United States v. Allgood ( 1995 )

GIERKE, Judge,

with whom

CRAWFORD, Judge,

joins (concurring):

14. The first certified question raises two subsidiary issues: (1) Did the redesignation of the unit terminate the secretarial designation of the unit commander as a general court-martial convening authority; and (2) Did the redesignation terminate the existence of the unit?

15. I agree with the majority that the first subsidiary question need not be answered in this case. 41 MJ at 493 n. 2. Colonel Warner was a general court-martial convening authority in his own right by virtue of the secretarial grant of authority on October 23, 1992. See 37 MJ 960, 961 (ACMR 1993). This new secretarial designation preceded his referral of this case to a general court-martial on October 30. Even if the redesignation of the unit extinguished the commander’s authority to convene general courts-martial as of October 1, that authority was restored by the secretarial grant of authority on October 23, 1992.

16. The second subsidiary question is directly related to resolution of certified Issue II. If the unit ceased to exist upon redesignation and was replaced by the United States Army Garrison, Fort Dix, then Major General (MG) Herrling was not a predecessor in command. If the unit continued to exist under a new name, then MG Herrling was a predecessor in command under RCM 601(b), Manual for Courts-Martial, United States, 1984.

17. The fundamental flaw in the decision of the court below is its conclusion that the United States Army Training Center and Fort Dix was “discontinued.” 37 MJ at 962. In Army terminology, “redesignation” is a change of name. See Army Regulation 310-25, Military Publications: Dictionary of United States Army Terms 136 (21 May 1986). In this ease the unit was renamed, not discontinued, just as this Court and the Courts of Military Review were renamed on October 5, 1994, without being discontinued. See n. 1 of the Opinion of the Court. Since the unit continued to exist under a new name, MG Herrling was a predecessor in command.

18. Accordingly, I join the Chief Judge in holding that COL Warner had authority to refer this case to trial and that COL Warner’s adoption of the panel selected by MG Herrling complied with RCM 601(b).