United States v. Specialist JOSHUA D. SMITH

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN, and GIFFORD
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JOSHUA D. SMITH
United States Army, Appellant
ARMY 2009075 8
Headquarters, Fort Lewis
Kwasi Hawks, Military Judge
Colonel Mitchell R. Chitwood, Staff Judge Advocate
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Captain Shay Stanford, JA; Captain Tiffany K. Dewell, JA (on brief).
For Appellee: Colonel Norman F.J. Allen 111, JA; Lieutenant Colonel Martha L.
Foss, JA; Major Lisa Gumbs, JA (on brief).
5 August 2010
GIFFORD, Judge:
A military judge Sitting as a general court—martial convicted appellant,
consistent with his pleas, of absence without leave (two specifications), failure to
repair, wrongful distribution of a controlled substance (three specifications), and
wrongful use of a controlled substance (six specifications), in violation of Articles
86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ and 886 and 912a,
[hereinafter UCMJ]. The convening authority. approved the adjudged sentence to
confinement for three—hundred and sixty-six (366) days and reduction to Private E1.
This case is beforethis court for review pursuant to Article 66, UCMJ [10 U.S.C.
866].
In his sole assignment of error, appellant queries:
WHETHER THE ACTING COMMANDER, FORT LEWIS,
HAS ANY UCMJ AUTHORITY DESIGNATED BY THE
SECRETARY OF THE ARMY, AND WHETHER HE
SMITH ~ ARMY 20090758
HAD JURISDICTION TO TAKE ACTION IN
APPELLANT'S CASE.
As discussed below, the record of trial establishes: 1) pursuant to Article 22,
UCMJ, [10 U.S.C. § 822] the Secretary of the Army appointed the Commander, Fort
Lewis, a general court—martial convening authority; and 2) at all times legally
relevant to appellant's case, Brigadier General (BG) Jeff W. Mathis, III, was serving
as the Acting Commander, Fort Lewis. As a result, we conclude BG Mathis had full
‘ authority under Article 22, UCMJ, to convene appellant's court—martial and retained
such authority throughout all actions legally relevant to appellant's case. There is no
jurisdictional error in the case.
I. BACKGROUND
The charge sheet reflects that on 26 June 2009, appellant's charges were
referred to trial by BG‘Jeff W. Mathis, III, pursuant to Court Martial Convening
Order (Corrected Copy) Number 6, dated 20 May 2009 [hereinafter CMCO No. 6].1
Brigadier General Mathis took final action in appellant's case on 8 January 2010.
Court Martial Conve-_ing Order (Corrected Copy) No. 6 referenced
Headquarters, Department of the Army General Order Number 10 (Gen. Order No.
10), 9 April 1981, as authority to convene general courts—martial.2 Rule for Courts-
Martial [hereinafter R.C.M.] 504(d)(2). See also Appendix 6, Manualfor Courts—
Martial, United States (2008 ed.) [hereinafter MCM, 2008]. In Gen. Order No. 10,
the Secretary of the Army designated "Commander, Fort Lewis" as a general court-
martial convening authority pursuant to Article 22(a)(6), UCMJ.
The record of trial includes assumption of command orders signed by BG
Mathis which are dated 23 March 2009. The record of trial also includes a
memorandum, dated 18 March 2009, and signed by Lieutenant General (LTG)
Charles Jacoby. In this memorandum, LTG Jacoby indicates he was temporarily
relinquishing command of Fort Lewis, Washington, to BG Mathis due to operational
necessity based on Operation Iraqi Freedom (OIF). Among other things, the
memorandum states that BG Mathis was the next senior regularly assigned officer
who would remain at Fort Lewis, Washington, while LTG Jacoby was deployed and
referenced Gen. Order No. 10, dated 9 April 1981.
