GREENLEE—ARMY 20100115

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

CONN, HOFFMAN, and GIFFORD

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 JAMES D. GREENLEE**

**United States Army, Appellant**

ARMY 20100115

Headquarters, Fort Drum

John Imhof, Military Judge

Lieutenant Colonel Michael O. Lacey, Staff Judge Advocate (pretrial)

Lieutenant Colonel Robert L. Manley, III, Acting Staff Judge Advocate (post-trial)

For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Jonathan Potter, JA; Captain Shay Stanford, JA; Lieutenant Colonel Katherine A. Lehmann, JA (on brief); Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Lieutenant Colonel Katherine A. Lehmann, JA (on reply brief). 

For Appellee:  Major Christopher B. Burgess, JA; Captain Chad M. Fisher, JA (on brief).

30 June 2011

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of absence without leave and two specifications of wrongful use of a controlled substance in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. The judge sentenced appellant to a bad-conduct discharge, confinement for ten months and forfeiture of $964.00 pay per month for ten months.  Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as extended to a bad-conduct discharge, confinement for five months and forfeiture of $964.00 pay per month for ten months.

**FACTS**

To understand the issues in this case, it is necessary to consider the authority to convene general and special court-martial.  Courts-martial convening authority broadly derives from two basic sources:   designation by statute or by secretarial (or presidential) authority.  Article 22, UCMJ (10 U.S.C. § 822) designates who may serve as a general court-martial convening authority (GCMCA).  Article 23, UCMJ (10 U.S.C. § 823) designates who may serve as a special court-martial convening authority (SPCMCA).  *See* Rule for Court-Martial [hereinafter R.C.M.] 504(b).  Army corps (and higher) commanders as well as division and separate brigade commanders are statutory GCMCAs.  UCMJ art. 22(a)(5).  A GCMCA also has authority to convene a special court-martial.  UCMJ art. 23(a)(1).  Service secretaries (and other authorities) may designate any commanding officer as a GCMCA.  UCMJ art. 22(a)(8).  Courts-martial convened pursuant to a secretarial (rather than statutory) authority must state that authority in the convening order.  R.C.M. 504(d)(1).  

By secretarial designation, the Commander, Fort Drum, is a GCMCA.  By statute, the Commander of 10th Mountain Division is a GCMCA.  However, there is no evidence of a current “combined” GCMCA designated as “10th Mountain Division and Fort Drum.”  The memorandum seeking nominations for court-martial members and the charge sheet referral section (DD Form 458, Part V, Block 14a) lists the convening authority as Commander, Fort Drum.  After selection of court-martial members but before referral of appellant’s case, command of both 10th Mountain Division and Fort Drum changed from Major General (MG) Oates to MG Terry.  Assumption of command orders are included in the record of appellant’s case.  Upon assumption of command, MG Terry did not select new or different court-martial members.  MG Terry, the Commanding general of the 10th Mountain Division and the Commander of the installation Fort Drum, New York, convened appellant’s special court-martial pursuant to court-martial convening order [hereinafter CMCO] number 8.

Confusion arises out of the fact that numerous documents in this court-martial case refer to or are addressed to the “Commander, 10th Mountain Division (LI) and Fort Drum.” For example, the staff judge advocate’s (SJA) panel selection advice memorandum and the convening authority’s panel selection memorandum, as well as the court-martial convening order, pretrial advice, result of trial, SJA recommendation, addendum, action and promulgating order are all under the letterhead and/or addressed to  Commander, 10th Mountain Division (LI) and Fort Drum.  

It is important to understand the history of the various Department of the Army General Orders [hereinafter DAGO] that preceded appellant’s case.  On 8 October 1985, the Secretary of the Army issued DAGO 25, thereby creating a combined GCMCA of Commander, 10th Mountain Division (Light Infantry) and Fort Drum.  Seven years later, the Commander, U.S. Army Garrison, Fort Drum, New York was designated as a GCMCA on 22 January 1993 by DAGO 2.  On 30 March 2000, DAGO 6 created 10th Mountain Division (Light Infantry) (Rear) effective 2 June 1999.  Finally, on 12 August 2004, DAGO 8 rescinded DAGOs 2, 6, and 25.  DAGO 8 created a single GCMCA by stating that “[t]he commanding officer of the Fort Drum military installation is designated . . . as a general courts-martial convening authority.”  To date, DAGO 8 remains in effect.

Based on these facts, appellant alleges a jurisdictional defect on two grounds.  First, appellant asserts that, given the alternate convening authorities identified in various documents related to appellant’s case, the UCMJ authority under which the convening authority acted is ambiguous and amounts to a “potential” jurisdictional defect.  Second, appellant alleges that as a successor in command to MG Oates, MG Terry, failed to expressly adopt the court-martial members selected by MG Oates, and therefore failed to personally select members who would have served in appellant’s case under UCMJ art. 25(d)(2).

**LAW AND ANALYSIS**

Based on the affidavit of the SJA, we find that appellant’s first assigned error lacks merit. We conclude there is no jurisdictional defect, despite the various headings of the documents under which the convening authority purported to act.  Major General Terry properly convened this special court-martial. UCMJ art. 23(a)(1).  *See also**United States v. Gates*, 21 M.J. 722 (A.C.M.R. 1985).  

With respect to appellant’s second assignment of error, we find that the alleged error warrants discussion but no relief.  The failure of MG Terry to formally adopt the members detailed on CMCO number 8 in this case is not the real issue. CMCO number 8 itself, issued by command of MG Terry’s predecessor, MG Oates, fails to properly reference the commander’s authority. The heading of CMCO number 8 says “Headquarters, 10th Mountain Division (LI) and Fort Drum,” as if such a combined convening authority exists. As is clear from the SJA’s affidavit and supporting documentation, it does not.  A commander may only select (in MG Oates’ case) or adopt (in MG Terry’s case) panel members according to the authority that he is exercising. This ambiguity—namely, whether the members selected by MG Oates were properly selected and detailed from appropriate units, in accordance with R.C.M. 503(a)(3) in his capacity as the Commander, Fort Drum—potentially could have caused error but did not in the case at hand.

That said, we urge a greater sensitivity to correctly, accurately, and consistently identifying the convening authority being exercised in all court-martial documents.  Commanders exercising a secretarial designation must follow the requirements of R.C.M. 504(d)(1) by explicitly stating it in convening orders.  Likewise, so long as the Army continues its practice of designating a “combined” but distinct GCMCA made up of separate GCMCAs, SJAs should avoid *ad hoc* designations, which gave rise to the issue presented in this case. SJAs should also be mindful of the extent of the commander’s authority in the selection and adoption of panel members to ensure that the authority is exercised properly.

**Conclusion**

On consideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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