6 M.J. 666 | U.S. Army Court of Military Review | 1978
OPINION OF THE COURT
In accordance with his pleas, appellant was convicted of two specifications of conspiracy to commit larceny, one specification of burglary, and two specifications of larce
Our review is conducted pursuant to Article 66, UCMJ. At the outset, we note that an appellate affidavit, subscribed by the local staff judge advocate, has been filed in this case. The affidavit was prepared in response to jurisdictional issues raised for the first time before this Court. Generally speaking, it contains information concerning the local method of selecting court-martial panels and, in addition, the manner in which this particular case was referred for trial in February, 1978. Our opinion, below, is predicated in part upon this affidavit. While we entertain a strong preference for deciding appellate issues solely on the basis of the trial record, we are satisfied that resort to this appellate affidavit is both necessary and appropriate in this instance.
Citing United States v. Newcomb, 5 M.J. 4 (C.M.A.1978), appellant first contends that the trial court was without jurisdiction because the military judge and counsel were not personally detailed by the convening authority. This issue was effectively resolved by United States v. Mixson, 5 M.J. 236 (C.M.A.1978), which held that the rule of Newcomb was to be applied prospectively only i. e., to cases convened after 1 May 1978. In view of the fact that appellant’s case was convened and tried well before that date, his first assignment of error is without merit.
Appellant next alleges that the convening authority erred by referring the charges and specifications to a court that had not yet been ordered into existence. In this regard, the pretrial advice in this case reflects that on 27 February 1978 the convening authority approved the written recommendation of the staff judge advocate to refer the case for trial by general court-martial. Page three of the charge sheet indicates that on 28 February 1978 the court-martial convening authority referred the case for trial before a general court-martial appointed by local Court-Martial Convening Order (CMCO) # 37, dated 28 February 1978. Any ambiguity surrounding the date of referral is clarified by the appellate affidavit of the staff judge advocate, mentioned above. In pertinent part, this document discloses the following: (1) that on 6 November 1977 the general court-martial convening authority personally selected the court members listed on CMCO # 37, dated 28 February 1978; (2) that on 2 December 1977 and 6 February 1978, the same officer personally selected additional court-martial panels; (3) that at the time he referred this case for trial, the convening authority did not know which panel would hear the case; and (4) that on 28 February 1978 administrative personnel in the Office of the Staff Judge Advocate assigned this case to one of the three existing panels and, on the same day, effected the publication of CMCO # 37.
Charges are ordinarily referred to a court-martial for trial by means of the indorsement on the charge sheet. Paragraph 33/(1), Manual for Courts-Martial, United States, 1969 (Revised edition). Historically, however, not every irregularity in the referral process has given rise to jurisdictional error. United States v. Emerson, 1 U.S.C.M.A. 43, 1 C.M.R. 43 (1951), involved a situation in which the case of the accused
In the instant case, we find that there was a proper exercise by the convening authority of his non-delegable referral power prior to the effective date of the court-martial convening order. However, “it was error (nonjurisdictional) for the convening authority to have delegated the duty of marrying up a specific case to a specific court.” United States v. Ryan, 5 M.J. 97, 100, n. 3 (C.M.A.1978), citing United States v. Simpson, supra. Testing for prejudice, we find that the error was harmless in this case. Accordingly, appellant’s second assignment of error is also without merit.
The findings of guilty and the sentence are affirmed.
. Violations of Articles 81, 129 and 121, Uniform Code of Military Justice (UCMJ); 10 U.S.C. §§ 881, 929 and 921, respectively.
. The statutory basis for the Court’s fact-finding authority is contained in Article 66(c), UCMJ; 10 U.S.C. § 866.
. In Emerson, the Court of Military Appeals was examining paragraph 33j of the 1951 edition of the Manual for Courts-Martial, United States. The cited provision appears in identical form in the 1969 revised edition.