United States v. Private E2 TROY A. WARD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before SULLIVAN, COOK, and BAIME Appellate Military Judges UNITED STATES, Appellee v. Private E2 TROY A. WARD United States Army, Appellant ARMY 20071262 III Corps and Fort Hood Charles Walters, Military Judge Colonel Mark Cremin, Staff Judge Advocate For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; Captain Richard P. Pizur, JA (on brief). For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA; Major Teresa T. Phelps, JA (on brief). 3 April 2009 ------------------------------------- SUMMARY DISPOSITION ------------------------------------- Per Curiam: This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. Defense counsel allege, and we concur, that the convening authority who took action on appellant’s case lacked authority to do so. We will order a new review and action. In a memorandum dated 30 October 2007, Commander, 4th Infantry Division, requested that the Commander, Fort Hood, accept transfer of all referred cases where the court-martial had not yet assembled, with the specific exception of appellant’s case, due to extended absence in support of Operation Iraqi Freedom. The 4th Infantry Division Commander did request transfer of jurisdiction in appellant’s case if post-trial processing became necessary. In a memorandum dated 1 November 2007, Commander, Fort Hood, attached all pending pretrial and post-trial cases except for appellant’s case and did not include any contingent acceptance of transfer in appellant’s case. Subsequently, on 27 February 2008, after resuming his duties, Commander, III Corps and Fort Hood, and Headquarters, Fort Hood, accepted attachment and transfer of all cases under the jurisdiction of the Fort Hood Commander and took action in this case. Because appellant’s case was specifically not attached by Commander, Fort Hood, there was no effective transfer of jurisdiction under Rule for CourtsMartial 1107(a) and the post-trial action by the Commander, III Corps and Fort Hood, is void. See United States v. Newlove, 59 M.J. 540 (Army Ct. Crim. App. 2003). The case is still within the court-martial jurisdiction of the Commander, 4th Infantry Division. The convening authority’s initial action, dated 10 July 2008, is set aside. The record of trial is returned to The Judge Advocate General for a new Staff Judge Advocate Recommendation and action by a legally authorized convening authority in accordance with Article 60(c)-(e), UCMJ. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court