1 Government'Appellate Exhibit 1.
2 Court-Martial Convening Order No. 6 (Corrected Copy) was issued by the
Commander, Fort Lewis. ' ’
APPENDIX B
GImEl'L-U. Owns l
:
N0. 10 I
(IE/VERA], (..‘()(/7€.7‘S—M.I1RTIAL: ’I
install!) tions an: desig
tioe, 2.2(n)_(§),$to convcnqgenerul c
‘hc Cmnmmidemof the
muted by me, pursuant.~ to the Uniform Coda of Military J 113:»
'00 '10
i-lEADQUAHTERS
DEPAR’I‘MENT OF THE A RMX
WASHINGTON; DC, .0 April [95']
followingtommnndrund
ogrtsmurtial effective LMay-l 98-1. ~
US Arm y Cor'nmunicuLions—Elcctronics'Command
Fort Bragg
Fort Campbell
Fort._Carson '
Fart Lewis
Fort; 0rd
Fort Polk
Fort Riley
' Fort Stew/art
Headquarters, Fort Huuuhucn
[DAJA~CL-]
DISTRIBUTION:
ActiuclArmn-y. AIWG, USAR: To be dis
12 —4 requiremenm f or Department; of Army General Drderfi.
r: ms.cov'anuern-mmmd omen: 2901-. 34': «tr-1:) m
V
John 0. Marsh, Jr.
SCCI'QtHW 0 f th 8 ‘Army
tribute-d in accgrdunce with DA Form
APPENDIX C
Overview of Select Department of the Army General Orders
Wherein the Secretary of the Army Used "Combined"
General Court-Martial Convening Authority Designations
General Court-Martial Convening Authority
Designation* T '
Headquarters,
Department of the
Army, General
Order Number
2010-03 -
1. Commander, US Army Maneuver Center of
Excellence and Fert Benning ‘ . 7
2. Commander, US Army Fires Center of Excellence
and Fort Sill
3. Commander, US Army Combined Army Support
Command and the Sustainment Center of
Excellence and Fort Lee _
4. Commander, US Army Maneuver Support Center
of Excellence and FortLeonard Wood ‘ '
5. Commander, US Army Basic Combat Training
Center of Exeellence and Fort Jackson I
6. Commander, US Army Aviation Center of
Excellence and Fort Rucker _
7. Commander, US Army signal Center of
Excellence and Fort Gordon
8. Commander, US Army Intelligence Center of
Excellence and Fort Huachuca
30 March 2000 1. Commander, US Army Medical Department
_— Center and School and Fort SamHouston v
. 1. ' Commander, 3d Infantr Division and Fort Stewart
15 - 1. Commander, US Army Combined Arms
_ ‘ Command and Fort Leavenworth .
19 ' 1 December 1990 1. Commander, US Army Forces Central Command
19 January 1981 , Because of the large volume of combined designations
in; Gen. Order No. 3 (19 Jan. 1981), we have re—
published it in its entirety as Apendix
23 March 2010
* Note I : All orders are publicly accessible at: Army Publishing Directorate,
http://wwwapd.army.mil/DAGO_by_Year.htm. (last visited 29 July 2010).
T‘Note 2: All-of the various orders cited, as authority for the designation, Article 22, UCMJ, and the
specific .subparagraph that empowers the Secretary [of the Army] to appoint general court—martial
conVening ant-horities (i.e., Article 22(a)(6) or Article 22(a)(8) as appropriate given the date of the
general order). ' ' v
APPENDlX D
GO 3 7
GENERAL 0mm ‘ I lmADQUARTERS
- - DEM RTMENT Ol-‘ '1'?va RMY
No.3 ‘ - 'wAszcmN, DC, 19 January 1931
GENERAL COURTES-Jl/ARTIAL. I; Effectivo 19 January 1981.. the commonding -
officers of the following installations and commands are designated by me, puy;
Sunni. to the Uniform Code: of Military Justloe, Article 122(u)(6l. as general court-
mnrtial convening nothorities. ' ' ‘ ‘
US Army Twining zmd Doctrine command ' {
US Army Training Coutur'ga Fort-Dix
US Army Armor Cen ter 81'; Forlfinox _ _
US Army Engineer Center-8c Fart Bolvoir >
US Army ’l‘ra importation Canberé’ali’ort Eustis
‘ US "Army Quartermaster Con-tor '8; Bart
Fad Lee
US Army Signal Center 6: Fort Gordon
US Army him: try Center 3: Furl; Bennan
- US Army AviationCeuteré'z Fort. Ruckcn
US Army Training C'enlcré'LFért Jnckson' .
