United States v. Stafford

25 M.J. 609, 1987 CMR LEXIS 744

• Court: U.S. Army Court of Military Review
• Decided: November 6, 1987
• Docket: No. ACMR 8700415
• Status: Published

Opinion

OPINION OF THE COURT

De GIULIO, Senior Judge:

Appellant was tried by a military judge sitting as a special court-martial. Pursuant to his pleas, he was found guilty of absence without leave and wrongful appropriation. He was sentenced to a bad-conduct discharge, confinement for four months, and forfeiture of $438.00 pay per month for four months. The convening authority approved the sentence.

Appellant alleges that the court-martial was without jurisdiction to try him because the convening authority did not properly ratify a panel selected by another convening authority. We hold that the court-martial had jurisdiction to try appellant.

In a document entitled “Advice on Disposition of Court-Martial Charges,” the staff judge advocate recommended trial by special court-martial empowered to adjudge a bad-conduct discharge. Because the panel members selected to hear cases during this time period had a companion case tried before them, the staff judge advocate also recommended that alternate panel members be detailed. He stated that the staff judge advocate’s office would prepare and execute appropriate documents and orders. The acting commander approved the recommendation. The panel members and alternates had been properly selected by the regular convening authority prior to appellant’s trial. Further, in resolving the issue before us, we will assume that the staff judge advocate’s office failed to prepare and execute the appropriate documents and orders since the record indicates that the charges and specifications were referred for trial to the court created by Court-Martial Convening Order Number 55. The latter convening order contains the names of the original panel members but not those of the alternates. Appellant, however, pursuant to his request, was tried by military judge alone.

We do not believe that this is a case of failure to ratify the selection of court members as alleged by appellant. It is true that failure of a convening authority to determine personally the composition of the court is fatal to court-martial jurisdiction. United States v. Newcomb, 5 M.J. 4 (C.M.A.1978). A court-martial is created by a convening order. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial (hereinafter R.C.M.) 504. If the order contains a fundamental defect, however, it is negated and no court exists. United States v. Ryan, 5 M.J. 97, 101 (C.M.A.1978). Jurisdiction does not survive a fundamental defect in an order appointing court members where trial is by judge alone. See Ryan, 5 M.J. at 101; United States v. England, 24 M.J. 816 (A.C.M.R.1987). Any convening authority may refer charges to a court-martial convened by that convening authority or his predecessor. United States v. Bianchi, 25 M.J. 557 (A.C.M.R.1987); R.C.M. 601(b).

In the case before us, the convening authority or his predecessor personally selected the composition of the court-martial to include alternate members. Hence, we find no fundamental defect in the order. The selection of members or composition of the court-martial did not require ratification. The officers selected as court members were not disqualified per se from hearing appellant’s case but were subject to challenge. We interpret the staff judge advocate’s advice as recognizing the problem and recommending that the alternate members be added to the court-martial order. Otherwise, he would have used the term “vice”, replace or other term of similar meaning. Thus, we find a mere irregularity in the referral of the charges and specifications. The staff judge advocate simply failed to prepare and execute the appropriate documents and orders in accordance with his advice and the acting convening authority’s instructions.¹ Accordingly, we hold that failure of the staff judge advocate to prepare and execute orders adding properly selected alternate members to the court-martial was a mere irregularity and did not deprive it of jurisdiction.

The assignments of error, to include the allegation of error personally raised by appellant, are without merit.

The findings of guilty and the sentence are affirmed.

Chief Judge HOLDAWAY and Judge CARMICHAEL concur.

1 . We believe this court could return the case to the convening authority for publication of a written order under the provisions of Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 505(b), which provides in part, “[a]n order changing the members of the court-martial, except one which excuses members without replacement, shall be reduced to writing before authentication of the record of trial.” Because we find that the acting convening authority's approval and the staff judge advocate's written recommendation sufficient to satisfy R.C.M. 505(b), we choose not to return the case. This is not an “eleventh hour affidavit” created to save an "otherwise sinking record.” See United States v. Perkinson, 16 M.J. 400, 402 (C.M.A.1983); United States v. Ware, 5 M.J. 24 (C.M.A.1978); but see United States v. Carey, 49 C.M.R. 605 (C.M.A.1975). We caution those responsible, however, to fully comply with R.C.M. 505(b).