**The Joint Commander as Convening Authority:**

**Analysis of a Test Case**

### [Captain William H. Walsh\*]{.smallcaps}

[Captain Thomas A. Dukes, Jr.\*\*]{.smallcaps}

*"We're purple today . . . and you get what the Manual gives you."*[^1]

## I. INTRODUCTION

The military joint operating environment has developed significantly
since passage of the Goldwater-Nichols Department of Defense
Reorganization Act of 1986 (Goldwater-Nichols).[^2] Despite
Goldwater-Nichols attempt to foster greater joint operations among the
services, old tensions between joint integration and service autonomy
continue at all levels of U.S. military organization.[^3] In the
administration of military justice in joint organizations, the
overlapping authority of joint commander and individual service
component commander can create conflicts concerning the resolution of
difficult disciplinary cases. [^4] As the integration of multi-service
assets into joint units continues to develop, legal advisors to joint
commanders are increasingly challenged as they try to juggle the
interests of the joint organization and those of the respective
component services.

While there is general guidance on how to resolve such issues, there is
little in the way of comprehensive legal authority to guide the joint
commander in the day-to-day administration of good order and
discipline.[^5] Both the joint commander and service component commander
exercise concurrent jurisdiction for discipline.[^6] However, the
exercise of a joint commander's disciplinary authority is qualified by
doctrine indicating the component authority should generally control the
disposition of a case.[^7] While doctrine may suggest a decision-making
hierarchy with the service component commander at the top, it does not
establish a hard-and-fast set of rules to resolve conflicts between
joint and component authority. Thus, if a joint commander believes she
has the authority to act, she may choose to do so without regard to the
doctrinal preference for disposition by the service component commander.
In other words, commanders like to command and they do not like limits
placed on their authority, especially ones they perceive as advisory and
not binding. As such, there exists a potential for conflicts between the
joint and service component commanders.

If both the joint and service component commander agree on the
disposition of a case, justice will usually be administered through the
offender's component chain of command. However, the joint commander and
the service component commander could differ in their opinions on the
disposition of a case. In addition, if the joint commander is not
satisfied with the service component commander's proposed solution,
there could arise a question as to whose authority is paramount. A
serious case could occur where a joint commander decides to exercise his
or her authority to convene a court-martial without regard to the
recommendations or desires of the service component commander. Joint
doctrine and regulation do not steer a clear path through these issues
and leave resolution of such matters to joint commanders and their
advisors.

A recent special court-martial held in the United Kingdom highlights
this problem and provides the foundation for this article. In that case,
the commander of a joint unit (an Air Force colonel) disagreed with the
recommendation of the service component commander (an Army lieutenant
colonel) regarding resolution of a case, choosing instead to exercise
her authority to convene a special court-martial against an Army
enlisted member.[^8] The case of *United States v. Specialist Eric A.
Egan*[^9] was the first truly joint court-martial of record tried in the
United States armed forces and provided a myriad of unprecedented issues
before, during, and after trial. [^10] Consequently, the *Egan* case
presented a "real world" test case for military justice in the
developing joint environment.

This article first reviews the development of military justice authority
in the joint environment created by Goldwater-Nichols, focusing
specifically on its impact on a joint commander's authority to convene
courts-martial. Thereafter, joint doctrine's impact on a joint
commander's authority to administer military justice is examined. The
focus then turns to the Joint Analysis Center (JAC) at RAF Molesworth,
United Kingdom, and an analysis of the case of *United States v.
Specialist Eric A. Egan.* Finally, the impact that the case may have on
the future of military justice in the joint environment is
discussed.[^11]

**II. MILITARY JUSTICE IN THE JOINT WORLD FROM GOLDWATER-NICHOLS TO
PRESENT**

##  

######### A. The Goldwater-Nichols Act, Article 23(a)(6), UCMJ, and

**Rule for Courts-Martial 201(e)**

The debate over reciprocal court-martial jurisdiction, which began in
1949 as Congress considered proposed Uniform Code of Military Justice
(UCMJ) Article 17,[^12] remains alive nearly fifty years later. The
drafters of Article 17, UCMJ, envisioned a future level of joint
operability that would necessitate joint court-martial convening
authority, but they likely never anticipated the remarkable moves
towards joint operations that have taken place over the last fifty
years.[^13]

Goldwater-Nichols, which became law on 1 October 1986, was hailed at the
time as "'one of the landmark laws of American history'"[^14] and
"probably the greatest sea change in the history of the American
military since the Continental Congress created the Continental Army in
1775."[^15] One of Congress's eight declared purposes in passing
Goldwater-Nichols was to ensure that the authority of commanders of
unified and specified combatant commands was fully commensurate with the
responsibility of those commanders for the accomplishment of assigned
missions.[^16] To meet this objective, pertinent changes were made to
both the UCMJ and the Rules for Courts-Martial (R.C.M.).

Goldwater-Nichols amended Article 22, UCMJ,[^17] with the creation of
Section 211(b),[^18] which enhanced joint commander-in-chief command
authority. This extended general court-martial convening authority to
"the commanding officer of a unified or specified combatant
command."[^19] In addition, R.C.M. 201(e) was amended to allow those
commanders-in-chief granted general court-martial convening authority
pursuant to Article 22, UCMJ, to "expressly authorize a commanding
officer of a subordinate joint command or subordinate joint task force
who is authorized to convene special and summary courts-martial to
convene such courts-martial for the trial of members of other armed
forces under regulations which the superior commander may
prescribe."[^20]

Subsequently, three ways developed in which a commander of a joint unit
could be authorized to exercise special court-martial convening
authority. First, the Secretary of Defense could designate or empower
the commander to exercise special court-martial convening
authority.[^21] Second, the commander could be authorized to act as a
convening authority by the joint or specified commander-in-chief.[^22]
Third, joint commanders not otherwise authorized to exercise special
court-martial convening authority could still be authorized to do so
pursuant to Article 23(a)(6), UCMJ, if they qualified as a "subordinate
\[joint force commander\] of a detached command or unit."[^23] Separate
or detached unit is defined as a unit that is "isolated or removed from
the immediate disciplinary control of a superior in such manner as to
make its commander the person held by superior commanders primarily
responsible for discipline."[^24] While the changes to the UCMJ and the
R.C.M. appear straightforward, the actual exercise of court-martial
convening authority continued to be somewhat restricted by joint
doctrine that developed after passage of Goldwater-Nichols.

**B. The Evolution of Joint Military Justice Doctrine**

**In The European Command**

#### 

#### *1. Joint Actions Among European Armed Forces*

Joint actions among services in Europe are controlled by Joint
Publication O-2. Joint Publication O-2 places primary responsibility for
good order and discipline in a joint command on the joint force
commander.[^25] That document also stresses the importance of having the
service component commander utilize the actual exercise of authority, a
fundamental principle of joint doctrine which tips the balance of
military justice command authority in favor of the service component
commander.[^26] Nevertheless, Joint Publication O-2, consistent with
Goldwater-Nichols and with the amendments to Article 22, UCMJ, and
R.C.M. 201(e), authorized commanders-in-chief to designate subordinate
joint force commanders as special-court-martial convening
authorities.[^27] In the United States European Command (USEUCOM),[^28]
the commander-in-chief utilized this authority to designate the Joint
Analysis Center commander (COMJAC) as a special court-martial convening
authority under USEUCOM Directive 45-4.[^29]

#### *2. The European Military Justice Directive*

Senator Goldwater predicted that meaningful implementation of many of
the changes included in Goldwater-Nichols would require five to ten
years time.[^30] In the arena of joint military justice, this prediction
was particularly prescient. In early 1997, USEUCOM promulgated a
military justice directive for joint commanders within the command.
USEUCOM Directive 45-4, Administration of Military Justice, dated
January 8, 1997, implemented the policies and principles of Joint
Publication O-2. Among other things, it marked the first time that joint
court-martial convening authority was delegated to a subordinate special
court-martial convening authority pursuant to R.C.M. 201(e)(2)(C).[^31]
It was upon this unique development in joint command authority that the
*Egan* case would later be based.

