United States v. Fenwrick

PRATT, Chief Judge

(concurring):

I concur but write separately to reiterate the importance of affording convening authorities the discretion properly granted to them by Article 25, UCMJ.

It should come as no surprise that, in applying the criteria enumerated in Article 25, UCMJ — age, education, training, experience, length of service, and judicial temperament — a convening authority will often look first to officers (and-enlisted members, when requested) who are senior in rank. See United States v. Upshaw, 49 M.J. 111 (C.A.A.F.1998) (citing United States v. Crawford, 35 C.M.R. 3, 12, 1964 WL 4914 (C.M.A.1964); United States v. Daigle, 1 M.J. 139 (C.M.A.1975); United States v. Greene, 43 C.M.R. 72, 1970 WL 7433 (C.M.A.1970)); Townsend. We need not shy away from that reality — surely Congress must have envisioned that result when they chose to highlight those particular factors in the statute. Nevertheless, it is also well recognized that rank is not an appropriate selection factor or “shortcut” in applying Article 25, UCMJ, criteria. Nixon; United States v. Benson, 48 M.J. 734, 740 (A.F.Ct.Crim.App.1998). Thus, a jurisdictional flaw emerges upon a showing that a particular rank or ranks is being systematically or categorically excluded, either by the GCMCA or by persons who manage the earlier stages of the court member selection process. Roland. In this case, there is evidence of neither.

I note that the defense counsel, in his original motion, relied upon only one other convening order to assert that the GCMCA was engaged in systematically excluding lieutenants. I credit the military judge for expanding the scope of the examination to a broader period of time, but I cannot applaud the conclusions she drew from the evidence that emerged. Looking at cases referred by this GCMCA in the eight months of the then-current fiscal year, the military judge concluded that lieutenants were being systematically excluded from the court-martial process. This conclusion was somewhat questionable when the fiscal year evidence reflected at least one case where a lieutenant was indeed selected by this GCMCA. That selection alone should have given the military judge pause in concluding that the GCMCA was engaged in systematic exclusion. Then, when the trial counsel expanded the evidentiary landscape a bit further — now including the 12 months prior to this trial— we see that this same GCMCA had selected lieutenants to serve on court panels on at least seven different occasions.

This expanded data should have dealt a fitting deathblow to any claim of systematic exclusion. Ordinarily, cases evincing systematic exclusion, or even claiming an appearance thereof, involve a restrictive flaw in the process by which members are nominated to *746the convening authority or a history of blanket exclusion of certain ranks by the convening authority himself. United States v. McClain, 22 M.J. 124 (C.M.A.1986); Daigle; Greene; Benson. In the present case, we have clear evidence of a process which does not exclude lieutenants as nominees for court member duty and a GCMCA who has a clear “track record” of willingness to appoint members of that rank when he judges it appropriate.

Instead of crediting the GCMCA with his demonstrated record, the military judge interpreted the statistical data as evidence that, in the latter portion of his tenure as GCMCA, he must necessarily have undergone a change in his selection “philosophy” and begun a pattern of systematic exclusion. There is simply no evidence of such a change or, notably, of any ill motive on the part of this GCMCA. Merely showing a disproportionate selection of ranks is not enough to establish “systematic exclusion.” Benson, 48 M.J. at 740. This is especially true when, as in this case, there is clear evidence that the convening authority has appointed lieutenants on several occasions in the recent past.

Even if the statistical data were interpreted to give rise to an appearance of impropriety, there is appropriate precedent for crediting the explicit testimony of the convening authority on the issue of his compliance with Article 25, UCMJ. Nixon, 33 M.J. at 435. In this case, as the majority opinion notes, this GCMCA not only provided an affidavit attesting to his lack of systematic exclusion, but he also subjected himself to the rigors of testimony before the trial court, with cross-examination by the defense counsel and pointed probing by the military judge. That testimony, rather than uncovering a motive, a hidden intent, or any change in the GCMCA’s attitude, reflected instead a surprisingly clear understanding of his responsibilities under Article 25, UCMJ, and a resolute intent to fulfill them in good faith.

Unfortunately, given the nature of the Article 25, UCMJ, criteria, it is easy to allege that a convening authority is improperly using rank as a selection factor. Certainly, when a reasonable showing can be made that improper selection may have occurred, it is entirely appropriate and important that the burden shift to the government to demonstrate that no impropriety took place. Roland, 50 M.J. at 69. By the same token, however, this threshold showing should not be deemed met lightly. And once met, the government’s burden should not be unreasonably severe. In the absence of a demonstrable showing of systematic or categorical exclusion, it is important that the convening authority’s exercise of discretion and judgment be recognized and respected. Our system will quickly enter a hopeless morass if we lightly require our convening authorities to explain and justify their rationale for selecting one member over another.

In view of the evidence available in this ease, including both statistical data and the testimony of the convening authority, the military judge’s legal conclusion that this GCMCA was engaged in the systematic exclusion of lieutenants is unwarranted. Thus, in my view, the military judge’s ruling invades the prerogative Congress entrusted to the convening authority through Article 25, UCMJ, and must be set aside.