Richard E. Brown, on Behalf of Himself and All Others Similarly Situated v. United States of America, Richard E. Brown and David l.taylor , 508 F.2d 618 ( 1975 )

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is a class action brought by individuals who were convicted by special courts-martial that were convened by officers in the United States Navy and Marine Corps under what the United States Court of Military Appeals subsequently held was an improper conferral of convening authority by the Secretary of the Navy under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). United States v. Greenwell, 19 U.S.C. M.A. 460 (1970). The plaintiffs claim that the Greenwell decision renders their convictions void and they seek to have their military records corrected accordingly. They also seek to recover the forfeiture of pay and allowances adjudged at their courts-martial as well as other damages.

The determinative question in this appeal is whether the decision of the United States Court of Military Appeals in Greenwell should be given prospective or retrospective application.¹ If that case is given retrospective effect, the plaintiffs have what appears to be a good cause of action. On the other hand, if it is limited to prospective application only, a good cause of action is not stated.

This issue was presented to the district court by way of cross motions for summary judgment and that court ruled that Greenwell should only be given prospective application. As a result, the defendants’ motion was granted and the plaintiffs filed this appeal. We have concluded that the district court’s decision was correct and accordingly affirm.

In Greenwell, the special court-martial that convicted and sentenced the defendant was convened by the Commanding Officer, Student Company, Marine Corps Base, Camp Pendleton, California. That commander had gained the authority to convene special courts-martial when the Commanding General of Camp Pendle-ton designated Student Company a “separate and detached command for disciplinary purposes.” Under the language of section 0103b(5), Manual of the Judge Advocate General, Department of the Navy, this designation automatically conferred convening authority upon the commanding officer of the unit so designated. That section read as follows:

“b. Special courts-martial. In addition to those officers otherwise authorized [to convene special courts-martial] by article 23(a)(1) through (6), UCMJ, [10 U.S.C. § 823(a)(l)-(6) (1970)] the following officers are, under the authority granted to the Secretary of the Navy by article 23(a)(7), UCMJ, empowered to convene special courts-martial:

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“(5) All commanding officers and officers in charge of commands now or hereafter designated as separate or detached commands by a flag or general officer in command. . . . ”

In Greenwell, the United States Court of Military Appeals decided that conferral of special court-martial convening authority by the method set forth in section 0103b(6), JAG Manual, was illegal. The court began its discussion by noting that that section was explicitly designed to grant convening authority solely pursuant to the Secretary of the Navy’s statutory authority under Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970). It then observed that under Article 23(a)(7) only commanding officers who are “empowered by the Secretary concerned” can convene special courts-martial, and interpreted this language to mean that the granting of convening authority under 23(a)(7) could only be effective if that power was personally conferred by the Secretary himself.²

Under this view of the statute, the conferral of convening authority upon the Commanding Officer of Student Company under the procedure set forth in section 0103b(5), JAG Manual, became suspect since he did not receive his authority directly from the Secretary. Instead, the Secretary conferred convening authority upon the commanding officers of all commands designated as “separate or detached” by a flag or general officer in command. It was only when the Commanding General at Camp Pendle-ton conferred that designation on Student Company that the Secretary’s authority was, in turn, conveyed to its commanding officer.

The court felt that under this two-step procedure, the Secretary had, in effect, delegated his power to grant convening authority under Article 23(a)(7) to the general officers that designated units as “separate or detached.” As a result, the court concluded that conferral of that power on the Commanding Officer of Student Company was invalid and that courts-martial convened by commanders operating under authority conveyed by the two-step procedure set out in section 0103b(5), JAG Manual, were void.

The appellants, in the present case, present two arguments to support their claim that this decision in Greenwell has retroactive effect. Their first claim is that the parties to this case have already litigated the issue before the United States Court of Military Appeals and that that court ruled that Greenwell was retroactive. Thus, they contend that the appellees are barred from relitigating the issue under the doctrine of collateral estoppel. Their second claim is that Greenwell is retroactive in any case under the relevant judicial tests.

I.

The appellants’ collateral estoppel claim rests upon the decision of the Court of Military Appeals in Ferry v. United States, 22 U.S.C.M.A. 339 (1973). In that case, the government, by certificate of the Judge Advocate General of the Navy, initiated an appeal to the highest military court in a case involving a member of the plaintiff class. The defendant Ferry had been convicted of a crime and at the trial’s sentence proceedings the government had sought to have a prior conviction introduced. This request was denied because the prior conviction was rendered by a special court martial convened by a commander who had received his convening authority under the procedure subsequently ruled improper in Greenwell.