**III. *UNITED STATES v.***

***SPECIALIST ERIC ANTHONY EGAN***

######## A. Background

The setting for the *Egan* case was the Joint Analysis Center (JAC),
USEUCOM. The JAC is the primary intelligence organization for USEUCOM.
It is located approximately sixty miles north of London at RAF
Molesworth in Cambridgeshire, England.[^32] At the time of the *Egan*
case, it consisted of over 850 military personnel, including 560 Air
Force, 149 Army, 145 Navy, and ten Marines. [^33] The JAC, which stood
up in 1991, is a tenant unit at RAF Molesworth, United Kingdom,
supported by the host unit, the 423^rd^ Air Base Squadron (423 ABS), a
United States Air Forces in Europe organization consisting of over 280
Air Force personnel.[^34] The support agreement between these
organizations states that the Office of the Staff Judge Advocate for the
423 ABS (423 ABS legal office) will provide general legal services to
the JAC, to include areas such as military justice, on the same basis as
that provided to the 423 ABS.[^35] Nevertheless, each branch has
available to it a component legal office and, as originally conceived,
substantive military justice matters were to be processed through the
respective component service legal office. In other words, 423 ABS legal
office, an Air Force unit, was to provide only general military justice
guidance, leaving the ultimate disposition of a case to the component
service legal office.[^36]

The servicing legal offices for the Navy are located in London at the
Naval Legal Service Office[^37] and the office of Commander, Naval
Activities, United Kingdom.[^38] The Army legal office, which services
the JAC, is at the 254^th^ Base Support Battalion (254^th^ BSB) in The
Netherlands.[^39] While each branch of the service maintains a legal
point of contact for their component services at the JAC, the Air Force
is the only branch with a legal office located at the installation.[^40]
Over time, the geographic convenience of 423 ABS legal office resulted
in greater reliance by all branches at the JAC on that office for legal
advice and the processing of military justice actions.[^41] Until the
*Egan* case, however, all courts-martial of JAC personnel had been
convened by the respective service's convening authority.

## B. Facts of the Case

On July 28, 1997, Specialist Eric Anthony Egan, an imagery intelligence
specialist assigned to the Joint Analysis Center, reported to his
orderly room for random urinalysis.[^42] Subsequent testing of his
sample revealed the presence of "Ecstasy," a Schedule I controlled
substance.[^43] On September 23, 1997, shortly after the unit was
notified of the test results and the local detachment of the Air Force
Office of Special Investigations began its investigation, Specialist
Egan voluntarily waived his Article 31, UCMJ,[^44] rights and provided a
signed, sworn statement. In this statement, he admitted to an extensive
history with illegal drugs while on active duty, including: using
cocaine and marijuana near Fort Gordon, Georgia, in December 1995 with
two other Army members; using Ecstasy near his current duty station in
the United Kingdom in January 1997 after purchasing the drug with a
British friend; distributing Ecstasy near his current duty station in
the United Kingdom to British nationals in June 1997; obtaining
amphetamine and marijuana near London to provide to British nationals in
the spring 1997.

After notification of the urinalysis results and Specialist Egan's
confession, the Army element commander at the JAC (a captain) forwarded
the evidence to the Army Legal Service Center at the 254^th^ BSB. On
October 15, 1997, the Army element commander received a response from
the Army legal office at the 254^th^ BSB recommending Specialist Egan be
discharged as a first time offender without further non-judicial or
administrative action.[^45] Subsequently, the Army element commander
contacted the local Air Force legal office. She was advised that in the
previous two years, five courts-martial had been convened against JAC
personnel (including three Air Force and two Navy members, all of
similar rank to Specialist Egan), for drug offenses less serious in
nature and degree than those presented in the case of Specialist Egan.
Accordingly, the 423 ABS legal office advised the Army element commander
to take Specialist Egan to a court-martial in order to prevent an
appearance of inconsistent treatment among the services.

## C. Initial Army Disposition of Case

In November 1997, the Army element commander decided to accept the
recommendation of the 423 ABS legal office and prefer court-martial
charges against Specialist Egan. At this point, a decision was made that
pursuant to USEUCOM Directive 45-4 and Joint Publication O-2, both of
which establish a preference for using the service component convening
authority of the accused, this action should be processed through the
Army chain of command. After extensive communication with both the Army
and Air Force legal offices, the Army element commander preferred
charges against Specialist Egan on January 9, 1998, and, in accordance
with Army regulations, the charges were forwarded to the commander of
the 254^th^ BSB, the summary court-martial convening authority, for
review.[^46]

On February 3, 1998, the commander of the 254^th^ BSB returned the
charges to the element commander at the JAC with a recommendation for
dismissal and disposition at a lower level. As a result, the Army
element commander and the JAC command section were at a crossroads. The
Army element commander had to either accept the 254^th^ BSB's
recommendation and resolve the matter at her level or forward the case
to COMJAC with a recommendation to convene a special court-martial under
the authority granted by USEUCOM Directive 45-4.[^47] In the interest of
consistency, she chose the latter.

**D. Convening a Joint Special Court-Martial**

The task of taking Specialist Egan to a joint court-martial fell to the
Air Force's 423 ABS legal office. The most troublesome problem was the
simple fact that utilizing joint court-martial convening authority was
unprecedented. While some "interservice" courts-martial involving
reciprocal jurisdiction had taken place, there had been no reported
cases of a joint commander on any level convening a court-martial.[^48]
Consequently, there was an absence of authority and precedence to guide
the processing of a joint court-martial.

Nevertheless, the decision was made to proceed. The COMJAC was asked to
consider convening a special court-martial pursuant to USEUCOM Directive
45-4. The charges were repreferred on February 19, 1998, by the JAC
Chief of Staff (an Army lieutenant colonel).[^49] On February 27, 1998,
COMJAC referred the charges to a special-court martial consisting of a
panel of Army officers assigned to the JAC.[^50] After coordination with
the Army's Fifth Judicial Circuit (serving both European and Central
Commands), an Army judge was assigned and arraignment was scheduled for
March 11, 1998.

# 

# **E. Trial**

*1. Detailing Participants to a Joint Court-Martial*

The case of *United States v. Specialist Eric A. Egan*, was convened on
March 11, 1998 in the United States Air Force courtroom at RAF
Alconbury, United Kingdom. Assembled in the courtroom were the accused,
a military judge and defense counsel from the Army, an Air Force defense
counsel, an Air Force prosecutor, and a civilian court reporter who
worked for the Air Force.[^51] While a special court-martial obviously
needs a military judge, trial and defense counsel, and a court reporter
to proceed, the determination which service the respective participants
should come from was a novel issue.

