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Tim Bilecki

Convening Authority – Designation by Statute or Service Secretary

In United States v. Smith, 69 M.J. ____ (A. Ct. Crim. App. Aug. 10, 2010) the Acting Commander, Fort Lewis, referred charges against the accused to court-martial. On M-15 appeal, the defense argued the commander was not designated as a court-martial convening authority by the Secretary of the Army (SECARMY) and did not have jurisdiction to take action in this case. Based on the statutory authority and formal SECARMY designations, the ACCA concluded the court-martial was properly convened and had jurisdiction over the accused.

In 1981, the SECARMY issued two General Orders designating GCMCAs. In Gen. Order No. 10 (dated 9 April 1981), the Commander, “Fort Lewis” was designated a GCMCA; in Gen. Order No. 27 (dated 13 November 1981) the “Commander, I Corps and Fort Lewis” was designated a GCMCA. In reviewing these orders, the ACCA noted the SECARMY merely took action to “designate” GCMCAs, without replacing or otherwise affecting prior orders. Hence, the two orders designated the installation commander as a GCMCA while also designating the “combined” positions of “Commander, I Corps and Fort Lewis” as a GCMCA.

All parties agreed the Acting Commander had been properly appointed as acting commander during the processing of the accused’s case. The defense argued that the SECARMY had only designated “I Corps and Fort Lewis” as a general court-martial convening authority (GCMCA), so referral by the Commander, “Fort Lewis” was improper.

Under Article 22, UCMJ, certain commanding officers are designated as GCMCAs, including commanders of an “Army Corps.” Article 22 does not give statutory authorization for an installation commander to serve as a GCMCA, though it does allow for the applicable Service Secretary to designate other commanders as GCMCAs.

The ACCA noted these dual designations allow units to deploy without seriously impacting military justice actions: “[T]he co-existence of the two sources of authority facilitates the flexibility required at installations where the combined designation involves a combat eligible unit. Specifically, should circumstances arise that result in the need for a commander serving in a dual capacity (e.g., division commander and installation commander) to depart the installation to fulfill ‘warfighting’ duties, the independent Secretary of the Army designation of the installation commander as a general court-martial convening authority . . . would enable another individual to serve as a general court-martial convening authority for soldiers remaining at the installation.”

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