United States v. Private E1 ERIC C. FUNK ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ERIC C. FUNK
United States Army, Appellant
ARMY 20110191
Headquarters, Fort Drum
Andrew Glass, Military Judge
Major Joseph A. Fedorko, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Robert L. Manley, III, Staff Judge Advocate (recommendation)
Major Scott E. Hutmacher, Acting Staff Judge Advocate (addendum)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Stephen E. Latino,
JA; Captain Bradley M. Endicott, JA (on brief).
15 January 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave and wrongful use of marijuana, in
violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C.
§§ 886, 912a (2006) [hereinafter UCMJ]. The military judge sentenced appellant to
a bad-conduct discharge and confinement for four months. Pursuant to a pretrial
agreement, the convening authority approved a bad-conduct discharge and
confinement for three months. Appellant was credited with seven days confinement
credit against his sentence to confinement. Appellant’s case is now before this court
for review pursuant to Article 66, UCMJ.
This case concerns the authority of a commander to refer a case to a court-
martial convened by another commander. Appellant’s sole assignment of error
FUNK—ARMY 20110191
alleges that his case was improperly referred because the convening authority
referred this case to a court-martial convened for a separate unit. However, we find
that the court-martial was in fact convened by a predecessor in command of the
convening authority’s unit and therefore appellant’s claim lacks merit.
BACKGROUND
On 16 September 2010, Major General (MG) Terry issued Court-Martial
Convening Order Number (CMCO#) 7, Headquarters, 10th Mountain Division (Light
Infantry) and Fort Drum, New York (as corrected). At the time, MG Terry was the
commander of two distinct units, the 10th Mountain Division (Light Infantry) and
the Fort Drum installation. On 22 September 2010, Brigadier General (BG) Miller
succeeded MG Terry as the commander of Fort Drum but not as the commander of
the 10th Mountain Division (Light Infantry).
On 24 February 2011, BG Miller referred appellant’s case to CMCO #7, and
on 10 March 2011, appellant was tried before a military judge alone. Trial counsel
noted the court was “convened by Court-Martial Convening Order Number 7, as
correct [sic], Headquarters, Fort Drum, New York, dated 16 September 2010, copies
of which have been furnished to the military judge, counsel, and the accused, and
which will be inserted . . . in the record.” At no point during the proceedings or
during the post-trial processing of his case did appellant complain about the
constitution, composition, or jurisdiction of his court-martial, raising his
jurisdictional challenge for the first time on appeal.
As for CMCO #7 itself, the letterhead states, in part, “Headquarters, 10th
Mountain Division (Light Infantry) and Fort Drum” (emphasis added). The order
identifies, by rank, name, and unit of assignment, a ten member officer panel and a
ten member enlisted panel, the latter composed of five officer members and five
enlisted members. Of the fifteen 1 named members, four were assigned to units
belonging to the Fort Drum installation—two were assigned to the United States
Army Garrison (USAG), one to the Medical Department Activity Command
(MEDDAC), and one to the Dental Activity (DENTAC). Immediately following the
names of the officer and enlisted members, the order contains the following courts-
martial transfer language:
Effective date of this order is 1 October 2010. As of that date, all
cases referred to special court-martial convened by Court-Martial
Convening Order Number 2 (as corrected), Headquarters, Fort
Drum, dated 17 February 2010, in which the court has not yet
1
CMCO #7 names fifteen as opposed to twenty individuals because five of the
officers detailed as members for the officer panel are also detailed to the enlisted
panel.
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FUNK—ARMY 20110191
assembled, will be brought to trial before the special court-martial
panel hereby convened.
LAW AND DISCUSSION
First, we note that both MG Terry and BG Miller possessed the authority to
convene general and special courts-martial. At the time MG Terry issued CMCO #7,
he possessed the authority to convene courts-martial not only in his capacity as
commander of the 10th Mountain Division (Light Infantry), but also in his capacity
as the commander of Fort Drum. UCMJ art. 22(a)(5), (8); UCMJ art. 23(a)(1), (2);
Headquarters, Dep’t of the Army, Gen. Order No. 7 (12 Aug. 2004). As for BG
Miller, when he assumed command of Fort Drum, he possessed the concomitant
authority to convene general and special courts-martial.