R.C.M. 503 and Articles 26 and 27, UCMJ,[^52] discuss the detailing of
military judges and counsel, but provide no guidance for a joint
court-martial. R.C.M. 503(b)(1) and (c)(1) state the military judge and
counsel, respectively, "shall be detailed in accordance with regulations
of the Secretary concerned."[^53] However, in the case of a joint
court-martial, there is no "Secretary concerned," nor are there any
joint publications addressing specific administrative military justice
procedures in the kind of detail provided in Air Force Instruction
51-201 or Army Regulation 27-10 (AR 27-10).[^54] As a result, the
parties in *United States v. Egan* were assembled using the time-tested
principles of expediency, availability, and common sense.

The military judge, Colonel Peter A. Brownback III, assigned himself to
the case.[^55] The lead defense counsel, Captain Jason B. Libby, a Trial
Defense Service Counsel in Kaiserslautern, Germany, was assigned to the
case by the Regional Defense Counsel, Region VII, United States
Army.[^56] A second defense counsel, Air Force Captain Edward Damico,
was assigned to the case by the Chief Circuit Defense Counsel for the
Air Force's European Judicial Circuit.[^57] The prosecutor, Air Force
Captain Thomas A. Dukes, Jr., was assigned to the case by COMJAC's staff
judge advocate, Major Chris Farris.[^58] The court reporter, Ms. Jackie
Davidson, was made available by the 100^th^ Air Refueling Wing's legal
office at RAF Mildenhall, United Kingdom.[^59] The accused raised no
objection to the participation of the above-mentioned personnel, and the
record duly reflected that each of them had been properly certified,
designated, assigned, and sworn.[^60]

The Manual for Courts-Martial (MCM) is silent, however, on many minor
procedural considerations. Thus, it was not surprising, given the branch
of the service of the presiding judge, that the proceedings often had a
decidedly olive tinge. This was particularly evident during the initial
Article 39(a), UCMJ,[^61]session where all parties wore the battle dress
uniform.[^62] Another

interesting note for Air Force trial practitioners was the fact that in
accordance with Army practice, the arraignment was held as soon as
possible--in this case fourteen days--after referral of charges. In
addition to considering motions and the entry of pleas, this initial
Article 39(a) session included the negotiation and determination of the
trial date.[^63] Prior to entry of pleas, there were several unique
issues and motions that arose from the joint nature of the trial.

## *2. Forum Selection -- Enlisted Members*

The convening order included seven Army officer court members selected
by COMJAC.[^64] As the military judge advised the accused of his forum
rights, including the right to request enlisted court members, there
arose the question of how to define the accused's "unit" for purposes of
Article 25(c), UCMJ.[^65] Article 25(c)(1), UCMJ, provides that "\[a\]ny
enlisted member of an armed force on active duty who is not a member of
the same unit as the accused is eligible to serve" as a member of a
court-martial of that enlisted accused.[^66] Article 25(c)(2), UCMJ,
states that a unit is "any regularly organized body as defined by the
Secretary concerned, but in no case may it be a body larger than a
company, squadron, ship's crew, or body corresponding to one of
them."[^67] In an attempt to determine what constituted the accused's
unit, the JAC's first sergeant was called as a witness and testified the
JAC had approximately 180 assigned Army personnel, organized into an
element commanded by an Army captain.[^68]

The military judge initially ruled that based upon the JAC first
sergeant's testimony it appeared that all Army enlisted personnel
assigned to the JAC were members of the accused's unit, thereby
rendering them ineligible to sit as court members.[^69] Defense counsel
challenged this position on two grounds: first, that the same
"fundamental fairness concepts" which had led COMJAC to select only Army
officers as court-members on the convening order should apply to
enlisted members;[^70] and second, that this was a "unique situation . .
. not envisioned by the drafters of \[Article\] 25(c)."[^71] Through
further discussion, defense counsel conceded certain points to the
military judge. First, if the U.S. Army enlisted contingent satisfied
the Article 25(c), UCMJ, definition of unit, then all Army enlisted
personnel assigned to the JAC would be ineligible to sit as
court-members in the case. Second, the entire JAC enlisted contingent of
approximately 700 personnel was larger than a unit as contemplated by
Article 25(c), UCMJ. Finally, Article 25(c), UCMJ, would allow enlisted
personnel from other services assigned to the JAC to be detailed as
court-members.[^72] Following a lengthy discussion between the military
judge and counsel, the judge decided to defer ruling on the issue,
pending the production and review of "assumption of command orders" for
the Army element commander.[^73] Ultimately, the issue was rendered moot
when the accused elected trial by military judge alone.[^74]

*3. Applicability of Service Regulations*

*to a Joint Court-Martial*

The next pretrial motion raised by the defense pertained to issues
involving COMJAC's authority to convene special courts-martial. The
defense conceded that COMJAC had the authority, pursuant to Article
23(a)(6), UCMJ, R.C.M. 201(e), and USEUCOM Directive 45-4, paragraph
7(e)(7), to convene a special-court-martial.[^75] However, the accused,
in a motion for appropriate relief, asked the military judge to find as
a matter of law that COMJAC did not have the authority to convene a
special court-martial that could adjudge a bad conduct discharge.[^76]
This motion was based on AR 27-10, which states that only a
court-martial convened by a GCMCA may adjudge a bad conduct discharge, a
limitation unique to Army trial practice.[^77] The accused argued that
the language of USEUCOM Directive 45-4, paragraph 7(e)(7), stating,
"Normally, courts-martial cases will be referred to the appropriate
servicing legal office for referral and disposition," implies AR 27-10
should be followed.[^78] The military judge, in denying the motion,
pointed out that the only punishment limitations applicable to this
court-martial were those contained in the MCM and UCMJ. Further, the
judge ruled that the designation of joint convening authorities under
R.C.M. 201(e), promulgated by the President, obviously trumped AR 27-10,
a service regulation issued by the Secretary of the Army.[^79] In short,
the military judge found that service regulations did not apply to a
court-martial convened by a joint commander.

## *4. Army vs. Air Force: Challenging the Air Force's*

## *"Inflexible Predisposition" Toward Illegal Drug Use*

The final pretrial motions raised by the defense brought issues of
perceived interservice rivalry into the courtroom. The combined motions
for appropriate relief asked the military judge to dismiss all charges
on the grounds that COMJAC was an Air Force colonel, serviced by an Air
Force legal office, whereas the accused was a member of the Army.[^80]
Accordingly, COMJAC was, in mind of the defense, inappropriately
applying an inflexible Air Force standard in drug cases against an Army
accused.

The first ground cited was based upon the proposition that "the Air
Force has an appearance of an intolerance of drug use or an attitude
towards disposing of drug offenses which is different than the
Army."[^81] In response to this, the prosecution offered a stipulation
of expected testimony from COMJAC, agreed to by the accused. The
stipulation stated that COMJAC was aware that prior to her assumption of
command, both Air Force and Navy enlisted personnel assigned to the JAC
had been court-martialed for less serious drug offenses; that she had
administered non-judicial punishment to an Army enlisted member for
using drugs with the accused; and that, ultimately, "the consistency of
discipline overall in the JAC as a joint unit led her to determine that
it was appropriate to refer charges in this case to a special
court-martial."[^82]

The second ground cited was based upon the defense's "concerns about the
Air Force's, as a service, intolerance of drug use \[and\] the Air
Force's singling out the Army."[^83] In arguing this position, defense
counsel stated "it's a matter of fairness. Specialist Egan was on his
way home, and the Air Force grabbed hold of the case and pulled him back
in."[^84]

The Army judge was not persuaded. In denying the defense motions, the
judge noted, "\[COMJAC\] is not an Air Force commander. She's a joint
commander."[^85] In issuing his ruling, the military judge informed the
defense, "\[T\]he court understands your concern, but doesn't find that
the Air Force has done anything in this case. The court finds that
COMJAC has \[handled\] matters in this case, and that motion, along with
the inflexible predisposition motion, is denied."[^86] Simply put, the
judge determined *Egan* was a case of the United States against the
accused, not the Air Force against the Army.