US Army Soldier Support Canter and Fort Benjnmin-Hon'ison = ' ‘
USArmy Air Defense Center 85 Fort Bliss.
US Army Combined Arms Contex- & Fort Leavenworth
US Anny Field Artillery Cori tor & Fort Sill -_
US Army TrninfngCnntcr, Engineer-8c Fort Leonard Wood
' US Anny Military Police and Chemical Schoolsl'l‘raining Center & Fort
MCClc‘llnn v 3 2, -
N ew Yoi-k Area Command 84 Fort Hamilton
US Army Forces Command ' '
Fort McPherson -
Fort Gotirge G. Meade
FortSnm-Houston
Presidio ofSan Francisco
Fort Devens ' '
1015i Airborne Division (Air Assault) 5'; Fort Campbell
XVIIT Airborne Corps 8.; Fort: Bragg,
Fort Sheridan I '
. /
g: III Conn; and Fort Hood
‘ -._. Fort Hood '- i '
Ist Infantry Dix/{plan (MECH) 8:. Fort Riley
US Arm y Retraiilin g‘Brigade ' '
'9t_h Infantry Division 84 Fort Lam's
Fart Carson_& 4th Infantry Division (MECH)
172d Infantry Brigade (Alaska) '
193d Infantry Bn'gnde (Yunnan)
7th Infanlry Division and Fort 0rd 1
51h Infantry Diviai'o'n (MECH) & Fort Polk -
24 th lnfcmlry Diyision (MESH) & Fort Slow-art
United Slates Army, Enropc &. Seventh Army,
Isl Infantry Divisionomeflawomwakil
32d Army AirDefensls Command ' '
. US A'rihy, Berlin 1
2. Cunuml (:0
THE?
ausobvenuunnrmurmc orrnbE'EMBiE manna ' - « ..
G03-
US Army Southcrn European Task Force
2] stSuppori Commnn'd ('I‘AACOM) ‘
2d Armored Division Ferwnrd
2d Armored Division (HEAHNPHOVTSIONAL)
US Army Western Command - "
US Army Support. Cemmund, Hawaii
US Army,dap:.-n - -
US Army Garn'émn, Okinawa
US Anny Elenient, Combined Field Army (ROKJUS) '
19th Support Co‘mm'nnd ,
US Army Materiel Deyelopment and Readiness Command (DARCOM)
US Army Communications & Electronics Muten'cl Readiness Command
US Army Troop Support& Aviation Mntcn'cl Readiness Command ‘
Aberdeen Proving Ground ' '
US Arm y Test & Evaluation Command
US-Ar'my White Sands Mimilé Range
US Army Missile Command - ..
.US ArmyMiliLnry District of Washin 31km ,
Militmy Tirn'ffic Mnnngcmcu L Command
Militm‘y Traffic Management Command, Eastern Area
Military 'l‘ra f fic Management Command, Wéstern'Ama
Bullisfl'c Missile Defense" Orgmfimtion '
Ballistic Missile Defunse Systems 06mde .
US Army Elément, HQ, US Randian Commnnd
US Amy CommunimtionsComniund (USACC)_ _
Fert Hunchuca _ u - .
US Army Honith Servims Command
US Army Elem ent. Field Command, Defense Nuclear Agency
US Army E1em.cnt9240,JoinLTask Force Eight'
urthmnrtial jurisdiction under the above provisions is also granted
Superintendent. United States Ivfilimry Academ); -
Commandant, US Disciplinary Barmdcs. Fort Ltmvcnworth
[DAJNCL]
_~ ' 0mm: L. Ncmdcr. Jr.
Secretary of the Anny h
DISTRIBUTION:
Active Army, ARNG, VUSAR': To be distributed in'nccord-nncq with DA Form
12—4 requirements for General ,Qrders.
