Petition for Writ of Certiorari — Thomas L. Wheeler, Petitioner v. United States
Supreme Court briefDec 19, 2024
Ask Donna
What actually matters in this document.
Text
No. 24-___
IN THE
Supreme Court of the United States
__________
THOMAS L. WHEELER, ET AL.,
Petitioners,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
__________
PETITION FOR A WRIT OF CERTIORARI
__________
ERIN GLENN BUSBY
LISA R. ESKOW
MICHAEL F. STURLEY
University of Texas
School of Law
Supreme Court Clinic
727 E. Dean Keeton St.
Austin, TX 78705
STEPHEN I. VLADECK
Counsel of Record
600 New Jersey Ave., NW
Washington, DC 20001
(202) 662-9313
svladeck@gmail.com
MEGAN P. MARINOS
Appellate Defense Division
U.S. Navy
1254 Charles Morris St., SE
Washington Navy Yard, DC
20374
Counsel for Petitioners
December 20, 2024
QUESTION PRESENTED
With the exception of “summary” courts-martial,
which are non-adversarial, non-criminal proceedings,
see Middendorf v. Henry, 425 U.S. 25, 42 (1976),
servicemembers facing court-martial had an absolute
right, from the Founding through 2018, to be tried by
a panel of fellow servicemembers. Indeed, until the
post-World War II advent of military judges, the panel
was not just part of the court-martial; it was the courtmartial.
Starting in 1968, a servicemember facing a special
or general court-martial could request to be tried by a
“judge alone.” But since 2019, Congress and the
President have also authorized some special courtsmartial to proceed before a “judge alone” even when
the accused objects. See 10 U.S.C. §§ 816(c)(2)(A),
819(b). These bench trials are not just for petty
offenses. As petitioners’ cases demonstrate, they can
also include serious misdemeanors and felonies—and
civilian crimes as well as military ones. The Court of
Appeals for the Armed Forces (CAAF) conceded below
that “historical tradition weighs in favor of finding a
due process right to a panel” in these cases, Pet. 16a,
but nevertheless held that no such right exists.
The question presented is:
Whether Congress violated the Fifth Amendment’s
Due Process Clause when it deprived servicemembers
facing criminal prosecutions of the right to be tried by
a panel of fellow servicemembers.
ii
PARTIES TO THE PROCEEDING
This Rule 12.4 petition consolidates direct appeals
from three servicemembers convicted by courtsmartial. Petitioners are Thomas L. Wheeler, David M.
Diaz, and Thomas H. Martin. Respondent in each of
petitioners’ cases is the United States.
CORPORATE DISCLOSURE STATEMENT
No nongovernmental corporations are parties to
this proceeding.
RELATED PROCEEDINGS
Other than the direct appeals that form the basis
for this petition, there are no related proceedings for
purposes of Rule 14.1(b)(iii).
iii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. i
PARTIES TO THE PROCEEDING ...................................... ii
CORPORATE DISCLOSURE STATEMENT.......................... ii
RELATED PROCEEDINGS ............................................... ii
TABLE OF AUTHORITIES ................................................ v
INTRODUCTION ............................................................. 1
DECISIONS BELOW ........................................................ 4
JURISDICTION ............................................................... 4
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED .......................................................... 5
STATEMENT OF THE CASE ............................................. 5
A. The Court-Martial Panel............................... 6
B. The Military Justice Act of 2016................... 8
C. Petitioners’ Cases ........................................ 10
REASONS FOR GRANTING THE PETITION ..................... 12
I.
THE SHORT-MARTIAL RAISES SUBSTANTIAL
AND FUNDAMENTAL DUE PROCESS
QUESTIONS ......................................................... 13
A. The Short-Martial Raises a
Categorically Different Due Process
Concern Than What Middendorf
and Weiss Rejected ...................................... 14
B. CAAF’s Unwarranted Extension of
Middendorf and Weiss Is Flawed
on Its Face and Would Effectively
Foreclose Military Due Process Claims ...... 16
iv
TABLE OF CONTENTS (CONTINUED)
II. THE QUESTION PRESENTED IS OF
EXCEPTIONAL IMPORTANCE ................................ 23
III. FURTHER PERCOLATION WILL NOT AID
THIS COURT’S REVIEW ........................................ 27
CONCLUSION .............................................................. 30
PETITION APPENDIX (BOUND TOGETHER)
United States v. Wheeler
(C.A.A.F. Aug. 22, 2024) ................................ 1a
United States v. Diaz
(C.A.A.F. Sept. 17, 2024) (mem.) ................. 21a
United States v. Martin
(C.A.A.F. Sept. 17, 2024) (mem.) ................. 22a
United States v. Wheeler
(N-M. Ct. Crim. App. Feb. 17, 2023)
(en banc) ....................................................... 23a
United States v. Diaz
(N-M. Ct. Crim. App. Sept. 21, 2023)
(per curiam) .................................................. 53a
United States v. Martin
(N-M. Ct. Crim. App. Sept. 21, 2023)
(per curiam) .................................................. 56a
v
TABLE OF AUTHORITIES
Cases
Baldwin v. New York,
399 U.S. 66 (1970) ................................................. 21
Ballew v. Georgia,
435 U.S. 223 (1978) ............................................... 19
Burgess v. United States,
553 U.S. 124 (2008) ................................................. 9
Burns v. Wilson,
346 U.S. 137 (1953) ............................................... 27
Dep’t of State v. Muñoz,
602 U.S. 899 (2024) ............................................... 28
Dynes v. Hoover,
61 U.S. (20 How.) 65 (1858) .................................... 1
Frank v. United States,
395 U.S. 147 (1969) ............................................... 21
Middendorf v. Henry,
425 U.S. 25 (1976) ..................3, 7, 10, 13–18, 22–24
Noyd v. Bond,
395 U.S. 683 (1969) ............................................... 27
Ortiz v. United States,
585 U.S. 427 (2018) ........................................... 3, 28
Ramos v. Louisiana,
590 U.S. 83 (2020) ................................................. 15
Reid v. Covert,
354 U.S. 1 (1957) ............................................... 1, 26
Sanford v. United States,
586 F.3d 28 (D.C. Cir. 2009) ........................... 15, 19
vi
TABLE OF AUTHORITIES (CONTINUED)
SEC v. Jarkesy,
144 S. Ct. 2117 (2024) ........................................... 26
Solorio v. United States,
483 U.S. 435 (1987) ......................................... 25, 26
Stern v. Marshall,
564 U.S. 462 (2011) ............................................... 26
United States v. Anderson,
83 M.J. 291 (C.A.A.F. 2023) ............................ 13, 15
United States v. Armbruster,
29 C.M.R. 412 (C.M.A. 1960) ................................ 28
United States v. Harvey,
No. 23-0239, 2024 WL 4128457
(C.A.A.F. Sept. 6, 2024)......................................... 20
United States v. Tucker,
77 M.J. 696 (A. Ct. Crim. App. 2018) ................... 12
Washington v. Glucksberg,
521 U.S. 702 (1997) ............................................... 28
Weiss v. United States,
510 U.S. 163 (1994) ......................... 3, 10, 13–18, 23
Whelchel v. McDonald,
340 U.S. 122 (1950) ............................................... 21
Statutes and Constitutional Provisions
U.S. CONST.
amend. V .................................3, 5, 10, 17, 23, 25, 28
amend. VI .................................................. 10, 19, 21
10 U.S.C.
§ 815 ......................................................................... 7
§ 816(c)(2)(A) ........................................................... 5
vii
TABLE OF AUTHORITIES (CONTINUED)
§ 816(c)(2)(B) ........................................................... 5
§ 819(b) ...................................................... 2, 5, 9, 25
§ 820(b) .................................................................... 7
§ 852(a)(3) .............................................................. 15
§ 852(b)(2) .............................................................. 15
§ 866(d)(1)(B) ......................................................... 20
§ 892 ....................................................................... 11
§ 895 ....................................................................... 10
§ 924 ....................................................................... 11
§ 928 ....................................................................... 11
§ 946a(b) ................................................................ 24
28 U.S.C. § 1259(3) ..................................................... 5
1775 Articles of War ............................................... 1, 6
Act of Mar. 2, 1799,
ch. 24, 1 Stat. 709 .................................................... 6
Military Justice Act of 1968,
Pub. L. No. 90-632, 82 Stat. 1335 ....................... 1, 7
Military Justice Act of 2016,
Pub. L. No. 114-328, div. E,
130 Stat. 2000.................................. 1, 2, 8, 9, 20, 21
William M. (Mac) Thornberry
National Defense Authorization Act
for Fiscal Year 2021,
Pub. L. No. 116-283, 134 Stat. 3388 ..................... 20
Rules, Regulations, and Guidelines
Dep’t of Def. Instruction 1325.07
(Nov. 21, 2024)......................................................... 9
Manual for Courts-Martial (MCM)
(2024 ed.) ......................................................... 11, 12
R.C.M. 201(f)(2)(E) .......................................... 9, 16, 21
viii
TABLE OF AUTHORITIES (CONTINUED)
U.S.S.G. § 4A1.2(g) ....................................... 2, 7, 9, 21
Other Authorities
Sen. Sam J. Ervin, Jr.,
The Military Justice Act of 1968,
45 MIL. L. REV. 77 (1969) ........................................ 7
MIL. JUST. REV. GRP.,
REPORT OF THE MILITARY JUSTICE
REVIEW GROUP (2015) .............................................. 8
S. REP. 114-255 (2016)................................................. 8
LISA M. SCHENCK,
MODERN MILITARY JUSTICE: CASES
AND MATERIALS (4th ed. 2023) ................................ 2
David A. Schlueter,
The Court-Martial:
A Historical Survey,
87 MIL. L. REV. 129 (1980) .................................. 6, 7
Dwight H. Sullivan,
The Military Justice Decrescendo,
68 VILL. L. REV. 849 (2023) ................................... 18
WILLIAM WINTHROP,
MILITARY LAW AND PRECEDENTS
(2d ed. 1920) ........................................................ 6, 7
***
1
INTRODUCTION
Since before the Civil War, this Court has blessed
the use of courts-martial, rather than Article III
civilian courts, to try criminal offenses committed by
members of the armed forces. See Dynes v. Hoover, 61
U.S. (20 How.) 65, 78–79 (1858). Despite recognizing
that courts-martial long dispensed a “rough form of
justice,” Reid v. Covert, 354 U.S. 1, 35 (1957) (plurality
opinion), this Court has repeatedly upheld them. It
has done so by reference to the history and tradition
of having a soldier’s guilt or innocence decided by a
panel of fellow servicemembers rather than a jury of
distant and disinterested civilians.
Historically, the panel was not just part of the
court-martial; it was the court-martial. From the 1775
Articles of War onward, it was a panel of fellow
servicemembers that defined the general (and, later,
special) court-martial, not the other way around. The
panel was the court-martial’s irreducible minimum.
More than that, it was the principal procedural
protection for the accused—a striking feature at a time
when military personnel had almost no other rights
under the Constitution, federal statutes, or military
regulations. Even when Congress created the position
of “military judge” in 1968, it left servicemembers with
the right to insist on a panel for any court-martial—
no matter the offense. See Military Justice Act of 1968,
Pub. L. No. 90-632, § 2(3), 82 Stat. 1335, 1335.
But in the Military Justice Act of 2016, Pub. L. No.
114-328, div. E, 130 Stat. 2000, 2894–2968, 1 Congress
upended that long-settled historical practice. For the
first time, Congress provided for military bench trials
1. The provisions at issue here went into effect on January 1,
2019. Military Justice Act of 2016, § 5542(a), 130 Stat. at 2967.
2
over the accused’s objection. See id. §§ 5161–63, 130
Stat. at 2897–99. CAAF calls such a proceeding an
“unrefusable military judge-alone special courtmartial.” Pet. 9a. The more evocative term is the
“short-martial.” LISA M. SCHENCK, MODERN MILITARY
JUSTICE: CASES AND MATERIALS 264 (4th ed. 2023).
The short-martial was not a reaction to any specific
imperative. The only rationale Congress provided for
such a radical break from the history and tradition of
military jurisdiction was “efficiency.” See Pet. 5a. The
2016 Act thereby sacrificed the full panoply of
protections attendant to a general court-martial, or
even the lesser protections provided by a conventional
special court-martial with a panel, in favor of a
quicker—and less procedurally involved—forum for
adjudicating servicemembers’ guilt or innocence for a
host of criminal offenses triable under the Uniform
Code of Military Justice (UCMJ).
Tacitly recognizing the grave implications of such
a move, Congress prescribed three limits: A shortmartial may not impose as punishment a bad-conduct
discharge, forfeiture of more than six months’ pay, or
confinement for more than six months. See 10 U.S.C.
§ 819(b). But those limits do not bar a short-martial
from trying felonies or serious misdemeanors, as it did
in two of petitioners’ cases—or civilian offenses, as it
did in the third. And serious offenses or not, shortmartial convictions, unlike convictions by summary
courts-martial, carry the typical assortment of severe
and stigmatizing collateral consequences—including
under the Federal Sentencing Guidelines. See
U.S.S.G. § 4A1.2(g) (convictions by special courtsmartial count as prior criminal history). Thus, the
Military Justice Act of 2016 eliminated the sine qua
non of courts-martial in many cases. And the way it
3
did so exposes servicemembers to the same
consequences they would face if convicted of similar
offenses in civilian courts—but without comparable
procedural safeguards.
CAAF nevertheless upheld the short-martial. It
held that the due process considerations this Court
articulated in Middendorf, 425 U.S. 25, and reiterated
in Weiss v. United States, 510 U.S. 163 (1994), did not
militate in favor of a right to be tried by a panel. Pet.
6a–17a. But CAAF’s analysis turns Middendorf and
Weiss on their heads. The question in both cases was
whether servicemembers were entitled to greater
procedural protections than those reflected in the
history and tradition of military justice in the United
States—such as a right to counsel at a summary courtmartial in Middendorf, or a right to judges with fixed
terms of office in Weiss. By contrast, the question
petitioners present is whether Congress can deprive
servicemembers of procedural rights that have been
central to the history and tradition of courts-martial
for no reason other than efficiency. If “the fact of a
differing military tradition” should have been “utterly
conclusive” of what the Due Process Clause requires
in those cases, see Weiss, 510 U.S. at 199 (Scalia, J.,
concurring in part and concurring in the judgment), it
should be just as conclusive here.