The government, in its appeal in Ferry, contended that this prior conviction was not in any way affected by Green-well because it had been completed before the Greenwell decision was handed down. Thus, the question certified to the Court of Military Appeals read as follows:

“Does the decision of the United States Court of Military Appeals in United States v. Greenwell, 19 USC-MA 460, 2 CMR 42 (1970), have retroactive application, so as to render Prosecution Exhibit 3 (the record of conviction by a 1969 special court-martial convened pursuant to the JAG Manual provision found to be legally ineffective in Greenwell) inadmissible in evidence?”

We agree with the appellant when he suggests that the retroactivity issue presented in the instant case was also squarely presented to the court in Ferry. However, this fact alone does not make collateral estoppel operative since that doctrine only precludes “the relitigation of issues actually decided in former judicial proceedings.” Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974) (emphasis added); accord, Blonder Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 323, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1182 (3d Cir. 1972).

In Ferry, the actual decision of the court did not reach the question certified to the court. Instead, Judge Quinn, writing the opinion of the court, framed his decision as follows:

“Whatever effect Greenwell may have on a conviction in other situations, we have no doubt that a conviction invalid under Greenwell cannot be used to increase the sentence for a later offense. . . . ” 22 U.S.C.M.A. at 340.

Thus, he specifically limited his holding to the facts presented in that case and refrained from deciding the broad question presented by the litigants.

Since Chief Judge Darden’s concurring opinion indicates an intent to follow Judge Quinn’s decision on this issue,³ we conclude that the majority of the court in Ferry did not reach the question of Green weFs overall retroactivity. As a result, the Ferry decision does not bind us on that issue and we are free to decide it in this litigation.^3a

II.

When we look to the merits of the retroactivity issue, we are faced at the outset with a threshold requirement that must be met before a limitation on the retroactivity effect of a decision can even be considered. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court indicated that,

“. the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed. . ” Id. at 106, 92 S.Ct. at 355.

Appellant contends that this threshold requirement is not met. We cannot agree. While no past precedent was overruled by Greenwell, we feel the case did decide “an issue of first impression whose resolution was not clearly foreshadowed” so that it falls within the second part of the test laid out in Chevron OH.

The only case we are referred to that arguably touched on the issue in Green-well before that case was decided is United States v. Ortiz, 15 U.S.C.M.A. 505 (1965), petition for reconsideration denied, 16 U.S.C.M.A. 127 (1966). In that case, as in Greenwell, the legality of the conveyance of special court-martial convening authority to a company commander under section 0103b(5), JAG Manual, was under review. However, at the time of the Ortiz decision, section 0103b(5), JAG Manual, was written in a way that made it unclear whether that section conferred the special court-martial convening authority enumerated in Article 23(a)(6), UCMJ, or the authority enumerated in Article 23(a)(7).⁴ Thus, in Ortiz the court first concluded that section 0103b(5), JAG Manual, only conferred the convening authority that is outlined in Article 23(a)(6) and only then went on to hold that the procedure outlined in that section was improper.

By first interpreting section 0103b(5), JAG Manual, in this way, the court was able to limit itself to a single statutory question; that is, the validity of section 0103b(5), JAG Manual, as a conveyance of Article 23(a)(6) authority. By the time the Greenwell case arose, however, section 0103b(5), JAG Manual, had been re-written so that the section no longer conferred Article 23(a)(6) convening authority and instead unequivocally conferred the convening authority enumerated in Article 23(a)(7). As a result, the court in that case had to decide the issue that the Ortiz court avoided: the validity of section 0103b(5), JAG Manual, as a conveyance of Article 23(a)(7) convening authority. Thus, the issue decided in Ortiz was entirely distinct from the issue decided in Greenwell and the Greenwell decision involved an issue of “first impression” within the meaning of the Chevron Oil case.

Moreover, we cannot conclude that the Greenwell decision was “clearly foreshadowed” by the decision in Ortiz. Indeed, the court in Ortiz closed its opinion denying the government’s petition for reconsideration with the following statement:

“In summary, as we said before, we have no reservations about the broad powers of the Secretary'of the Navy under Code, supra, Article 23(a)(7), to empower commanding officers, such as that of the 2d Bridge Company, to convene special courts-martial. In the regulations before us, he has not done so. In consequence, we adhere to our original opinion and reaffirm our previous decision in the case.” 16 U.S.C. M.A. at 131.