SMITH — ARMY 20090758
II. DISTINCTION BETWEEN COMMAND and CONVENING AUTHORITY
Appellant does not challenge whether BG Mathis was properly serving as the
Acting Commander, Fort Lewis, Washington, when he referred appellant's charges
and through the time he took final action.3 We further note the assumption of
command orders signed by BG Mathis are dated 23 March 2009, prior to all legally
relevant actions in appellant's case. The assumption of command orders
substantially comply with Army Regulation 600-20.4 As a result, we conclude BG
Mathis was the Acting Commander, Fort Lewis, at all times legally relevant to
appellant's case and do not substantively analyze that issue. We further note it is
well established under case law that an acting commander may serve as a convening
authority. United States v. Brown, 39 M.J. 114, 117 (C.M.A. 1994) and United
States v. Bunting, 4 U.S.C.M.A. 87, 15 C.M.R. 84, 87 (1954). See also R.C.M.
103(6).
III. JURISDICTIONAL AUTHORITY
Appellant predicates his challenge on the relationship between the
Headquarters, Department of the Army General Order relied upon by the government
in his court-martial—Gen. Order No. 10, dated 9 April l981—and the Secretary of
the Army's issuance of Headquarters, Department of the Army General Order
Number 27 (Gen. Order No. 27) on 13 November 1981.5 Headquarters, Department
of the Army General Order Number 27 designated the “Commander, I Corps & Fort
Lewis” as a general court-martial convening authority. The Secretary of the Army's,
designation of “Commander, I Corps & Fort Lewis” as a general court-martial
convening authority in Gen. Order No. 27 is colloquially referred to as a “combined”
designation.
3 See Appellant's Brief, p. 12.
4 Army Command Policy (18 March 2008).
5 The Government submitted CMCO No. 6 (Corrected Copy) during the course of
this court's appellate review. During appellant's court-martial, Court Martial
Convening Order No. 6, which was originally included in appellant's record of trial,
cited to Gen. Order No. 27, 13 November 1981. Because appellant is questioning
the jurisdiction of his court-martial, our consideration of CMCO No. 6 (Corrected
Copy) is appropriate. United States v. Goudge, 39 C.M.R. 324, 330—331 (A.B.R.
1968), relying on Givens v. Zerbst, 255 U.S. 11, 19—21 (1921).
3
SMITH — ARMY 20090758
Appellant's claim ofjurisdictional error rests, inter alia, on a claim that the
Secretary of the Army's “combined” designation of the “Commander, I Corps & Fort
Lewis” as a general court-martial convening authority in Gen. Order No. 27
essentially extinguished or subsumed the independent authority provided for the
Commander, Fort Lewis in Gen. Order No. 10. Further, appellant asserts that no
authority existed for LTG Jacoby to bifurcate (i.e., "split") the "combined"
authorities in Gen. Order No. 27. Stated alternatively, appellant asserts that when
LTG Jacoby deployed to 01F, he had no authority to "split" the Secretary of the
Army's combined general court—martial convening authority designation of
"Commander, I Corps & Fort Lewis" in Gen. Order No. 27 and allow BG Mathis to
exercise the general court-martial convening authority for Commander, Fort Lewis,
while LTG Jacoby exercised the general court-martial convening authority of
Commander, I Corps.6 As a result, appellant asserts, inter alia, that while serving as
the Acting Commander, Fort Lewis, Washington, BG Mathis had no general court-
martial convening authority when acting in appellant's case.
We begin by noting that, simply stated, an installation commander does not
have statutory authorization under the UCMJ to convene general courts—martial. See
UCMJ art. 22. [10 U.S.C. § 822]. As a result, he may do so only when designated
by the Secretary concerned (Article 22(a)(8), UCMJ, MCM, 2008 [10 U.S.C.
822(a)(8)]) or the President (Article 22(a)(9), UCMJ, MCM, 2008 [10 U.S.C.
1822(a)(9)]).
In both Gen. Order No. 10 and Gen. Order No. 27, the Secretary of the Army
cited Article 22(a)(6), UCMJ, as authority for designating general courts-martial
convening authorities.7 Article 22(a)(6) is the predecessor to the current version of
Article 22(a)(8).8 Article 22(a)(6), UCMJ, MCM, 1969, authorized, inter alia, the
Secretary of the Army to designate general courts—martial convening authorities.