Properly resolving the constitutionality of the
short-martial is of critical importance not only to the
military justice system, but to the scope of the courtmartial exception to Article III. This Court has
previously sustained military jurisdiction because
Congress has hewed closely to the model of Foundingera courts-martial. See, e.g., Ortiz v. United States,
585 U.S. 427, 439 (2018) (“Congress has maintained
courts-martial in all their essentials to resolve
4
criminal charges against service members.” (emphasis
added)). The more Congress departs from even the
minimum procedural requirements (and the central
structural feature) of Founding-era courts-martial—
the panel—the more it undermines not only the due
process rights of servicemembers, but the reason why
the Constitution allows members of the armed forces
to be prosecuted in military courts in the first place.
DECISIONS BELOW
In Petitioner Wheeler’s case, the decision of the en
banc Navy-Marine Corps Court of Criminal Appeals
(NMCCA) is reported at 83 M.J. 581 (N-M. Ct. Crim.
App. 2023) (en banc), and is reprinted at Pet. 23a.
CAAF’s decision is not yet reported. It is available at
2024 WL 3932500 (C.A.A.F. Aug. 22, 2024), and is
reprinted at Pet. 1a.
In Petitioner Diaz’s case, the decision of the
NMCCA is not reported. It is available at 2023 WL
2124773 (N-M. Ct. Crim. App. Feb. 21, 2023), and is
reprinted at Pet. 53a. CAAF’s decision is not yet
reported. It is available at 2024 WL 4491886 (C.A.A.F.
Sept. 17, 2024), and is reprinted at Pet. 21a.
In Petitioner Martin’s case, the decision of the
NMCCA is not reported. It is available at 2023 WL
2125135 (N-M. Ct. Crim. App. Feb. 21, 2023), and is
reprinted at Pet. 56a. CAAF’s decision is not yet
reported. It is available at 2024 WL 4491794 (C.A.A.F.
Sept. 17, 2024), and is reprinted at Pet. 22a.
JURISDICTION
In each of petitioners’ cases, CAAF granted
discretionary review of the question presented here.
In Petitioner Wheeler’s case, CAAF issued an opinion
and judgment on August 22, 2024. In Petitioner Diaz’s
5
and Petitioner Martin’s cases, it issued judgments on
September 17, 2024. On October 24, 2024, the Chief
Justice extended the time for filing a petition for a writ
of certiorari to and including December 20, 2024. This
Court’s jurisdiction rests on 28 U.S.C. § 1259(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Due Process Clause provides that “No person
shall be . . . deprived of life, liberty, or property,
without due process of law.” U.S. CONST. amend. V.
Article 16(c)(2), UCMJ, authorizes special courtsmartial before a “military judge alone” either if the
accused consents, 10 U.S.C. § 816(c)(2)(B), or “if the
case is so referred, subject to section 819 of this title
(article 19) and such limitations as the President may
prescribe by regulation.” Id. § 816(c)(2)(A).
Article 19(b), UCMJ, provides that “[n]either a
bad-conduct discharge, nor confinement for more than
six months, nor forfeiture of pay for more than six
months may be adjudged if charges and specifications
are referred to a special court-martial consisting of a
military judge alone under section 816(c)(2)(A) of this
title (article 16(c)(2)(A)).” Id. § 819(b).
STATEMENT OF THE CASE
The question presented is whether Congress
violated the Due Process Clause when it deprived
servicemembers of the right to be tried by a panel of
fellow servicemembers for certain categories of
criminal offenses—a right that is deeply rooted in the
history and tradition of American military justice.
Proper understanding of that history and tradition is
thus essential to this Court’s consideration of the
petition and is recounted here.
6
A.
The Court-Martial Panel
At the time the Constitution was drafted, the 1775
Articles of War governing the Continental Army were
modeled directly on their British counterpart. Both
required a “general court-martial to consist of at least
thirteen officers and a regimental court-martial, to
consist of not less than five officers, except when that
number cannot be conveniently assembled, when
three shall be sufficient.” David A. Schlueter, The
Court-Martial: A Historical Survey, 87 MIL. L. REV.
129, 146 (1980); see also 1775 Articles of War, arts.
XXXIII, XXXVII. 2 The regimental court-martial was
limited to “small offences,” with all serious charges
required to be tried by the panel of officers comprising
a general court-martial. See id.; see also 2 WILLIAM
WINTHROP, MILITARY LAW AND PRECEDENTS 953–60
(2d ed. 1920) (reprinting the 1775 Articles of War).
At various points, Congress authorized (and has
continued to authorize) the military to impose noncriminal punishments without a panel. But the
Founding-era practice of having all criminal offenses
tried by a multi-member panel of servicemembers
remained unbroken until 1968—and even then, could
be bypassed only at the affirmative request of the
accused. As CAAF explained below:
For nearly 200 years, courts-martial in the
United States military consisted solely of
panels of members of varying numbers and
types. This was true for general courts-martial
as well as “lesser” courts-martial (the
2. The first Articles for the Government of the Navy adopted
under the Constitution provided for a maximum panel of 13
officers for naval courts-martial—and a minimum panel of five.
See Act of Mar. 2, 1799, ch. 24, § 1, 1 Stat. 709, 713 (Article 47).
7
predecessor of our current special courtsmartial). This requirement continued with the
creation of the UCMJ in 1951. In 1968,
Congress created military judges and, for the
first time, authorized courts-martial without
panel members—but only when an accused
requested it.
Pet. 9a; see also Military Justice Act of 1968, § 2(3), 82
Stat. at 1335. 3 Indeed, Congress’s purpose in creating
the position of military judge was to better protect the
rights of servicemembers—not to dilute them. See,
e.g., Sen. Sam J. Ervin, Jr., The Military Justice Act of
1968, 45 MIL. L. REV. 77, 77 (1969) (summarizing the
1968 Act’s primary goal as making “significant
improvements in the brand of justice afforded by
military criminal courts”).
Thus, before 2019, there was no means by which
the military could secure a criminal conviction of a
servicemember without either a panel or the
servicemember’s affirmative request to be tried by a
“judge alone.”
3. CAAF’s overview excluded “summary” courts-martial—
with good reason. Some form of summary military adjudication
can be traced back to eighteenth-century “garrison” and
“regimental” courts-martial (and Civil War “field officer courts”).
See Schlueter, supra, at 148–49. But those proceedings, like nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815,
did not (and do not) result in criminal penalties or collateral
consequences such as counting as “criminal history” under the
Federal Sentencing Guidelines. See Middendorf, 425 U.S. at 33–
42; 10 U.S.C. § 820(b) (“A finding of guilty at a summary courtmartial does not constitute a criminal conviction.”); see also
U.S.S.G. § 4A1.2(g) (2024) (“Sentences imposed by a summary
court-martial or Article 15 proceeding are not counted.”). See
generally 1 WINTHROP, supra, at 490 (describing these historical
examples as providing only “summary disposition[s]”).
8
B.
The Military Justice Act of 2016
The proposal to create the short-martial originated
in the 2015 Report of the Military Justice Review
Group—an effort directed by the Secretary of Defense
to produce “a holistic review of the UCMJ in order to
ensure that it effectively and efficiently achieves
justice consistent with due process and good order and
discipline.” MIL. JUST. REV. GRP., REPORT OF THE
MILITARY JUSTICE REVIEW GROUP 5 (2015). 4
Among its many suggested reforms to the UCMJ,
the MJRG Report proposed the creation of the shortmartial—entirely to provide convening authorities
with greater flexibility:
The judge-alone special court-martial would
offer military commanders a new disposition
option for low-level criminal misconduct—one
that would be more efficient and less
burdensome on the command than a special
court-martial, but without the option for the
member to refuse as in summary courts-martial
and nonjudicial punishment.
Id. at 222 (emphases added); see S. REP. 114-255, at
595 (2016) (explaining that the purpose of the reform
was to give the armed forces the “option” to pursue a
judge-alone trial without the accused’s consent). In
the Military Justice Act of 2016, enacted as Division E
of the National Defense Authorization Act for Fiscal
Year 2017, Congress adopted most of the Review
Group’s recommendations—including the shortmartial. See Pub. L. No. 114-328, div. E, §§ 5001–
5542, 130 Stat. at 2894–2968.
4. The report is available at https://jsc.defense.gov/Portals/99/
MJRG%20Part%201.pdf.
9
To that end, the Military Justice Act of 2016
amended Article 19 of the UCMJ to authorize
mandatory bench trials over the accused’s objection.
The punishment adjudged by a short-martial cannot
include “a bad-conduct discharge, nor confinement for
more than six months, nor forfeiture of pay for more
than six months.” 10 U.S.C. § 819(b). But nothing in
the Act or the Rules for Courts-Martial implementing
it prevent a short-martial from trying offenses that
are
felonies—where
the
maximum
possible
confinement under the UCMJ exceeds one year. See,
e.g., Burgess v. United States, 553 U.S. 124, 130 (2008)
(“[T]he term ‘felony’ is commonly defined to mean a
crime punishable by imprisonment for more than one
year”). Article 19 limits only the sentence that a shortmartial may actually impose. 5
And felonies or not, all convictions by special
courts-martial, including those by a short-martial,
count as prior criminal history under the Federal
Sentencing Guidelines. See U.S.S.G. § 4A1.2(g) (2024)
(“Sentences resulting from military offenses are
counted if imposed by a general or special courtmartial.”). Thus, for the first time, Congress in the
Military Justice Act of 2016 provided for court-martial
convictions for criminal offenses without either a
panel or the accused’s consent to a bench trial.
5. A short-martial is separately precluded by the Rules for
Courts-Martial only if “the maximum authorized confinement for
the offense it alleges would be greater than two years if the
offense were tried by a general court-martial,” or if “the
specification alleges an offense for which sex offender notification
would be required under regulations issued by the Secretary of
Defense.” R.C.M. 201(f)(2)(E) (2024) (emphases added); see Dep’t
of Def. Instruction 1325.07, ¶ 5.7(d)(1), at 39 (Nov. 21, 2024)
(identifying offenses that require sex offender notification).
10
C.
Petitioners’ Cases
Petitioner Thomas L. Wheeler is a Master-at-Arms
Third Class (E-4) in the Navy. Wheeler was tried and
convicted of one specification of sleeping on post in
violation of Article 95, UCMJ, 10 U.S.C. § 895—a
serious misdemeanor for which the maximum
peacetime punishment is a dishonorable discharge
and confinement and forfeiture of all pay for up to one
year. See Pet. 25a. Wheeler’s case was referred, over
his timely objection, to a judge-alone special courtmartial—which ultimately sentenced him to 15 days’
confinement.
In reviewing Wheeler’s short-martial conviction,
the Judge Advocate General of the Navy certified
Wheeler’s constitutional objections to the NMCCA.
Sitting en banc, that court affirmed Wheeler’s
conviction—holding that a judge-alone special courtmartial without the accused’s consent violates neither
the Due Process Clause of the Fifth Amendment nor
the Jury Trial Clause of the Sixth Amendment. See
Pet. 31a–44a. CAAF granted Wheeler’s petition for
discretionary review and affirmed the NMCCA’s due
process holding. 6 Writing for the court, Judge Johnson
concluded that Congress’s elimination of the consent
requirement for judge-alone special courts-martial did
not violate the Due Process Clause under the
approach this Court articulated in Middendorf and
followed in Weiss. See Pet. 6a–17a.
Petitioner David M. Diaz is an Electronics
Technician, Submarines, Communication Third Class
(E-4) in the Navy. While serving as an armed sentry
at the Puget Sound Naval Shipyard, Diaz drew a
6. Wheeler did not pursue his Sixth Amendment claim before
CAAF, see Pet. 6a n.2, and is not pursuing it before this Court.
11
loaded firearm (with the safety catch disengaged) and
pointed it toward another sailor. See Pet. 54a. He was
tried and convicted of one specification of willful
dereliction of duty, in violation of Article 92, UCMJ,
10 U.S.C. § 892, and one specification of simple
assault, in violation of Article 128, UCMJ, 10 U.S.C.
§ 928. 7 For willful dereliction of duty, the maximum
punishment included a bad-conduct discharge,
forfeiture of all pay and allowances for six months,
and confinement for the same. Manual for CourtsMartial (MCM), pt. IV, ¶ 18(d)(3)(C), at IV-29 (2024
ed.). For simple assault, the maximum punishment
included forfeiture of two-thirds pay and allowances
for up to three months, and three months’
confinement. Id. ¶ 77(d)(1)(a), at IV-123.
Like Wheeler, Diaz timely objected to his shortmartial. The trial judge overruled his objection, and
ultimately sentenced him to thirty days’ confinement
and a reduction in rank (to E-3). As in Wheeler, the
Judge Advocate General referred the case to the
NMCCA—which summarily affirmed in light of its
ruling in Wheeler. Pet. 54a–55a. CAAF granted Diaz’s
petition for discretionary review and, after its ruling
in Wheeler, summarily affirmed. Pet. 21a.
Petitioner Thomas H. Martin is an Aviation
Ordnanceman Second Class (E-5) in the U.S. Navy
who was accused of sexually harassing four female
subordinate sailors by creating a hostile work
environment. He was charged and convicted of one
specification of violating a lawful general order, in
violation of Article 92, UCMJ, 10 U.S.C. § 892. See
7. Diaz was acquitted of one specification of reckless
endangerment, in violation of Article 114, UCMJ, 10 U.S.C.
§ 924. See Pet. 53a.
12
Pet. 57a. Martin’s conviction meets the common
definition of a felony: The maximum authorized
punishment includes a dishonorable discharge and
confinement (and forfeiture of all pay and allowances)
for two years. See MCM, supra, ¶ 18(d)(1), at IV-28;
see also United States v. Tucker, 77 M.J. 696, 702 n.4
(A. Ct. Crim. App. 2018). After rejecting Martin’s
timely objection to trial without a panel, the military
judge sentenced him to a reprimand, reduction in rank
(to E-3), and sixty days’ restriction. See Pet. 56a.
The Judge Advocate General likewise referred
Martin’s appeal to the NMCCA, which summarily
affirmed in light of its ruling in Wheeler. Pet. 57a–58a.
CAAF granted Martin’s petition for discretionary
review and also summarily affirmed in light of its
ruling in Wheeler. Pet. 22a.
The three petitioners thus present this Court with
a full range of preserved due process objections to the
short-martial. Martin was convicted of a felony;
Wheeler was convicted of a serious misdemeanor; and
Diaz was convicted of a misdemeanor that could also
have been prosecuted in state or federal civilian court.
REASONS FOR GRANTING THE PETITION
This Court has never before been asked to decide
whether Congress can eliminate features of Foundingera courts-martial without offending the Constitution.