Thus, the decision in Ortiz did not clearly foreshadow the narrow reading of Article 23(a)(7) announced in Greenwell. On the contrary, it specifically affirmed the Secretary’s “broad” power under that Article.⁵

As a result, we believe that the Green-well decision fits the second part of the Chevron Oil test. It decided “an issue of first impression whose resolution was not clearly foreshadowed.” 404 U.S. at 106, 92 S.Ct. at 355. We conclude therefore that it is a decision that can properly be considered for prospective application under the relevant judicial criteria.

The next question that must be resolved is precisely what criteria should be used in order to decide whether Greenwell is to be given prospective or retroactive effect. The government assumes that the relevant criteria are those set out in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The appellants, however, strongly suggest that the rule set out in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) and United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971) must be applied.

In Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the dissenting opinion of Justice Marshall summarized the decisions relied upon by the appellants in the following way:

“Robinson involved the retroactive application of the decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that the Fifth Amendment’s guarantee, made applicable to the States through the Fourteenth Amendment, that no person should be put twice in jeopardy for the same offense barred an individual’s prosecution for a single offense by both a State and a municipality of the State, that is, a legal subdivision of the State. United States Coin & Currency held retroactive the Court’s prior determination that the Fifth Amendment privilege against compulsory self-incrimination barred the prosecution of gamblers for failure to register and to report illegal gambling proceeds for tax purposes, see Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso, the Court rejected contentions that it should apply the three-prong test employed in cases such as Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)], Desist [v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969)], and De-Stefano [v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968)]. In United States Coin & Currency, Mr. Justice Harlan, speaking for the Court explained:

‘Unlike some of our earlier retroac-tivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the factfinding process at trial. Linklet-ter v. Walker, 381 U.S. 618 [, 85 S.Ct. 1731, 14 L.Ed.2d 601] (1965); Tehan v. Shott, 382 U.S. 406 [, 86 S.Ct. 459, 15 L.Ed.2d 453] (1966); Johnson v. New Jersey, 384 U.S. 719 [, 86 S.Ct. 1772, 16 L.Ed.2d 882] (1966) ; Stovall v. Denno, 388 U.S. 293 [, 87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967) . Rather Marchetti and Gros-so dealt with the kind ’ of conduct that cannot constitutionally be punished in the first instance.’ 401 U.S., at 723, 91 S.Ct., at 1045.

“The Robinson Court adopted essentially the same view of the Waller decision concerning the Double Jeopardy Clause and multiple prosecutions by different legal subdivisions of a single sovereign. See 409 U.S., at 508, 93 S.Ct., at 878. In this case, too, we are concerned, not with ‘the implementation of a procedural rule,’ but with an unavoidable constitutional impediment to the prosecution of particular conduct.” Id. at 700-701, 93 S.Ct. at 2946.

Appellants contend that the instant case presents an analogous situation because the Greenwell decision involved a question of jurisdiction. Thus, they conclude that the decision must be given retroactive application. Appellants summarize this position in the following way:

“Likewise, where as here the court lacked jurisdiction or power to proceed, the question of the reliability of its fact-finding processes does not even arise. Inquiry must stop at the threshold question whether the court had the power to engage in fact-finding processes at all.” Brief of Appellants at 24.

This argument has much to recommend it, and, in fact, resulted in a 4-A split amongst the Justices of the Supreme Court in Gosa. However, in this Circuit, the issue is not one of first impression. In McSparran v. Weist, 402 F.2d 867 (1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), Judge Freedman, speaking for the Third Circuit sitting en banc, held that a decision limiting federal diversity jurisdiction should be given prospective application only. In so holding the court stated the following:

“It is true that we deal here with a jurisdictional question. But the notion that ‘jurisdiction’ is a subject of some magical quality so that a decision against jurisdiction prevents according recognition to other relevant considerations must yield to the knowledge that it is our construction of the statute which determines in the present case whether jurisdiction exists or is absent.” Id. at 877.

We feel that this holding effectively precludes us from ignoring the criteria that are normally weighed in determining whether a decision should be given prospective or retroactive effect.

