The Coast Guard Court of Criminal Appeals has posted a new decision on its web site. United States v. Wimett, Dkt. No. 1258 (C.G. Ct. Crim. App. Aug. 15, 2007). It isn’t immediately apparent whether the opinion is to be published or not, but its length (3 pages) suggests an unpublished opinion.
The accused was a member of the Coast Guard Selective Reserve. On appeal, the defense argued that the court-martial didn’t have jurisdiction because Petty Officer Wimett had not been recalled from his reserve status to active duty by a general court-martial convening authority as required by Article 2 of the UCMJ. The opinion suggests that the defense relied on the fact that the actual travel orders recalling Petty Officer Wimett were issued by a petty officer and not by a general court-martial convening authority (GCMCA).
The Special Court-Martial Convening Authority asked the GCMCA to order that Petty Officer Wimett “be involuntarily recalled to active duty on July 29, 2005 for trial by special court-martial pursuant to Article 2(d)(1).” Wimett, slip op. at 2. The GCMCA asked the Commandant of the Coast Guard for permission “for me to order YN2 Wimett to active duty involuntarily for the purpose of a special court-martial.” Id. at 3. The Commandant approved the request. Id. A petty officer then cut the travel orders recalling Petty Officer Wimett.
The Coast Guard Court emphasized the distinction “between the authority to order a reservist to active duty, and the administrative act of processing the order.” Id. The court reasoned: “Neither the UCMJ nor Coast Guard regulations specify the form in which such a recall is to occur. The UCMJ does not require that the recall order be in writing, or that the GCMCA personally sign the recall order. . . . We are convinced by the entire record that Appellant was ordered to active duty by the GCMCA after receiving permission from the Commandant, and the court-martial had personal jurisdiction over Appellant.” Id.
Let’s look at Article 2(d)(4). It specifies: “A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.”
Who ordered Petty Officer Wimett to active duty? The opinion suggests that the government couldn’t come up with any document in which the GCMCA directly ordered Wimett to active duty or where someone else did so acting by direction of the GCMCA. And the government bears the burden of proving jurisdiction, so the absence of any such document must be treated as conclusive of such documentation’s nonexistence.
This seems to me to be one of those cases that periodically arise in military justice practice where the spirit of the law has been followed but the letter of the law has not. In such cases, Judge Erdmann often insists that the government adhere to the letter of the law. So I would expect at least one vote to grant review in this case. My guess is that Judge Erdmann will pick up the necessary second vote on this one as well.
In cases like this, both the officials convening a court-martial and later reviewing authorities should keep in mind the Supreme Court’s admonition in the famous case of Runkle v. United States, 122 U.S. 543 (1887):
A court-martial organized under the law of the United States is a court of special and limited jurisdiction. . . . To give effect to its sentences, it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with; and that its sentence was conformable to law.
Id. at 555-56.
Was Petty Officer Wimett’s court-martial “unequivocally” legally constituted? Were “all the statutory regulations” governing its creation complied with? The Coast Guard Court seemed to answer those questions by saying, “Close enough.” Runkle suggests that isn’t a satisfactory answer.