There are compelling reasons to answer that question
here. As one NMCCA judge explained, “[p]anel
members represent a safeguard in the military justice
system that has no civilian equivalent and represent
not only a procedural hurdle for a convening authority
but also an equity shield for servicemembers.” Pet.
46a (Kirkby, J., concurring in the judgment). Whether
Congress has the constitutional authority to remove
13
that shield is a question of exceptional importance—
not just to the millions of individuals who are subject
to the UCMJ, but to the broader understanding of why
(and when) the Constitution permits military
adjudication.
I.
THE SHORT-MARTIAL RAISES SUBSTANTIAL
AND FUNDAMENTAL DUE PROCESS QUESTIONS
In upholding the constitutionality of the shortmartial in Wheeler, CAAF focused on the due process
analysis that this Court articulated in Middendorf
and further refined in Weiss. Thus, quoting one of its
own decisions applying Middendorf and Weiss, CAAF
framed the issue as whether “the factors militating in
favor of [court-martial panels] are so extraordinarily
weighty as to overcome the balance struck by
Congress.” Pet. 8a (quoting United States v. Anderson,
83 M.J. 291, 298 (C.A.A.F. 2023)).
There are two problems with CAAF’s analysis,
both of which independently support this Court’s
intervention. First, by resorting to a rote application
of Middendorf and Weiss, CAAF failed to appreciate
that petitioners present a fundamentally distinct due
process issue from what this Court addressed in those
cases. There, the question was whether due process
required Congress to provide more procedural
protection than what had historically been available
in courts-martial. Here, the question is whether due
process allows for Congress to provide less than the
historical minimum.
In Weiss, Justice Scalia explained that it was
enough, for due process purposes, if Congress “gave
members of the military at least as much procedural
protection . . . as they enjoyed when the Fifth
Amendment was adopted and have enjoyed ever
14
since.” 510 U.S. at 197 (Scalia, J., concurring in part
and concurring in the judgment). If Founding-era
courts-martial are the due process baseline, Congress
going below that floor necessarily raises grave
constitutional questions that were neither presented
in, nor answered by, Middendorf or Weiss.
Second, even if the same due process
considerations govern cases in which Congress has
taken pre-existing procedural protections away, the
manner in which CAAF applied Middendorf and Weiss
in Wheeler would foreclose virtually all procedural due
process claims in courts-martial. CAAF impermissibly
undervalued the weight that history and tradition
should bear, and it radically overstated both the costs
to the military of providing a right to a panel and the
procedural safeguards that would make up for its
absence. Certiorari should therefore be granted—
because Middendorf and Weiss do not fully account for
the due process concerns in petitioners’ cases, or
because they do, but CAAF badly misapplied them.
A. The Short-Martial Raises a Categorically
Different Due Process Concern Than
What Middendorf and Weiss Rejected
The due process framework for courts-martial that
this Court applied in Middendorf and refined in Weiss
starts from the baseline of protections that Congress
has historically provided—and then asks whether the
Constitution requires more. See, e.g., Weiss, 510 U.S.
at 179; see also Middendorf, 425 U.S. at 50 (Powell, J.,
concurring) (“One must ignore history, tradition, and
practice for two centuries to read into the
Constitution, at this late date, a requirement for
counsel in the discipline of minor violations of military
law.”).
15
A recent case helps to illustrate this approach. In
Ramos v. Louisiana, 590 U.S. 83 (2020), this Court
incorporated the Sixth Amendment right to a
unanimous conviction against the states. See id. at
89–93. When servicemembers argued that they were
likewise entitled to unanimous convictions as a matter
of due process, CAAF relied on Middendorf and Weiss
in holding otherwise. 8 See Anderson, 83 M.J. 291. As
CAAF explained, Middendorf and Weiss impose on a
servicemember who requests a new procedural right
the burden to “demonstrate that the factors militating
in favor of [a different procedure] are so
extraordinarily weighty as to overcome the balance
struck by Congress.” Id. at 298 (internal quotation
marks omitted; alteration in original); see also, e.g.,
Sanford v. United States, 586 F.3d 28, 29 (D.C. Cir.
2009) (Middendorf and Weiss place the burden on the
party seeking “a new due process right”).
In its decision in Petitioner Wheeler’s case, CAAF
extended Anderson’s burden framework to apply to a
very different due process claim. See Pet. 8a–17a. In
the process, CAAF never considered that the due
process objection to the short-martial arises in the
opposite context—i.e., where Congress has deprived
servicemembers of protections that have been a
central part of special and general courts-martial
since before the Founding. CAAF’s analysis was thus
built upon a flawed foundation. In Middendorf and
Weiss, contrary historical practice provided powerful
evidence that the requested procedural right was not
8. Under current law, a special or general court-martial
conviction depends upon the concurrence of three-fourths of the
panel members—except where the accused faces the death
penalty, when both the verdict and sentence must be unanimous.
See 10 U.S.C. § 852(a)(3), (b)(2).
16
necessary to ensure the fairness of the proceeding.
See, e.g., Weiss, 510 U.S. at 199 (Scalia, J., concurring
in part and concurring in the judgment). Petitioners’
cases, in contrast, ask whether contrary historical
practice ought to provide a comparable weight against
Congress taking existing rights away.
Indeed, under the logic of Middendorf and Weiss,
when Congress departs downward from historical
practice, the weight of tradition should exert force in
the opposite direction. In such cases, the burden
should fall on the government, and not the accused, to
provide some explanation for why such a departure is
necessary. That hasn’t happened here. See Pet. 48a–
49a (Kirkby, J., concurring in the judgment) (“While
there has been a long standing, and appropriate,
recognition that those who serve relinquish certain
rights in order to meet the military mission, there is
simply no military necessity accomplished by the
‘shortcut’ contained in R.C.M. 201(f)(2)(E).”).
Thus, certiorari is warranted to decide whether
(and when) Congress may deprive servicemembers of
procedural rights that court-martial accused have
enjoyed consistently since the Founding.
B. CAAF’s Unwarranted Extension of
Middendorf and Weiss Is Flawed on Its
Face and Would Effectively Foreclose
Military Due Process Claims
Even if Middendorf and Weiss can fairly be read to
require servicemembers to bear the burden of
establishing their due process right to historically
available procedural protections that Congress has
taken away, certiorari would still be warranted. Not
only did CAAF apply those cases incorrectly, but its
analysis would make it all but impossible for
17
servicemembers to ever meet CAAF’s due process
burden. As one judge put it below, “the Government’s
arguments and the [lower courts’] reasoning in this
case provide no reason that Congress could not amend
the UCMJ and do away with members completely.”
Pet. 52a (Kirkby, J., concurring in the judgment). If
anything, Judge Kirkby understated the implications.
In CAAF’s view, under Middendorf and Weiss, “the
Court must consider (1) historical practice with
respect to the procedure at issue, (2) the effect of the
asserted right on the military, and (3) the existence in
current practice of other procedural safeguards that
satisfy the Due Process Clause of the Fifth
Amendment.” Pet. 8a–9a (citations omitted). Even
assuming that the burden of carrying each factor falls
on the servicemember, each consideration supports a
right to a panel, rather than cutting against it.
Taking “historical practice” first, CAAF correctly
conceded that “this factor weighs in favor of a due
process right to a panel,” since historical tradition
consistently and unambiguously supported a right to
a panel until Congress took it away beginning in 2019.
See Pet. 10a; see also id. (“[W]e agree with the lower
court that ‘the possibility of a criminal conviction at
an unrefusable proceeding without members is
remarkable.’” (quoting Pet. 34a)). Yet CAAF gave that
factor insufficient weight. In Weiss, for instance,
Justices Scalia and Thomas thought the historical
practice factor was conclusive where it weighed
against a new due process right to military judges
with fixed terms. See 510 U.S. at 199 (Scalia, J.,
concurring in part and concurring in the judgment).
And if historical practice was conclusive against a new
procedural right in Weiss, it ought to be conclusive in
favor of an old one here.
18
Turning to the “effect of the asserted right on the
military,” CAAF focused on the fact that a right to a
panel “would result in a longer proceeding.” Pet. 12a.
That, in turn, would “requir[e] more servicemembers
to be pulled away from their regular duties in order to
serve as prospective and selected panelists in a case
involving offenses the command deemed minor.” Id.
But CAAF’s analysis failed to account for the fact that,
for more than 200 years, these effects have already
existed. That whole time, military law required trials
by a panel if the accused so requested. Middendorf
and Weiss both stressed the unpredictable costs of the
process that a new due process right would require.
But any costs in this case would not be unpredictable
precisely because the asserted right is nothing new.
Indeed, the military has accounted for the economic
and non-economic costs of panels for as long as it has
conducted courts-martial—without ever identifying
deleterious operational effects. 9
Finally, CAAF claimed that there are “adequate
procedural safeguards to ensure a servicemember
receives a fair trial before a military judge-alone
special court-martial.” Pet. 13a. Specifically, CAAF
pointed to an accused’s right to be represented by
counsel in a special court-martial; the military judge’s
(limited) independence; the limits on the offenses a
short-martial can try and the punishments it can
impose; and the availability of appellate review. See
Pet. 13a–15a.
9. One of the country’s leading experts on the military justice
system has documented an across-the-board decline in courtmartial prosecutions over the past decade. See Dwight H.
Sullivan, The Military Justice Decrescendo, 68 VILL. L. REV. 849
(2023). Thus, the short-martial was adopted at a time when the
number of panels—and their costs—were already decreasing.
19
But even CAAF “recognize[d] the potential benefits
of having multiple factfinders in a criminal case.” Id.
at 13a (citing Ballew v. Georgia, 435 U.S. 223, 232–38
(1978)). Ballew held that the Sixth Amendment
requires a minimum size for criminal juries entirely
because “progressively smaller juries are less likely to
foster effective group deliberation. At some point, this
decline leads to inaccurate fact-finding and incorrect
application of the common sense of the community to
the facts.” Ballew, 435 U.S. at 232; see also id. at 234
(“[T]he risk of convicting an innocent person . . . rises
as the size of the jury diminishes.”).
Regardless of whether the Sixth Amendment Jury
Trial Clause applies to courts-martial, those risks
remain present in military prosecutions. Nor are they
abated by the presence of an independent judge; that
was also the case in Ballew. See, e.g., Pet. 47a (Kirkby,
J., concurring in the judgment) (“Even in the military
environment, . . . there is a vast difference between
accepting fewer than six decision-makers and
abandoning entirely the practice of a member panel
over an accused objection.”). The point is not that a
court-martial panel must be the same size as a civilian
jury. Cf. Sanford, 586 F.3d 28 (rejecting, on
deferential collateral review, a due process claim that
special court-martial panels must have at least six
members). Rather, it is that, as the total number of
factfinders in any criminal forum decreases, the risk
of an erroneous conviction increases.
None of the alternative safeguards that CAAF
identified account for these concerns. If anything,
similar protections were present to an even greater
extent in Ballew and its related cases. Being
represented by counsel, for instance, does nothing to
diminish the risk that a single fact-finder will err
20
more than a multi-member panel would. And
protections for that fact-finder’s independence may
help to mitigate the risk of bias, but they do nothing
to mitigate the risk of error.
As for appellate review, historically, one of the
most important procedural safeguards for factual
errors by courts-martial was the obligation of servicebranch courts of criminal appeals “to conduct a de
novo review of the factual sufficiency of the evidence
in every case.” United States v. Harvey, No. 23-0239,
2024 WL 4128457, at *2 (C.A.A.F. Sept. 6, 2024). But
since the short-martial was created, Congress has
heavily diluted that obligation. As of today, factual
sufficiency review is now categorically unavailable in
many cases and heavily deferential in the rest—
without regard to whether the fact-finder was a panel
or a judge alone. See 10 U.S.C. § 866(d)(1)(B); see also
Harvey, 2024 WL 4128457, at *2–4 (summarizing the
changes). 10 Thus, appellate review of a short-martial
today will be far less able to provide a safeguard for
factual errors than what was true when Congress
enacted the Military Justice Act of 2016.
Finally, CAAF identified as “safeguards” the limits
on the offenses that can be tried and the punishments
that can be imposed by a short-martial under the
Military Justice Act and the Rules for Courts-Martial.
Pet. 15a. But those limits aren’t “safeguards,” for they
do nothing to mitigate the risk that arises from having
a single fact-finder resolve an accused’s guilt or
10. The changes to the scope of post-conviction review were
adopted on January 1, 2021—two years after the short-martial
provisions went into effect. See William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021, Pub. L.
No. 116-283, § 542(b), 134 Stat. 3388, 3611–12.
21
innocence. All they do is recognize (and attempt to
reduce) the consequences of the greater number of
erroneous convictions that are likely to result from
having cases involuntarily tried to a single fact-finder.
Those are not the same thing.
In any event, those limits don’t do the work that
CAAF claimed for them. As noted above, a shortmartial is empowered to try felonies and serious
misdemeanors—as it did in two of petitioners’ cases.
This Court has never considered whether the
distinction between serious and petty offenses that it
has read into the Sixth Amendment’s Jury Trial
Clause, e.g., Frank v. United States, 395 U.S. 147,
148–49 (1969), can be translated into the courtmartial context. 11 But even if it could be, the
jurisdiction of a short-martial is not limited to petty
offenses. See Baldwin v. New York, 399 U.S. 66, 69
(1970) (“[N]o offense can be deemed ‘petty’ for
purposes of the right to trial by jury where
imprisonment for more than six months is
authorized.” (emphasis added)).
If anything, the Rules for Court-Martial adopted
by the President to implement the Military Justice Act
of 2016 underscore the serious implications of a shortmartial conviction. Although R.C.M. 201(f)(2)(E) bars
a short-martial from trying any offense that would
require the accused to register as a sex offender if
convicted, it reinforces that a short-martial conviction
otherwise produces collateral consequences. See, e.g.,
U.S.S.G. § 4A1.2(g) (2024) (counting any conviction by
11. Incorporating a distinction this Court has derived from
the Sixth Amendment’s Jury Trial Clause would be odd when the
Jury Trial Clause does not protect court-martial accused in the
first place. See Whelchel v. McDonald, 340 U.S. 122, 127 (1950).
22
a general or special court-martial as criminal history).
And while the President has additionally limited a
short-martial to trying offenses for which the
maximum authorized punishment is two years’
confinement, see R.C.M. 201(f)(2)(E), that limit proves
only that a short-martial can try serious offenses—
including felonies. In addition, unlike the constraints
provided by Article 19(b), that limitation can be
rescinded at the stroke of the President’s pen.