Appellants, however, assert (in effect) that this holding was overruled by the Supreme Court in Gosa. They reach this conclusion by adopting the following assessment of the plurality opinion in Gosa:

“Mr. Justice Blackmun’s plurality opinion, by its efforts to establish that O’Callahan v. Parker, 395 U.S. 258 [, 89 S.Ct. 1683, 23 L.Ed.2d 291] (1969), was not a decision dealing with jurisdiction in its classic form, implicitly acknowledges that if O’Callahan were in fact concerned with the adjudicatory power — that is, the jurisdictional competency — of military tribunals, its holding would necessarily be fully retroactive in effect Gosa, 413 U.S. at 693-694, 93 S.Ct. at 2943 (Marshall, J., dissenting) (citation omitted).

We cannot accept this interpretation of the plurality opinion. While it did discuss the procedural rights that were effected by the O’Callahan decision, it never denied the fact that that decision spoke to a jurisdictional issue. Thus, since there has been no determinative ruling by the Supreme Court on this question, we are bound by McSparran. As a result, we must look beyond the jurisdictional nature of Greenwell and decide the prospectivity question according to the criteria set out in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See United States v. Zirpolo, 450 F.2d 424, 432 (3 Cir. 1971).⁶

In Stovall v. Denno the Court stated that the criteria guiding a decision on retroactivity are: “(a) the purpose to be served by the new standards; (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” 388 U.S. at 297, 87 S.Ct. at 1970. However, the most important of these three criteria is the first one. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). As this court stated in United States v. Zirpolo, supra,

“[generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively.” 450 F.2d at 432.

As a result, we begin by focusing on the purpose to be served by the rule announced in Greenwell, and asking whether it serves to enhance the reliability of the fact-finding or truth-determining process.

In Greenwell, the United States Court of Military Appeals was only concerned with the procedures used to confer convening authority upon certain commanding officers. Its purpose was never to bar these commanders from acquiring the right to convene special courts-martial because of any basic unfairness. Moreover, the Greenwell rule did not limit the Secretary’s discretionary power in this area in any way; his power to confer convening authority was as great after the decision as it was before it. All that changed was the manner in which he could exercise this discretion.⁷

Thus, the same courts-martial under the same convening authority and with the same trial procedures that took place under the old rule could have also occurred under the new rule announced in Greenwell We conclude therefore that the Greenwell decision was only designed to conform the procedure used to confer convening authority to the literal requirements of the statute and that it was not intended to improve the fact-finding procedures employed at the court-martial itself.^7a As a result, the purpose of the new standard announced in Greenwell cuts in favor of prospectivity.⁸

When we turn to the other two criteria listed in Stovall v. Denno, supra, our belief that Greenwell should be given prospective effect only is further reenforced. There can be little doubt that there was significant reliance by the “law enforcement authorities” upon the pre-Greenwell interpretation of Article 23(a)(7). That interpretation provided one of the statutory bases for the promulgation of section 0103b(5), JAG Manual,⁹ and was that section’s sole statutory basis from 1966 to 1970.

In addition, we feel that the retroactive application of the Greenwell rule would have clear adverse effects upon the administration of justice. The defendants convicted by courts-martial convened by commanders who received their authority under the rule invalidated in Greenwell fall into two categories. The first category includes those defendants who are no longer in the service and those who remain in the service but who committed an offense upon which the statute of limitations has run. Since none of these defendants can be retried, invalidation of their pre-Greenwell convictions would have an obvious negative effect on the administration of justice. See United States v. Zirpolo, supra, 450 F.2d at 433.

The second category includes all defendants that can be retried. For this group the more common effects on the administration of justice would come into play and would be accentuated by the military context that surrounds each of the offenses charged. As the appellee notes:

“The evidence would now be stale and witnesses unavailable in many cases, and the burden of conducting retrials, requiring substantial dislocation of Navy and Marine Corps personnel from their regular duties, would create ‘serious, adverse effects’ on the military justice system and the service generally. . Brief of Appel-lee at 55.

Thus, when the Stovall v. Denno criteria are considered the conclusion we reach is that Greenwell should only be given prospective effect. We therefore will affirm the district court’s order granting summary judgment to the defendants.

III.

Before we end our opinion, we must finally deal with two issues raised by appellants concerning the district court’s final definition of the plaintiff class.¹⁰ Their first claim is that the court erred in limiting the class to persons tried under section 0103b(5), JAG Manual between October 29, 1965 and May 28, 1970.

As we understand the district court, its intent in so limiting the class was to restrict it to those individuals who were convicted by courts-martial convened by commanders given convening authority under 0103b(5) when that section was, in fact, conferring this authority pursuant to Article 23(a)(7), UCMJ. We feel that such an order was within the discretion of the district court, see Katz v. Carte Blanche Corp., 496 F.2d 747, 757 (3d Cir. 1974), and should be affirmed.

