United States v. Alexander, 61 M.J. 266 (in plain language, both the Art. 25(c)(1), UCMJ and RCM 903(b)(2) require that an accused personally elect to be tried by a panel including enlisted members, either orally on the trial record or in writing).
(depending on the facts of a particular case, the failure to comply with the provisions of Article 25(c) may be nonjurisdictional and tested for prejudice under Article 59(a)).
(the failure to obtain an accused’s enlisted forum selection through an explicit oral or written election on the record constitutes error; however, when the record provides evidence that an accused personally requested enlisted members, the failure to record the members selection as prescribed by Article 25 amounts to a procedural error, subject to prejudice review).
(in this case, where (1) the military judge presented the accused with his forum options on the record; (2) the accused acknowledged his options and deferred election; (3) the military judge subsequently stated on the record that an election had been made for a panel including enlisted members, without comment or correction by counsel or the accused; and (4) the accused proceeded through voir dire and trial with a panel of one-third enlisted members, without objection, the record reflects that the accused chose trial by members with one-third enlisted members; as a result, this Court finds that the error in failing to obtain the accused’s enlisted forum selection through an explicit oral or written election on the record is a procedural error and not jurisdictional, and it concludes that the accused did not suffer material prejudice to a substantial right).
United States v. Morgan, 57 MJ 119 (where the record established that the selection of an enlisted forum was appellant’s choice and there were many opportunities to voice an objection to having enlisted members on the panel, the failure to get appellant’s request on the record was a procedural error, not a jurisdictional defect).
(although the military judge failed to obtain appellant’s personal election of trial with enlisted members, there was substantial compliance with Article 25, UCMJ, where: (1) four officers and five noncommissioned officers were empanelled in the presence of the appellant to hear the case; (2) after challenges, the remaining three officers and five enlisted members heard this fully contested case, including the appellant’s testimony; (3) at no time during the trial did the appellant object to trial with enlisted members; (4) appellant did not object to the composition of his court-martial in either his post-trial submissions or his initial appellate pleadings; and (5) there was no allegation that the appellant lacked the competence to make a knowing and intelligent election or that he was coerced).
United States v. Townes, 52 MJ 275 (the military judge erred in not obtaining on the record the accused’s personal request for trial by enlisted members; however, on this record, there was substantial compliance with Article 25, UCMJ, and the error was not materially prejudicial to the accused).(although the military judge erred in not obtaining on the record the accused’s personal request for trial by enlisted members, there was substantial compliance with Article 25, UCMJ, and the record as a whole makes clear that the elections was the accused’s choice, where: (1) the accused was advised of his rights concerning the forum; (2) in the accused’s presence, defense counsel informed the military judge that the defense elected trial by officer and enlisted members; (3) officer and enlisted members were impaneled and subject to lengthy voir dire in the accused’s presence; (4) the members were sworn and the trial continued for 10 days in the accused’s presence; (5) the accused testified for an entire day before the members; and, (6) there was no allegation of coercion or that the accused was incompetent to make a knowing and intelligent decision).