Opinion of the Court
PERRY, Judge:
On June 26, 1974, the appellant was convicted by a general court-martial of wrongful distribution and possession of lysergic acid diethylamide (LSD) and wrongful possession of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a dishonorable discharge, confinement at hard labor for 16 months, and forfeiture of all pay and allowances. While the convening authority approved the findings, he reduced the sentence to a bad-conduct discharge, confinement at hard labor for 9 months, and forfeiture of all pay and allowances. The United States Army Court of Military Review affirmed the findings and sentence as approved. This Court granted review to consider three assigned or specified issues. Because we believe the appellant’s challenge to the jurisdiction of the court-martial which convicted him has merit, we need not discuss the remaining assignments of error.1
The charges against the appellant initially were referred to trial by general court-martial via Court-Martial Convening Order Number 62, dated May 7, 1974. The court-martial personnel detailed in that order included a military judge, 10 officer members, a trial counsel, and a defense counsel. Subsequently, the appellant requested a trial by a court including enlisted membership. The case thereupon was withdrawn from this court and thereafter was referred to trial via Court-Martial Convening Order Number 73, dated June 3, 1974. The personnel of this court consisted of the same military judge, 6 of the officer members detailed to the first court, 5 enlisted members, and the same trial and defense counsel. For reasons to be revealed hereafter, the case again was withdrawn and was rereferred to trial by a general court-martial convened by Court-Martial Convening Order Number 85, dated June 7, 1974, which order detailed as personnel the same military judge, 5 different officer members, 5 different enlisted members and the same trial and defense counsel. It was this last order (Convening Order Number 85) which convened the court which ultimately convicted the appellant. Each of these orders was signed by CW2 Byron L. Bailey, the Acting Assistant Adjutant General, purportedly by Command of Major General Ott, the general court-martial convening authority.
Because the appellant’s counsel questioned an aspect of this procedure, the Government called as a witness Mr. Bailey, who had signed all three orders. His testimony is enlightening on the procedure generally utilized in that command for selecting and detailing court-martial personnel, as well as that employed in selecting the particular court-martial which is to try any given case, such as the appellant’s.
Mr. Bailey testified that one of his duties as administrative officer is to be an acting Assistant Adjutant General and, in that capacity, to “refer cases to court-martial.” Mr. Bailey revealed that it was he who was responsible for referral of cases to court-martial, noting that he “assign[ed] different cases to different courts.” Expounding upon the procedure he normally utilized in referring cases to courts, Mr. Bailey stated:
We have two panels of jurors. The names are selected by the Adjutant General and forwarded through this office to the Commanding General where he makes his selection of court members. [99]*99Those names are then given to me broken down into two panels of jurors and orders are published with different combinations of trial and defense counsel assigned to each jury. When a case is directed to be tried by general court-martial by the CG, the case complete with the advice is brought to me and we determine from the Chief of Military Justice what trial and defense counsel will try a particular case. We then, in alternating order, refer the cases to the jury or to the court-martial on the particular order.
The above references to panels of jurors apparently mean officer jurors, for later, when asked about the procedure used when an accused requests enlisted membership on a court, Mr. Bailey responded:
We keep a list of enlisted men. When the general picks the jurors he picks officers and enlisted men. We usually don’t have many enlisted men on the list. Colonel Rogers was the senior member of one court and when his court was asked for enlisted men, we would go to our list and just pick out some enlisted men. It’s possible that they could have been sitting on either court.
Mr. Bailey indicated that these were the procedures followed in the appellant’s case. He confirmed that the reason for the withdrawal of the case from the court convened by Court-Martial Convening Order Number 62 and the rereferral to the one detailed in Court-Martial Convening Order Number 73 was that the appellant, after the initial referral, had requested that the court-martial which tried him include enlisted members.2 When queried about the change from the court created by Court-Martial Convening Order Number 73 to the one convened by Court-Martial Convening Order Number 85, Mr. Bailey stated that the normal 90-day term of court for the former court was ending. He said that, in fact, he had the new list of jurors from the convening authority at the very moment “[w]hen the clerk referred it [the appellant’s case] to the old court.” He disclosed that when he “found that she had referred it” to the old court, he “instructed her to rerefer it to the new court” because, in his opinion, it would “unduly harass” the jurors on the old court to expect them to try the appellant’s case. He acknowledged that he consulted with no one when he made the decision to rerefer the appellant’s case to the court convened by Court-Martial Convening Order Number 85, claiming that it was not necessary for him to contact anyone when he rereferred a case from one court to another.
Mr. Bailey’s testimony reveals that the convening authority selects both officer and enlisted personnel as jurors; that somebody — we shall presume the convening authority3 — divides the officers into [100]*100two panels of members, thereby creating two separate juries; that all the enlisted selectees, however, remain on a separate list; and that whenever an accused requests enlisted membership on one or the other of the officer courts to which his case has been referred, Mr. Bailey and his associates go to that list “and just pick out some enlisted men.” Indeed, as Mr. Bailey acknowledged, it is possible that any given enlisted selectee might be sitting as a member on either panel of officers. Thus, whenever an accused, like the appellant, requests enlisted personnel on the jury, the precise membership of the court is determined not by the convening authority, but by subordinate administrative personnel through the addition to the court panel selected and convened by the convening authority, of enlisted members of their choosing from the master list.