*5. The Merits*

During presentation of the case on the merits, the focus moved away from
joint procedural issues to the more routine evidentiary matters which
are standard in all courts-martial. Of significance was the issue of
corroboration of Specialist Egan's September 23, 1997 confession, with
the government relying primarily on hearsay statements that had been
provided by eyewitnesses to the accused's use, possession, and
distribution of illegal drugs.[^87] The government also offered the
testimony of a British police constable who specialized in anti-drug
enforcement in the local community.[^88] The constable testified that
the details contained in the accused's confession as to the persons,
places, and prices he was involved with were consistent with the
persons, places, and prices involved in the local drug trade.[^89] Also,
the government offered the testimony of a witness to whom the accused
had made an admission that corroborated two of the specifications of
alleged drug use.[^90] Ultimately, the military judge found that much of
the confession had been corroborated, and that the accused was guilty of
four of the eight specifications against him.[^91]

*6. Sentencing*

During the sentencing portion of the case, the joint environment which
produced his court-martial provided some benefit to Specialist Egan as
non-commissioned officers from three branches of the service testified
on his behalf. A Marine staff sergeant who had previously supervised him
referred to Specialist Egan as "the best performer I had."[^92] A former
Army noncommissioned officer and supervisor concurred, adding, "As far
as the Army went, he was *hooah*."[^93] An Air Force staff sergeant who
had supervised him since his apprehension called Egan "dependable\[,\] .
. . reliable\[, and\] outstanding."[^94]

After this testimony and a defense argument to consider "the unique
posture of this case,"[^95] the military judge imposed a sentence of
confinement for forty-five days, reduction to the lowest enlisted grade,
forfeiture of \$600.00 a month for six months, and a bad conduct
discharge.[^96] Clearly, the bad conduct discharge was significant
because it would mean an automatic appeal and appellate consideration of
all the issues presented by this unique case.[^97]

**F. Post-Trial and Appellate Review**

Post-trial procedures in the *Egan* case followed Army guidelines, which
are substantially similar to those in the Air Force.[^98] Since most of
what occurs procedurally after trial under military law is governed by
specific provisions in the MCM, this is not surprising.[^99]

Specialist Egan exercised his right to submit information to the
convening authority for her consideration prior to taking action on his
case.[^100] In his post-trial matters, Specialist Egan, through counsel,
once again challenged the manner in which his case had been
convened.[^101] Primarily, Specialist Egan objected to the fact that
COMJAC chose to refer the charges to trial despite the fact the Army
summary court-martial convening authority had recommended dismissing
them, thereby violating his rights to substantive due process.[^102]
Specialist Egan argued further that he was entitled to be treated like
any other Army member and should not have been punished simply because
he was assigned to a joint command. As an Army member, Specialist Egan
felt he was entitled to the protection of Army regulations and
procedures that were not applied by the military judge because, in the
judge's view, such regulations did not apply to a courts-martial
convened by a joint commander.[^103] In arguing this point, his counsel
stated, "Joint trials are a relatively new phenomenon and, perhaps, the
wave of the future, but this does not mean that they comply with the due
process requirements of the Constitution."[^104]

While the due process argument is intriguing, it is undermined by the
fact the protections afforded by the regulations of one service do not
necessarily rise to a constitutional level simply because similar
protections are not provided by the other services (absent a higher
court ruling to the contrary). For example, if the Army regulation
requires GCMCA approval of a bad conduct discharge adjudged by a special
court-martial when the Air Force and Navy do not, it is questionable
whether such a requirement amounts to a fundamental right under the
Constitution. In fact, if the interest is to have all military members
treated equally (rather than all Army members treated equally), then
there is a great deal of logic to the judge's decision in *Egan* to not
follow service regulations in a court-martial convened by a joint
commander. Regardless, the applicability of service regulations to joint
courts-martial is sure to be a key issue on appeal.

Despite the post-trial matters raised by the defense, COMJAC approved
the sentence as adjudged on August 4, 1998. Subsequently, the case was
forwarded to Headquarters, Department of the Army for review and
eventual consideration by the Army Court of Criminal Appeals.[^105]

**IV. POST-*EGAN*:**

**WAVE OF THE FUTURE OR ANOMALY?**

Looking ahead, it is unclear whether *Egan* represents the beginning of
a trend toward "joint justice" or simply an unusual case that was a
product of unique circumstances. The weight of joint doctrine still
favors referring military justice matters to the service component
commander for resolution. Also, the joint commander in this case had the
advantage of being empowered with special court-martial convening
authority under a USEUCOM directive provision that currently has no
counterpart in the other unified commands.

The circumstances that compelled the joint commander to convene the
*Egan* case were, arguably, not unique. COMJAC simply experienced
frustrations which may be shared by other joint commanders who feel
unduly restricted by having to refer military justice matters to service
component commanders. As such, the *Egan* case begs the question of
whether, in the interests of providing joint commanders full command
authority, doctrine (as well as the MCM and R.C.M.) should be modified
to permit and perhaps encourage joint commanders to convene
courts-martial against members within their respective command,
regardless of branch of service.

In favor of such modification is the argument that a commander's
authority must, by definition, include the full ability to enforce
it.[^106] Primary component service jurisdiction dilutes the authority
of the joint commander and takes away one of the most important elements
of command--the authority to hold members accountable. Moreover, as we
continue to emphasize integration into joint operating units, the
impetus to enhance joint command authority will only increase. It seems
fundamentally inconsistent to promote joint operations at the same time
that we adhere to single service processing of military justice matters.
This approach suggests that operations and military justice are
severable, which, as anyone experienced with command issues knows, is
not the case.

Additionally, concurrent military justice jurisdiction highlights the
fact that we may not have fully developed the concept of the "joint
warrior." We may mix the various services into a joint unit, but they
still wear their distinctive service uniforms, are still promoted within
their services, and still answer to their own chains of command. By
denying a joint commander the primary authority to deal with misconduct
from all branches of the service, we enhance a feeling of segregation
within the unit that degrades discipline and morale by sending mixed
messages about competing loyalties and standards of conduct. As a
consequence, the joint warrior continues to be a warrior serving two
masters.

Conversely, there are compelling reasons to maintain the status quo.
First, military justice is essentially defined in terms of the mission
environment, which has traditionally been service specific. The
differing cultures and traditions of the Air Force, Army, Navy, and
Marines, as well as the varied approaches they take to training and
fighting, have had a tremendous impact in shaping how each service views
and practices military justice. What we expect of our sailor at sea is
different than the Marine assigned to staff or the airman assigned to
the missile launch facility. It follows then, that as a matter of
fairness, a member who enlists in a specific service should be entitled
to be judged by the standards applied to his peers who serve in
single-service units and not a "fifth standard" of joint military
justice. As the defense argued in *Egan,* a soldier should not be
punished for being assigned to a joint unit and should not have to live
up to standards which may be inconsistent with his training and single
service experience. If we want to create a joint standard of military
justice, we have to do more than modify doctrine, we have to revise the
way we recruit, train, and fight in an increasingly joint world.

