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Acting Commander had court-martial convening authority pursuant to General Order No. 10, which the court held was not rescinded by General Order No. 27 designating the combined command as a general court-martial convening authority.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.