Mr. Bailey’s testimony indicates that the convening authority did not consciously cause the appellant’s case to be withdrawn from the courts convened either under orders 62 or 73. Paragraph 56a, Manual for Courts-Martial, United States, 1969 (Revised edition), advises that only the convening authority may effect the withdrawal of a case from a court to which he referred it. See United States v. Hardy, 4 M.J. 20 (C.M. A.1977).
In United States v. Allen, 5 U.S.C.M.A. 626, 18 C.M.R.
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Opinion of the Court
PERRY, Judge:
On June 26, 1974, the appellant was convicted by a general court-martial of wrongful distribution and possession of lysergic acid diethylamide (LSD) and wrongful possession of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a dishonorable discharge, confinement at hard labor for 16 months, and forfeiture of all pay and allowances. While the convening authority approved the findings, he reduced the sentence to a bad-conduct discharge, confinement at hard labor for 9 months, and forfeiture of all pay and allowances. The United States Army Court of Military Review affirmed the findings and sentence as approved. This Court granted review to consider three assigned or specified issues. Because we believe the appellant’s challenge to the jurisdiction of the court-martial which convicted him has merit, we need not discuss the remaining assignments of error.1
The charges against the appellant initially were referred to trial by general court-martial via Court-Martial Convening Order Number 62, dated May 7, 1974. The court-martial personnel detailed in that order included a military judge, 10 officer members, a trial counsel, and a defense counsel. Subsequently, the appellant requested a trial by a court including enlisted membership. The case thereupon was withdrawn from this court and thereafter was referred to trial via Court-Martial Convening Order Number 73, dated June 3, 1974. The personnel of this court consisted of the same military judge, 6 of the officer members detailed to the first court, 5 enlisted members, and the same trial and defense counsel. For reasons to be revealed hereafter, the case again was withdrawn and was rereferred to trial by a general court-martial convened by Court-Martial Convening Order Number 85, dated June 7, 1974, which order detailed as personnel the same military judge, 5 different officer members, 5 different enlisted members and the same trial and defense counsel. It was this last order (Convening Order Number 85) which convened the court which ultimately convicted the appellant. Each of these orders was signed by CW2 Byron L. Bailey, the Acting Assistant Adjutant General, purportedly by Command of Major General Ott, the general court-martial convening authority.
Because the appellant’s counsel questioned an aspect of this procedure, the Government called as a witness Mr. Bailey, who had signed all three orders. His testimony is enlightening on the procedure generally utilized in that command for selecting and detailing court-martial personnel, as well as that employed in selecting the particular court-martial which is to try any given case, such as the appellant’s.
Mr. Bailey testified that one of his duties as administrative officer is to be an acting Assistant Adjutant General and, in that capacity, to “refer cases to court-martial.” Mr. Bailey revealed that it was he who was responsible for referral of cases to court-martial, noting that he “assign[ed] different cases to different courts.” Expounding upon the procedure he normally utilized in referring cases to courts, Mr. Bailey stated:
We have two panels of jurors. The names are selected by the Adjutant General and forwarded through this office to the Commanding General where he makes his selection of court members. [99]*99Those names are then given to me broken down into two panels of jurors and orders are published with different combinations of trial and defense counsel assigned to each jury. When a case is directed to be tried by general court-martial by the CG, the case complete with the advice is brought to me and we determine from the Chief of Military Justice what trial and defense counsel will try a particular case. We then, in alternating order, refer the cases to the jury or to the court-martial on the particular order.
The above references to panels of jurors apparently mean officer jurors, for later, when asked about the procedure used when an accused requests enlisted membership on a court, Mr. Bailey responded:
We keep a list of enlisted men. When the general picks the jurors he picks officers and enlisted men. We usually don’t have many enlisted men on the list. Colonel Rogers was the senior member of one court and when his court was asked for enlisted men, we would go to our list and just pick out some enlisted men. It’s possible that they could have been sitting on either court.
Mr. Bailey indicated that these were the procedures followed in the appellant’s case. He confirmed that the reason for the withdrawal of the case from the court convened by Court-Martial Convening Order Number 62 and the rereferral to the one detailed in Court-Martial Convening Order Number 73 was that the appellant, after the initial referral, had requested that the court-martial which tried him include enlisted members.2 When queried about the change from the court created by Court-Martial Convening Order Number 73 to the one convened by Court-Martial Convening Order Number 85, Mr. Bailey stated that the normal 90-day term of court for the former court was ending. He said that, in fact, he had the new list of jurors from the convening authority at the very moment “[w]hen the clerk referred it [the appellant’s case] to the old court.” He disclosed that when he “found that she had referred it” to the old court, he “instructed her to rerefer it to the new court” because, in his opinion, it would “unduly harass” the jurors on the old court to expect them to try the appellant’s case. He acknowledged that he consulted with no one when he made the decision to rerefer the appellant’s case to the court convened by Court-Martial Convening Order Number 85, claiming that it was not necessary for him to contact anyone when he rereferred a case from one court to another.
