United States, Appellee 

v. 

Jonathan L. ALEXANDER, Specialist 

U.S. Army, Appellant 

No. 04-0677 

Crim. App. No. 20000627 

United States Court of Appeals for the Armed Forces 

Argued March 8, 2005 

Decided August 4, 2005 

BAKER, J., delivered the opinion of the Court, in which CRAWFORD 

and ERDMANN, JJ., joined. EFFRON, J., filed a dissenting 

opinion, in which GIERKE, C.J., joined. GIERKE, C.J., also filed 

a separate dissenting opinion. 

Counsel 

For Appellant: Captain Danyele M. Jordan (argued); Lieutenant 

Colonel Mark Tellitocci and Major Allyson G. Lambert (on 

brief). 

For Appellee: Captain Edward E. Wiggers (argued); Colonel Steven 

T. Salata, Lieutenant Colonel Mark L. Johnson, and Major 

Natalie A. Kolb (on brief). 

Military Judge: Kenneth H. Clevenger 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Alexander, No. 04-0677/AR 

2 

Judge BAKER delivered the decision of the Court. 

A court-martial panel composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of one 

specification of rape and one specification of carnal knowledge 

as an aider and abettor in violation of Article 120, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. § 920 (2000). He was 

sentenced to a dishonorable discharge, five years of confinement, 

forfeiture of all pay and allowances, and reduction to grade E-1. 

The convening authority approved the sentence as adjudged, except 

for the forfeitures, and the United States Army Court of Criminal 

Appeals affirmed. 

We granted review of the following issue: 

WHETHER THE RECORD OF TRIAL FAILS TO SHOW THAT 

APPELLANT MADE A PERSONAL ELECTION OF FORUM, THUS 

CREATING A JURISDICTIONAL ERROR REQUIRING REVERSAL. 

 

For the reasons articulated below, we affirm. 

BACKGROUND 

 During Appellant’s arraignment, the military judge advised 

Appellant of his forum rights, and Appellant indicated that he 

understood these rights. Appellant was asked specifically if he 

understood the difference between a trial before a military judge 

and a trial before members, and he indicated that he did. The 

military judge informed Appellant that he had the right to be 

tried by “a court composed of commissioned and/or warrant 
United States v. Alexander, No. 04-0677/AR 

3 

officers,” but that upon request, he could alternatively be 

“tried by a court composed of at least one-third enlisted 

soldiers.” 

 The military judge also asked the Appellant to confirm his 

desire to defer forum election until a later date and Appellant, 

via his civilian defense counsel, reiterated his desire to defer 

forum election. The military judge then granted this deferral, 

and informed the Appellant that he would set a due date for final 

choice of forum at some time in the future. The record of trial 

is silent as to whether the military judge ever set a due date. 1

 

1 The following exchange occurred between Appellant and the military judge: 

[Military Judge (MJ)]: Now, Specialist Alexander, you’ve got a right 

to be tried by a court consisting of at least five court members -– 

that is, a court composed of commissioned and/or warrant officers. 

Also, should you request it, you would be tried by a court composed 

of at least one-third enlisted soldiers, but none of these enlisted 

soldiers would come from your same company-sized unit; in your case, 

that would be Delta Troop, 6th Squadron of the 6th Cav[alry]. 

You’re further advised that no enlisted soldier on that courtmartial panel would be junior in rank than you. Do you understand 

everything that I have just explained to you? 

[Accused (ACC)]: Yes, sir. 

MJ: Now, if you’re tried by a court with members, then the members 

would vote by secret, written ballot, and two-thirds of the members 

would have to agree before you could be found guilty of any of these 

offenses. And should you be found guilty of any of these offenses, 

then two-thirds of the members would also have to vote by secret, 

written ballot on a sentence; and that sentence, if it included a 

period of confinement in excess of 10 years, would have to be by a 

three-quarters’ vote, or three-fourths of the members would have to 

agree. Do you understand that? 

ACC: Yes, sir. 

MJ: Now, you also have a right to request a trial by military judge 

alone and, if approved, there would be no court members, and the 
United States v. Alexander, No. 04-0677/AR 

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 At a subsequent session pursuant to Article 39(a), UCMJ, 10 

U.S.C. § 839(a) (2000), the military judge stated in the presence 

of Appellant and his counsel, “On Monday, I intend to impanel -- 

I believe I was told -- an enlisted panel in this case, and we’re 

going to go forward with trial.” The military judge and the 

parties discussed various housekeeping matters relating to the 

court-martial proceedings. They also discussed the instructions 

that would be read to the panel as well as which members were 

going to be empaneled. 