6 In 1981, in addition to Gen. Order No. 10 and Gen. Order No. 27, an additional
Headquarters, Department of the Army General Order was issued that pertained to
Fort Lewis. Headquarters, Department of the Army General Order No. 3, dated 19
January 1981 (Gen. Order No. 3) designated the Commander, 9th Infantry Division
and Fort Lewis as a general court-martial convening authority. Headquarters,
Department of the Army General Order No.13 is not material to the instant case.
7 Pursuant to the 1969 Manual for Courts-Martial, in effect in 1981, Article 22(a)(6)
provided: "General courts-martial may be convened by —— any other commanding
officer designated by the Secretary concerned."
8 Article 22(a)(8) of the current Manual for Courts-Martial (2008) provides:
"General courts—martial may be convened by —— any other commanding officer
designated by the secretary concerned." 10 U.S.C. § 822(a)(8).
4
SMITH — ARMY 20090758
In Gen. Order No. 27, the plain language reflects the Secretary of the Army
took action to "designate" a convening authority under Article 22—no more, no less.
See Appendix A. Headquarters, Department of the Army General Order No. 27 does
not reflect that it rescinded or superseded Gen. Order No. 10. See Appendix B.
Additionally, appellant has not provided evidence to the contrary. Headquarters,
Department of the Army General Order No. 10 from the Secretary of the Army
provides a "firm basis" for determining that appellant's court-martial was legally
constituted—Le, that the jurisdictional prerequisites have been met. See Goudge,
39 C.M.R. at 330.
In United States v. Gates, 21 M.J. 722, 724 (A.C.M.R. 1985), this court
examined a situation nearly factually identical to the case sub judice. This court
upheld the co-existence of such orders concluding, inter alia, that operational
flexibility oftentimes militates such orders. The logicand rationale of Gates remain
sound.
As in the case sub judice, in Gates this court examined a claim of
jurisdictional error based on the co—existence of two Headquarters, Department of
the Army General Orders that separately designated general courts-martial
convening authorities at one installation. One Headquarters, Department of the
Army General Order No. 10, 9 April 1981, designated the Commander, Fort
Campbell, Kentucky (i.e., the installation commander) as a general court-martial
convening authority. Id. at 723. A second Headquarters, Department of the Army
General Order No. 3, 19 January 1981, designated the “combined” positions of
“Commander, lOlst Airborne Division (Air Assault) and Commander, Fort
Campbell” (i.e., division commander and installation commander) as a general
court—martial convening authority. Id. The Commander, lOlst Airborne Division
(Air Assault), was also recognized as a general court—martial convening authority
pursuant to the statutory designation of division commanders as general court-
martial convening authorities in the then Article 22(a)(3), MCM, 1969.9 In Gates,
this court concluded that all three sources provided general court-martial convening
authority for the commanders at Fort Campbell. Id.
9 Article 22(a)(3) of the 1969 Manual for Courts—Martial provided: "General courts—
martial may be convened by -- the commanding officer of a Territorial Department,
an Army Group, an Army, an Army Corps, a division, a separate brigade, or a
corresponding unit of the Army or Marine Corps." The current version of this
provision is set forth in Article 22(a)(5), UCMJ, MCM 2008. [10 U.S.C. §
822(a)(5)].
SMITH — ARMY 20090758
In Gates, the court observed that one individual usually served as the
commander for both positions (i.e., division commander and installation commander)
and received his advice from a single staff judge advocate. Id. at 723. The court
further noted that, in recognition of the Army's need for rapid deployment, the need
to maintain viability of all three sources of general court-martial convening
authority was maintained. Id.
Similar to the observation made by this court in Gates with regard to division
commanders serving at installations, at Fort Lewis the positions of installation
commander and corps commander are organizationally distinct but are typically
occupied by the same individual. 10 This "dual hatted" commander oftentimes
receives his legal advice from one staffjudge advocate. The combined designation
allows the single individual serving in a dual capacity to fulfill his general court-
martial convening authority responsibilities without having to specify, each time he
functions as a general court-martial convening authority, which individual
organization he is representing in his dual role. Over forty years ago, the
predecessor organization to this court noted "[a]s a matter of common experience. . .
the separate and different missions, functions and command responsibilities of
dissimilar command, when placed or joined under a single commander, cannot be
effectively carried out except with a constant awareness of the capacity in which any
individual action is taken." Goudge, 39 C.M.R. at 335. As a result, the combined
designation, which is not uncommon in the Army,11 promotes economy and
efficiency, while enabling the requirements of the UCMJ to be satisfied (e.g., Article
25(d)(2) [10 U.S.C. 825(d)(2)]).