Second, how is a joint standard of military justice to be defined?
Standards tend to develop according to the custom and experience of a
group, be it a uniformed branch of the military or a single military
unit. Consequently, USEUCOM may develop unique standards that are
distinct from those developed within United States Pacific Command or
United States Strategic Command. Is it fair for someone within USEUCOM
to receive different disciplinary treatment than someone assigned to
these other commands? In that case, aren't we right back to where we
started? The bottom line is that simply modifying doctrine to enhance
the joint commander's military justice authority does not solve the
larger problem of eliminating inconsistent standards of justice.

With strong arguments on both sides of this issue, it is likely that
*Egan* will remain a unique case that tested the frontiers of joint
military justice but did not extend them. Hopefully, for those
practitioners who continue to chart the waters between joint and service
component command authority, the lessons learned from the *Egan* case
will assist them in the event that it is the first but not the last
joint court-martial.

[^1]: \**Captain Walsh (B.A., University of Washington; J.D., Gonzaga
    University) is the Deputy Staff Judge Advocate of the 423^rd^ Air
    Base Squadron, RAF Molesworth, United Kingdom. He is a member of the
    Washington State Bar.*

    *\*\*Captain Dukes (B.A., University of Maine; J.D., University of
    Virginia) is a Circuit Trial Counsel, Western Circuit, Air Force
    Legal Services Agency, Travis AFB, California. He is a member of the
    Virginia Bar.*

[^2]: ^1^ Statement by Colonel Peter A. Brownback III, Military Judge,
    in response to an argument by the defense counsel concerning the
    difference between Air Force and Army regulations and procedures.
    Record of Trial, United States v. Specialist Eric A. Egan (E-4),
    March 11, 1998, RAF Alconberry, United Kingdom, at 37 \[hereinafter
    Record\]. "Purple" is a term often used to refer to joint operations
    or the joint environment, an allusion to the mixing of uniform
    colors.

[^3]: ^2^ 1986 DOD Reorganization Act, Pub. L. No. 99-433, 100 Stat.
    1013 (codified as amended at 10 U.S.C.A. § 164 (1998) \[hereinafter
    Goldwater-Nichols\].

[^4]: ^3^ *See* James R. Locher [III]{.smallcaps}, *Taking Stock of
    Goldwater-Nichols,* [Joint Forces Q.]{.smallcaps}, Autumn 1996, at
    10-11 (citing comments by former Secretary of Defense Dick Cheney
    that while Goldwater-Nichols had "significantly improved the way"
    the military functions, there was still institutional resistance to
    Goldwater-Nichols, with "each service want\[ing\] to do its own
    thing, with its own authority"). *See also* Peter W. Chiarelli,
    *Beyond Goldwater-Nichols,* [Joint Forces Q.]{.smallcaps}, Autumn
    1993, at 71, 78 (noting that service autonomy continues to impede
    reform of U.S. military organization).

    ^?^ Generally, the joint commander is encouraged to exercise
    disciplinary authority through the respective service commander.
    *See,* Joint Chiefs of Staff Publication 0-2, Unified Action Armed
    Forces, ¶ IV-11 (Feb. 24, 1995) \[hereinafter Joint Publication
    O-2\]. However, some have argued that component command and
    regulatory authority should have no impact on joint organizations
    and their commanders.

    > The growing role of the joint commander will reduce the role of
    > the component commander. As a result, the impact of component
    > regulations and policies will diminish, and divergence among the
    > regulations and policies will become increasingly vestigial.
    > Absent compelling reasons to the contrary, joint force commanders
    > should have clear disciplinary authority over their subordinates.
    > Their judge advocates must push to make that happen.

    Lieutenant Colonel Marc L. Warren, *Operational Law---A Concept
    Matures*, 152 [Mil. L. Rev]{.smallcaps}. 33, 66 (1996)

[^5]: *See generally* Major Grant Blowers and Captain David P. S.
    Charitat, *Disciplining the Force, Jurisdictional Issues In the
    Joint and Total Force,* 43 A.[F. L. Rev]{.smallcaps}. 1 (1997).

[^6]: *See* Joint Publication 0-2, *supra* note 4, ¶ IV-11.

[^7]: The weight of regulatory authority strongly encourages the
    administration of good order and discipline through the respective
    component service. Joint Publication 0-2, *supra* note 4, at ¶
    IV-11(b); [Manual For Courts-Martial]{.smallcaps}, United States
    (1998 ed.) \[hereinafter MCM\], Rules for Courts-Martial 201
    \[hereinafter R.C.M.\]; Air Force Instruction 51-201, Administration
    of Military Justice ¶ 2.4 (Oct. 3, 1997) \[hereinafter AFI 51-201\].

[^8]: A United States Air Force colonel was the commander (COMJAC) of
    the Joint Analysis Center (JAC), United States European Command
    (USEUCOM) at the time. The COMJAC position alternates between the
    Army and Air Force approximately every two years. The COMJAC has
    special court-martial convening authority. *See* United States
    European Command Directive 45-4, Administration of Military Justice
    ¶ 7(e)(7) (8 January 1997) \[hereinafter USEUCOM Directive 45-4\].

[^9]: The authors served as cocounsel in this case. At the time this
    article was written, the case had been forwarded to the Army Court
    of Criminal Appeals for review but had not yet been reviewed by the
    Court.

[^10]: Contact with representatives from the offices of all unified and
    specified command legal advisors, as well as representatives from
    the military justice divisions of the Air Force and Army legal
    services agencies, revealed no record of a previous case where a
    joint commander exercised court-martial convening authority (general
    or special) over a member of a joint unit. In fact, at the time this
    article was written, USEUCOM Directive 45-4, which confers such
    authority on the COMJAC, did not have a counterpart in the
    directives governing military justice in other unified or specified
    command. USEUCOM Directive 45-4, *supra* note 8, at ¶ 7(e)(7). In
    reference to the term "joint court-martial," while judge advocates
    from different services might have served as a military judge, trial
    counsel, or defense counsel in cases for branches other than their
    own, the term as used in this article refers to a court-martial
    convened by a joint commander empowered under R.C.M. 201(e)(2).

[^11]: This examination of a joint commander's authority to convene
    courts-martial and the prosecution of a joint court-martial is meant
    to provide a reference to the joint legal advisor and trial
    practitioner for convening, prosecuting, and defending similar joint
    cases in the future.

[^12]: Uniform Code of Military Justice \[hereinafter UCMJ\] art. 17, 10
    U.S.C.A. § 817 (1998) (concerning jurisdiction for courts-martial).

[^13]: *See generally* Peter M. Murphy and William M. Koenig, *Whither
    Goldwater-Nichols,* 43 [Nav. L. Rev]{.smallcaps}. 183, 185-187
    (1996).

[^14]: Locher, *supra* note 3, at 10 (quoting Congressman Les Aspin,
    then Chairman of the House Armed Services Committee).