 At the next Article 39(a) session, the military judge and 

counsel discussed the charges and specifications, and then 

shifted to matters involving the panel members. The military 

judge and both parties discussed instructions, the convening 

order, the expected number of members, and the voir dire of the 

members. The members were eventually called in and seated, and 

 judge alone would determine whether or not you are guilty. And, 

should you be found guilty of any offense, then the judge alone 

would determine an appropriate sentence in your case. So do you 

understand the difference between trial before a court with members 

and trial before a court by military judge alone? 

ACC: Yes, sir. 

MJ: Very well. Defense, I was told at [a Rule for Courts-Martial] 

802 session earlier that you intended to defer your election in that 

regard. Is that still your desire? 

[Civilian Defense Council (CDC)]: Yes, Your Honor. 

MJ: Very well. I will set a due date for final choice of forum to be 

entered by the defense at some subsequent time, but at this point I 

will grant the requested deferral. 
United States v. Alexander, No. 04-0677/AR 

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voir dire was conducted. Later that same day, the court-martial 

proceeded with the empaneled members. The record of trial does 

not reflect that a forum choice was ever expressly made on the 

record or in writing by Appellant or his counsel. Nor does the 

record reflect objection to the forum at which Appellant was 

ultimately tried. Appellant did not raise this issue before the 

court below. 

DISCUSSION 

Article 25(c)(1), UCMJ, provides: 

Any 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 on general and special courts-martial 

for the trial of any enlisted member of an armed force 

who may lawfully be brought before such courts for 

trial, but he shall serve as a member of a court only 

if, before the conclusion of a session called by the 

military judge under section 839(a) of this title 

(article 39(a)) prior to trial or, in the absence of 

such a session, before the court is assembled for the 

trial of the accused, the accused personally has 

requested orally on the record or in writing that 

enlisted members serve on it. 

10 U.S.C. § 825(c)(1) (2000). 

Rule for Courts-Martial (R.C.M.) 903(b)(2) sets forth the 

requirements for the election of enlisted members: 

A request for the membership of the courtmartial to include enlisted persons shall be 

in writing and signed by the accused or shall 

be made orally on the record. 

Thus, in plain language both the UCMJ and the R.C.M. require that 
United States v. Alexander, No. 04-0677/AR 

6 

an accused personally elect to be tried by a panel including 

enlisted members, either orally on the trial record or in 

writing. 

The parties agree that the record of trial does not contain 

an explicit oral or written election by Appellant to be tried by 

a panel of officer and enlisted members. The parties also agree 

that the failure to record Appellant’s forum selection as 

prescribed constitutes error. We agree. However, the parties 

differ as to whether this error is jurisdictional or procedural 

in effect. 

Appellant argues that because a failure to adhere to the 

forum selection requirements of Article 25(c)(1), amounts to 

jurisdictional error, his court-martial was without authority to 

hear his case and thus was a nullity. Consequently, Appellant 

argues, he is entitled to immediate relief. Alternatively, if 

this Court determines that the error was procedural in nature, 

Appellant argues his substantial rights were materially 

prejudiced because he was deprived of his statutory right to 

select a forum on the record. The Government responds that the 

omission was procedural in nature. Considered in context, the 

Government argues, the record reflects that Appellant elected to 

be tried by a panel with enlisted members. Thus, Appellant must 

demonstrate prejudice under Article 59(a), UCMJ, 10 U.S.C. § 
United States v. Alexander, No. 04-0677/AR 

7 

859(a) (2000), to warrant relief, which he has not done, the 

Government asserts. 

We review jurisdictional questions de novo. United States 

v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000). Questions of 

jurisdiction are not subject to waiver. “[J]urisdiction over the 

person, as well as jurisdiction over the subject matter, may not 

be the subject of waiver.” United States v. Garcia, 5 C.M.A. 88, 

94, 17 C.M.R. 88, 94 (1954). A jurisdictional defect goes to the 

underlying authority of a court to hear a case. Thus, a 

jurisdictional error impacts the validity of the entire trial and 

mandates reversal. United States v. Perkinson, 16 M.J. 400, 402 

(C.M.A. 1983). However, where an error is procedural rather than 

jurisdictional in nature we test for material prejudice to a 

substantial right to determine whether relief is warranted. 

Article 59(a), UCMJ; United States v. Morgan, 57 M.J. 119, 122 

(C.A.A.F. 2002) (citing United States v. Mayfield, 45 M.J. 176, 

178 (C.A.A.F. 1996)). 

 In United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000), the 

Court determined that when the record indicates that an accused 

personally requested enlisted members, the failure to record the 

members selection as prescribed by Article 25 amounted to 

procedural error, subject to prejudice review. Id. at 277. 