In addition, the co-existence of the two sources of authority facilitates the
flexibility required at installations where the combined designation involves a
combat eligible unit. Specifically, should circumstances arise that result in the need
for a commander serving in a dual capacity (e.g., division commander and
installation commander) to depart the installation to fulfill “war fighting” duties, the
independent Secretary of the Army designation of the installation commander as a
general court-martial convening authority (e.g., such as the designation of
10 Although this opinion refers to the positions of division or corps commander, the
rationale is not limited to "war fighting" positions. The rationale is equally
applicable to other positions wherein a single individual may be required to serve as
a dual [or more] capacity commander—whether they are "statutory" (e.g., Article
22(a)(5), UCMJ, MCM, 2008) or secretarial designations (e.g., Article 22(a)(8)),'
UCMJ, MCM, 2008).
11 See Appendices C and D, which provide a sample overview of Headquarters,
Department of the Army General Orders using this combined designation.
6
SMITH — ARMY 20090758
Commander, Fort Lewis, in Gen. Order No. 10, 9 April 1981) would enable another
individual to serve as a general court-martial convening authority for soldiers
remaining at the installation. This opinion does not address issues associated with
such assumption (e.g., assumption of command and, as appropriate, transfer of '
cases), however, as they are not at issue in the present case.
In sum, based on the plain language of Gen. Order No. 27, in the absence of
evidence to the contrary, and consistent with the sound logic of Gates, we conclude
Gen. Order No. 27 is the Secretary of the Army's designation of a general court—
martial convening authority for Fort Lewis that is in addition to Gen. Order No.
10.12 Alternatively stated, Gen. Order No. 27 is a separate and distinct general
court—martial convening authority designation from Gen. Order No. 10.13
Headquarters, Department of the Army GenerallOrder No. 27 is not, as appellant
argues, a supersession of the general court—martial convening authority designation
established in Gen. Order No. 10.
We further conclude that because Gen. Order No. 27 is the designation of a
separate general court-martial convening authority by the Secretary of the Army
under Article 22, UCMJ, no authority in the UCMJ permits a single individual
serving in the dual capacities of Commander, I Corps, and Commander, Fort Lewis,
to “split” the combined general court-martial convening authority designation
“Commander, I Corps & Fort Lewis” in Gen. Order No. 27. Additionally, no
authority in the UCMJ would permit a single individual if serving in the dual
capacities of Commander, I Corps, and Commander, Fort Lewis, to transfer or
delegate such authority. See generally United States v. Cases, 6 M.J. 950, 952
12 Appellant attempts to distinguish Gates by noting in the case sub judice the
Headquarters, Department of the Army General Orders reflecting the “combined”
designation was issued last in time, whereas in Gates the “combined” designation
was issued prior to the Headquarters, Department of the Army General Order
designating the installation commander. Such a distinction is simple legally
inconsequential in the context of this case absent evidence of consequence (e.g.,
supersession).
13 Headquarters, Department of the Army General Order Number 3, 19 January
1981, graphically illustrates the Army’s use ofthis construct (i.e., co—existence of
multiple convening authorities at one installation), as well as the discreteness of the
separate convening authority designations. In Gen. Order No. 3, the Secretary of the
Army appoints as general court-martial convening authorities the Commander, Fort
Hood, as well as Commander, III Corps & Fort Hood. He also appoints as general
courts-martial convening authorities the Commander, US. Army Quartermaster
Center & Fort Lee, as well as the Commander, Fort Lee.
7
SMITH — ARMY 20090758
(C.M.R. 1979) and Article 22(a)(4). See also R.C.M. 504(b)(4). Compare UCMJ
art. 140 (which, inter alia, reflects the President, who is a general court-martial
convening authority pursuant to Article 22(a)(1), UCMJ, may delegate any authority
vested in him pursuant to the UCMJ and also authorize the sub-delegation of such
authority). Rather, the Commander, I Corps, and the Commander, Fort Lewis, must
each have discrete, identifiable authority under Article 22, UCMJ, to act as a general
court—martial convening authority. Currently, the Commander, I Corps, has statutory
authority per Article 22(a)(5) and the Commander, Fort Lewis, has Secretarial
designated authority per Article 22(a)(6), MCM, 1969, [now Article 22(a)(8)], as
reflected in Gen. Order No. 10.