However, we note that this class probably does not include all persons tried by special courts-martial convened pursuant to section 0103b(5), JAG Manual, from October 29, 1965 — i. e., from the date of the decision of the United States Court of Military Appeals in United States v. Ortiz, supra. It is true that it was as a direct result of the Ortiz decision that section 0103b(5), JAG Manual, was amended so that it effectively conferred convening authority pursuant to Article 23(a)(7). Nonetheless, we assume that there was some time lag between the Ortiz decision and the effective date of the amendment to section 0103b(5), JAG Manual, that was made in response to it. Thus, we will remand the case to the district court so that its order defining the class can be altered to reflect what appears to be its true intent.

The appellants’ second class action claim is that the district court erred when it refused to permit class treatment of their back pay claims under the Tucker Act. We have reviewed the district court’s reasoning on this point and have doubts as to whether its decision on the question was correct. See opinion of the district court, 365 F.Supp. 328, 337 (1973).

However, the effect of its decision was only to narrow the remedies available to the plaintiff class, if victorious. It did not result in any relevant narrowing of the underlying cause of action. As a result, since the plaintiff is not victorious under our decision in any event, our review of this issue would serve no useful purpose. Accordingly, we reach no final judgment on the validity of the district court’s decision on this matter.

The case will be remanded so that the district court can reconsider its order defining the plaintiff class. In all other respects, the judgment of the district court will be affirmed.

1 . The appellees do raise two preliminary objections which, if meritorious, would lead to dismissal of the appeal without a decision on the retroactivity issue. However, we do not feel that either has merit. These claims are: 1) that Article 76, UCMJ, 10 U.S.C. § 876 (1970), bars any collateral attack on a court-martial conviction except through a writ of habeas corpus; and 2) that the entire action is barred under the doctrine of res judicata.

The first contention was exhaustively discussed by the district court and we reject the claim based on its decision. Opinion of the district court, 365 F.Supp. 328, 332-336 (1973). The second claim is without merit and will be rejected without further discussion.

Finally, we should note the appellees’ contention that the district court erred in finding that it had mandamus jurisdiction. Since the government concedes that there is Tucker Act jurisdiction, Brief of Appellee at 24, we must reach the merits of the appeal in any case. As a result, since we ultimately reject the plaintiffs’ underlying cause of action, there is no need to finally decide whether mandamus jurisdiction exists since a decision on this question would do no more than expand or narrow the remedies available to the plaintiffs if they prevailed on the merits.

2 . Article 23(a)(7), UCMJ, 10 U.S.C. § 823(a)(7) (1970), reads as follows:

“(a) Special courts-martial may be convened by—

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“(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.”

3 . Chief Judge Darden’s discussion of this issue reads as follows:

“I concur in Judge Quinn’s determination that the retroactivity of our decision in United States v. Greenwell . . . prohibits the use of a conviction that it invalidates to enhance the punishment of the accused in a subsequent trial.”

3a . It may well be, as appellant suggests, that a decision cannot be retroactive for a single purpose without being retroactive for all purposes. See Reply Brief of appellants at 9. However, the court in Ferry apparently felt that they could order retroactivity for a particular purpose only. Thus, even if this assumption was incorrect, the fact that it was made means that that court did not decide the broad issue of retroactivity that is before us in this case.

4 . These sections read as follows:

“(a) Special courts-martial may be convened by—

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(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.”

5 . The appellants also contend that the Green-well decision was “clearly foreshadowed” by a letter of the Secretary of the Navy written on September 21, 1942. Appendix to Brief of Appellee at 7c-8c. The letter states that the Secretary cannot delegate his power to designate convening authorities-to others.

However, in Greenwell the question was not whether the Secretary could delegate his authority. The only issue was whether the two-step process set out in section 0103b(5), JAG Manual, did, in fact, constitute a delegation. Thus, we cannot accept the suggestion that the Secretary’s letter clearly foreshadowed the decision in Greenwell.

6 . We note that even if we were not bound by our decision in McSparran, we could not simply apply the reasoning of Robinson v. Neil, supra, and United States v. United States Coin & Currency, supra, to the facts of this case. In each of those cases, the new rule of law being tested for prospective application had the effect of ending the defendants’ criminal liability. The rule in Marchetti and Gros-so barred the prosecution of gamblers for failure to register and report illegal gambling proceeds for tax purposes, and the decision in Waller barred the prosecution of any defendant by a State when that defendant had already been tried and convicted by a subdivision of that State for the same act.