Specifically, in Townes, we concluded that factors, such as the 
United States v. Alexander, No. 04-0677/AR 

8 

accused having been advised of his forum rights on the record, 

the accused being present when his counsel noted his desire to be 

tried by officer and enlisted members, and the accused testifying 

before the empaneled members, gave rise to an inference that the 

accused was tried by a panel of his choosing. Id. The Court 

concluded that “‘the record of trial as a whole makes clear that 

the selection was the accused’s choice, and that the error . . . 

did not prejudice the substantial rights of the accused.’” Id. 

(quoting United States v. Turner, 47 M.J. 348, 350 (C.A.A.F. 

1997)). The Court applied a similar analysis in Morgan, 

concluding that when “the record establishes that the selection 

of an enlisted forum was appellant’s choice,” the failure to 

obtain a written forum request on the record “was a procedural 

error, not a jurisdictional defect.” 57 M.J. at 122. The Court 

also noted that while the record did not contain a personal or 

written statement of election, “[t]here were many opportunities 

to voice an objection to having enlisted members on the panel, 

and none was made.” Id. 

 In Townes and Morgan we determined, based on the facts of 

those particular cases, that failure to comply with the 

provisions of Article 25(c) was nonjurisdictional, and we tested 

for prejudice under Article 59(a). However, our conclusions 

rested in part on a determination that there had been 
United States v. Alexander, No. 04-0677/AR 

9 

“substantial compliance” with the requirements of Article 25(c). 

In Townes, for example, the appellant was present when his 

counsel selected the forum on his behalf. 52 M.J. at 277. And, 

in Morgan, the record included a facsimile from trial defense 

counsel informing the military judge that “[t]he defense will 

request trial before a court-martial panel consisting of at least 

one-third enlisted members.” 57 M.J. at 120. A subsequent 

hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 

C.M.A. 411 (1967), also established that the facsimile reflected 

that the accused was advised and “chose to go with the enlisted 

panel.” Morgan at 121. 

 In this case, there is no argument that Appellant selected 

trial by one-third enlisted members on the record, either in 

writing or orally. He did not. Thus, this case goes beyond the 

facts in Townes or Morgan. However, our analytic framework is 

the same. We review the record for evidence as to whether the 

accused chose the forum by which he was tried. 

 The military judge advised Appellant, in the presence of his 

counsel, of his rights concerning forum election. The record 

reflects a clear and thorough explanation. Appellant responded 

on the record that he understood his election rights. Appellant 

also indicated, through his counsel, that he wished to defer 

election until a later time, and asked the military judge to 
United States v. Alexander, No. 04-0677/AR 

10 

permit him to do so. The record does not indicate that a date 

was set for doing so. However, at a subsequent Article 39(a) 

session the military judge stated: “On Monday, I intend to 

impanel -- I believe I was told -- an enlisted panel in this 

case, and we’re going to go forward with trial.” When the 

military judge made this statement, both Appellant and his 

counsel remained silent. Defense counsel did not object. 

Appellant’s trial proceeded. Appellant and his counsel 

participated in the voir dire of members, including enlisted 

members. And, of course, Appellant and his counsel participated 

in Appellant’s contested court-martial with one-third enlisted 

members empaneled. Defense counsel did not seek to revisit the 

deferred matter of forum selection. 

 In this case, the record reflects that Appellant chose trial 

by members with one-third enlisted members. The root of 

Appellant’s claim is in the failure of the military judge to 

record that election as prescribed in Article 25. Appellant does 

not argue that he was not personally subject to UCMJ authority at 

the time of his offense or at the time of trial. He does not 

challenge the authority of the convening authority to convene a 

court-martial, or argue that his court-martial was improperly 

convened. He does not argue that he was not informed of his 

right of forum selection, nor does he assert that he did not 
United States v. Alexander, No. 04-0677/AR 

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exercise his right. His claim is simply that he did not do so on 

the record. 

 The right being addressed and protected in Article 25 is the 

right of an accused servicemember to select the forum by which he 

or she will be tried. The underlying right is one of forum 

selection, not the ministerial nature of its recording. Of 

course, there is no better way to protect the right of selection 

than through compliance with the specific and straightforward 

recording requirements of Article 25. Nonetheless, where the 

record reflects that the servicemember, in fact, elected the 

forum by which he was tried, the error in recording that 

selection is procedural and not jurisdictional. Thus, we will 

not order relief absent a showing of prejudice. Mayfield, 45 

M.J. at 178. 

 Appellant’s claim of prejudice is integral to his claim of 

error. His essential argument is the same. He asserts prejudice 

on the ground that he was not given the opportunity to personally 

elect his forum, and therefore choose among trial by military 

judge alone, a panel of officer members, and a panel composed of 

one-third enlisted members. For the reasons stated above, the 

record reflects otherwise. The military judge presented 

Appellant with his options. Appellant acknowledged his options 

and deferred election. The military judge subsequently stated on 
United States v. Alexander, No. 04-0677/AR 

12 

the record that an election had been made for a panel including 

enlisted members, without comment or correction by counsel or 

Appellant. Appellant proceeded through voir dire and trial with 

a panel of one-third enlisted members, without objection. 

