UNITED STATES, Appellee v. JAMES H. FRENZE, Commissaryman Second Class, U. S. Navy, Appellant

UNITED STATES, Appellee v JAMES H. FRENZE, Commissaryman Second Class, U. S. Navy, Appellant 16 USCMA 244, 36 CMR 400 No. 19,061 April 29, 1966 Major Ernest B. Wright, USMC, argued the cause for Appellant, Accused. Colonel J. E. Hanthorn, USMC, was on the brief for Appellee, United States. Lieutenant Jean E. Van Slate, USNR, was on the pleadings for Appellee, United States. [MAJORITY — Quinn, Chief Judge:] Opinion of the Court Quinn, Chief Judge: Two questions are presented by this appeal. The first involves the authority of the Commanding Officer, Enlisted Personnel, U. S. Naval Station, San Diego, California, to convene special courts-martial as authorized by the special designation of the Secretary of the Navy. The circumstances surrounding the designation are substantially similar to those we considered in United States v Surtasky, 16 USCMA 241, 36 CMR 397. For the reasons set out in our opinion in that case, we conclude that the convening authority here was competent to convene the court-martial which tried the accused. The second question, presented by certificate of The Judge Advocate General of the Navy, concerns the correctness of the board of review’s determination that the accused was not denied any fundamental right by the procedure by which the charges were referred to trial and assigned to a particular court-martial. We reviewed the procedure in United States v Simpson, 16 USCMA 137, 36 CMR 293, and determined that while it was contrary to the standard practice it did not deprive the accused of a substantial right to his prejudice. Consequently, the certified question is answered in the affirmative. The decision of the board of review is affirmed. Judges Ferguson and Kilday concur.