MILITARY JUSTICE PERSONNEL: Convening Authority: Generally

2022 (October Term)

United States v. Jeter, 84 M.J. 68 (a convening authority is not required to be race-ignorant; he or she is only required to be race-neutral).

(a convening authority may not draw up a members panel pursuant to the neutral criteria of Article 25, UCMJ, only to have discriminated at other stages of the process).

2021 (October Term)

United States v. Tate, 82 M.J. 291 (if a military judge fails to cure a substantial omission in the record of trial and a nonverbatim transcript results, RCM 1103(f) (2016 ed) is triggered and the remedy lies within the sole discretion of the convening authority; if, because of loss of recording or notes, or other reasons, a verbatim transcript cannot be prepared when required by 1103(b)(2)(B), a record which meets the requirements of (b)(2)(C) of this rule shall be prepared and the convening authority may: (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).

2020 (October Term)

United States v. Chandler, 80 M.J. 425 (RCM 705(a) authorizes an accused and the convening authority to enter into a pretrial agreement, and the parties may condition the pretrial agreement on a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered). 

(where a reasonable stipulation of fact is an explicit term of a PTA between the accused and the convening authority, the content of that stipulation directly concerns the SJA in his role as legal advisor to the convening authority, and convening authorities acting upon the advice of their s\SJAs may very well determine a pretrial agreement should not be entered into because the stipulation offered by the accused is not reasonable). 

2019 (October Term)

United States v. Bergdahl, 80 M.J. 230 (there is no requirement that a convening authority adopt the recommendations of an Article 32, UCMJ, preliminary hearing officer).

United States v. Reyes, 80 M.J. 218 (it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes). 

United States v. Bess, 80 M.J. 1 (in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety).   

(Article 25(d)(2), UCMJ, provides in relevant part that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise). 

(the convening authority may consider race in detailing members if that consideration serves deliberately to include qualified persons, rather than to exclude members based on race; the word “may” does not equate to “must”).

(if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim).    

(even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority). 

2017 (October Term)

United States v. Barry, 78 M.J. 70 (a successor convening authority should be guided by the original convening authority’s intent). 

United States v. Riesbeck, 77 M.J. 154 (Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial).

(in the military justice system, the commanding officer, who refers charges to a court-martial that he or she has convened, selects the members and details them to it). 

(a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race).

(in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population).

(the actual ignorance of the convening authority does not insulate him or her from the errors or misconduct of his or her subordinates; where, in this case, the first three convening authorities intentionally and improperly selected a high percentage of women to the court-martial panel, the apparent ignorance of the final convening authority of the number of women present on the panel did not purge the error from the panel selection process, particularly where he was neither aware that the recommendations given to him were not based on Article 25, UCMJ, nor independently cognizant of what Article 25, UCMJ, required). 

(against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony). 

2016 (October Term)

United States v. Carter, 76 M.J. 293 (in a case subject to review under Article 66, UCMJ, a convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused of that action; at that point, the only further contact that the convening authority has with the case occurs in the event of a remand or the exercise of his clemency powers). 

(even when acting on remand, a convening authority may still only take action that conforms to the limitations and conditions prescribed by the remand). 

(in this case, where the CCA set aside the findings and sentence, dismissed the charge and its specifications, and returned the record to the JAG for remand to an appropriate convening authority, the convening authority was only authorized to issue a final order effectuating the dismissal of the charge and specifications, and he exceeded the scope of the CCA’s remand when he referred appellant’s case to an “other” trial under RCM 1107(e)(2) following the CCA’s remand; the CCA’s remand did not purport to confer upon the convening authority all the powers that a convening authority would have possessed on the initial appellate review of the case pursuant to Article 60, UCMJ; because the CCA did not authorize a rehearing, the convening authority was without power to order one, and the convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order). 

2014 (September Term)

United States v. Sullivan, 74 M.J. 448 (in a general court-martial of an 0-6 appellant for wrongful use of cocaine, although the convening authority’s categorical exclusion of flag officers from the member pool violated Article 25, UCMJ, there was no appearance of an unfair panel, where (1) appellant was provided with a venire of fellow senior captains who were fully qualified to sit on a court-martial panel, (2) there was no basis to conclude that the convening authority selected the members on any factors other than their age, education, training, experience, length of service, and judicial temperament, (3) the record provided no indication that these panel members failed to fully, carefully, and appropriately consider appellant’s case in arriving at a verdict and sentence, and (4) the convening authority’s motivation in excluding flag officers from this case was not to stack the panel against appellant, but rather the convening authority relied on his experience in concluding that the flag officers would not be available to actually sit on the panel and hear the case).

