision is inconsistent with the unrestricted terms of Article 25 of the Uniform Code, supra. In sum, it was concluded that the court was not “jurisdictionally defective.”
Appellate Government counsel adopt a more stringent view by contending that paragraph 4g(3) is not concerned with reciprocal jurdisdiction, hence, is beyond the scope of authority granted in Article 17(a), Uniform Code, supra; that being unrelated to “evidentiary rules or trial procedure,” it is beyond the scope of Article 36, Uniform Code of Military Justice, 10 USC § 836, giving the President power to prescribe [282]*282such rules; that “regulations” may not be contrary to, or inconsistent with, the Uniform Code; hence, insofar as paragraph 4g(3) purports to limit the eligibility of court members, it is in direct conflict with an unambiguous Code provision, and, therefore, invalid.
Appellate defense counsel, on the other hand, argue that, prior to the Uniform Code, Coast Guardsmen had the right to be tried by a court-martial composed of their own officers in addition to a limited number of Public Health officers. Moreover, the legislative history of the Uniform Code is said to reflect no dilution of such preexisting right without a showing of overriding military necessity. Where the Code has expanded the right to peremptory challenge, it would be incongruous, so argue the defense, to presume that Congress intended to confer upon a commanding officer the power to negate this conferred right by enabling him to appoint court members from another service regardless of officer availability. To the contrary, it is argued that the problems of concurrent jurisdiction and court-martial composition were treated in the legislative history in a manner showing that supplemental regulations were intended to have mandatory adherence.
Independent assessment of these matters confirms our belief that Article 25 of the Uniform Code, and paragraph 4g(3) of the Manual, both supra, are neither inconsistent nor contradictory. “Eligibility” of court members, the concern of Article 25, is clearly set apart from their subsequent “appointment,” the subject of paragraph 4g(3). Who is better aware of this distinction than the service officer who has become “eligible,” i.e., selected for promotion but who must, nonetheless, await his “appointment.”
Neither can we agree that paragraph 4g(3) is beyond the scope of Article 17 (a). The latter provides:
“Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President.”
As Chief Judge Quinn aptly demonstrated in United States v Hooper, 5 USCMA 391, 398, 18 CMR 15, the above Manual provision is one of those regulations “governing the exercise of reciprocal jurisdiction,” this being the essence of Article 17 (a). Legislative commentary on Article 17 (a) as well as Article 25 conform to this rationale. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 613, 1138, 1139; House Report No. 491, 81st Congress, 1st Session, pages 16, 17. It is, of course, a proper and valid delegation. Uniform Code, supra, Article 36; United States v Hooper, supra; United States v Smith, 13 USCMA 105, 32 CMR 105; United States v Acosta-Vargas, 13 USCMA 388, 32 CMR 388.
“Where a Manual provision does not lie outside the scope of the authority of the President, offend against the Uniform Code, conflict with another well-recognized principle of military law, or clash with other Manual provisions, we are duty-bound to accord it full weight.” United States v Villasenor, 6 USCMA 3, 7, 19 CMR 129.
The fact that paragraph 4gr(l) purports to set out “general policy” is unpersuasive “Classification labels may simplify professional discussion, but they are not substitutes for statutory requirements.” United States v Thomas, 17 USCMA 103, 107, 37 CMR 367. United States v Hooper, supra, is not to the contrary, for the focal point of that decision is paragraph 13, Manual for Courts-Martial, supra, on the character of which Chief Judge Quinn reserved judgment.
Unquestioned is the fact that in this case there is no showing of compliance with paragraph 4g (3). In truth, the Operation Order for the Task Force intended that each service with the Force exercise discipline over its own members (Appendix II to Annex B, Task Force 43, Operation Order No. 1-661). We have, then, an improper [283]*283and invalid court appointment. The error, reducing court membership below the minimum requirement of three, is jurisdictional in nature and renders the trial and conviction of this accused void. Uniform Code of Military-Justice, Article 29(c), 10 USC § 829; McClaughry v Deming, 186 US 49, 46 L ed 1049, 22 S Ct 786 (1902); United States v Brown, 206 US 240, 51 L ed 1046, 27 S Ct 620 (1907).
The certified issue is answered in the negative. The decision of the board of review is reversed and the record of trial is returned to the General Counsel, Department of Transportation, for action not inconsistent with this opinion.
Judge FERGUSON concurs.