[^15]: *Id.* The delineation of military authority was a controversial
    issue for the new United States Congress in the years following the
    American Revolution. *See* Pablo Ruiz-Tagle, *Reflections on the
    Origins of American Military Institutions,* 2 [J. Leg.
    Stud.]{.smallcaps}, 113, 115 n.23 (1991) ("\[T\]he Secretary of War,
    other civilian officers, and the military chiefs shared functions
    which were imprecisely delineated. This understandably resulted in
    competition.").

[^16]: Locher, *supra* note 3, at 11.

[^17]: UCMJ art. 22, 10 U.S.C.A. § 822 (1998) (concerning the
    identification of the proper authority to convene general
    courts-martial).

[^18]: Goldwater-Nichols, *supra* note 2, § 211(b).

[^19]: *Id.* General court-martial convening authority is the authority
    given to commanders at certain levels to order a general
    court-martial to be held to try serious violations of the UCMJ, such
    as rape and murder. By contrast, special court-martial convening
    authority is the authority granted to commanders at certain levels
    to order a special court-martial to try allegations of less serious
    criminal conduct.

[^20]: MCM, *supra* note 7, R.C.M. 201(e)(2)(C). This provision of
    R.C.M. 201 was amended by Change 3 to the *Manual For Courts-Martial
    on* March 3, 1987. It should be noted this provision could
    potentially be interpreted to limit commander-in-chief special
    court-martial convening authority authorization to those commanders
    who are already empowered by their service to convene special
    courts-martial; in other words, those who are "dual-hatted" as
    single service and joint commanders. Although the defense did not
    raise this issue during the *Egan* case, an argument could have been
    made that COMJAC did not qualify as a special court-martial
    convening authority under R.C.M. 201(e)(2)(C) because she had not
    been independently provided this authority by the Air Force.

[^21]: UCMJ art. 22(a)(3), 10 U.S.C.A. § 822.

[^22]: MCM, *supra* note 7, R.C.M. 201(e)(2)(C). This regulatory
    authority is cited by USEUCOM Directive 45-4 as the basis for
    providing COMJAC with special court-martial convening authority.

[^23]: Joint Publication O-2, *supra* note 4, ¶ IV-12. As discussed
    above in note 20, if an argument were made that the COMJAC was not a
    duly authorized special court-martial convening authority under
    R.C.M. 201(e)(2)(C) because she was not "dual-hatted," a contrary
    argument could be made that the JAC is a "separate or detached unit"
    such that COMJAC would, indeed, have special court-martial convening
    authority pursuant to Article 23(a)(6), UCMJ. *See* UCMJ art.
    23(a)(6), 10 U.S.C.A. § 823(a)(6) (1998).

[^24]: MCM, *supra* note 7, R.C.M. 504(b)(2)(A).

[^25]: Joint Publication O-2, *supra* note 4, ¶ IV-11(a). "The \[Joint
    Forces Commander\] is responsible for the discipline and
    administration of military personnel assigned to the joint
    organization." *Id*.

[^26]: *Id*. ¶ IV-11(c). "The \[Joint Forces Commander\] should normally
    exercise administrative and disciplinary authority through the
    Service component commanders to the extent practicable." *Id*. The
    implication is that while the joint commander has initial
    decision-making authority, the actual administration of military
    justice remains with the service component commander.

[^27]: *Id.* ¶ IV-12.

[^28]: The United State European Command (USEUCOM) is one of nine
    unified and specified joint commands under which United States Armed
    Forces have been organized since passage of the Goldwater-Nichols
    Act. *See*[, Armed Forces Staff College, Department of Defense,
    Publication 1, The Joint Staff Officer's Guide]{.smallcaps} 2-206(h)
    (1997).

[^29]: USEUCOM Directive 45-4, *supra* note 8, ¶ 7(e)(7). "Pursuant to
    R.C.M. 201(e)(2)(A) and 201 (e)(2)(c) . . . COMJAC is authorized to
    convene Special Courts-Martial and Summary Courts-Martial over a
    member of any of the Armed Forces assigned to the JAC." *Id.* The
    Directive goes on to qualify this provision. "Generally, this option
    will be exercised when the misconduct arises from a joint origin or
    has joint force implications. Normally, courts-martial cases will be
    referred to the appropriate servicing legal office for referral and
    disposition." *Id.* Thus, the Directive mirrors the joint-component
    service balancing of interests incorporated into the Joint
    Publication 0-2. One might argue, however, that any case within a
    joint organization has "joint service implications" simply because
    the soldiers, sailors, Marines, and airmen work side by side and are
    aware of disciplinary actions taken within the unit, thus affecting
    the deterrent impact of any disciplinary action. Of course, this is
    the concern that lead the JAC commander to convene *United States v.
    Egan*. Nevertheless, in the interests of maintaining the unique
    standards of each service, the provision is generally interpreted
    narrowly, requiring articulation of a specific joint impact.

[^30]: *See* Locher, *supra* note 3, at 10.

[^31]: *See supra* note 10 and accompanying text.

[^32]: The acronym "RAF" stands for Royal Air Force, and it serves as a
    means to identify British Air Force bases.

[^33]: Interview with Patrick D. Murray, Chief of Manpower, Joint
    Analysis Center, RAF Molesworth, United Kingdom (May 31, 1998); and
    Staff Sergeant John V. Hover, 423 Air Base Squadron Commander
    Support Staff, RAF Molesworth, United Kingdom (May 31, 1998). The
    manning information is actually contained in the base computer
    system known as PC III. The JAC also had over 700 civilian personnel
    assigned from different federal agencies.

[^34]: Interview with Patrick D. Murray, *supra* note 33; Interview with
    Staff Sergeant John V. Hover, *supra* note 33*.* The term "stood
    up," a military term, means to begin operation.

[^35]: DD Form 1144, Interservice Support Agreement No.
    FB5643-950712-001, ¶ B-23, at 17 (dated 12 Jul 95) (on file with the
    423 ABS/XP, RAF Molesworth, United Kingdom). Other services include
    claims, legal assistance, civil law, and international law.

[^36]: For example, if a Navy member engaged in misconduct, the senior
    Naval officer at the JAC might call 423 ABS legal office to find out
    how to obtain an investigation or to gain a general idea of how the
    case should be handled, but the staff judge advocate for the
    component service commander would provide a recommendation for
    disposition and process the case from that point forward.

[^37]: The Naval Legal Service Office, London, which previously provided
    defense and legal assistance to Navy personnel assigned to the JAC,
    was shut down in October 1998.

[^38]: The office of Commander, Naval Activities, United Kingdom, serves
    as the component special court-martial convening authority for Navy
    cases at the JAC.

[^39]: The Commander, 254^th^ BSB, serves as the summary court-martial
    convening authority for Army cases at the JAC. The Commander, 21^st^
    Theater Army Area Command, serves as the special and general
    court-martial convening authority for Army cases at the JAC.

[^40]: This has resulted in the 423 ABS legal office providing
    significant legal support to all branches of service at the JAC, to
    include prosecutorial support as well as drafting non-judicial
    punishment for all three branches of the service.

[^41]: The 423 ABS legal office officially became the sole contact point
    for all military justice matters with the enactment of Joint
    Analysis Center Directive 45-4, *Administration of Military Justice
    at the Joint Analysis Center, USEUCOM* ¶ 1.6 (15 December 1998). The
    423 ABS legal office is required to coordinate with the respective
    component service staff judge advocate, but most military justice
    matters are handled "in-house."