Like the government in the lower courts, CAAF
tried to dismiss these concerns by describing the
offenses a short-martial can try as “minor.” See, e.g.,
Pet. 16a. Such a vague term necessarily collapses the
key legal distinctions—between serious and petty
offenses and between felonies and misdemeanors. And
in any event, “any future employer will not see ‘minor’
offense anywhere in the record and will potentially see
only the maximum punishment decreed for a specific
offense.” Pet. 48a (Kirkby, J., concurring in the
judgment). Nowhere in CAAF’s analysis did the court
of appeals address these (or other) consequences of a
short-martial conviction—or why they don’t augur
strongly in favor of a due process right to a panel.
That silence is in sharp contrast to Middendorf. In
that case, then-Justice Rehnquist’s majority opinion
relied heavily on the choice a servicemember had: a
summary court-martial without counsel or a special
court-martial with both a right to counsel and a risk
that a conviction would lead to greater punishment
and collateral consequences. See 425 U.S. at 47–48. In
Middendorf, the availability of that choice was central
to this Court’s rejection of the plaintiffs’ due process
claim. But the short-martial deprives the accused of
that kind of control over their fate.
23
All of this underscores the self-defeating nature of
CAAF’s watering down of Middendorf and Weiss in
Wheeler. If (1) contrary historical practice is entitled
to little or no weight; (2) the “effects” on the military
concern only whether the requested procedural
protection creates costs; and (3) the existence of
safeguards is satisfied by any other procedures
regardless of whether they’re designed (or even able)
to vindicate the same fairness concerns, then it is
impossible to imagine a circumstance in which the
failure to provide for a new (or retain an existing)
procedure could violate the Due Process Clause.
Ultimately, even if servicemembers bear the
burden of establishing a due process right to
procedural protections Congress has removed from
courts-martial, plenary review is still warranted. This
Court’s general framework for military due process
claims should have militated in favor of finding such
a right here. CAAF’s contrary analysis not only can’t
be reconciled with Middendorf and Weiss, but, if it
were left intact, it would make it effectively impossible
for servicemembers to prevail on any military due
process claim going forward.
II.
THE QUESTION PRESENTED IS OF
EXCEPTIONAL IMPORTANCE
The due process question petitioners present is of
exceptional importance—not just to the millions of
Americans who are subject to the UCMJ, but also to
the relationship between the military justice system
and the Constitution.
Take the immediate implications first. In 2019, the
first year the short-martial was available, the armed
forces conducted 53 such proceedings. That number
jumped to 76 in 2020 and to 79 in 2021. Through the
24
end of 2023, the military had conducted 335 such
trials—335 accused servicemembers who were tried
for criminal offenses by a special court-martial
without the right to have their guilt or innocence
adjudicated by a panel of fellow servicemembers. 12
Even if Congress and the President leave untouched
the current criteria for such a proceeding, there is
every reason to think that this number will continue
to steadily increase. In the coming years, thousands of
servicemembers will thus be subjected to mandatory
bench trials for serious offenses—many of which will
result in convictions with collateral consequences.
Beyond the growing number of cases that will be
tried before a single judge without the accused’s
consent, the short-martial will also produce other
direct effects. For example, the existence of such an
option for the government is likely to have an
unmeasurable but undeniable effect on whether and
when an accused exercises the right to object to a
summary court-martial. Prior to 2019, an accused who
objected to a summary court-martial was guaranteed
the right to be tried instead by a panel of fellow
servicemembers. With that option no longer available
in many cases, it is likely that the specter of the shortmartial will pressure at least some servicemembers to
consent to a summary court-martial when they
otherwise wouldn’t have—putting a thumb on the
scale against the very choice that this Court deemed
critical in rejecting a right to counsel in summary
courts-martial. See Middendorf, 425 U.S. at 47–48.
12. The statistics in this paragraph come from the annual
reports that each service branch is required to file. See 10 U.S.C.
§ 946a(b). They are available at https://jsc.defense.gov/AnnualReports/.
25
Of course, if the short-martial is constitutional,
then Congress is allowed to impose such influence on
an accused’s choices. See id. at 48 n.25. But that only
underscores the need for this Court to decide the
constitutionality of such a fundamental shift in the
structure of military justice, one way or the other.
Ultimately, the question presented involves an issue
not at the margins of contemporary military justice,
but at the heart of it.
Looking past its immediate effects, the
constitutionality of the short-martial also has two
critical longer-term implications. First, with respect to
courts-martial specifically, if Congress can eliminate
panels in all cases covered by current Article 19(b),
that strongly implies that Congress could eliminate
panels for all military prosecutions. See Pet. 52a
(Kirkby, J., concurring in the judgment) (“[T]he
Government’s arguments and the majority’s
reasoning in this case provide no reason that Congress
could not amend the UCMJ and do away with
members completely.”). If the Due Process Clause
doesn’t require a right to a panel even for felonies, it
is difficult to imagine how it would for any charges—
even those that could result in a death sentence.
Second, this Court has countenanced the existence
of military criminal courts, separate and apart from
Article III, entirely on the ground that our history and
tradition support the ability of the armed forces to try
their own personnel for offenses committed while “in”
the military. See Solorio v. United States, 483 U.S. 435
(1987). But the more that contemporary military trials
do not include even the few procedural requirements
of their Founding-era ancestors, the less that history
and tradition can bear the weight of such a broad and
significant exception to Article III. As this Court put
26
it six months ago in the context of the “public rights”
exception to Article III, “[w]ithout such close attention
to the basis for each asserted application of the
doctrine, the exception would swallow the rule.” SEC
v. Jarkesy, 144 S. Ct. 2117, 2134 (2024); see also id.
(“The public rights exception is, after all, an
exception.”). So too, here. Indeed, for as often as this
Court has addressed the scope of the public rights
exception to Article III in recent years, it has not
revisited the scope of the military exception since
1987. See Solorio, 483 U.S. at 445–51 (upholding the
jurisdiction of courts-martial to try offenses with no
connection to the accused’s military service).
And although petitioners’ cases may seem like
modest ones in which to worry about the erosion of the
values embodied in Article III, that is exactly where
such erosion takes root. See Stern v. Marshall, 564
U.S. 462, 503 (2011) (“We cannot compromise the
integrity of the system of separated powers and the
role of the Judiciary in that system, even with respect
to challenges that may seem innocuous at first
blush.”); see also Reid, 354 U.S. at 39 (“Slight
encroachments create new boundaries from which
legions of power can seek new territory to capture.”).
Thus, the constitutionality of the short-martial
poses a question of critical importance. The answer
matters not just for the men and women in uniform
today, but for the analytical framework under which
they can be subjected to criminal prosecution and
punishment—up to and including death—by military
rather than civilian courts. It is difficult to imagine a
question central to the past, present, and future
constitutionality of the military justice system more
worthy (and more in need) of this Court’s plenary
review.
27
III. FURTHER PERCOLATION WILL NOT AID THIS
COURT’S REVIEW
The question presented is not only exceptionally
important; it is fully and fairly presented here. Each
of the petitioners timely objected to their shortmartial. The arguments against and in support of
such proceedings were fully fleshed out on appeal to
the NMCCA and CAAF. Petitioners’ cases run the
gamut of the types of offenses currently triable by a
short-martial (including felonies). And there are no
other obstacles to this Court’s ability to reach and
decide the question presented through these cases,
specifically.
Against that backdrop, there is no reason for this
Court to await a future case in which to review the
question presented. With regard to collateral review,
as this Court has long made clear, collateral
challenges to military convictions in lower Article III
courts are generally unavailable for claims to which
the military courts gave “full and fair consideration.”
See, e.g., Burns v. Wilson, 346 U.S. 137, 144 (1953)
(plurality opinion). Claims implicating the jurisdiction
of military courts remain subject to de novo collateral
review. See, e.g., Noyd v. Bond, 395 U.S. 683, 696 n.8
(1969). But it is not immediately obvious whether the
due process violation that petitioners allege would
deprive the military of subject-matter jurisdiction in
their cases. Thus, this Court would be in no better a
position to resolve the question presented (and, almost
certainly, in a far worse position) if it awaited an
appeal from a collateral attack.
Nor is there any reason to wait for this question to
percolate through direct appeals. No other federal
court of appeals will be able to reach the question
28
presented in this case through de novo review. And
CAAF, the “Supreme Court of the military justice
system,” United States v. Armbruster, 29 C.M.R. 412,
414 (C.M.A. 1960), has resolved the matter in a way
that it is unlikely to revisit. See, e.g., Pet. 53a
(summarily affirming Petitioner Diaz’s conviction in
light of Wheeler); Pet. 56a (summarily affirming
Petitioner Martin’s conviction in light of Wheeler).
Petitioners’ cases therefore provide this Court with an
ideal vehicle through which to resolve the question
presented, and one that is not likely to recur anytime
soon.
*
*
*
Six years ago, this Court trumpeted the fact that
“[m]ilitary courts . . . afford virtually the same
procedural protections to service members as those
given in a civilian criminal proceeding.” Ortiz, 585
U.S. at 438. With the short-martial, Congress has
significantly departed from those protections—
abrogating an unbroken historical tradition that predates the Constitution itself. In the process, it has left
countless servicemembers to a compulsory criminal
bench trial in circumstances in which their
predecessors had an absolute right to be tried by a
panel, and in which civilians have an absolute right to
be tried by a jury.
This Court recently reiterated that the Due
Process Clause protects against the deprivation of
rights and liberties that are “deeply rooted in this
Nation’s history and tradition.” Dep’t of State v.
Muñoz, 602 U.S. 899, 910 (2024) (quoting Washington
v. Glucksberg, 521 U.S. 702, 720–21 (1997)). As noted
above, and as CAAF conceded, there is no dispute that
a servicemember’s right to be tried by a multi-member
29
panel for criminal offenses is deeply rooted in our
history and tradition. Against that backdrop,
certiorari should be granted so that this Court can
decide whether Congress can eliminate a right so
deeply rooted in that history and tradition for no
reason other than “efficiency.”
30
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
STEPHEN I. VLADECK
Counsel of Record
600 New Jersey Ave., NW
Washington, DC 20016
(202) 662-9313
svladeck@gmail.com
MEGAN P. MARINOS
Appellate Defense Division
U.S. Navy
1254 Charles Morris St., SE
Washington Navy Yard, DC 20374
ERIN GLENN BUSBY
LISA R. ESKOW
MICHAEL F. STURLEY
University of Texas School of Law
Supreme Court Clinic
727 East Dean Keeton St.
Austin, TX 78705
Counsel for Petitioners
December 20, 2024
APPENDIX
1a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
UNITED STATES,
Appellee
v.
Thomas L. WHEELER,
Master-at-Arms Third Class
United States Navy,
Appellant
No. 23-0140
Crim. App. No. 202100091
Argued December 19, 2023—
Decided August 22, 2024
Military Judge: Kimberly J. Kelly
For Appellant: Lieutenant Commander Megan P.
Marinos, JAGC, USN (argued); Major Jasper Casey,
USMC.
For Appellee: Colonel Joseph M. Jennings, USMC
(argued); Captain Tyler W. Blair, USMC, and Brian
K. Keller, Esq. (on brief).
Judge JOHNSON delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge SPARKS,
Judge MAGGS, and Judge HARDY joined.
Judge JOHNSON delivered the opinion of the
Court.
This case involves a charge of sleeping on post that
was referred to a military judge-alone special courtmartial. Had the convening authority referred this
case to a general court-martial, Appellant would have
been entitled to trial before a panel of members,
2a
Article 16(b)(1), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 816(b)(1) (2018), and the
maximum punishment would have included a
dishonorable discharge, forfeiture of all pay and
allowances, and one year of confinement. Manual for
Courts-Martial, United States pt. IV, para. 22.d.(1)(c)
(2019 ed.) (MCM). Instead, the convening authority
referred the charge to a special court-martial before a
military judge alone pursuant to Article 16(c)(2)(A),
UCMJ, 10 U.S.C. § 816(c)(2)(A) (2018). As a result,
Appellant could not elect trial by a panel of members
and the military judge was barred from adjudging a
sentence that included a punitive discharge,
confinement for more than six months, Article 19(b),
UCMJ, 10 U.S.C. § 819(b) (2018), or forfeitures of pay
for more than six months. Rule for Courts-Martial
(R.C.M.) 201(f)(2)(B)(ii) (2019 ed.).
We hold that Appellant had no Fifth Amendment
due process right to a court-martial consisting of a
panel of members in a forum that statutorily limited
the maximum possible sentence to six months of
confinement with no punitive discharge authorized.
Additionally, we hold that the convening authority's
referral of this case to a military judge-alone special
court-martial did not violate Fifth Amendment due
process. We therefore affirm the decision of the United
States Navy-Marine Corps Court of Criminal Appeals
(NMCCA).
I. Background
Appellant was charged with one specification of
sleeping on post in violation of Article 95, UCMJ, 10
U.S.C. § 895 (2018), after he was discovered asleep at
his post as sentinel onboard a harbor patrol boat at
Naval Station Everett, Washington. The convening
authority referred the charge under Article
3a
16(c)(2)(A), UCMJ, to a special court-martial before a
military judge alone.
Before trial, Appellant filed a motion to dismiss,
arguing that sleeping on post is a “‘serious’ offense”
which implicated his Fifth and Sixth Amendment
rights to trial by a panel of members, and therefore,
the military judge-alone special court-martial lacked
jurisdiction absent Appellant's knowing and
voluntary election of a military judge-alone forum.
The military judge denied the motion, concluding that
the military judge-alone special court-martial
“whether on its face or as applied in this case is
consistent with due process.”
Contrary to his pleas, Appellant was convicted of
sleeping on post in violation of Article 95, UCMJ, and
sentenced to fifteen days of confinement. 1 In an en
banc published opinion, the NMCCA affirmed the
findings and sentence. United States v. Wheeler, 83
M.J. 581, 592 (N.M. Ct. Crim. App. 2023) (en banc).
We granted review to consider two issues:
I. Did the lower court err in holding that the
Due Process Clause of the Fifth Amendment
does
not
protect
a
servicemember's
1. The convening authority suspended confinement in excess
of seven days for six months from the entry of judgment, to be
remitted at that time without further action unless vacated
sooner. A judge advocate reviewed the record pursuant to Article
65(d), UCMJ, 10 U.S.C. § 865(d) (2018), and did not recommend
any corrective action. Upon Appellant's application for relief
pursuant to Article 69, UCMJ, 10 U.S.C. § 869 (2018), the Judge
Advocate General of the Navy forwarded the record to the
NMCCA, recommending review of the question whether
Appellant's Fifth and Sixth Amendment rights were violated by
the convening authority's referral of the charge to a forum
offering no right to a panel verdict.
