UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201700169

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UNITED STATES OF AMERICA

Appellee

v.

RANDALL L. MYRICK

Private First Class (E-2), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Major Mark D. Sameit, USMC.

Convening Authority: Commanding General, 1st Marine Division, 

Camp Pendleton, CA.

Staff Judge Advocate’s Recommendation: Lieutenant Colonel 

Matthew J. Stewart, USMC.

For Appellant: Captain Kimberly D. Hinson, JAGC, USN.

For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Clayton S. 

McCarl, JAGC, USN.

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Decided 10 May 2018

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Before MARKS, JONES, and WOODARD, Appellate Military Judges

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This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

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PER CURIAM:

A military judge sitting as a special court-martial convicted the appellant, 

pursuant to his pleas, of one specification of larceny, in violation of Article 

121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921 (2012). The 

military judge sentenced the appellant to 120 days’ confinement and a bad-
United States v. Myrick, No. 201700169

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conduct discharge. The convening authority (CA) approved the adjudged 

sentence and, except for the bad-conduct discharge, ordered it executed.

The appellant alleges the convening authority’s action (CAA) was not 

personally signed by the CA as required by RULE FOR COURTS-MARTIAL

(R.C.M.) 1107(f)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016

ed.). After carefully considering the record of trial and the submissions of the 

parties, we find no error materially prejudicial to the substantial rights of the 

appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

The Commanding General, 1st Marine Division (1st MarDiv) convened 

the appellant’s special court-martial. On 25 May 2017, the date the CAA in 

the appellant’s case was signed, Major General (MajGen) D.J. O’Donohue was 

the Commanding General, 1st MarDiv. However, he did not sign the CAA. 

Instead, Colonel (Col) C.S. Dowling, who normally served as MajGen

O’Donohue’s Chief of Staff, signed the CAA. The CAA was prepared on 1st 

MarDiv letterhead and the signature block identified Col Dowling as the 

“Commander” of 1st MarDiv. 

The appellant alleges that, due to the limitation of the Marine Corps’ 

service regulations, only MajGen O’Donohue could sign the CAA in the 

appellant’s case, and that it was error for Col Dowling to do so. We disagree.

II. DISCUSSION

We review de novo whether the appellant’s CAA meets the requirements 

of R.C.M. 1107. United States v. Captain, 75 M.J. 99, 104 (C.A.A.F. 2016). 

R.C.M. 1107(f)(1) states that the CAA “shall be signed personally by the [CA]”

and that the CA’s “authority to sign shall appear below the signature.” 

A. Authority to convene a court-martial

Article 22(a)(5), UCMJ, authorizes the commander of a Marine Corps 

Division to convene general courts-martial. The commander of a Marine 

Corps Division is also authorized to convene special courts-martial. Art.

23(a)(1), UCMJ. 

B. Temporary successor to command in the Marine Corps

To ensure the “full and effective control” and “efficient operation” of any 

military command, an orderly and well-understood succession to command is 

crucial in the event of the incapacity, death, or absence of the commander. 

United States v. Kugima, 36 C.M.R. 339, 342 (C.M.A. 1966). This includes the 

effective and efficient administration of military justice matters within the 

command.
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In the Marine Corps, in the absence of the Commanding General of a 

Marine Division, command of the Division passes to the Assistant Division 

Commander.1 In the event there is no Assistant Division Commander or if 

the Assistant Division Commander is absent, command of the Division passes

to the Chief of Staff.2 “When a commander is absent . . . the officer 

who . . . succeed[s] to command . . . shall have authority to . . . be the 

commander for purposes of military justice.”3

C. Authority to sign convening authority’s actions

Chiefs of Staff of Marine Corps Divisions do not possess the statutory or 

regulatory authority to convene, refer, or take action in a court-martial. See 

United States v. Foley, No. 201300167, 2013 CCA LEXIS 991, at *6, 

unpublished op. (N-M. Ct. Crim. App. 26 Nov 2013) (per curiam). If, however, 

the person serving as Chief of Staff ascends to command due to the absence of 

the CA, his or her authority to act as a CA is derived from the office of the 

CA. Id.; Marine Corps Manual at ¶¶ 1007.2a(1) and 1007.2b (Ch-3 13 May 

1996); see also Arts. 22(a)(5) and 23(a)(1), UCMJ (granting the commander of

a Marine Division the authorities of a CA for general and special courtsmartial).