[^42]: Record, *supra* note 1, Prosecution Exhibit 1, at 19.

[^43]: The chemical name for Ecstasy is
    3,4-methylenedioxymethamphetamine (also commonly referred to as
    "MDMA"). It is listed as a Schedule I controlled substance under 21
    U.S.C.A. § 1308.11 (1998).

[^44]: UCMJ art. 31, 10 U.S.C.A. § 831 (1998).

[^45]: Memorandum for Record, Captain Melinda K. Tilton, United States
    Army Element Commander, JAC, USEUCOM, entry for October 15, 1997
    (July 28, 1997 to February 9, 1998) (on file with 423 ABS legal
    office). During additional communications with the Army legal
    office, Capt Tilton was told there was insufficient evidence for a
    court-martial because of a lack of corroboration and that if
    Specialist Egan was court-martialed, he would probably only receive
    a reduction in rank without jail time or a punitive discharge.
    *Id*., at entry for October 20, 1997.

[^46]: Army Regulation 27-10, Military Justice ¶ 13-6 (May 6, 1996)
    \[hereinafter AR 27-10\]. Under Army regulations, the summary
    court-martial convening authority could, among other things, forward
    the charges to the special court-martial convening authority, order
    an Article 32, UCMJ, hearing to determine if a general court-martial
    was appropriate, or return the charges for other disposition. In
    this case, the 254^th^ BSB commander chose the latter. Preferral of
    charges refers to the process by which the accused is officially
    notified of the charges against him. This act begins the
    court-martial process. *See* MCM, *supra* note 7, R.C.M. 307.

[^47]: See USEUCOM Directive 45-4, supra note 8, ¶ 7(e)(7).

[^48]: Reciprocal jurisdiction under R.C.M. 201(e) refers to that
    authority which allows a single service convening authority from one
    branch to convene a court-martial against a member from another
    branch. *See, e.g.,* Major Michael J. Berrigan, *The UCMJ and the
    New Jointness: A Proposal to Strengthen the Military Justice
    Authority of Joint Task Force Commanders*, 44 [Nav. L.
    Rev.]{.smallcaps} 59, 114 n.197 (1997) (citing cases involving
    reciprocal jurisdiction). In those cases, the court-martial would
    presumably have been processed according to the customs and
    regulations of the convening authority's branch of service. However,
    when the authority to convene a court-martial comes from a joint
    directive, it is not precisely clear which regulations control basic
    procedural issues. *Id*. *See also supra* note 10 and accompanying
    text.

[^49]: Record, *supra* note 1, DD Form 458 (Charge Sheet), at 19. The
    charges were repreferred because the belief was that the Army
    summary court-martial convening authority had actually dismissed the
    charges on February 3, 1998. Memorandum from Lieutenant Colonel
    Guadalupe, Commander, 254^th^ Base Support Battalion (February 3,
    1998) (on file with 423 ABS legal office); Record, *supra* note 1,
    Appellate Exhibit VIII, at 27. In fact, he had only recommended
    dismissal and the initial charges where not actually dismissed until
    the military judge did so at trial. Record, *supra* note 1, at 31.

[^50]: The discussion adjoining R.C.M. 503(a)(3) states that
    "\[M\]embers should ordinarily be of the same armed force as the
    accused." MCM, *supra* note 7, R.C.M. 503(a)(3). As such, the
    initial decision was to select Army officers to sit as members. The
    COMJAC's decision in that regard was consistent with R.C.M. 503.
    Later, as discussed below, the accused requested enlisted members.
    Record, *supra* note 1, at 45. At that time, the decision was that
    any enlisted members would be selected from among all of the
    branches serving at the JAC. *Id.* at 11-12, 40-45. The term
    "referred" is used to describe the order by the convening authority
    that a court-martial take place. See MCM, *supra* note 7, R.C.M.
    202.

[^51]: Record, *supra* note 1, at 2.

[^52]: UCMJ arts. 26, 27, 10 U.S.C.A. §§ 826, 827 (1998).

[^53]: MCM, *supra* note 7, R.C.M. 503(b)(1), (c)(1).

[^54]: Joint Publication O-2 only provides a theoretical/policy-oriented
    overview of military justice in the joint operations world. *See
    generally* Joint Publication 0-2, *supra* note 4. Likewise, although
    USEUCOM Directive 45-4 designates COMJAC as a special court-martial
    convening authority for JAC personnel, it provides no detailed
    guidance for conducting any courts-martial COMJAC might convene.
    *See* USEUCOM Directive 45-4, *supra* note 8, ¶ 7(e)(7).

[^55]: Record, *supra* note 1, at 2. Based on the lack of precision in
    the wording of R.C.M. 503(b)(3), the military judge obtained
    permission from the designee of the United States Army Judge
    Advocate General to detail himself to the case. While R.C.M.
    201(e)(4) does not prohibit detailing a military judge to a case in
    which the military judge is not of the same service as the accused
    or the convening authority, R.C.M. 201 does not specifically
    authorize such detailing. *See* MCM, *supra* note 7, R.C.M. 201.

[^56]: Record, *supra* note 1, at 3.

[^57]: *Id.*

[^58]: *Id.* at 2. The U.S. Army's 21^st^ Theater Army Area Command
    Legal Office was, not surprisingly, unwilling to provide a trial
    counsel for the prosecution of an accused against whom they had
    recommended dismissing all charges and processing for administrative
    discharge. After the initial Article 39(a), UCMJ, session and before
    trial on March 18, 1998, Air Force Captain William H. Walsh was
    assigned as trial counsel with Captain Dukes. Army SGT Daniel
    Griffith, replaced the civilian court reporter who had been present
    during the initial Article 39(a) session on March 11, 1998. *Id.* at
    38-39.

[^59]: *Id*. at 2.

[^60]: *Id.* at 1-3.

[^61]: UCMJ art. 39(a), 10 U.S.C.A. § 839 (1990). Article 39(a), UCMJ,
    sessions are hearings outside the presence of the court member
    panel, during which evidentiary or other issues may be discussed.

[^62]: Record, *supra* note 1, at 6. The battle dress uniform (BDU) is
    generally regarded as the utility/fighting uniform in the Air Force
    and Army. This uniform has a mottled greenish brown appearance.
    Those familiar with Naval trial practice know that participants are
    often required to appear in court in short-sleeve khaki uniforms, a
    custom that has developed due to the necessity to limit the type of
    uniforms one takes to sea. The custom applies to courts-martial on
    land and sea. Air Force members are virtually always required to
    wear formal service dress uniforms for all open sessions of court
    unless permitted to wear another uniform by the military judge.

[^63]: *Id.* at 34. Although this practice requires the parties to
    assemble at least twice in most cases, it reduces the delay often
    caused by negotiating an initial trial date, eliminates most speedy
    trial concerns, and generally speeds up the initial processing of a
    case.

[^64]: *See supra* note 50 and accompanying text.

[^65]: 10 U.S.C.A. § 825 (1998); Record, *supra* note 1, at 8-18.

[^66]: UCMJ art. 25(c)(1), 10 U.S.C.A. § 825(c)(1) (1998).

[^67]: UCMJ art. 25(c)(2), 10 U.S.C.A. § 825(c)(2).

[^68]: Record, *supra* note 1, at 8-11. A First Sergeant is a senior
    noncommissioned officer who is specially selected and trained for
    the position. They exercise general supervision over all enlisted
    members in the unit and assume responsibility for the health,
    welfare, morale, and readiness of the unit by serving as a liaison
    between a unit's enlisted members and the commander.