4a
fundamental right to a panel of members at
court-martial?
II. Did the lower court err by deferring to a
convening authority's case-by-case referral
decision rather than an objective standard to
determine whether an offense is serious?
United States v. Wheeler, 83 M.J. 393 (C.A.A.F. 2023)
(order granting review). For the reasons set forth
below, we answer both questions in the negative and
affirm the decision of the NMCCA.
II. Standard of Review
The constitutionality of a statute is a question of
law reviewed de novo. United States v. Begani, 81 M.J.
273, 280 (C.A.A.F. 2021).
III. Discussion
A. The Military Judge-Alone Special CourtMartial
In 2016, Congress amended Articles 16 and 19,
UCMJ, to create a new kind of special court-martial
by military judge alone. National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 5161, 130 Stat. 2000, 2898 (2016). As
amended, Article 16, UCMJ, allows a convening
authority to refer a case to a special court-martial
consisting of a military judge alone, subject to the
restrictions found in Article 19, UCMJ, and “such
limitations as the President may prescribe by
regulation.” Article 16(c)(2)(A), UCMJ. Article 19(b),
UCMJ, as amended, states, “Neither a bad-conduct
discharge, nor confinement for more than six months
... may be adjudged if charges and specifications are
5a
referred to a special court-martial consisting of a
military judge alone.” Article 19(b), UCMJ.
Before these changes were enacted, a case referred
to a special court-martial could be tried by military
judge alone only upon the request of the accused.
Article 16(2)(C), UCMJ, 10 U.S.C. § 816(2)(C) (2012).
However, in 2015 the Military Justice Review Group
(MJRG) recommended giving the convening authority
discretionary authority to refer a case to a military
judge-alone special court-martial, subject to
limitations on the military judge's authority to
adjudge confinement, forfeitures, and a punitive
discharge, and subject to further limitations to be
prescribed by the President. Office of the General
Counsel, Dep't of Defense, Report of the Military
Justice Review Group 217 (Dec. 22, 2015) [hereinafter
the MJRG Report]. The proposed changes were
designed to “offer military commanders a new
disposition option for low-level criminal misconduct—
one that would be more efficient and less burdensome
on the command than a special court-martial, but
without the option for the member to refuse as in
summary
courts-martial
and
non-judicial
punishment.”
Id.
at
222.
The
MJRG's
recommendations drew “upon the successful
experience of the military justice system with judgealone trials since 1968” and “upon the experience in
the federal civilian system, as well as in state courts,
in which an accused defendant does not have the right
to trial by jury when the confinement does not exceed
six months.” Id. at 221.
Congress adopted the MJRG's recommendations,
amending Articles 16 and 19 “to improv[e] the
efficiency of the military justice system.” H.R. Rep.
No. 114-537, at 600 (2016). The President then
promulgated rules to implement these changes.
6a
R.C.M. 201(f)(2)(B)(ii) states, “A bad-conduct
discharge, confinement for more than six months, or
forfeiture of pay for more than six months, may not be
adjudged by a special court-martial when the case is
referred as a special court-martial consisting of a
military judge alone under Article 16(c)(2)(A).” R.C.M.
201(f)(2)(E) (2019 ed.) bars military judge-alone
special court-martial jurisdiction if the accused objects
before arraignment and the military judge determines
that (I) the maximum authorized confinement would
be greater than two years if the case was tried by a
general court-martial (with exceptions not applicable
here) or (II) sex offender registration would be
required.
B. Fifth Amendment Due Process in CourtsMartial
The first granted issue asks whether the lower
court erred in holding that there is no Fifth
Amendment due process right to a panel of members
at courts-martial. Appellant contends that the Sixth
Amendment guarantee of an impartial jury for all
criminal prosecutions of serious offenses is a “bedrock
procedural right” protected by the Due Process Clause
of the Fifth Amendment. 2 He argues that he was
entitled to trial before a panel of members because he
2. Although Appellant asserted a Sixth Amendment violation
before the lower court, at oral argument he conceded that his
appeal was based solely on a Fifth Amendment due process
violation. Wheeler, 83 M.J. at 584-85. He did not assert a Sixth
Amendment violation before this Court. Therefore, we do not
address the applicability of the Sixth Amendment jury clause to
this case. But see United States v. Anderson, 83 M.J. 291, 294-95
(C.A.A.F. 2023) (“[T]he Supreme Court has repeatedly stated
that the Sixth Amendment right to a jury does not apply to
courts-martial.” (citing cases dating to 1866)).
7a
was charged with a serious offense—that is, one with
a maximum sentence to confinement of one year.
The NMCCA recognized that servicemembers
historically enjoyed a right to a panel of members at
special courts-martial, due in part to the fact that
military judges did not exist until they were created
by Congress in 1968. Wheeler, 83 M.J. at 587. But
citing Congress's authority to make changes to the
UCMJ and to delegate to the President the power to
promulgate rules to implement Congress's legislative
changes, the court found “no case law holding that
historical practice created a fundamental right that
precluded” the new military judge-alone special courtmartial. Id. We conclude that the NMCCA did not err.
The Fifth Amendment to the Constitution
provides, in part, that “[n]o person shall be ... deprived
of life, liberty, or property, without due process of
law.” U.S. Const. amend. V. Because servicemembers
who are subject to appear before a court-martial “may
be subjected to loss of liberty or property,” they “are
entitled to the due process of law guaranteed by the
Fifth Amendment. Whether this process embodies” a
specific right—in this case, a right to be tried by a
panel of members—“depends upon an analysis of the
interests of the individual and those of the regime to
which he is subject.” Middendorf v. Henry, 425 U.S.
25, 43 (1976); see United States v. Graf, 35 M.J. 450,
461 (C.M.A 1992) (recognizing that the Due Process
Clause of the Fifth Amendment applies to
servicemembers at special courts-martial). A
procedure does not violate the Due Process Clause of
the Fifth Amendment unless “‘it offends some
principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental.’” Graf, 35 M.J. at 462 (emphasis
8a
removed) (quoting Patterson v. New York, 432 U.S.
197, 202 (1977)).
“Congress has primary responsibility for the
delicate task of balancing the rights of servicemen
against the needs of the military,” Solorio v. United
States, 483 U.S. 435, 447 (1987), subject to the
requirements of the Due Process Clause, Weiss v.
United States, 510 U.S. 163, 176-77 (1994) (noting
that “Congress, of course, is subject to the
requirements of the Due Process Clause when
legislating in the area of military affairs, and that
Clause provides some measure of protection to
defendants
in
military
proceedings”).
“[I]n
determining what process is due, courts must give
particular deference to the determination of Congress,
made under its authority to regulate the land and
naval forces.” Weiss, 510 U.S. at 176-77 (citation
omitted) (internal quotation marks omitted); see
Anderson, 83 M.J. at 298 (“When Congress acts
pursuant to its power to make Rules for the
Government and Regulation of the land and naval
Forces, judicial deference is at its apogee.” (citations
omitted) (internal quotation marks omitted)).
“To succeed in a due process challenge to a
statutory court-martial procedure, an appellant must
demonstrate that the factors militating in favor of [a
different procedure] are so extraordinarily weighty as
to overcome the balance struck by Congress.”
Anderson, 83 M.J. at 298 (alteration in original)
(citation omitted) (internal quotation marks omitted).
In weighing the servicemember's interests in a
procedural right against the needs of the military, the
Court must consider (1) historical practice with
respect to the procedure at issue, Weiss, 510 U.S. at
179, (2) the effect of the asserted right on the military,
Middendorf, 425 U.S. at 45, and (3) the existence in
9a
current practice of other procedural safeguards that
satisfy the Due Process Clause of the Fifth
Amendment, Weiss, 510 U.S. at 181.
Accordingly, we consider each of these factors in
turn to decide whether the unrefusable military judgealone special court-martial created by Congress, as
defined in Articles 16 and 19, UCMJ, and
implemented
by
R.C.M.
201(f)(2),
offends
fundamental principles of justice in violation of Fifth
Amendment due process.
1. Historical Practice
The lower court succinctly summarized the long
historical tradition of courts-martial by panels of
members:
For nearly 200 years, courts-martial in the
United States military consisted solely of
panels of members of varying numbers and
types. This was true for general courts-martial
as well as “lesser” courts-martial (the
predecessor of our current special courtsmartial). This requirement continued with the
creation of the UCMJ in 1951. In 1968,
Congress created military judges and, for the
first time, authorized courts-martial without
panel members—but only when an accused
requested it.
Wheeler, 83 M.J. at 586 (footnotes omitted) (citing
David A. Schlueter, The Court-Martial: A Historical
Survey, 87 Mil. L. Rev. 129 (1980)). 3
3. We note that alongside the tradition of courts-martial by
panel there exists an equally long tradition of disposition of
minor offenses—both civilian and military—without a jury or a
panel. For example, the Government described military
proceedings dating as far back as 1775 in which a solitary officer
10a
Against that backdrop, we agree with the lower
court that “the possibility of a criminal conviction at
an unrefusable proceeding without members is
remarkable.” Id. at 587-88. Therefore, this factor
weighs in favor of a due process right to a panel in this
case.
2. Effect on the Military
The unrefusable military judge-alone special
court-martial was created to “improv[e] the efficiency
of the military justice system.” The MJRG
recommended this new forum as a “more efficient and
less burdensome” way for a command to address lowlevel misconduct:
could in his sole discretion administer limited punishments for
low-level offenses. See, e.g., Wilkes v. Dinsman, 48 U.S. 89, 127
(1849) (“Where a private in the navy, therefore, is guilty of any
‘scandalous conduct,’ the commander is ... authorized to inflict on
him twelve lashes, without the formality of a court-martial.”
(citing 2 Stat. 45-46 (1800))); George B. Davis, A Treatise on the
Military Law of the United States 25 (2d ed. 1899) (describing the
field officer's court, created by Congress during the Civil War,
which was composed of a single officer); William Winthrop,
Military Law and Precedents 490 (2d ed. 1920) (noting that a field
officer's court could impose up to one month of confinement or
hard labor and a fine of up to one month of pay). In the civilian
context, the Sixth Amendment right to trial by jury applies only
to serious offenses; any offense where the accused cannot
possibly be sentenced to more than six months of confinement is
presumed to be a petty offense not subject to the Sixth
Amendment jury clause. Blanton v. City of North Las Vegas, 489
U.S. 538, 543 (1989); see Callan v. Wilson, 127 U.S. 540, 555
(1888) (“conceding that there is a class of petty or minor offenses
... which, if committed in this District, may, under the authority
of congress, be tried by the court and without a jury”); Schick v.
United States, 195 U.S. 65, 70 (1904) (noting that there is no
constitutional right to trial by jury for petty offenses).
11a
The judge-alone special court-martial will
provide the convening authority with a greater
range of disposition options, which may prove
particularly useful when addressing cases
involving a request for court-martial arising out
of a non-judicial punishment or summary courtmartial refusal, and in deployed environments
where operational demands may make it
difficult to assemble a panel to address cases
involving minor misconduct.
MJRG Report at 222. The MJRG noted that the
proposal was “[c]onsistent with the constitutional
authority to authorize civilian non-jury trials without
obtaining a defendant's consent in cases involving
confinement for six months or less.” Id. at 217.
In Middendorf, the Supreme Court found that
similar considerations outweighed a servicemember's
claim to a Fifth Amendment due process right to
counsel in a summary court-martial, “an informal
proceeding conducted by a single commissioned
officer” with limited authority to adjudge
punishments, 4 whose purpose “‘is to exercise justice
promptly for relatively minor offenses under a simple
form of procedure.’” 425 U.S. at 32 (quoting MCM
para. 79.a. (1969 ed.)). The Court found that requiring
counsel to be provided to servicemembers at summary
courts-martial would impose a “particular burden” on
the military “because virtually all the participants,
4. A summary court-martial may “adjudge any punishment
not forbidden by this chapter except death, dismissal,
dishonorable or bad-conduct discharge, confinement for more
than one month, hard-labor without confinement for more than
45 days, restriction to specified limits for more than two months,
or forfeiture of more than two-thirds of one month's pay.” Article
20(a), UCMJ, 10 U.S.C. § 820(a) (2018).
12a
including the defendant and his counsel, are members
of the military whose time may be better spent than
in possibly protracted disputes over the imposition of
discipline.” Id. at 45-46.
Although the summary court-martial discussed in
Middendorf is not a criminal forum and does not
result in a criminal conviction, see Article 20(a),
UCMJ, the Middendorf analysis of the burdens that
would accompany the proposed process is equally
applicable to the special court-martial at issue in this
case. Allowing a servicemember to refuse a military
judge-alone special court-martial in favor of a
proceeding before a panel of members would require
the detailing and voir dire of a prospective panel. This
would result in a longer proceeding requiring more
servicemembers to be pulled away from their regular
duties in order to serve as prospective and selected
panelists in a case involving offenses the command
deemed minor. See Toth v. Quarles, 350 U.S. 11, 17
(1955) (“[I]t is the primary business of armies and
navies to fight or be ready to fight wars should the
occasion arise. ... To the extent that those responsible
for performance of this primary function are diverted
from it by the necessity of trying cases, the basic
fighting purpose of armies is not served.”). As a result,
allowing a servicemember to refuse a military judgealone special court-martial would burden the military
by transforming a proceeding “which may be quickly
convened and rapidly concluded into an attenuated
proceeding which consumes the resources of the
military to a degree which Congress could properly
have felt to be beyond what is warranted by the
relative insignificance of the offenses being tried.”
Middendorf, 425 U.S. at 45. We therefore conclude
that this factor weighs against finding a due process
right to a panel in this case.
13a
3. Legal Safeguards
Finally, we must determine whether there are
adequate procedural safeguards to ensure a
servicemember receives a fair trial before a military
judge-alone special court-martial. Appellant contends
that a multi-member panel is essential to prevent a
“miscarriage of justice that is risked by trial before a
sole fact-finder whose latent biases or limits on
interpreting evidence will never be mitigated by the
perspectives of fellow fact-finding members.” We
understand Appellant's concerns and recognize the
potential benefits of having multiple factfinders in a
criminal case. See Ballew v. Georgia, 435 U.S. 223,
232-38 (1978) (discussing these potential benefits).