Nevertheless, appellant contends that BG Miller lacked authority to refer
appellant’s case to CMCO #7 because MG Terry issued CMCO #7 in his capacity
solely as the commander of the 10th Mountain Division (Light Infantry), whereas
BG Miller only assumed command of Fort Drum. Appellant argues that the
letterhead of CMCO #7, coupled with its failure to designate CMCO #7 as one
published pursuant to secretarial authority, proves that MG Terry was acting solely
pursuant to his authority as the division commander. However, CMCO #7’s
letterhead, which lists both 10th Mountain Division (Light Infantry) and Fort Drum,
does not lend support to appellant’s position. Major General Terry’s dual authorities
to convene courts-martial, both as the commander of a division and as the
commander of a fort, were separate and distinct. In other words, there is no joint
authority to convene general or special courts-martial as a commander of the “10th
Mountain Division (Light Infantry) and Fort Drum.” United States v. Greenlee,
ARMY 20100115, 2011 WL 2638744, at *1–2 (Army Ct. Crim. App. 30 June 2011)
(summ. disp.). Thus, the question remains as to whether CMCO #7 was issued
pursuant to MG Terry’s authority as the division commander, as may be indicated by
its failure to indicate a secretarial designation, or pursuant to MG Terry’s authority
as the Fort Drum commander.
Ultimately, we conclude that CMCO #7 was issued pursuant to MG Terry’s
authority as the Fort Drum commander. Although, appellant is correct that the Rules
for Courts-Martial [hereinafter R.C.M.] require a convening order to state whether it
is issued pursuant to a secretarial designation, R.C.M. 504(d)(1), any such failure is
not a jurisdictional defect. United States v. Allgood, 41 M.J. 492, 495 (C.A.A.F.
1995); Greenlee, 2011 WL 2638744, at *1–2. Furthermore, we are convinced by
other components of the order itself, that CMCO #7 is in fact a Fort Drum convening
order. First, CMCO #7 details both divisional and non-divisional personnel to the
court. Specifically, it details two USAG members, one MEDDAC member, and one
DENTAC member, all of whom were assigned to Fort Drum and over whom 10th
Mountain Division (Light Infantry) possessed no authority. Additionally, the order
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FUNK—ARMY 20110191
transfers previously referred Fort Drum special courts-martial to the court convened
in the newly published order. If CMCO #7 was a divisional order, as appellant
argues, this language would be a nullity. 2 Therefore, we conclude that CMCO #7 is
a convening order for the Fort Drum installation.
As MG Terry’s successor in command of Fort Drum, BG Miller possessed the
authority to refer charges to a court-martial convened by CMCO #7. R.C.M. 601(b);
Allgood, 41 M.J. at 495; United States v. Ghilchrist, 61 M.J. 785, 788 (Army Ct.
Crim. App. 2005). However, a successor in command must still personally select the
members detailed to the court or adopt those selected by a predecessor in command.
UCMJ art. 25(d)(2); Allgood, 41 M.J. at 496. “Absent evidence to the contrary,
adoption can be presumed from the convening authority’s action in sending the
charges to a court-martial whose members were selected by a predecessor in
command.” Gilchrist, 61 M.J. at 788. See also United States v. Moschella, 43
C.M.R. 383, 386 (C.M.A. 1971) (presumption of regularity applied to convening
order where the government announced at trial, without challenge, the name of the
commander and command); United States v. Griffin, 32 C.M.R. 213, 214 (C.M.A.
1962) (court refuses to find jurisdiction lacking absent evidence contradicting the
presumption of regularity). In appellant’s case, the pretrial advice specifically
referenced referral to “trial by Court-Martial Convening Order Number 7, as
corrected, dated 16 September 2010,” and BG Miller’s referral memorandum
referred appellant’s case to trial by CMCO #7. Accordingly, we presume that BG
Miller adopted the panel selected by MG Terry when he referred appellant’s case to
a court-martial convened by CMCO #7.
CONCLUSION
On consideration of the entire record, we find appellant’s arguments to be
without merit. We hold the findings of guilty and the sentence as approved by the
convening authority correct in law and fact. Accordingly, the findings of guilty and
the sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
2
Charges referred to a court-martial convened by one General Court-Martial
Convening Authority (GCMCA) cannot be transferred to a court-martial convened by
a separate and distinct GCMCA, unless the charges are first withdrawn, or the trial
is complete and action is impracticable. See R.C.M. 601(f), 604, 1107(a).
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