MILITARY JUSTICE PERSONNEL: Convening Authority: Referral

2023 (October Term)

United States v. Wheeler, 85 M.J. 70 (Article 16, UCMJ, allows a convening authority to refer a case to a special court-martial consisting of a military judge alone; neither a bad-conduct discharge, nor confinement for more than six months, nor forfeiture of pay for more than six months may be adjudged at such a court-martial; RCM 201(f)(2)(E) bars military judge-alone special court-martial jurisdiction if the accused objects before arraignment and the military judge determines that (1) the maximum authorized confinement would be greater than two years if the case was tried by a general court-martial (with certain exceptions) or (2) sex offender registration would be required).

(the delegation of authority to determine whether a case shall be referred to a forum that limits the maximum sentence that may be adjudged is a proper exercise of Congress's power to delegate the authority to make policies and rules that implement its statutes).

(the President acted within his delegated authority to prescribe rules narrowing the category of cases that may be referred to a military judge-alone special court-martial and limiting the punishments that can be adjudged in that forum).

(the discretion to refer charges to an unrefusable military judge-alone special court-martial was appropriately vested in the convening authority, subject to the limitations prescribed by Articles 16 and 19 and RCM 201(f)(2)(B)(ii) and 201(f)(2)(E)(i)).

(in this case, appellant had no Fifth Amendment due process right to a trial before a panel of members where the military judge-alone special court-martial forum limited the maximum confinement that could be adjudged to six months and precluded a punitive discharge; in addition, the convening authority's forum selection in accordance with Articles 16 and 19, UCMJ, and RCM 201 did not violate due process the case where the referral was consistent with the limitations imposed by Congress with the additional limitations imposed by the President; although appellant could not elect trial by a panel of members, the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, or forfeitures of pay for more than six months; and furthermore, the maximum authorized confinement for the offense charged was not greater than two years if the case was tried by a GCM and sex offender registration was not required).

2008 (September Term)

United States v. Ashby, 68 M.J. 108 (RCM 306(b) provides that allegations of offenses should be disposed of at the lowest appropriate level of disposition; however, under RCM 306 and RCM 407, a convening authority exercising general court-martial jurisdiction has wide discretion to choose among a variety of options in disposing of a charge, including referring a charge to a general court-martial).

 

(convening authority’s decision to refer obstruction of justice charges to a general court-martial, rather than a lesser forum, after appellant was acquitted of the original charges, was not an abuse of his discretion, where the obstruction charges were initially referred before appellant was acquitted on the original charges, appellant was a commissioned officer, and the charges involved obstruction of justice relating to an exhaustive investigation into the deaths of 20 people and extensive damage to military property). 


1999

United States v. Underwood, 50 MJ 271 (withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial did not clearly thwart military judge’s ruling denying government motion for a continuance where:  (1) new trial date was four months after that requested in government’s motion for continuance; (2) reinvestigation and re-referral were not matters addressed by the military judge’s ruling denying the continuance; and (3) military judge stated that his ruling did not preclude the new preferral and burdensome procedural course of action selected by the convening authority to bring the charges to trial again).

(withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function).

(withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena).

(appellant was not substantially prejudiced by withdrawal and re-referral of charges where:  (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay).

United States v. Haagenson, 52 MJ 34 (convening authority or superior competent authority may withdraw charges from a court-martial at any time before findings are announced, and such charges may be re-referred to another court-martial unless the withdrawal was for in improper reason;  RCM 604(a), (b), and Discussion thereto).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site