However, we are not persuaded that these potential
benefits would increase the fairness of a special courtmartial so much that multiple factfinders are
constitutionally required. We reach this conclusion in
part because, even without multiple factfinders,
several features of the military justice system ensure
the impartiality of the military judge and the fairness
of the trial.
First, a qualified, independent military judge
presides over each military judge-alone special courtmartial. Article 26(a), (b), UCMJ, 10 U.S.C. § 826(a),
(b) (2018). In Graf, we concluded that the UCMJ
provides substantial safeguards of a military judge's
independence. 35 M.J. at 463. There, the appellant
argued that the absence of a fixed term of office for the
military judges and appellate military judges who
presided over his case precluded their judicial
independence, in violation of the Due Process Clause
of the Fifth Amendment. Id. at 454. While we
recognized that the Fifth Amendment Due Process
Clause applies to a servicemember at court-martial,
14a
id., we held that “other guarantees of independence
provided for military trial judges” in the UCMJ ensure
“that court-martial judges can independently and
fairly perform their duties without protection of a
fixed term of office.” Id. at 463. Specifically, we noted
that the UCMJ:
•
“provides for an administrative method of
complaint against interfering superiors within
the uniformed service itself, which ultimately
requires the attention of the civilian secretary
of that service,” id. (citing Article 138, UCMJ,
10 U.S.C. § 938);
•
“provides for the preferral of charges and
possible court-martial of any servicemember,
whatever his grade or rank, who influences or
attempts to influence a judge's findings or
sentencing decisions at courts-martial,” id.
(citing Article 37, UCMJ, 10 U.S.C. § 837); and
•
“in extraordinary cases where the above
remedies are not adequate, resort to this Court
under the All Writs Act, 28 U.S.C. § 1651(a), is
possible.” Id. (citing cases).
Those same provisions ensure the impartiality of the
military judge in this case. 5
Second, an accused facing a military judge-alone
special court-martial is entitled, at no cost to the
accused, to detailed military defense counsel, Article
27(a), UCMJ, 10 U.S.C. § 827(a) (2018), or, to the
extent reasonably available, to military defense
5. We note that while the defense advocated for dismissal for
lack of jurisdiction, the defense did not challenge the military
judge's impartiality in this case.
15a
counsel of the accused's choosing, Article 38(b)(3)(B),
UCMJ, 10 U.S.C. § 838(b)(3)(B) (2018).
Third, R.C.M. 201(f)(2)(E) limits the offenses that
can be referred to a military judge-alone special courtmartial while Article 19(b), UCMJ, and R.C.M.
201(f)(2)(B)(ii) limit the punishments that can be
adjudged, regardless of the specific offenses or number
of offenses tried. As a result, Appellant's potential
legal exposure to confinement was statutorily
constrained to preclude more than six months of
confinement or a punitive discharge. See Middendorf,
425 U.S. at 40 n.17 (noting that a servicemember
forced to face a summary court-martial that could only
impose one month of imprisonment for an offense that
carried a ten-year maximum “would no doubt be
delighted at his good fortune”).
Fourth, despite the fact that Appellant did not
have a right of direct appeal to the NMCCA,
Appellant's conviction was subject to post-trial review
by a qualified judge advocate, Article 65(d)(2), UCMJ,
the Judge Advocate General, Article 69(a), UCMJ, and
the NMCCA, Article 66(b), UCMJ, to the same extent
as any other general or special court-martial resulting
in the same sentence. 6 The existence of all of these
procedural safeguards weighs against a due process
right to a panel in this case.
4. Weighing the Interests
6. Congress has now given an accused the right to appeal all
convictions by special or general courts-martial, regardless of
their punishments, to the Courts of Criminal Appeals. See Article
66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1) (Supp. V 2023) (granting
jurisdiction over “a timely appeal from the judgment of a courtmartial, entered into the record ... , that includes a finding of
guilty”).
16a
After weighing Appellant's interests in a courtmartial before a panel against the needs of the
military, and taking into account historical practice
with respect to courts-martial before panels, the effect
of such a right on the military, and the existence in
current practice of other procedural safeguards that
satisfy the Due Process Clause of the Fifth
Amendment, we agree with the lower court's
conclusion that the benefits of a multi-member panel
are not so weighty as to overcome the balance struck
by Congress and the President. See Wheeler, 83 M.J.
at 591-92. Although we conclude that historical
tradition weighs in favor of finding a due process right
to a panel, historical tradition is not dispositive of the
question whether a proceeding violates Fifth
Amendment due process. Anderson, 83 M.J. at 299. As
the Supreme Court noted in Solorio, there is nothing
in the Constitution that suggests that “court-martial
usage at a particular time [must be frozen] in such a
way that Congress might not change it.” 483 U.S. at
446. In determining whether the historical tradition
of courts-martial before member panels gives rise to a
right to a panel in this case, “we must give particular
deference” to Congress's determination that an
unrefusable military judge-alone special court-martial
promotes discipline in the armed forces and enhances
a commander's ability to fairly and efficiently deal
with minor offenses. Middendorf, 425 U.S. at 43.
Appellant “has the burden to demonstrate that
Congress’ determination should not be followed.”
United States v. Vazquez, 72 M.J. 13, 19 (C.A.A.F.
2013) (first citing Weiss, 510 U.S. at 181; and then
citing United States v. Mitchell, 39 M.J. 131, 137
(C.M.A. 1994) (the appellant bears a “‘heavy burden to
show the Constitutional invalidity of this facet of the
military justice system’”)). Affording due deference to
17a
Congress's determination that the military judgealone special court-martial promotes fairness and
efficiency, we conclude that Appellant has not met his
burden. We therefore hold that the unrefusable
military judge-alone special court-martial where
neither a punitive discharge nor confinement of more
than six months may be adjudged does not run afoul
of the Fifth Amendment Due Process Clause.
C. The Convening Authority's Referral Decision
The second granted issue asks about the convening
authority's referral of this case to an unrefusable
military judge-alone special court-martial. According
to Appellant, sleeping on post is an objectively serious
offense because it is punishable by up to one year of
confinement, forfeiture of all pay and allowances, and
a dishonorable discharge. See Baldwin v. New York,
399 U.S. 66, 69 (1970) (holding “that no offense can be
deemed ‘petty’ for purposes of the right to trial by jury
where imprisonment for more than six months is
authorized”). He argues that the convening
authority's referral decision violated his fundamental
due process right to have a serious offense tried by a
panel of members.
We disagree. Congress created the military judgealone special court-martial pursuant to its
constitutionally bestowed authority “[t]o make Rules
for the Government and Regulation of the land and
naval Forces.” U.S. Const. art. I, § 8, cl. 14. Then,
Congress delegated to the President the authority to
promulgate regulations implementing the changes to
Articles 16 and 19. Article 16(c)(2)(A), UCMJ. The
Supreme Court “established long ago that Congress
must be permitted to delegate to others at least some
authority that it could exercise itself.” Loving v.
United States, 517 U.S. 748, 758 (1996). The
18a
delegation of authority to determine whether a case
shall be referred to a forum that limits the maximum
sentence that may be adjudged is a proper exercise of
Congress's power to delegate “the authority to make
policies and rules that implement its statutes.” Id. at
771.
Pursuant to Congress's delegation of power, the
President promulgated rules limiting the cases that a
convening authority may refer to a military judgealone special court-martial and further limiting the
punishments that may be adjudged therein. R.C.M.
201(f)(2)(B)(ii); R.C.M. 201(f)(2)(E)(i). In Loving, the
Supreme Court noted, “‘The military constitutes a
specialized community governed by a separate
discipline from that of the civilian,’ and the President
can be entrusted to determine what limitations and
conditions on punishments are best suited to preserve
that special discipline.” 517 U.S. at 773 (quoting Orloff
v. Willoughby, 345 U.S. 83, 94 (1953)). Therefore, the
Court found “no fault” in Congress's delegation of
power to the President to prescribe aggravating
factors that permit application of the statutory death
penalty in military capital cases. Id. at 772.
Additionally, the Court concluded that the President's
promulgation of a Rule for Courts-Martial
implementing the statutory death penalty and
narrowing the category of death-eligible cases, “was
well within the delegated authority.” Id. at 774. Here,
as in Loving, the President acted within his delegated
authority to prescribe rules narrowing the category of
cases that may be referred to a military judge-alone
special court-martial and limiting the punishments
that can be adjudged in that forum.
The discretion to refer charges to the new forum
was appropriately vested in the convening authority,
subject to the limitations prescribed by Articles 16 and
19a
19 and R.C.M. 201(f)(2)(B)(ii) and 201(f)(2)(E)(i). See
United States v. Nachtigal, 507 U.S. 1, 4 (1993)
(Congress's delegation of power to the President is not
“stripped of its ‘legislative’ character merely because
the [convening authority] has final authority to
decide, within the limits given by Congress, what the
maximum prison sentence will be for a violation of a
given regulation.”). “[T]he special character of the
military requires civilian authorities to accord
military commanders some flexibility in dealing with
matters that affect internal discipline and morale.”
Brown v. Glines, 444 U.S. 348, 360 (1980). As we have
observed:
One of the hallmarks of the military justice
system is the broad discretion vested in
commanders to choose the appropriate
disposition of alleged offenses. The critical
responsibility of commanders for the morale,
welfare, good order, discipline, and military
effectiveness of their units traditionally has
been viewed as requiring the exercise of such
discretion.
The discretionary disposition authority of
commanders includes the power to take no
action, dismiss charges, initiate administrative
actions under applicable regulations, institute
[nonjudicial punishment] proceedings under
Article 15, refer the matter to a summary,
special, or general court-martial, or forward it
to a superior commander.
United States v. Gammons, 51 M.J. 169, 173 (C.A.A.F.
1999).
The convening authority's referral of this case to a
military judge-alone special court-martial was a
20a
proper exercise of statutory authority. Article
16(c)(2)(A) provides that a special court-martial may
consist of a military judge alone “if the case is so
referred by the convening authority, subject to [Article
19, UCMJ,] and such limitations as the President may
prescribe by regulation.” Article 16(c)(2)(A). Here, the
referral was consistent with the limitations imposed
by Congress in Article 19, UCMJ (limiting the
maximum punishments that may be adjudged), and
with the additional limitations imposed by the
President in R.C.M. 201(f)(2)(B)(ii) (imposing an
additional limitation on the maximum permissible
sentence), and R.C.M. 201(f)(2)(E)(i) (barring referral
to a military judge-alone special court-martial if the
accused objects and the maximum sentence at a
general court-martial would exceed two years of
confinement, or if sex offender registration would be
required). 7
IV. Conclusion
We hold that Appellant had no Fifth Amendment
due process right to a trial before a panel of members
where the military judge-alone special court-martial
forum limited the maximum confinement that could
be adjudged to six months and precluded a punitive
discharge. We also hold that the convening authority's
forum selection in accordance with Articles 16 and 19,
UCMJ, and R.C.M. 201 did not violate due process.
Therefore, the decision of the United States NavyMarine Corps Court of Criminal Appeals is affirmed.
7. Although Appellant objected to the military judge-alone
special court-martial's jurisdiction, he could not prevail where
the maximum confinement exposure he would have faced at a
general court-martial was one year of confinement, and a
conviction would not subject him to sex offender registration.
21a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
David M. Diaz,
Appellant
No. 23-0147/NA
Crim. App. No. 202100090
ORDER
On further consideration of the granted issues, 83
M.J. 431 (C.A.A.F. 2023), and in view of United States
v. Wheeler, __ M.J. __ (C.A.A.F. Aug. 22, 2024), it is,
by the Court, this 17th day of September, 2024,
ORDERED:
That the decision of the United States NavyMarine Corps Court of Criminal Appeals is hereby
affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Navy
Appellate Defense Counsel (Marinos)
Appellate Government Counsel (Keller)
22a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
WASHINGTON, D.C.
United States,
Appellee
v.
Thomas H. Martin,
Appellant
No. 23-0139/NA
Crim. App. No. 202100089
ORDER
On further consideration of the granted issues, 83
M.J. 434 (C.A.A.F. 2023), and in view of United States
v. Wheeler, __ M.J. __ (C.A.A.F. Aug. 22, 2024), it is,
by the Court, this 17th day of September, 2024,
ORDERED:
That the decision of the United States NavyMarine Corps Court of Criminal Appeals is hereby
affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Navy
Appellate Defense Counsel (Marinos)
Appellate Government Counsel (Keller)
23a
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
Before THE COURT EN BANC
UNITED STATES,
Appellee
v.
Thomas L. WHEELER
Master-at-Arms Third Class (E-4),
U.S. Navy
Appellant
No. 202100091
Argued: 1 December 2022
Decided: 17 February 2023
Appeal from the United States Navy-Marine Corps
Trial Judiciary. Military Judge: Kimberly J. Kelly.
Sentence adjudged 23 June 2020 by a special courtmartial convened at Naval Station Everett,
Washington, consisting of a military judge sitting
alone. Sentence in the Entry of Judgment:
confinement for 15 days. 1
Chief Judge HOLIFIELD delivered the opinion of the
Court, in which Senior Judge HOUTZ, Senior Judge
DEERWESTER, Senior Judge STEWART, Judge
MYERS, Judge HACKEL, and Judge KISOR joined.
Judge KIRKBY filed a separate opinion concurring in
the judgment.
PUBLISHED OPINION OF THE COURT
1. The convening authority suspended all confinement in
excess of 7 days.
24a
HOLIFIELD, Chief Judge:
Appellant was convicted, contrary to his pleas, of
one specification of sleeping on post, in violation of
Article 95, Uniform Code of Military Justice [UCMJ],
for falling asleep at his post while serving as a sentinel
onboard a harbor patrol boat. 2 His conviction and
sentence were subsequently reviewed by a judge
advocate pursuant to Article 65(d), UCMJ. 3 In
response to the reviewing judge advocate's conclusion
that, inter alia, the court-martial had jurisdiction over
Appellant, the latter sought relief from the Judge
Advocate General of the Navy under Article 69,
UCMJ. 4 The Judge Advocate General considered
Appellant's petition and forwarded the record of trial
to this Court, recommending review of the following
issue:
Did the convening authority violate the
Fifth and Sixth Amendments of the
Constitution by referring charges for which the
President authorized a penalty of over six
months of confinement, forfeiture of all pay,
and a punitive discharge to a judge-alone
special court-martial under Article16(c)(2)(A),
UCMJ[?] 5
Answering this question in the negative, we find
no prejudicial error and affirm.
I. BACKGROUND
2. 10 U.S.C. § 895.
