United States v. Player

DECISION PER CURIAM: Appellate contends that the substitution of one officer for another as a member of this court was not the act of the commanding officer and, as a result, that the court lost jurisdiction and its judgment is void. We do not accept this conclusion. Trial herein commenced on 13 June 1974 with the usual Article 39(a), 10 U.S.C. § 839(a) session before the military judge without the presence of the appointed members. A continuance was granted to enable the accused to obtain representation by an individual defense counsel. The trial began anew on 2 July 1974 with another Article 39(a) session. Almost at once, the individual defense counsel presented a request in writing for trial by judge alone, which the judge approved. Thereafter the trial proceeded to its conclusion on the same day. Also on 2 July 1974 there had been issued what appeared on its face to be an amendment to the convening order, substituting one member for another. At the opening of the session, the trial counsel duly referred to this amendment to the convening order. The basic convening order bore the signature of the commanding officer. The amending order, under the same command letterhead, bore the signature of another officer and the additional word “Acting.” The contention here is that the amending order was unlawfully signed by one who was not in fact the acting commanding officer, and consequently that the court was illegally constituted and without jurisdiction. In our view the question of whether a new member was or was not lawfully placed on the court is moot. The instant court-martial was convened by a commanding officer authorized to convene a special court-martial by Article 23(a)(5) UCMJ. Necessarily, he appointed three members; he also appointed a military judge to form the court provided for by Article 16(2)(B) UCMJ. Initially valid at its creation, the court-martial had jurisdiction to proceed as it did until the judge approved the request for trial by judge alone. At that moment, the court metamorphosed into a special court-martial consisting of only a military judge, provided for by Article 16(2)(C) UCMJ. It had jurisdiction to, and did, proceed in that form to the conclusion of the trial. No proceedings of the special court-martial were conducted in the presence of any members, nor was the presence of members necessary to the validity of any of the proceedings of the court. With regard to the factual occurrences of the trial, this special court-martial had jurisdiction from beginning to end. The judge found the accused guilty, pursuant to his plea, of a single offense of AWOL for 29 days — an offense by itself not punishable with a bad conduct discharge. Two previous special court-martial convictions, also for AWOL, authorized imposition of the punitive discharge. We note that this accused completed a four-year enlistment in the Coast Guard and received an honorable discharge in July 1968. His current enlistment, begun on 8 February 1972, was not a success. Stipulated testimony indicates that the commanding officer applied to Headquarters for Player’s discharge under other than honorable conditions, but Headquarters authorized only an honorable or a general discharge. It was stipulated further that the commanding officer, disclaiming any intention to influence the court, stated that he would act on the authorization and issue an administrative discharge, if the court did not impose a punitive discharge. Thus, as of 2 July 1974, the accused was under sentence of a bad conduct discharge and there was also extant an authorization to discharge him administratively under honorable conditions. On 10 July 1974 he was sent home on leave awaiting appellate review of his court-martial. The convening authority approved the sentence on 25 September 1974. The legal officer on the staff of the supervisory authority did [1117] not submit the mandatory written review of the case until 24 July 1975. Thereafter, on 19 August 1975, the supervisory authority approved the sentence and forwarded the record of trial for review by this court. More than a year had elapsed since the accused had been sent home. Upon consideration of all the facts and circumstances disclosed by the record, including and in addition to those mentioned in the two preceding paragraphs, our Court has determined, on the basis of the entire record, that the bad conduct discharge should not be approved as a part of the sentence. Pursuant to Article 66(c) UCMJ, the findings of guilty and only so much of the sentence as provides for reduction to Seaman Recruit are affirmed. ROSENWASSER, MAGUIRE BRIDGMAN, Jr., and LYNCH, Appellate Military Judges, concurring.