ACCA’s new Smith opinion concerns the authority of the Acting Commander of Fort Lewis to convene general courts-martial.  United States v. Smith, No. ARMY 20090758 (A. Ct. Crim. App. Aug. 5, 2010).

I assume Smith will be published, but I’m no longer sure since ACCA no longer publishes all of its designated “Opinions of the Court.”  See, e.g., Trigueros, Hudgins, and Watson.

ACCA explains that Army installation commanders aren’t statutorily authorized to convene general courts-martial.  So the Acting Commander of Fort Lewis could exercise such authority only if the Secretary of the Army had so empowered him.  That required ACCA to review the Secretarial General Orders granting court-martial convening authority.

In 1981, the Secretary of the Army issued General Order No. 10, granting general court-martial convening authority to, among others, the Commander of Fort Lewis.   Later that same year, General Order No. 27 designated the “Commander, I Corps & Fort Lewis” as a general court-martial convening authority.  At the time of Smith’s court-martial, that formerly combined command had split in two, with the Comamnder of I Corps deploying, leaving behind an Acting Commander of Fort Lewis.

ACCA held that the Acting Commander had court-martial convening authority pursuant to General Order No. 10, which the court held was not rescinded by General Order No. 27 designating the combined command as a general court-martial convening authority.  ACCA relied on United States v. Gates, 21 M.J. 722 (A.C.M.R. 1985), which had similarly upheld the co-existence of orders providing general court-martial convening authority.

Judge Gifford wrote for a unanimous panel.

One Response to “New ACCA jurisdiction decision”

  1. Anonymous says:

    I find it interesting that the ACCA says cases are decided on a case by case basis but then turns to US v. Gates for the proposition that because in that case it was determined that the SecArmy made a decision not to have one GO subsume another in that case, that they will apply the same reasoning in this case (and one assumes nearly all others). If it’s truly case by case, then where is the evidence that Fort Lewis as a command didn’t cease to exist when it was subsumed into I Corps and Fort Lewis? Where is the evidence that the SecArmy intended this unit to continue in name only until it was needed again?

    Sounds to me like there is no case by case determination being done at all. There are ways of determining exactly what the SecArmy meant with each GO, and it’s too bad the Court is not bothering to even make the government take steps to find out what the intent of the SecArmy was in promulgating GO 27.

    If a unit ceases to exist, then there is no longer general court-martial convening authority for that unit’s commander (since that position doesn’t exist anymore). It was pretty clear this Court was going to rely on US v. Gates for all of these Fort Lewis cases from the argument held in US v. Horne.

    It’s still disappointing that the Court has let the government be lazy, but not surprising.