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).
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).