In this case, however, the facts are different. The defendants whose convictions would be invalidated under the Greenwell rule are still theoretically liable for their criminal act. The Greenwell decision only dealt with which court could try the offense and never suggested that the offense could not be tried at all. Thus, the decisions in Robinson v. Neil, supra, and United States v. United States Coin & Currency, supra, appear to be distinguishable.

7 . Under the old procedure the Secretary simply granted convening authority to all commands that were designated “separate or detached” by a general or flag officer in command. Under the new procedure the general officer must go through the added step of submitting the name of the commander of the separate or detached command to the Secretary for official approval.

7a . The dissent misreads our discussion on the purpose of Greenwell as a suggestion that “the defect corrected in Greenwell is too ‘technical’ to constitute a jurisdictional error.” (Dissenting opinion p. 643, n. 4). It is clear that Greenwell dealt with a jurisdictional issue (supra p. 624).

In determining that an improperly convened military court is without jurisdiction, Greenwell’s purpose was to conform the procedure used in conferring convening authority to the requirements of the statute. Our discussion of the purpose to be served by the new rule in Greenwell deals with the first requirement of Stovall. It does not imply that Greenwell dealt with non-jurisdictional, “technical” errors.

8 . We are aware that it might be argued that the Article 23(a)(7) statutory requirements are themselves designed to enhance the reliability of the truth-determining process and that the court was implementing this Congressional intent in Greenwell. If this is true, then the purpose of the new rule would be to enhance the truth-determining process in the ways that concerned Congress when it passed Article 23(a)(7).

Appellants, in essence, make this argument when they contend that the purpose of Article 23(a)(7) was to prevent the Secretary from losing control of his power to confer convening authority. They suggest that this loss of control was considered detrimental because it would result in a conferral of convening authority on the smallest units in the chain of command and that this would undermine the court-martial process in the following ways: 1) it would deprive the accused of the exercise of prosecutorial discretion by a mature and detached commander; 2) it would increase the risk of command influence; and 3) it would undercut the principle of civilian control of the military.

We do not find this argument persuasive for several reasons. First, we are not referred to any legislative history that suggests that Congress passed Article 23(a)(7) for the reasons outlined by the appellants (nor have we been able to find any ourselves). It might be true that the purpose of Article 23(a)(7) was to prevent the conferral of convening authority upon small units and it might also be true that this was feared for the reasons suggested by the plaintiffs. However, we are cited to nothing that establishes these as facts.

Second, even if we accept plaintiffs’ speculation on the purposes for Article 23(a)(7), we note that a procedure that provides civilian checks on the military, and seeks to control prosecutorial discretion is not designed to increase the reliability of the truth-determining process. We feel this is self-evident with the former objective. With regard to the latter, we observe that the decision to prosecute only decides who is subject to the truth-determining procedures and in no way affects those procedures themselves.

As a result, plaintiffs’ theory of the purposes behind Article 23(a)(7) cannot promote their position on retroactivity unless they are correct in suggesting that Congress wanted to keep convening authority from the smallest units because in these units the possibility of command influence was greatest. However, this hypothesis is undercut by the plaintiffs’ own suggestion that there are two other plausible purposes that might underly this legislative goal. Further, it is also undercut by the language of Article 23(a)(7) itself since that section does not bar the conferral of convening authority upon small units but instead only requires specific designation by the Secretary. In our view, if Congress was truly motivated by the desire to eliminate the increased “command influence” that is presumably inherent in the exercise of convening authority by the commanders of small units, they would have simply barred its exercise by commanders below a certain level. This was not done by Article 23(a)(7). In fact, that section actually facilitated the exercise of convening authority by these commanders by making that authority available to all commanders at the discretion of the Secretary.

In view of all of these considerations, we cannot accept this argument.

9 . The United States Court of Military Appeals ruled in Ortiz, supra, that the Secretary of the Navy had been unsuccessful in his attempt to invoke Article 23(a)(7) as a statutory basis for section 0103b(5), JAG Manual. However, this ruling in no way negates the fact that the Secretary relied, in part, on that Article when he first promulgated section 0103b(5), JAG Manual.

10 . We note that the definition of the class remains relevant since this action will only be res judicata with regard to those individuals who are class members. We also note that appellees raise their own claims regarding the propriety of the class. However, since they never filed an appeal, these questions are not properly before us.