Mr. Bailey’s testimony reveals that the convening authority selects both officer and enlisted personnel as jurors; that somebody — we shall presume the convening authority3 — divides the officers into [100]*100two panels of members, thereby creating two separate juries; that all the enlisted selectees, however, remain on a separate list; and that whenever an accused requests enlisted membership on one or the other of the officer courts to which his case has been referred, Mr. Bailey and his associates go to that list “and just pick out some enlisted men.” Indeed, as Mr. Bailey acknowledged, it is possible that any given enlisted selectee might be sitting as a member on either panel of officers. Thus, whenever an accused, like the appellant, requests enlisted personnel on the jury, the precise membership of the court is determined not by the convening authority, but by subordinate administrative personnel through the addition to the court panel selected and convened by the convening authority, of enlisted members of their choosing from the master list.
Mr. Bailey’s testimony indicates that the convening authority did not consciously cause the appellant’s case to be withdrawn from the courts convened either under orders 62 or 73. Paragraph 56a, Manual for Courts-Martial, United States, 1969 (Revised edition), advises that only the convening authority may effect the withdrawal of a case from a court to which he referred it. See United States v. Hardy, 4 M.J. 20 (C.M. A.1977).
In United States v. Allen, 5 U.S.C.M.A. 626, 18 C.M.R. 250 (1955), this Court was presented a record which implied a situation in the reverse of the one involved here. There, the convening authority, while personally selecting the court membership in the form of a large panel, apparently delegated to subordinate administrative personnel the authority to excuse many of those members without regard to factual availability, in what Judge Brosman called an “irregular scheme” involving “wholesale absences.” Id. at 638, 18 C.M.R. at 262. Judge Brosman went on to record his opinion that if in fact the convening authority had delegated this function, then “it is genuinely doubtful that his action would have accorded fully with the Congressional intendment that a convening authority must choose the basic composition of courts-martial assembled under his aegis." Id. at 639, 18 C.M.R. at 263 (emphasis added). Chief Judge Quinn, concurring in the result with Judge Brosman, likened the power to excuse to the power to select and found that, as both had the effect of controlling the membership of the court, the convening authority personally must exercise this authority under Article 29 of the UCMJ. Even Judge Latimer, in dissent, recognized that the convening authority cannot delegate the power to select the membership of a court-martial; he simply disagreed with his brothers as to whether this maxim extended to the power to excuse. Thus, a unanimous Court in Allen was of the view that the convening authority himself must select the composition of any court-martial appointed by his authority.
It consistently has been construed that a designated convening authority’s power to appoint a court-martial is one accompanying the position of command and may not be delegated4 (with the express [101]*101Congressional exception of Article 140, authorizing the President of the United States to delegate any of his powers or responsibilities under the Code, one of which is convening a general court-martial under Article 22(a)(1), UCMJ). See United States v. Cunningham, 21 U.S.C.M.A. 144, 44 C.M.R. 198 (1971). As court members are, unless properly waived, an indispensable jurisdictional element of a general court-martial, see United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972); Wright v. United States, 2 M.J. 9 (C.M.A.1976), if the convening authority cannot delegate the power to appoint a court-martial, then the convening authority cannot delegate the power to appoint, or detail the court members, for the members, together with the judge, are the court-martial.
Hence the failure of the convening authority to have determined personally the composition of the court in the order under which the appellant was tried is error.
Remaining for discussion is a consideration of the legal effect of this error of omission. The Government suggests that the appellant was not prejudiced by the procedure followed, since he ultimately elected to be tried by military judge alone. Article 16(1)(B), UCMJ, 10 U.S.C. § 816(1)(B). But we believe the proper inquiry is whether the jurisdiction of the court survived the defect in the appointment of the members so as to have permitted the judge to proceed alone. We think not.
A court-martial is a creature of an order promulgated by an authorized commander (see Article 22(a), UCMJ; 10 U.S.C. § 822(a)) which convenes, or creates, the court-martial entity. Without such an order, there is no court. If follows that if there is a fundamental defect in that order, the very document itself is negated and no court exists.
Article 16 of the Code provides that a general court-martial may consist, alternatively, of a military judge and not less than five members (Article 16(1)(A)), or of a military judge alone (Article 16(1)(B)), assuming certain specific procedural requisites are met. By the language of the statute itself, these types of general courts-martial are distinct and on equal footing, one with the other.
In the instant case, Court-Martial Convening Order Number 85, under which the appellant purportedly was tried, convened a court-martial consisting of a military judge and a list of members.5 While the literal language of Article 16(1)(B) would appear to permit a convening order creating a court consisting only of a judge (which could proceed to try the accused only if the procedural necessities stipulated in the statute were met), the fact is that Order # 85 did not do so; rather, quite clearly, the court created by this order consisted of judge and jury, under Article 16(1)(A). As a fundamental defect existed in the order creating this court — specifically, as to the jury — there was no court at all. Accordingly, reversal is compelled.
[102]*102The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. Another trial may be ordered.
JUDGE COOK CONCURS.