United StateS v. Ware

5 M.J. 24, 1978 CMA LEXIS 11682

• Court: United States Court of Military Appeals
• Decided: May 8, 1978
• Docket: No. 33,182; NCM 75-2733
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

This special court-martial¹ was convened on January 27, 1975, by Lieutenant Colonel Rader, the Commanding Officer of the Headquarters and Maintenance Squadron-16, Detachment Marine Aircraft Group-16, 3d Marine Aircraft Wing located at Camp Pendleton, California. At an initial Article 39(a), 10 U.S.C. § 839(a) session during the trial held approximately one month subsequent to the convening order, the trial counsel announced a modification to it, replacing the original military judge. The oral modification was to be supplemented by a written memorandum. A document purporting to do this was signed by one Lieutenant Colonel Huebner, Commanding Officer of the Marine Light Helicopter Squadron-267, Detachment Marine Aircraft Group-16, 3d Marine Aircraft Wing, at Camp Pendleton. This discrepancy remained unnoticed until raised by Appellate Defense Counsel before the United States Navy Court of Military Review. The government, in attempting to cure the error, produced an affidavit from Colonel Rader asserting that his oral modification had not been reduced to writing. We allowed a grant of review to determine if the court-martial had jurisdiction to proceed absent a signed modification to the convening order executed by the proper authority. This question we are compelled to answer in the negative.

In its terse disposition of the issue we are now examining, the United States Navy Court of Military Review opined simply that “[t]he defect in the record noted in the first assignment has been corrected by an affidavit of the convening authority.” This is an insufficient treatment of yet another jurisdictional problem caused as a direct result of apparently indifferent discharge of the simplest and most basic administrative duty of those responsible for the military court-martial, i. e., properly prepared convening orders and attendant modifications. While in United States v. Carey, 23 U.S.C.M.A. 315, 49 C.M.R. 605 (1975), we allowed a convening authority’s affidavit to save an otherwise “sinking record,” Judge Cook, speaking for the Court, observed: “Yet this characterization depicts a deplorable situation that in other circumstances may not be tolerated.” Id., at 316, 49 C.M.R. at 606. In this circumstance we are disinclined to endow with a presumption of regularity a stale order (if this eleventh hour affidavit is to be so viewed) written fourteen months after the apparent previous oral appointment. Absent the affidavit, which we will not allow as a demonstration that this court-martial was properly constituted, the record is devoid of a proper written order modifying the original convening order. Following United States v. Carey, supra, the decision of the United States Navy Court of Military Review is reversed. In the interest of judicial economy the charges are ordered dismissed.

1 . The appellant was tried by military judge sitting as a special court-martial convened by the Commanding Officer, Headquarters and Maintenance Squadron-16, Detachment Marine Aircraft Group-16, 3d Marine Aircraft Wing, on February 24, 1975 at the Marine Corps Base, Camp Pendleton, California. In accordance with his pleas he was found not guilty of a violation of Article 86, Uniform Code of Military Justice; contrary to his pleas, he was found guilty of violations of Articles 91 and 134, Uniform Code of Military Justice, for disrespectful language toward a superior non-commissioned officer and for communicating a threat, respectively. The military judge sentenced him to be reduced to pay grade E-l, forfeiture of $175 per month for three months, confinement at hard labor for three months, and a bad-conduct discharge. Although the military judge recommended suspension of the discharge and part of the confinement, the sentence was approved by the convening and supervisory authorities. On July 29, 1976, the United States Navy Court of Military Review approved the findings and sentence.