In this case, there is no doubt that MajGen O’Donohue, as the 

Commanding General, 1st MarDiv, had the authority to convene, refer, and 

take action in the appellant’s special court-martial. The appellant does not 

contest this matter. Instead, he argues that the combined effect of the U.S. 

Navy Regulations and the Marine Corps Manual for Legal Administration4

(LEGADMINMAN) abrogate the authority of a temporary successor to 

command, such as Col Dowling, to exercise the statutory CA powers of the 

office he or she temporarily occupies.

The appellant’s argument focuses on Article 1026, U.S. Navy Regulations,

which requires that a temporary successor to command sign all official 

correspondence with the word “Acting” in the signature block. The appellant 

argues that when this requirement is read in conjunction with the language 

of LEGADMINMAN ¶ 1108, which prohibits a temporary successor to

command from using the word “Acting” when signing military justice related 

documents, the Marine Corps has withheld, withdrawn, or limited the 

authority of any temporary successor to command of a Marine Corps unit to 

 

1 U.S. Navy Regulations (1990), Art. 1072; Marine Corps Manual 

[MARCORMAN] at ¶ 1007.2a(1) (Ch-3 13 May 1996).

2 U.S. Navy Regulations, Art. 1074; MARCORMAN at ¶ 1007.2a(1).

3 MARCORMAN at ¶ 1007.2b.

4 Marine Corps Order P5800.16A (Ch-7 10 Feb 2014).
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exercise the statutory CA authorities of the office he or she temporarily 

occupies. We disagree.

When considering whether the failure to follow service regulation 

procedures when assuming command divested a commander of his CA 

powers, our superior court observed:

 The power to convene a court-martial, appoint or replace 

members, and approve findings and sentence is a power that 

Congress has traditionally reserved for command. Its concern 

is not technical, but functional, because military justice plays 

an important role in the readiness of our servicemembers to 

wage war. In such a context, we are not justified in attaching 

jurisdictional significance to service regulations in the absence 

of their express characterization as such by Congress. 

United States v. Jette, 25 M.J. 16, 18 (C.M.A. 1987) (citations omitted) 

(emphasis added); see also United States v. Kohut, 44 M.J. 245, 250 (C.A.A.F. 

1996) (failure to follow service regulation which required prior approval of the 

Judge Advocate General of the Navy to prosecute offenses previously 

disposed of in state criminal court did not impact the CA’s jurisdictional 

authority to convene and take action on a court-martial for the state 

adjudicated offenses). 

We find the regulations argued by the appellant do not withhold, 

withdraw, or limit the statutory authorities of the office a temporary 

successor to command has assumed. Additionally, the regulations at issue

were not promulgated to protect any right of the appellant. See United States 

v. Sloan, 35 M.J. 4, 9 (C.M.A. 1992). Instead, they merely address the form 

and content of a temporary successor’s signature when signing documents, 

such as a CAA, in the execution of the powers of the office assumed.

As an official document, the CAA in the appellant’s case is entitled to the 

presumption of regularity if it appears regular on its face. See United States 

v. Ayers, 54 M.J. 85, 91 (C.A.A.F. 2000). With no evidence in the record to 

indicate otherwise, we find Col Dowling commanded 1st MarDiv in the 

absence of MajGen O’Donohue.

5 The fact that Col Dowling signed the CAA on 

1st MarDiv letterhead as Commander, 1st MarDiv—and not as Chief of 

Staff—is of great significance. By doing so he indicated, and we find, that on 

25 May 2017, he was the officer in command of 1st MarDiv and the Division’s 

“commander for the purposes of military justice” matters.6 Because the 

 

5 U.S. Navy Regulations, Arts. 1026, 1073, and 1074; MARCORMAN ¶¶ 1007.2a 

and 1007.2b.

6 See MARCORMAN ¶ 1007.2b.
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correct office holder, Col Dowling, personally signed the CAA and included 

his authority to sign the CAA—as Commander, 1st MarDiv—below his 

signature, the CAA satisfies the requirements of R.C.M. 1107(f)(1). 

III. CONCLUSION

The findings and the sentence as approved by the CA are affirmed.

For the Court

R.H. TROIDL

Clerk of Court