. IV. ACTION BY CONVENING AUTHORITY
Because appellant's approved sentence included confinement for more than six
months, the record of trial and related documents in this type of case had to be sent
to the “person exercising general court-martial jurisdiction over the accused at the
time the court was convened (or to that person's successor in command)” UCMJ,
art. 64(b). [10 U.S.C. § 864(b)]. See also Gates, 21 M.J. at 724. In turn, Article
60(c)(1), UCMJ, authorizes action to be taken, under regulations of the Secretary
concerned, by "a commissioned officer commanding for the time being, a successor
in command, or any person exercising general court—martial jurisdiction." UCMJ,
art. 60(c)(1). [10 U.S.C. § 860(c)(1)]. See also Gates, 21 M.J. at 724. Article
60(c)(1) is further limited by R.C.M. 1107.14 As held below, however, the
limitations in ROM. 1107 do not affect the instant case.
Reviewing the record of trial as a whole, the facts described in Section I
firmly establish that while serving as the Acting Commander, Fort Lewis, BG Mathis
convened appellant's court—martial pursuant to his secretarial designated general
court—martial authority as documented in Gen. Order No. 10. BG Mathis remained
the Acting Commander, Fort Lewis, at "all times [legally] relevant to actions in
connection with appellant's case" Gates, 21 M.J. at 724. Accordingly, as the
original convening authority in appellant's case, BG Mathis had full authority
pursuant to Article 60, UCMJ, Article 64, UCMJ, and R.C.M. 1107, to take final
action in appellant's case.
14 R.C.M. 1107(a) states “[t]he convening authority shall take action on the sentence
and, in the discretion of the convening authority, the findings, unless it is
impracticable.” R.C.M. 1107(a). See also Gates 21 M.J. at 724. The discussion
section for R.C.M. 1107(a) delineates conditions that might satisfy the
impracticability criteria.
SMITH — ARMY 20090758
V. CONCLUSION
In appellant's case, we hold BG Mathis' actions to have been taken in full
authority of the UCMJ.
This court decides questions ofjurisdiction and convening authority on a
case-by-case basis. Although a truism, counsel are reminded that the holding of this
case is based on the specific facts provided in the record of trial, questions of
jurisdiction and convening authority are fact intensive, and facts necessarily dictate
the applicable legal framework.
We have considered the remaining assignments of error and the matters
appellant personally raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), and find them to be Without merit. The findings of guilty and the
sentence are affirmed.
Senior Judge CONN and Judge HOFFMAN concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
APPENDIX A
(H) 137
Glfileflx‘Al. (Mama'- I l-II:‘..-\II)Q LEA RTERS 1
DICPAH'I‘a-I J-ZN’I‘ 0]" TH 1:) A RMX'
(if) 27 J \VASHINU'I'UN, DC. 1-3‘ Noun-why 11M;
Ch':‘W§ln‘-,-1l., CUUltYS-MAlfll-lL. 'l‘hu Cunnnumlvr. I Can»: Frn'L hmvi-rz, )3:
dlfsiLrnanl by me, pnmunnt t0 UN: L-‘nifn'n‘m (Earle at" Military Justice, Ankh:-
32mm Ln.) mnvwnc genera! murm—rhmminl ul‘l'uvlivu 2:7 ()‘clc-bcr 193.1.
[IEL-‘LM—l 1.;
59' —‘ V i
0/ . .Tnhn C). Munsh. Jr.
S.-crr3:.:n'_\' of the Army
1) [E'TH TH U'I‘IH
.‘1l'Illll'(" Army. ARA-'1}. L’SAIL': In in- iliBlJ'iillllL-d in accuzn‘ilancu- with LIA -
Fun-m 12—4 rmn-h-cmynls fur DA Geno)?! I'):‘-'lr'1:<.