(in a general court-martial of an 0-6 appellant for wrongful use of cocaine, the government met its burden of establishing that the categorical exclusion of flag officers from the venire panel was harmless, where (1) the convening authority’s motivation in excluding the flag officers was based on his belief that they would be unavailable to actually serve on the court-martial, (2) the selected members, all of whom were captains, met the Article 25, UCMJ, criteria, and (3) the members’ actions in the case demonstrated that they were fair and unbiased - the members stated that they would be impartial during voir dire; they were active participants throughout the trial who posed unbiased questions during the course of the trial; they deliberated over the course of three days before rendering a verdict, which included an acquittal of one charge; and they imposed a lenient sentence). 

United States v. Woods, 74 M.J. 238 (in the military justice system, panel members are chosen by the same individual, the convening authority, who decides whether to bring criminal charges forward to trial). 

(under the UCMJ, the convening authority is charged to select members who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament).    

2013 (September Term)

United States v. Davenport, 73 M.J. 373 (when a verbatim transcript cannot be prepared, the plain language of RCM 1103(f) provides that there are only two remedial options available to the convening authority; under that rule, the convening authority may (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved, or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).

2010 (September Term)

United States v. Lofton, 69 M.J. 386 (the convening authority may direct a post-trial hearing at any time before taking initial action). 

(a convening authority is not compelled to grant a post-trial hearing based merely on unsworn, unsubstantiated assertions). 

United States v. Gooch, 69 M.J. 353 (from among officers eligible to serve on a court-martial panel, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament). 

(although the convening authority must personally select the court-martial members, he or she may rely on staff and subordinate commanders to compile a list of eligible members). 


(however well-intentioned, the convening authority’s staff cannot exclude an entire class of eligible members based on mere possibilities; however, the staff need not include all eligible members or those with obvious conflicts).

2009 (September Term)

United States v. Nerad, 69 M.J. 138 (while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority).


(granting mercy for any reason or no reason is within the purview of the convening authority).


(decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA). 

2008 (September Term)

United States v. Smead, 68 M.J. 44 (an agreement in a PTA for a convening authority to withdraw and dismiss certain charges with prejudice upon announcement of sentence is not a legal nullity; the power of a convening authority to dismiss withdrawn charges with prejudice is consistent with the powers granted to convening authorities by Congress and the President in the final disposition of charges; for example, a convening authority may: (1) direct action resulting in a finding of not guilty by entering into a PTA providing that the prosecution will present no evidence on a charge under RCM 705(b)(2)(D); (2) grant transactional immunity under RCM 704 that precludes trial by court-martial of an immunized offense; and (3) disapprove any finding by a court-martial and substitute either a lesser included offense or a finding of not guilty under Article 60(c)(3), UCMJ). 


(RCM 705(d)(4)(B) permits a convening authority to withdraw from a PTA if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review; the rule establishes a two-part test in which the decision of the appellate court must: (1) set aside findings; and (2) do so because the plea was improvident). 


(at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank).  

United States v. Wiechmann, 67 M.J. 456 (although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship; the responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in RCM 505(d)(2)(B)). 


(because a military judge is not appointed to conduct proceedings until charges are referred to a court-martial, the military justice system does not have standing courts at the trial level to address legal issues at the pre-referral stage; the convening authority exercises responsibility for pretrial matters that would otherwise be litigated before a judge in civilian proceedings, including issues involving the conduct of depositions, issuance of protective orders, availability of government-funded experts, mental responsibility proceedings, and questions concerning the validity of charges). 


(pretrial agreements implicate distinctive responsibilities of the convening authority with respect to court-martial proceedings; in the military justice system, responsibility for the function of determining sentencing is shared by the court-martial and the convening authority; as an incident of the responsibility for sentencing, the convening authority may enter into a pretrial agreement that imposes a legal limitation on the scope of the sentence). 