3. 10 U.S.C. § 865(d).
4. 10 U.S.C. § 869.
5. We note that the Judge Advocate General also referred two
similarly situated cases to this Court, certifying the same
question. This explains the use of “charges” in the question
despite Appellant having been charged with a single charge and
specification.
25a
A. Facts
On 7 March 2020, Appellant was serving as a
crewmember onboard a harbor patrol boat at Naval
Station
Everett,
Washington,
tasked
with
maintaining the security of the harbor. He was
discovered asleep at his post before he was properly
relieved.
Appellant was charged with a single specification
of sleeping on post in violation of Article 95, UCMJ, an
offense for which the President has authorized a
maximum punishment of confinement for one year,
forfeiture of all pay and allowances for one year, and
a dishonorable discharge. Appellant's charge was
referred to a judge-alone special court-martial in
accordance with Articles 16 and 19, UCMJ. 6 Prior to
trial, Appellant filed a motion to dismiss the charge
against him for a lack of jurisdiction, arguing that the
referral of his case to a judge-alone special courtmartial violated his rights under the Fifth and Sixth
Amendments to the Constitution. 7 The military judge
denied the motion and the case proceeded to trial. 8 On
23 June 2020, the military judge found Appellant
guilty and sentenced him to 15 days’ confinement.
B. The Judge-Alone Special Courts-Martial
In 2016, Congress amended Articles 16 and 19,
UCMJ, creating a new type of special court-martial
consisting of a military judge alone at which “neither
a bad-conduct discharge, nor confinement for more
than six months, nor forfeiture of pay for more than
six months may be adjudged.” 9 Congress also
delegated to the President the authority to prescribe
6. 10 U.S.C. §§ 816, 819.
7. App. Ex. II.
8. App. Ex. XI.
9. Art. 16(c)(2)(A), UCMJ.
26a
further regulatory limitations to the new judge-alone
special court-martial's jurisdiction. 10 Although special
courts-martial have jurisdiction to try any non-capital
offense other than rape or sexual assault (or attempts
thereof), 11 Rule for Courts-Martial [R.C.M.]
201(f)(2)(E) gives an accused the right to object to a
judge-alone special court-martial when the maximum
authorized punishment for the charged offense, if
tried by a general court-martial, is greater than two
years’ confinement—with the exception of offenses
under Art. 112a(b) (wrongful use or possession of
controlled substances) or attempts thereof under
Article 80—or if the offense requires sex offender
10. The relevant language of the statutes is as follows:
§ 816. Article 16. Courts-martial classified
…
(c) SPECIAL COURTS-MARTIAL.—Special courts-martial are of
the following two types:
(1) A special court-martial consisting of a military judge and
four members ...
(2) A special court-martial consisting of a military judge
alone—
(A) if the case is so referred by the convening authority,
subject to section 819 of this title (article 19) and such limitations
as the President may prescribe by regulation;
...
§ 819. Article 19. Jurisdiction of special courts-martial
(a) IN GENERAL. Subject to section 817 of this chapter (article
17), special courts-martial have jurisdiction to try persons
subject to this chapter for any non-capital offense made
punishable by this chapter ...
(b) ADDITIONAL LIMITATION.—Neither a bad-conduct
discharge, nor confinement for more than six months, nor
forfeiture of pay for more than six months may be adjudged if
charges and specifications are referred to a special court-martial
consisting of a military judge alone under section 816(c)(2)(A) of
this title (article 16(c)(2)(A)).
11. Articles 18(c) and 19(a), UCMJ.
27a
registration under regulations issued by the Secretary
of Defense. None of these exceptions are applicable
here.
II. DISCUSSION
A. Law and Standard of Review
As discussed below, although the question before
us focuses on the convening authority's referral action,
we decline to cabin our analysis to this step in the
military justice process. We will examine first
whether Articles 16 and 19 and R.C.M. 201(f)(2)(E)
facially violate Appellant's Fifth or Sixth Amendment
rights. “The constitutionality of an act of Congress is
a question of law that we review de novo.” 12 If we find
these articles and the President's implementing rules
to be constitutionally valid (and we do), we next turn
to how they were applied in Appellant's case.
During oral argument, Appellant's counsel stated
that his was a facial challenge to the articles and rule.
But the Judge Advocate General's question, focused
on the convening authority's referral decision, implies
an as-applied challenge—in effect, asking whether, if
Articles 16 and 19 and R.C.M. 201(f)(2)(E) are
constitutionally valid, was it constitutionally
permissible to refer a charge alleging a violation of
Article 95 to a judge-alone special court-martial.
B. The Sixth Amendment Right to a Jury
At oral argument, Appellant's counsel—despite
having urged this Court in his initial and reply briefs
to find a Sixth Amendment violation—conceded that
his challenge was based solely on Appellant's Fifth
Amendment due process rights. While we appreciate
12. United States v. Vasquez, 72 M.J. 13, 17 (C.A.A.F. 2013)
(quoting United States v. Ali, 17 M.J. 256, 265 (C.A.A.F. 2012)
(additional quotation marks omitted).
28a
the candor, we find it necessary still to address the
Sixth Amendment challenge in order to fully answer
the Judge Advocate General's question. Also, much of
Appellant's remaining argument involves viewing
Sixth Amendment Jury Clause-related issues through
a Fifth Amendment Due Process Clause lens.
The Sixth Amendment of the Constitution
guarantees, in part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed.” 13 But, in Blanton v. N. Las Vegas, the
United States Supreme Court held this right to trial
by jury inapplicable to civilian prosecutions of petty
offenses, with a presumption that any offense carrying
a maximum punishment of six months or less is
petty. 14 In drawing this presumptive line between
petty and serious offenses, the Supreme Court sought
to ground the distinction in “objective indications of
seriousness with which society regards an offense.” 15
Of those indications, the Court held “most relevant ...
the maximum authorized penalty.” 16 Against this was
balanced “the benefits that result from speedy and
inexpensive nonjury adjudications.” 17
But the Blanton presumption is not dispositive
here. Although the above considerations may be
relevant in assessing Appellant's Fifth Amendment
due process rights, the Supreme Court and the Court
of Appeals for the Armed Forces [C.A.A.F.] have held
that the Sixth Amendment Jury Clause does not apply
13. U.S. const. amend. VI.
14. Blanton v. N. Las Vegas, 489 U.S. 538, 543 (1989).
15. Id. (citing Frank v. United States, 395 U.S.147, 148
(1969)).
16. Id. (citing Baldwin v. New York, 399 U.S. 66, 68 (1970)).
17. Id. (citing Baldwin, 399 U.S. at 73).
29a
to courts-martial. 18 If there is a constitutional right to
a panel of members at a special court-martial, it does
not reside in the Sixth Amendment.
Thus, we conclude that the referral of Appellant's
charge to a mandatory judge-alone special courtmartial did not violate his rights guaranteed by the
Sixth Amendment. The remainder of our analysis,
then, will focus solely on his rights under the Fifth.
C. The Fifth Amendment Due Process Clause
The Fifth Amendment provides, in part, that “[n]o
person shall be ... deprived of life, liberty, or property,
without due process of law.” 19 While “constitutional
rights may apply differently to members of the armed
forces than they do to civilians,” 20 “the Due Process
Clause of the Fifth Amendment applies to
servicemembers at courts-martial.” 21
“[T]he Supreme Court has repeatedly emphasized
the broad deference that should be afforded Congress
in providing for a servicemember's rights, ... [but it]
18. Ex Parte Quirin, 317 U.S. 1, 39 (1942) (“Presentment by
a grand jury and trial by a jury of the vicinage where the crime
was committed were at the time of the adoption of the
Constitution familiar parts of the machinery for criminal trials
in the civil courts. But they were procedures unknown to military
tribunals, which are not courts in the sense of the Judiciary
Article. ... As this Court has often recognized, it was not the
purpose or effect of § 2 of Article III, read in the light of the
common law, to enlarge the then existing right to a jury trial. ...
[The] Sixth Amendment[ ] ... did not enlarge the right to jury trial
as it had been established by that Article.”); United States v.
Riesbeck, 77 M.J. 154, 162 (C.A.A.F. 2017); United States v.
Easton, 71 M.J. 168, 175 (C.A.A.F. 2012)
19. U.S. Const. amend. V.
20. Easton, 71 M.J. at 175 (citation omitted).
21. United States v. Graf, 35 M.J. 450, 454 (C.M.A 1992)
(citation omitted).
30a
has not considered such deference absolute.” 22
“Congress remains subject to the limitations of the
Due Process Clause, ... but the tests and limitations to
be applied may differ because of the military
context.” 23 When determining the limits of Due
Process Clause protection, we ask whether the
challenged process “offends some principle of justice
so rooted in the traditions and conscience of our people
as to be ranked as fundamental.” 24
The Supreme Court has stated, in Weiss v. United
States, that “[i]t is elementary that a fair trial in a fair
tribunal is a basic requirement of due process.” 25 For
our purposes, “tribunal” is synonymous with “courtmartial.” 26 Furthermore, given the facts of this case
and the issue raised to us, our analysis is limited to
special courts-martial.
For nearly 200 years, courts-martial in the United
States military consisted solely of panels of members
of varying numbers and types. This was true for
general courts-martial as well as “lesser” courts22. Id. at 461 (citing Solorio v. United States, 483 U.S. 435,
447-48 (1987)).
23. Id. (citing Rostker v. Goldberg, 453 U.S. 57, 67 (1981))
(internal citations omitted).
24. Id. at 462 (quoting Patterson v. New York, 432 U.S. 197,
202 (1977)).
25. Weiss v. United States, 510 U.S. 163, 178 (1994)
(examining whether military judges needed to have a fixed term
of office, as “a necessary component of a fair trial is an impartial
judge.”) (citations omitted).
26. See Manual for Courts-Martial, United States (2019 ed.),
pt. I, para. 3 at I-1. The Preamble to the Manual for CourtsMartial lists among the “agencies through which military justice
is exercised . . . courts-martial for the trial of offenses against
military law.” Although “military tribunals,” “military
commissions,” “provost courts,” “courts of inquiry,” and
“nonjudicial punishment proceedings” are also mentioned, they
are not relevant to the case before us.
31a
martial (the predecessor of our current special courtsmartial). 27 This requirement continued with the
creation of the UCMJ in 1951. 28 In 1968, Congress
created military judges and, for the first time,
authorized courts-martial without panel members—
but only when an accused requested it. 29
Given the clear historical requirement for
members, both predating and incorporated in the
UCMJ, it is not surprising that there is no case law
holding that trial before a panel of members is a right
at a special court-martial—there was simply no need
for the courts to address it. The creation of the judgealone special court-martial changed this. Thus, we
now examine the novel question of whether the right
to a panel of members was a creature solely of statute
and regulation, or, as Appellant now argues, the right
is also implicit in the Due Process Clause of the Fifth
Amendment.
D. Facial Challenge
At oral argument, Appellant's counsel described
his client's position as a facial challenge to the
constitutionality of the new judge-alone special courtmartial. That is, that the referral of offenses
punishable by more than six months’ confinement to
an unrefusable, judge-alone forum is constitutionally
invalid in all circumstances. 30
Appellant cites to various cases in which our
superior Court has held a “fair and impartial panel” to
27. See Schlueter, The Court-Martial: A Historical Survey, 87
Mil. L. Rev. 129 (1980).
28. Article 16(2), UCMJ (1951 ed.).
29. Article 16(2)(c), UCMJ (1969 ed.).
30. See United States v. Castillo, 74 M.J. 160, 162 (C.A.A.F.
2015) (explaining that “a facial challenge, . . . requires the
challenger to establish that no set of circumstances exist under
which the [regulation] would be valid”) (cleaned up).
32a
be a fundamental right as support for his position that
he has a fundamental right to a panel of members. 31
But the central issues of the cited cases deal with the
members selection process—either at the convening
authority's selection stage or during voir dire—with a
focus on the panel members’ impartiality, not the
right to a panel itself. 32
1. Historical Practice
Citing the predominant role that historical
practice plays in the determination of whether a right
is fundamental, Appellant describes at length the role
of court-martial members throughout our nation's
history. 33 And his description is accurate; while the
composition of such panels has varied over the years,
until 2019 accused servicemembers enjoyed the right
to a panel of members at special courts-martial. But
Appellant's description paints an incomplete picture.
First, Appellant sidesteps the role of military
judges. Prior to the Military Justice Act of 1968, judgealone
courts-martial were
unknown—because
military judges did not exist. 34 Back then, a special
court-martial's president was tasked with making
evidentiary and other legal rulings, often without the
benefit of legal training. 35 Starting in 1969, however,
31. App. Br. at 7, 8.
32. See United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001)
(military judge abused his discretion in failing to grant accused's
challenge for cause based on implied bias); United States v.
Modesto, 43 M.J. 315 (C.A.A.F. 1995) (trial counsel's failure to
disclose that member had cross-dressed at Halloween party did
not warrant reversal of conviction).
33. Appellant’s Brief at 8.
34. Pub. L. No. 90-632 (Oct. 24, 1968).
35. While the UCMJ had previously required the
appointment of law officers (trained, certified lawyers) to general
33a
convening authorities could detail military judges to
preside over special courts-martial. 36 The creation of
military judges also tripled the types of special courtsmartial available. By default, a special court-martial
would consist of a military judge and a panel of
members. If requested by the accused and approved
by the military judge, an accused could be tried and
sentenced by a military judge alone. Or, although we
find no record of such courts-martial having occurred,
a special court-martial could consist solely of members
if no military judge was detailed. 37 This last option
was not removed from the UCMJ until 2019. 38
Second, in 1999 Congress increased from 6 to 12
months the maximum confinement awardable at a
special court-martial. 39 The six-month limitation had
been part of the UCMJ since its inception. 40
Third, since our Navy's birth the number of panel
members required for a special court-martial has also
courts-martial, there was no such requirement applicable to
special courts-martial. Art. 26(a), UCMJ (1951 ed.).
36. Art. 26, UCMJ (1969 ed.). The detailing of military judges
to preside over special courts-martial remained authorized but
not required for the next five decades. See Art. 26(a) UCMJ (2019
ed.).
37. Id.
38. National Defense Authorization Act for FY 2017, Pub. L.
No. 114-328, Div. E, Title LIV, § 5161 (Dec. 23, 2016).
Interestingly, the maximum punishment a no-judge special
court-martial could impose was identical to the maximum
punishment now authorized at a judge-alone special courtmartial.
