CREATION OF THE SPECIAL COURT-MARTIAL

Article 23, UCMJ, and the JAGMAN prescribe who has the power to convene (create) an SPCM. The power to convene an SPCM is nondelegable and, in no event, can a subordinate exercise such authority. Avoid signature titles such as Acting Commanding Officer and Executive Officer on legal documents regardless of the validity of such titles on other administrative correspondence.

The commander of a unit embarked on a naval vessel who is authorized to convene an SPCM should refrain from exercising such authority and defer instead to the desires of the ship's commander.

Figure 7-2B.-Record of Trial by Summary Court-Martial, DD Form 2329 (back).

Before any case can be brought before an SPCM, such a court-martial must be convened. The creation of an SPCM is accomplished by the written orders of the CA in which the members are also detailed.

In chapter 6, you learned the procedures for the preparation of the convening order. The order is typed on command letterhead, is dated and serialized, and is signed personally by the CA. The order specifies the names and ranks of all members detailed to serve on the court. When a proper convening order is executed, an SPCM is created and remains in existence until dissolved. A sample convening order can be found in chapter 6.

COMPOSITION OF SPECIAL COURTS-MARTIAL

There are several configurations of an SPCM depending upon either the desires of the CA or the desires of the accused. The constitution of the court refers to the court's composition; that is, the personnel involved. The different types of SPCM compositions are as follows:

Three members-One type of SPCM consists of a minimum of three members and counsel, but no military judge. Such an SPCM can try any case referred to it but cannot adjudge a sentence (in enlisted cases) of more than 6 months' confinement, forfeiture of twothirds pay per month for 6 months, and reduction to paygrade E-1. So, in ordinary circumstances, a punitive discharge may not be adjudged. Where a threemember type of court-martial is used, the CA must include in the Referral block on the charge sheet instruction that a BCD is not an authorized punishment.

Military judge and members-This type of SPCM involves counsel, at least three members, and a military judge. The members' role is similar to that of a civilian jury. They determine guilt or innocence and impose sentence. The senior member is, in effect, the jury foreman who presides during deliberations. The military judge functions as does a civilian criminal court judge. He or she resolves all legal questions that arise and otherwise directs the trial proceedings. This form of SPCM is authorized to adjudge a punitive discharge and has become fairly standard in the naval service.

Military judge alone-This form of SPCM is not created by a convening order, but by the accused's exercise of a statutory right. The accused has the right to request orally on the record or in writing a trial by military judge alone-without members. Before choosing to be tried by a military judge alone. an accused is entitled to know the identity of the judge who will sit on his or her case. The TC may argue against the request when it is presented to the military judge. The judge rules on the request and, if the request is granted, he or she discharges the court members for the duration of that case only. A courtmartial so configured is authorized to impose a sentence extending to a punitive discharge.

IMPROPER CONSTITUTION OF THE COURT

Requisites to the power of a court-martial to try a case are jurisdiction over the offense, jurisdiction over the defendant, proper convening, and proper constitution. A deficiency in any of these requisites makes the court powerless to adjudicate a case lawfully. The rules relating to constitution of the court must, therefore, be carefully observed.