Indeed, Appellant did not raise the question of selection and 

prejudice either in his submissions under R.C.M. 1105 or before 

the court below. As a result, for the same reasons that we find 

the error in this case procedural and not jurisdictional, we 

conclude that he did not suffer material prejudice to a 

substantial right. 

DECISION 

The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Alexander, No. 04-0677/AR

 EFFRON, Judge, with whom GIERKE, Chief Judge, joins 

(dissenting): 

 Under the Uniform Code of Military Justice (UCMJ), a member 

of the armed forces does not have the right to trial by jury, 

but instead is subject to trial by a court-martial panel. 

Article 25, UCMJ, 10 U.S.C. § 825 (2000). Congress has strictly 

regulated the composition of courts-martial. Although enlisted 

members have the opportunity to serve on courts-martial panels, 

the UCMJ expressly provides servicemembers with the right to be 

tried by a panel that does not include enlisted membership. 

Under Article 25(c)(1), a court-martial panel may include 

enlisted members “only if . . . the accused personally has 

requested orally on the record or in writing that enlisted 

members serve on it.” The selection must be made “before the 

court is assembled for the trial.” Id. 

 Where the record of trial is ambiguous as to whether a 

timely choice was made personally by the accused on the record, 

our Court has held that any error in the clarity of the request 

is not prejudicial when the record otherwise demonstrates 

“substantial compliance.” United States v. Morgan, 57 M.J. 119, 

122 (C.A.A.F. 2002). Morgan concluded that although the record 

of trial was ambiguous as to whether an accused had requested 

enlisted membership on the panel, a post-trial proceeding 
United States v. Alexander, No. 04-0677/AR

2

“establishe[d] that the selection of an enlisted forum was 

appellant’s choice.” Id. 

 In the present case, there has been no such proceeding. 

The record reflects that the military judge advised Appellant of 

his rights regarding the composition of the court-martial, the 

Appellant affirmed that he understood those rights, the military 

judge deferred the election at Appellant’s request, and the 

military judge stated that he would set a date for the election 

in the future. The record also reflects that the military judge 

indicated an intent to empanel a court-martial with enlisted 

membership, and that Appellant’s court-martial included enlisted 

members on the panel. The record does not indicate that the 

military judge set a date for the Appellant to make a forum 

selection, nor does the record contain such an election. The 

record before us establishes, at most, acquiescence, not “an 

informed, personal choice of forum” under Morgan. 57 M.J. at 

121. 

 In the context of the substantial compliance standard, 

Morgan demonstrates the critical role a post-trial proceeding 

under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 

(1967), plays in developing the facts necessary to determine 

whether the Appellant made an informed personal selection as to 

the composition of the panel. Before replacing the substantial 

compliance standard with a mere acquiescence standard, we should 
United States v. Alexander, No. 04-0677/AR

3

follow the procedure relied upon in Morgan to determine whether 

the composition of the panel reflected Appellant’s affirmative 

choice, as mandated by Congress in Article 25(c)(1). I 

respectfully dissent. 
United States v. Alexander, No. 04-0677/AR 

GIERKE, Chief Judge (dissenting): 

 I join Judge Effron’s dissent. I write separately only to 

note that this case is distinguishable from Townes1 and Morgan,2

where I joined the majority. In Townes, the trial defense 

counsel stated on the record, in front of the accused, that the 

defense requested enlisted membership.3 In Morgan, the detailed 

defense counsel submitted a written request for enlisted 

membership.4 Also in Morgan, the detailed defense counsel’s 

testimony at a post-trial evidentiary hearing confirmed that the 

accused personally selected enlisted membership.5

 In this case, 

there was not substantial compliance, but rather noncompliance 

with the requirements of Article 25(c)(1), Uniform Code of 

Military Justice.6 In the absence of an evidentiary hearing to 

determine whether Appellant, in fact, chose enlisted membership, 

this record reflects no more than Appellant’s acquiescence to 

the panel composition. I would remand this case for an 

evidentiary hearing, like that held in Morgan, to determine 

whether Appellant actually chose enlisted membership. Excusing 

the total abrogation of the requirements of Article 25(c)(1) 

renders the congressionally prescribed procedure for selecting 

enlisted membership a mere dead letter. I respectfully dissent. 

 

1

 United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000). 2

 United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002). 3

 52 M.J. at 276. 

4

 57 M.J. at 120. 

5

 Id. at 121. 6

 10 U.S.C. § 825(c)(1).