In United States v. Gudger, No. 200900414, 2010 WL 381118 (N-M. Ct. Crim. App. Feb. 4, 2010) (unpublished), review denied, 69 M.J. 189 M-27 (C.A.A.F. 2010) the accused's case was initially referred to trial by court-martial convening order (CMCO) 1-08. Approximately nine months later, the convening authority promulgated CMCO 2- 08, which directed that "all cases referred to the Special Court-Martial convened by this headquarters' order number 1-08 dated 4 March 2008, in which proceedings have not begun, will be brought to trial before the court-martial hereby convened" (emphasis added by court). A month later, the court-martial re-convened and the accused elected trial by members. The convening authority later excused and added members in CMCO 2-08a, which expressly added three enlisted members for the court-martial of "Sergeant Alec J. Gudger, Jr . . . . only." The court convened a few days later and the defense counsel "generally raised" the issue of whether the court-martial was properly convening under CMCO 2-08. The military judge offered to give the defense counsel opportunity to brief the issue and defense counsel declined. The courtmartial was ultimately convened with members under the second convening order, CMCO 2-08, as amended by CMCO 2-08a. The N-MCCA held any errors in the accused's CMCOs were merely administrative in nature and did not affect the jurisdiction of the court-martial.
The court reasoned the referral under CMCO 2-08, met all three elements of R.C.M. 601: (1) Charges were referred by a convening authority authorized to convene courts-martial and the convening authority was not otherwise disqualified; (2) Referral was based on properly preferred charges received by the convening authority; and (3) Charges were referred to a court-martial convened by that convening authority.
The court acknowledged that the "in which proceedings have not begun" language in CMCO 2-08 would, on its face, seem to exclude the accused's court-martial (as the accused was arraigned before the CMCO was promulgated). "These words do not, however, stand alone." The court noted: (1) Defense counsel was on notice of this issue and declined to raise it; (2) Trial counsel advised the court that the convening authority had intended the accused's case be tried under CMCO 2-08; and (3) CMCO 2-08a, which amended CMCO 2-08, referenced the accused by name.
R.C.M. 911 requires the military judge announce assembly of the court-martial; per the Discussion, in a trial with members the court-martial is ordinarily assembled after the members are sworn, while in a trial before judge alone the court-martial is assembled following approval of the request for trial by military judge alone. In either event, the proposed language avoids ambiguity about which CMCO applies in an accused's court martial.