In United States v. Bartee, No. 16-0391/MC (grant discussed here), CAAF is revisiting the improper exclusion of members on the basis of rank (which is not one of the Article 25 criteria for member selection) in the wake of last term’s decisions 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).
Last week CAAF granted review in another case with an almost identical issue to the one granted in Bartee:
No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. 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 re-drafted issue:
WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.
No briefs will be filed under Rule 25.
The NMCCA’s opinion is available here. The convening authority in Tso was not the same officer (or command) as the convening authority in Bartee.