(a convening authority may not interfere with or impede an attorney-client relationship established between an accused and detailed defense counsel). 


(a the convening authority exercises significant pretrial responsibilities in the military’s criminal justice system; the responsibility for detailing defense counsel, however, is not one of the duties assigned to the convening authority by law; although the UCMJ, as originally enacted, authorized the convening authority to detail counsel, Congress amended the statute in 1983 to provide that the responsibility for detailing counsel would be exercised by persons authorized to do so under departmental regulations; the regulations at issue in the present case vested the responsibility for detailing counsel in various department-level officers, not in the convening authority).  


(the convening authority erred by declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations; in so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of his counsel’s initial detail, and these actions violated appellant’s rights under Article 27, UCMJ). 


(the convening authority’s action in declining to recognize appellant’s detailed counsel during the pretrial proceedings and initial pretrial agreements negotiations burdened counsel’s representation of appellant in several respects:  (1) the Article 32 proceeding was conducted without a full opportunity for counsel to prepare and participate; (2) counsel was excluded from pretrial disposition negotiations that the government conducted with a second, but less experienced defense counsel; (3) counsel was unable to represent appellant in pretrial procedural matters, such as in a scheduling conference or by requesting a continuance; under these circumstances, the government’s actions infringed appellant’s right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge). 


(the convening authority’s error in declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings did not amount to structural error, where appellant had the services of a second, recognized, and qualified detailed counsel throughout the proceedings, where appellant had the benefit of his previously unrecognized counsel’s unrestricted assistance during subsequent pretrial agreement negotiations, completion of the agreement, entry of pleas, and other trial and post-trial proceedings, and where appellant’s plea agreement, completed with the assistance of that counsel, expressly waived any defects in the Article 32 proceeding). 

2008 (Transition)

United States v. Adams, 66 M.J. 255 (administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ).

(the convening authority’s failure to transfer members named in previous special convening orders to the final special order convening appellant’s court-martial was administrative error, rather than jurisdictional error, that did not materially prejudice the substantial rights of appellant, where none of the members who participated in the court-martial was an interloper, where each member was selected by the convening authority to consider the charges against appellant, where there was no evidence that the convening authority excused any of the members who sat on appellant’s court-martial, where there was also no evidence that the convening authority withdrew the charges in order to refer them to a new court-martial, and more important, where the record reflects that the members named in final special order were selected to bring the court-martial up to quorum and were not selected to serve as a separately constituted court-martial). 



United States v. Canchola, 64 M.J. 245 (where operational requirements affect post-trial processing delays, staff judge advocates and convening authorities should ensure that those reasons are documented in the record of trial).


United States v. Harvey, 64 M.J. 13 (there is no rule that the convening authority cannot attend a court-martial; but the presence of the convening authority at a court-martial may raise issues). 


United States v. Harvey, 64 M.J. 13 (before attending a court-martial, a convening authority should give prudent and careful consideration as to the impact one’s presence could have on both the proceedings and the perception of fairness of the court-martial; a convening authority is encouraged to initiate a dialogue with both the command staff judge advocate and the trial counsel before entering a courtroom; discussing this matter with these lawyers would permit them to advise the convening authority of both general and case specific issues that may be raised by the convening authority’s presence at the court-martial; it would also afford the trial counsel the opportunity to advise both the military judge and the trial defense counsel of the presence of the convening authority in advance, so that the matter can be discussed with the military judge and any issues litigated before the convening authority is present in court before the panel members).



United States v. Dowty, 60 MJ 163 (actual appointment of fair and impartial members is the duty and responsibility of the convening authority; a convening authority’s power to appoint a court-martial is one accompanying the position of command and may not be delegated; it is blackletter law that the convening authority must personally select the court-martial members).


(the convening authority, while charged with the personal responsibility for the selection of court members, must have assistance in the preparation of a panel from which to choose those members; in order to carry out his function under Article 25, he must necessarily rely on his staff or subordinate commanders for the compilation of some eligible names).


(the military judge’s finding of fact that the convening authority personally selected the court-martial panel was not clearly erroneous where the convening authority stated that he selected the panel members based on the member questionnaires, did not review the list of nominations submitted by his staff until after he had selected the panel, and personally signed the selection sheet and convening order modification).

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