[^69]: *Id.* at 11.

[^70]: *Id.* at 14, 17-18.

[^71]: *Id.* at 13.

[^72]: *Id.* at 11-18. The second point was viewed as a concession
    because the military judge denied the defense's request to have Army
    enlisted members assigned to the JAC serve on the panel because they
    were part of the accused's unit. If, however, the entire enlisted
    contingent assigned to the JAC (made up of Army, Air Force, Navy,
    and Marines) was larger than a unit for purposes of Article 25(c),
    then the defense would have been given the option of enlisted
    members selected from the airmen, sailors, or Marines assigned to
    the JAC. This was not acceptable to the defense. Thus, an
    acknowledgement that the JAC was larger than a unit, thereby
    permitting selection of non-Army enlisted personnel, was a
    concession.

[^73]: *Id.* at 13, 18.

[^74]: *Id.* at 45. Defense counsel stated on the record that but for
    the judge's view that Army regulations did not restrict a joint
    commander in the selection of enlisted members, the accused would
    have elected to be tried by members to include enlisted members.
    *Id.* at 40-45.

[^75]: *Id.* at 20-21. Defense counsel stated: "Just so the record's
    clear, I do not object to her being a special court-martial
    convening authority . . . ." *Id.*

[^76]: *Id.*

[^77]: AR 27-10, *supra* note 46, ¶ 5-25(b). The general court-martial
    convening authority in this case would have been the Commander in
    Chief of USEUCOM, General Wesley Clark, United States Army.

[^78]: Record, *supra* note 1, at 23.

[^79]: *Id.* at 24.

[^80]: *Id.* at 25.

[^81]: *Id.* at 25.

[^82]: *Id.* at 26.

[^83]: *Id.* at 27.

[^84]: *Id.* at 28. Specialist Egan was scheduled to separate from the
    Army prior to trial, but his separation was postponed by preferral
    of court-martial charges against him.

[^85]: *Id.* at 29.

[^86]: *Id.* at 30.

[^87]: While a full discussion of evidentiary matters raised at trial is
    beyond the scope of this article, it is important to note that the
    corroboration issue was one of many factors raised by Army legal
    personnel in stating reasons the case should not go to trial. *See
    supra* note 45 and accompanying text. Simply put, they believed the
    confession could not be corroborated. During the findings portion of
    the trial, the written statements of British nationals who had
    witnessed Egan's use and possession of drugs were admitted under
    Military Rule of Evidence 804(b)(3). *See generally* MCM, *supra*
    note 7, Mil. R. Evid. 804(b)(3). Interestingly, the British
    witnesses in question took the stand only to refuse to testify
    pursuant to the Fifth Amendment to the United States Constitution.
    Record, *supra* note 1, at 175, 178.

[^88]: Record, *supra* note 1, at 96.

[^89]: *See* United States v. McCastle*,* 40 M.J. 763, 765 (A.F.C.M.R.
    1994) (finding that the details of the accused's confession were
    consistent with known details of the local drug trade was sufficient
    to corroborate a confession), *aff'd,* 43 M.J. 438 (1996), *modified
    on other grounds,* 44 M.J. 77 (1996) (modified on reconsideration).

[^90]: Record, *supra* note 1, at 126-138.

[^91]: Record, *supra* note 1, at 198. A specification is "a plain,
    concise, and definite statement of the essential facts constituting
    the offense charged." MCM, *supra* note 7, R.C.M. 307(c)(3). In a
    post-trial discussion, the military judge stated that he found Egan
    not guilty on four of the specifications due to a lack of
    corroboration on the facts that gave rise to those allegations.
    Interview with Colonel Peter A. Brownback, Military Judge, at RAF
    Alconbury, United Kingdom (March 21, 1998). The only corroboration
    the government provided on these four specifications were admissions
    by the accused to third parties. Thus, citing *United States v.
    Maio,* the government attempted to corroborate a confession with
    admissions of the accused, arguing that such admissions were
    sufficient to "raise an inference of truth as to the actual drug use
    admitted by the \[accused\]." United States v. Maio, 34 M.J. 215,
    218 (C.M.A. 1992). Essentially, the military judge based his opinion
    on the reasoning of Chief Justice Cox who stated in his concurring
    opinion in *Maio*, "I know of no conviction that has been sustained
    in which, apart from the words of the accused, there was no evidence
    whatever that a crime occurred." *Id.* at 221.

[^92]: Record, *supra* note 1, at 202.

[^93]: *Id.* at 208. Hooah (spelled phonetically) is a term used by
    members of some of the military services, most often the Army and
    Marines, to express, among other things, a positive opinion of
    someone or something.

[^94]: *Id.* at 214-216.

[^95]: *Id.* at 227.

[^96]: *Id*. at 230. A bad conduct discharge is one of two punitive
    discharges a member can receive as part of a sentence at a
    court-martial. Though serious, it is not as severe as a dishonorable
    discharge.

[^97]: Department of the Army Pamphlet 27-173, Trial Procedure ¶
    35-3(c)(2) (December 31, 1992) \[hereinafter DA PAM 27-173\].

[^98]: *Compare* DA PAM 27-173, *supra* note 97, Chapter 34, *with* AFI
    51-201, *supra* note 7, Chapter 9.

[^99]: *See generally* MCM, *supra* note 7, R.C.M. Chapters XI, XII.

[^100]: MCM, *supra* note 7, R.C.M. 1105; DA PAM 27-173, *supra* note
    97, ¶ 34-2(b)(3).

[^101]: Record, *supra* note 1, at Volume II, Post-Trial Documents,
    Memorandum for Commander, United States European Command Joint
    Analysis Center \[address omitted\], from Trial Defense Service,
    Wurzburg Field Office, Region IX, ¶ 4(a)(2) (22 July 1998).
    Specialist Egan also challenged many of the evidentiary rulings of
    the military judge, arguing the government had not fully
    corroborated Specialist Egan's confession.

[^102]: *Id.* ¶ 4(a)(1). Specialist Egan's procedural objections as
    stated in the memorandum were stated as follows:

    > At trial, the defense challenged the referral of this case. The
    > defense also challenged the ability of the court-martial to
    > adjudge a bad conduct discharge. In addition, the defense
    > contested the apparently inflexible attitude of the command and
    > the inappropriate referral of the case of an Army soldier against
    > whom the Army had elected not to prefer charges. The defense also
    > desired to request a panel composed of one-third enlisted members
    > but the military judge's ruling effectively precluded SPC Egan
    > from exercising that right.

    \[Citations omitted\].

[^103]: *Id*. ¶ 4(a)(2).

[^104]: *Id.*

[^105]: *See* DA PAM 27-173, *supra* note 97, ¶ 35-3. As noted above,
    the military judge ruled that Army regulations did not apply to the
    trial of the case at bar. *See supra* note 75-79 and accompanying
    text. However, R.C.M. 201(e)(5) requires that appellate review be
    conducted by the service court of the accused. MCM, *supra* note 7,
    R.C.M. 201(e)(5). Consequently, the Army regulations on post-trial
    processing of records of trial prior to forwarding to the Army Court
    of Criminal Appeals were followed as required.

[^106]: For an excellent discussion of this view, see
    Berrigan[,]{.smallcaps} *supra* note 48.