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).
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. Ballan, 71 M.J. 28 (action by the convening authority showing an intent to refer a particular charge to trial is sufficient to satisfy the jurisdictional requirement of the Rules for Court-Martial).
(each charge before the court-martial must be referred to it by competent authority; referral is defined as the order of a convening authority that charges against an accused will be tried by a specified court-martial).
(although the referral order is a jurisdictional prerequisite, the form of the order is not jurisdictional).
(where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order).
(major changes or amendments to charges or specifications may not be made over the objection of an accused unless the charge or specification affected is preferred anew; in this case, changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, a major change; however, appellant not only did not object to the change, he proposed the change in his pretrial agreement, explained to the military judge why he was guilty before the plea was accepted, and benefited from the amendment; appellant’s actions were the equivalent of agreeing to an amendment to the charge and specification, even though the charge sheet itself was not physically amended).
2001
United
States v. Williams, 55 MJ 302 (when a specific general
court-martial
convening authority retired and a superior general court-martial
convening
authority withdrew authority to convene general courts-martial from the
subordinate’s successor, the superior general court-martial convening
authority
thereafter acted as a successor convening authority and had ample
authority to
withdraw previously referred charges and re-refer them to a different
general
court-martial convening order).
(although it is preferable for a convening authority to indicate his
or her
intent expressly, it is reasonable to presume that re-referral of a
charge by a
proper convening authority implies a decision to withdraw that charge
from a
prior referral).