Power to Convene

Overview of the power to convene:

militarydefenselawyers217Article 22, UCMJ (general courts-martial); Article 23, UCMJ (special courts-martial); and Article 24, UCMJ (UCMJ (2015)(summary courts-martial).

1. Designation by Service Secretary. United States v. Smith, 69 M.J. 613 (A. Ct. Crim. App. 2010). The Acting Commander, Fort Lewis, referred charges against the accused to court-martial. On appeal, the defense argued the commander was not designated as a court-martial convening authority by the Secretary of the Army (SECARMY) and did not
have jurisdiction to take action in this case. Based on the statutory authority and formal SECARMY designations, the ACCA concluded the court-martial was properly convened and had jurisdiction over the accused.

a. Interplay between Article 22 and Secretary designations. Under Article 22,
UCMJ, certain commanding officers are designated as General Court-Martial
Convening Authorities (GCMCAs), including commanders of an “Army Corps.”
Article 22 does not give statutory authorization for an installation commander to
serve as a GCMCA, though it does allow for the applicable Service Secretary to
designate other commanders as GCMCAs.

b. SECARMY orders. In 1981, the SECARMY issued two General Orders
designating GCMCAs. In Gen. Order No. 10 (dated 9 April 1981), the
Commander, “Fort Lewis” was designated a GCMCA; in Gen. Order No. 27
(dated 13 November 1981) the “Commander, I Corps and Fort Lewis” was
designated a GCMCA. In reviewing these orders, the ACCA noted the
SECARMY merely took action to “designate” GCMCAs, without replacing or
otherwise affecting prior orders. Hence, the two orders designated the
installation commander as a GCMCA while also designating the “combined”
positions of “Commander, I Corps and Fort Lewis” as a GCMCA.

2. Referral by GCMCA for accused in another jurisdiction. United States v. Jones, 60
M.J. 917 (N-M. Ct. Crim. App. 2005). After allegations of an improper relationship with
a midshipman at the Naval Academy, accused was reassigned. The new GCMCA
preferred fraternization charges which the military judge dismissed for failure to state an
offense. The Naval Academy SJA, on behalf of the old GCMCA, requested the new
GCMCA refer charges anew based on additional misconduct. After further investigation,
the new GCMCA did not re-refer charges but stated he would make the accused available
if the old GCMCA desired to refer charges. The old GCMCA referred charges which the
military judge dismissed without prejudice based on an improper referral. The N-MCCA
held “a command other than the one to which the accused is attached may refer charges
against the accused to a court-martial” (citing RCM 601(b)).

3. United States v. Hardy, 60 M.J. 620 (A.F. Ct. Crim. App. 2004). Between referral
and the convening authority’s (CA) action on the case, the Secretary of the Air Force
issued an order which arguable revoked the CA’s authority to convene courts-martial.
AFCCA held, although the order was inartfully drafted, it did not revoke the CA’s
authority and, additionally, the Secretary of the Air Force issued a clarifying order
proving his intent was to not revoke the CA’s power. AFCCA held, in the alternative,
even if the Secretary of the Air Force had intended to revoke the CA’s authority, the commander still had statutory authority to convene courts-martial under Article 22(a)(7) as a commander of an air force. “No administrative action is required to effect convening authority on a commander once he or she is placed in a command position at a numbered air force.”

4. United States v. Hundley, 56 M.J. 858 (N-M. Ct. Crim. App. 2002). Case upheld
because the battalion was designated as “separate” by the Secretary of the Navy and
therefore under Article 23(7), UCMJ, its commanding officer had authority to convene a
special court-martial

5. United States v. Brown, 57 M.J. 623 (N-M. Ct. Crim. App. 2002). Action taken to
approve the sentence by a different SPCMCA than the one who convened the accused’s
court-martial was error, because the action violated the terms of Article 60(c)(1), UCMJ,
and RCM 1107(a). The court rejected the Government’s argument that the accused
needed to demonstrate material prejudice to obtain relief. The clemency stage was an
accused’s best opportunity to obtain sentence relief, and the Government was required to
follow the statutory and regulatory scheme as written.