Convene What?

Convene what?

Convene What?

Convene What?

1.militarydefenselawyers214 All SPCMs are “empowered to adjudge a Bad-Conduct Discharge.United States v. Scott, 59 M.J. 718 (A. Ct. Crim. App. 2004). Case referred to a special court-martial.
GCMCA, following SJA’s advice, signed a document referring case to SPCM empowered to adjudge a BCD. However, the instructions on the charge sheet did not include the words “empowered to adjudge a bad-conduct discharge.” Based on discussion following RCM 601(e)(1), court determines that additional words in convening authority’s referral or on the charge sheet are “surplusage.” “We hold that all Army SPCMs are empowered to adjudge a BCD unless the convening authority expressly states that a particular SPCM is not so empowered. The convening authority should expressly state such a limitation in the referral signed by the convening authority, in special instructions on the charge sheet, or in both.”

2. SPCMCA refers capital offense. United States v. Henderson, 59 M.J. 350 (C.A.A.F.
2004). SPCMCA referred alleged violation of Article 110(a), UCMJ UCMJ (2015) (willfully hazarding
a vessel, a nonmandatory capital offense). Article 19, UCMJ provides that a SPCMCA
can refer only noncapital offenses but can refer nonmandatory capital offenses as
noncapital “under such regulations as the President may prescribe.” The President, in
RCM 201(f)(2)(c), authorizes a SPCMCA to refer a nonmandatory capital offense only
with the permission of the GCMCA. That permission was neither sought nor granted in
this case. The CAAF held the referral was jurisdictional error. The CAAF rejected three
Government arguments: first, that the so-called “evolution” in the law applicable to
jurisdictional defects does not extend to this situation; second, that the PTA in the case
was a functional equivalent of a referral of a noncapital offense; and third, that the
referral of the nonmandatory capital offense was also an implicit referral of the
noncapital lesser-included offense. Findings and sentence set aside. But see Executive
Order 13387, effective 14 November 2005, amending RCM 201(f)(1)(A)(iii)(b) to read
that a special instruction is needed that the case is to be tried capital to adjudge a death
sentence.