Congress provided specific criteria for member selection in Article 25(d)(2):
When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.
Rank is not one of these factors. Last term, in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page), CAAF found the improper categorical exclusion of members on the basis of rank to be harmless. But with a grant of review on Monday, CAAF will revisit this issue:
No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?
Briefs will be filed under Rule 25.
The NMCCA’s opinion is available here and reveals that:
Prior to trial, the defense objected to the exclusion of junior members under convening order #1b-13, which appointed only officer members O-4 and above, enlisted members E-8 and above, and no warrant officers. This panel was detailed after the staff judge advocate (SJA) solicited only these specific categories of senior nominees from subordinate commanders. The SJA provided the CA draft convening order #1b-13 and the applicable questionnaires for consideration. The CA then picked those members as were suggested to him by the SJA without modification. The military judge agreed with the defense’s objection finding that the panel selection process improperly excluded potential members based on rank.
Subsequently, the CA was provided a draft, amended convening order, #1c-13, containing the same members previously detailed under convening order #1b-13. The CA was also furnished with his entire alpha roster of over 8,000 members with instructions that he could substitute any proposed member for someone senior to the accused meeting the Article 25 criteria. After consideration, the CA detailed the same members stating, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.”
Slip op. at 5. The military judge found no impropriety in the second convening order and the CCA affirmed.