34 M.J. 923

UNITED STATES, Appellee, v. Sergeant First Class Henry BYERS, Jr., [ XXX-XX-XXXX ], United States Army, Appellant.

ACMR 9101023.

U.S. Army Court of Military Review.

27 March 1992.

Reconsideration Denied 13 April 1992.

For Appellant: Captain Michael E. Smith, JAGC (argued), Captain James M. Heaton, JAGC (on brief).

For Appellee: Captain Marcus A. Brinks, JAGC (argued), Colonel Dayton M. Cramer, JAGC, Lieutenant Colonel Daniel J. Dell’Orto, JAGC, Major Joseph C. Swetnam, JAGC (on brief).

Before NAUGHTON, HOWELL and JOHNSTON, Appellate Military Judges.

OPINION OF THE COURT

PER CURIAM:

Contrary to his pleas, the appellant was convicted by a general court-martial composed of officer and enlisted members of willful disobedience of a superior commissioned officer and wrongful use of cocaine in violation of Articles 90 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 912a (Supp. V 1987) [hereinafter UCMJ]. The approved sentence included a bad-conduct discharge, confinement for thirty days, and reduction to Private El.

Although the appellant has raised several errors both through counsel and personally pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), only one of the errors needs to be addressed. In this case the accused was charged in pertinent part under Article 90, UCMJ, with willful disobedience of “a lawful command from Lieutenant General Richard G. Graves,” to not operate a privately owned vehicle on Fort Hood for two years. The appellant was stopped by military police on Fort Hood while operating his vehicle during the two-year period. General Graves referred the disobedience and cocaine offenses to a general court-martial convened under his authority. The appellant contends that General Graves was an accuser within the meaning of Article 1(9), UCMJ, 10 U.S.C. § 801(9), and was disqualified by operation of Article 22(b), UCMJ, 10 U.S.C. § 822(b), from convening the court-martial. We agree.

Article 22(a), UCMJ, provides in pertinent part that “[g]eneral courts-martial *924may be convened by—[nine named persons and commanders in certain designated positions].” (Emphasis added). Article 22(b), UCMJ, specifies that “[i]f any such commanding officer is an accuser, the court shall be convened by superior competent authority, ...” (Emphasis added).

Article 1(9), UCMJ, defines an “accuser” as “a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than official interest in the prosecution of the accused." (Emphasis added). The Court of Military Appeals has stated that the test for determining whether a convening authority is an accused under the third category of Article 1(9), UCMJ, is whether he was “so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter.” United States v. Reed, 2 M.J. 64, 68 (C.M.A.1976).

The case at bar involves a violation of Article 90, UCMJ, willfully disobeying a superior commissioned officer. A violation of Article 90, UCMJ, connotes an “intentional defiance of authority, and necessarily an affront to the power and prestige of the source of the order.” United States v. Teel, 15 C.M.R. 39 (C.M.A.1954).

We are satisfied that General Graves did not act from improper motives in convening the general court-martial or in referring the accused’s case to trial. We are convinced, however, that an officer who seeks to enforce his own order by convening a court-martial for an offense charged under Article 90, UCMJ, is so closely connected to the offense that a reasonable person could conclude that he has a personal interest in the matter.1 Thus, General Graves is an “accuser” within the meaning of Article 1(9), UCMJ.

As an “accuser” in this case, General Graves’ discretionary authority under Article 22(a), UCMJ, that he may convene a general court-martial, was withdrawn by operation of law as enunciated in Article 22(b), UCMJ. (“[T]he court-martial shall be convened by superior competent authority, ... ”) (Emphasis added).

Having concluded that General Graves lacked the statutory authority to convene the appellant’s general court-martial, we must now examine the effect of that error.2

Over one hundred years ago the Supreme Court noted that “[a] court-martial organized under the laws of the United States is a court of special and limited jurisdiction” that is called into existence for a special purpose. Runkle v. United States, 122 U.S. 543, 555, 7 S.Ct. 1141, 1145, 30 L.Ed. 1167 (1887). Fifteen years later the Court stated that “[a] court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.” McClaughry v. Deming, 186 U.S. 49, 62, 22 S.Ct. 786, 791, 46 L.Ed. 1049 (1902).

In United States v. Durham, 35 C.M.R. 451, 453 (C.M.A.1965), the Court of Military Appeals explicitly followed Runkle and McClaughry when it stated:

We reiterate these principles to emphasize the exacting requirements necessary to creation and maintenance of a valid military tribunal, with the authority to hear and dispense of criminal cases. It is absolutely essential to existence of *925such judicial power that there be statutory authority to appoint the court; ...

Applying these considerations to the case at bar, we conclude that jurisdictional error was committed because General Graves, as an accuser, lacked statutory authority to convene the appellant’s general court-martial.3 The attempt to convene the court-martial was without force and effect.4

For the foregoing reasons, the proceedings, findings, and sentence are invalid and the same are hereby declared void. Another trial in accordance with Rule for Courts-Martial 810 may be ordered by a different convening authority.

United States v. Byers
34 M.J. 923

Case Details

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United States v. Byers
Decision Date
Mar 27, 1992
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34 M.J. 923

Jurisdiction
United States

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