15 C.M.A. 62 | United States Court of Military Appeals | 1964
Lead Opinion
Opinion of the Court
On his plea of guilty, a general court-martial in Verdun, France, convicted the accused of assault, with the intentional infliction of grievous bodily harm, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. On review before the board of review, he challenged the validity of the method by which the enlisted members of the court were selected, and alleged “an Army-wide policy of barring low-ranking enlisted men from sitting on courts-martial.”
Although the evidence of thp selection process in this case is much more meager than that presented in United States v Crawford, 15 USCMA 31, 35 CMR 3, its substance is sufficiently close to justify consideration on the same basis. In the Crawford case, we sustained the method, as specifically designed and directly calculated to obtain enlisted persons with the statutory Qualifications for court members. Accordingly, the decision of the board .of review is affirmed.
Concurrence Opinion
(concurring in the result) :
I concur in the result.
For the reasons set forth in my separate opinion in United States v Crawford, 15 USCMA 31, 35 CMR 3, I concur in the affirmance of the decision of the board of review.
Dissenting Opinion
(dissenting):
I dissent.
The evidence submitted regarding the policy of the command in which accused was tried indicates that nominees for appointment to his court-martial were expressly limited to those of “grade E-6 or above.” While this offered the convening authority a broader choice of eligible court members, he still restricted himself to those holding the noncommissioned officer grade of sergeant first class or above. For the reasons set forth in my separate opinion in United States v Crawford, 15 USCMA 31, 35 CMR 3, I am of the view that such was jurisdictional error. I would, therefore, reverse the board of review and order another trial before a properly constituted court-martial.