UNITED STATES, Appellee v. EDWARD V. HEVNER, Private First Class, U. S. Marine Corps, Appellant

UNITED STATES, Appellee v EDWARD V. HEVNER, Private First Class, U. S. Marine Corps, Appellant 20 USCMA 80, 42 CMR 272 No. 23,077 August 28, 1970 Captain John N. Stafford, USMCR, was on the pleadings for Appellant, Accused. Lieutenant Colonel Charles J. Keever, USMC, was on the pleadings for Appellee, United States. [MAJORITY — PER CURIAM:] Opinion of the Court PER CURIAM: The appellant was tried at Camp Courtney, Okinawa, by a special court-martial convened by the Commanding Officer, Transient Company, Transient Facility, Marine Corps Base, Camp Smedley D. Butler, Fleet Post Office, Seattle, Washington. According to the appointing order, the commanding officer’s authority to convene the court was based on section 0103b, Manual of the Judge Advocate General, Department of the Navy. Appellant contends and the Government concedes that in light of this Court’s opinion in United States v Greenwell, 19 USCMA 460, 42 CMR 62 (1970), the proceedings were a nullity. We agree. Here, as in Greenwell, a general officer, acting in accordance with the provisions of section 0103b (5) of the JAG Manual, supra, purported to designate the Transient Company as a separate and detached command and to invest in the commander thereof special court-martial authority. This he cannot do as that power was given exclusively to the appropriate service Secretary by the Congress (Article 23(a)(7), Uniform Code of Military Justice, 10 USC § 823), and is not delegable. As we said in United States v Greenwell, supra, at page 464: “. . . To the extent that section 0103b (5), JAG Manual, supra, purports to grant this authority to a flag or general officer, it is contrary to the law and of no legal effect. Courts-martial convened under that authority are a nullity. United States v Ortiz, . . . [15 USCMA 505, 36 CMR 3 (1965), rehearing denied, 16 USCMA 127, 36 CMR 283 (1966)].” The decision of the United States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A new trial may be ordered before a properly appointed court-martial.