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).
2002
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).
2000
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).