39. National Defense Authorization Act for FY 2000, Pub. L.
No. 106-65, Div. A, Title V, Subtitle J, § 577(a) (Oct 5, 1999).
40. Art. 19, UCMJ (1951 ed.).
34a
changed, most recently in 2019, when the minimum
number changed from three to four. 41
Fourth, the Military Justice Act of 2016 also
created the option to bifurcate findings and
sentencing, giving an accused the choice to be tried by
members, yet sentenced by the military judge. When
elected by accuseds, this procedure brings courtsmartial more in line with criminal trials in the
Federal courts. 42
These are but four of the ways Congress has
legislated significant changes to special courtsmartial over the last half-century. We find no case law
holding that historical practice created a fundamental
right that precluded any of their enactments. The
recent changes to Articles 16 and 19, UCMJ, are
simply the next step in the evolution of special courtsmartial. That military justice evolves and departs
from historical practice does not in itself violate the
Due Process Clause. Granted, the possibility of a
criminal conviction at an unrefusable proceeding
without members is remarkable given historical
practice. And that historical practice is a factor for us
to consider. But a deeper analysis of past
congressional action in this area softens the factor's
talismanic impact that Appellant argues.
2. Congressional and Presidential Authority
Appellant concedes that Congress had authority to
amend Articles 16 and 19 as it did, but challenges the
41. National Defense Authorization Act for FY 2017, Pub. L.
No. 114-328. Also, four members is now the maximum, where
previously there was no upper limit.
42. Congress continues to move in this direction. For offenses
committed after December 27, 2023, sentencing by military
judge, pursuant to sentencing guidelines, will be required at
nearly all special and general courts-martial. National Defense
Authorization Act for FY 2022, Pub. L. No. 117-81.
35a
President's authority to promulgate R.C.M.
201(f)(2)(E). We question this distinction.
The President's action neither increased the
punishments imposable at, nor enlarged the pool of
offenses that could be tried by, a judge-alone special
court-martial. As to the latter, the Rule actually has
the opposite effect. In the absence of Presidential
action, all special courts-martial have jurisdiction to
try “any non-capital offense made punishable by [the
UCMJ].” 43 The President has, through R.C.M.
201(f)(2)(E), limited the jurisdiction of judge-alone
special courts-martial by creating a right to object
where the maximum punishment authorized for a
charged offense exceeds two years (except for charges
of wrongful use or possession of controlled substances)
or where the offense would require sex offender
registration.
Appellant's position essentially is that the statute
creating the judge-alone special court-martial with
nearly unlimited jurisdiction is constitutionally
sound, but the implementing regulation that limits its
jurisdiction is unconstitutional because it doesn't limit
it enough. Rejecting this reasoning, we step back and
begin with Congress’ authority to create the new
special court-martial.
Congress’ authority to make changes to the UCMJ
is firmly rooted in Article I, Section 8 of the
Constitution: “The Congress shall have the power ...
[t]o make Rules for the Government and Regulation of
the land and naval Forces.” 44 “This power is no less
43. Article 19(a), UCMJ. Under this Article, even capital
offenses may be tried at special courts-martial “under such
regulations as the President may prescribe.” See R.C.M.
201(f)(2)(C)(ii).
44. See, e.g., Loving v. United States, 517 U.S. 748, 767
(1996).
36a
plenary than other Article I powers.” 45 Furthermore,
Congress may make “measured and appropriate
delegations of this power.” 46 Examples of such
delegations exist throughout the UCMJ. 47
Here, Congress amended the UCMJ to create a
new form of special court-martial. In doing so, it
expressly delegated to the President the authority to
limit when charges could be tried by such a courtmartial, i.e., “if the case is so referred by the convening
authority, subject to section 819 of this title (article
19) and such limitations as the President may
prescribe by regulation.” 48
The general rule is that “[a] constitutional power
implies a power of delegation of authority under it
sufficient to effect its purposes.” 49 And “[w]hen the
President acts pursuant to an express or implied
45. Id. (citation omitted).
46. Id. at 768 (“Indeed, it would be contrary to precedent and
tradition for us to impose a special limitation on this particular
Article I power, for we give Congress the highest deference in
ordering military affairs. And it would be contrary to the respect
owed the President as Commander in Chief to hold that he may
not be given wide discretion and authority. We decline to import
into Clause 14 a restrictive nondelegation principle that the
Framers left out.”) (citation omitted).
47. See, e.g., Article 6a (“The President shall prescribe
procedures for the investigation and disposition of charges”);
Article 15 (the President may prescribe limitations “on the
powers granted by this article”); Article 18 (a general courtmartial may adjudge any sentence “under such limitations as the
President may prescribe”); Article 36 (entitled “President may
prescribe rules,” gives the President authority to prescribe, inter
alia, rules of procedure and evidence applicable at courtsmartial); and, Article 56 (“punishment ... for an offense may not
exceed such limits as the President may prescribe for that
offense”).
48. Article 16(c)(2)(A), UCMJ (emphasis added).
49. Loving, 517 U.S. at 768 (citing Lichter v. United States,
334 U.S. 742, 778 (1948)) (cleaned up).
37a
authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate.” 50 Such
was the case when the President signed the Executive
Order creating R.C.M. 201(f)(2)(E). 51
Upon closer review, however, it appears
Appellant's claim is not that the President lacked the
authority to limit the jurisdiction of judge-alone
special courts-martial. Rather, it is that the President
had the authority to draw a line, but he simply drew
it in the wrong place. Appellant argues that drawing
a line that allows an unrefusable judge-alone trial of
an offense for which the maximum punishment is two
years’ confinement equates to a violation of due
process. Were we to consider this fact in isolation, we
might agree. But we do not view the terms of R.C.M.
201(f)(2)(E) in a vacuum. For example, the Rule
limiting what offenses are triable by a judge-alone
special court-martial must be read in conjunction with
the limitation imposed by Congress in Article 19,
namely, the forum's maximum sentencing authority.
3. Balancing Equities
“The military constitutes a specialized community
governed by a separate discipline from that of the
civilian,” 52 and “the rights of men in the armed forces
must perforce be conditioned to meet certain
overriding demands of discipline and duty ....” 53 This
interplay of individual rights and military necessity
50. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J., concurring).
51. 2018 Amendments to the Manual for Courts-Martial,
United States, Exec. Order No. 13,825 (March 1, 2018).
52. Parker v. Levy, 417 U.S. 733, 743 (1974) (citing Orloff v.
Willoughby, 345 U.S. 83, 94 (1953)).
53. Id. (citing Burns v. Wilson, 346 U.S. 137, 140 (1953)
(plurality opinion)).
38a
are reflected in the Preamble to the Manual for
Courts-Martial:
The purpose of military law is to promote justice,
to assist in maintaining good order and discipline in
the armed forces, to promote efficiency and
effectiveness in the military establishment, and
thereby to strengthen the national security of the
United States. 54
“Traditionally, due process has required only that
the most basic procedural safeguards be observed;
more subtle balancing of society's interests against
those of the accused has been left to the legislative
branch.” 55 The Supreme Court has described how
balancing these disparate but important interests can
shape military procedure:
It is the primary purpose of armies and
navies to fight or be ready to fight wars should
the occasion arise. But trial of soldiers to
maintain discipline is merely incidental to an
army's primary fighting function. To the extent
that those responsible for performance of this
primary function are diverted from it by the
necessity of trying cases, the basic fighting
purpose of armies is not served. ... [M]ilitary
tribunals have not been and probably never can
be constituted in such way that they can have
the same kind of qualifications that the
Constitution has deemed essential to the fair
trials of civilians in federal courts. 56
54. Manual for Courts-Martial, United States (2019 ed.), pt.
I, para. 3 at I-1.
55. Medina v. California, 505 U.S. 437, 453 (1992) (citing
Patterson, 432 U.S. at 210).
56. Middendorf v. Henry, 425 U.S. 25, 46 (1976) (citing Toth
v. Quarles, 350 U.S. 11, 17 (1955)) (alteration in original).
39a
“The provisions of the UCMJ with respect to courtmartial proceedings represent a congressional
attempt to accommodate the interests of justice on one
hand, with the demand for an efficient and welldisciplined military, on the other.” 57 This also can be
said of the Rules for Courts-Martial regarding
presidential efforts to do the same. Congress (in
creating the judge-alone special court-martial) and
the President (in limiting the offenses that could be
tried by such a court-martial over an accused's
objection) each struck a balance between competing
interests.
By creating the new judge-alone special courtmartial, Congress sought to promote discipline in the
armed forces by giving commanders “a new disposition
option for low-level criminal conduct—one that would
be more efficient and less burdensome on the
command ... but without the option for the member to
refuse.” 58 Previously, the lowest unrefusable option
available for dealing with minor offenses was a special
court-martial consisting of a military judge and four
members. While nonjudicial punishment pursuant to
Article 15, UCMJ, or a summary court-martial under
Article 20, UCMJ, may be more appropriate ways to
handle minor offenses, neither proceeding can be
conducted over an accused's objection. 59 Faced with
such an objection, a commander is left with two
disciplinary options: special or general court-martial.
57. Curry v. Secretary of the Army, 595 F.2d 873, 880 (D.C.
Cir. 1979).
58. Office of the General Counsel, Dep’t of Defense, Report of
the Military Justice Review Group Part I: UCMJ
Recommendations, 222 (Dec 22, 2015).
59. Unless attached to or embarked in a vessel, an accused
may demand court-martial in lieu of nonjudicial punishment
(Article 15(a), UCMJ) and any accused subject to trial by
summary court-martial may object thereto (Article 20, UCMJ).
40a
But the attendant burden on a commander to select
potential members and detail them to a special courtmartial—that might remove them from their normal
duties for several days or weeks—often far outweighs
the minor nature of the misconduct in question.
In amending Articles 16 and 19, it appears
Congress sought to balance the individual's benefit of
being tried by a panel of members with a commander's
need to efficiently and fairly deal with minor military
offenses. In doing so, Congress limited the amount of
punishment that could be adjudged at a judge-alone
special court-martial. The President, apparently
seeking the same balance, further limited the types of
offenses that could be tried at such a court-martial.
We do not find unreasonable the exchange of these
protections for the right to a panel of members.
The military is in many ways a community distinct
from civilian society. Our system of military justice is
similarly distinct. For example, the role of the
convening authority in members selection and the
referral process has no counterpart in the Federal
courts. Also, punishment in the Federal courts is
dictated by the offenses charged, not the court that
tries them. These two differences provide another
objective indicator of how the relevant society—here,
the military—regards the seriousness of a given
offense.
As mentioned above, the Supreme Court has found
a legislature's assigned maximum punishment to be
the clearest objective indicator of how serious society
considers a given offense. But for the military
community, a convening authority's referral decision
is a similar indicator. A convening authority directly
responsible for the good order and discipline of his or
her command chooses a specific forum based partly on
how serious he or she views the charged offenses to be.
For example, whether an alleged violation of Article
41a
95 is referred to a judge-alone special court-martial, a
special court-martial with members, or a general
court-martial says much about the circumstances of
the offense charged. Article 95 prohibits a broad range
of conduct, from sleeping on post during a time of war
to, as here, sleeping while posted on a stand-by harbor
patrol craft in a domestic port during peacetime.
While many factors inform the forum decision, that
choice is an indicator of where the community believes
the specified misconduct falls on that seriousness
spectrum.
We note, too, that trial by a judge-alone special
court-martial, unlike nonjudicial punishment or
summary court-martial proceedings, guarantees an
accused the right to counsel and that the proceeding
will be presided over by a qualified and certified
military judge. 60 And a conviction at a judge alone
special court-martial carries with it the same posttrial review rights as any special or general courtmartial conviction with the same sentence. 61
Finally, we find that, in a critical way, the balance
struck by Congress and the President provides an
accused servicemember more protection than is
afforded a civilian counterpart charged with petty
offenses. The Supreme Court has held that, so long as
each offense tried at a civilian proceeding without a
jury is a petty offense, the number of offenses and
aggregate punitive exposure at a single trial are
irrelevant. 62 In contrast, at a judge-alone special
60. Articles 26 and 27, UCMJ.
61. Articles 65, 66, and 69, UCMJ. While the review and
appeals processes are relatively limited for court-martial
convictions with sentences not involving confinement for two
years or more or a punitive discharge, they are the same
regardless of forum.
62. See Lewis v. United States, 518 U.S. 322 (1996).
42a
court-martial, the maximum confinement awardable
is six months regardless of the number of offenses
charged. 63
4. Judicial Deference
Our analysis of these factors and the balance
struck by Congress and the President is limited by the
significant deference we owe to each branch in such
matters.
Our review involves “Congress’ authority over
national defense and military affairs, and perhaps in
no other area has ... Congress [been accorded] greater
deference.” 64 The Bill of Rights “did not alter the
allocation to Congress of the ‘primary responsibility
for the delicate task of balancing the rights of
servicemen against the needs of the military.’” 65
Congress “is subject to the requirements of the Due
Process Clause when legislating in the area of military
affairs .... But, in determining what process is due,
courts must give particular deference to the
determination of Congress, made under its authority
to regulate the land and naval forces.” 66
As Congress balances the distinctive interests
inherent in military service, it considers both the
individual's rights and the government's need for a
well-ordered and disciplined force. Where Congress
has been clear in its determination of where this
balance should be struck, the Supreme Court tells us
deference is owed. The issue here is not where we
63. A convening authority could choose to refer known
multiple offenses to multiple courts-martial. But see R.C.M.
401(c) Discussion (“[O]rdinarily, all known charges should be
referred to a single court-martial.”)
64. Rostker, 453 U.S. at 64-65.
65. Loving, 517 U.S. at 767 (citing Solorio, 483 U.S. at 447448).
66. Weiss, 510 U.S. at 176-77.
43a
would strike the balance; rather we should limit our
present inquiry to “whether factors militating in favor
of [a panel of members] are so extraordinarily weighty
as to overcome the balance struck by Congress.” 67
We owe similar deference to the Executive. As
discussed above, the President's authority was “at its
maximum” when he created R.C.M. 201(f)(2)(E)
pursuant to Congress’ express delegation of
authority. 68
Article 19's limitation on punishment evidences
that Congress has weighed the relevant equities, just
as R.C.M. 201’s limitation on offenses represents a
similar evaluation by the President. Both are entitled
to substantial deference here; it is not for us to simply
substitute our own weighing of the equities. “[W]e
must be particularly careful not to substitute our
judgment of what is desirable for that of Congress” 69
or to “legislate by litigation.” 70
In recognition of this substantial deference, we
apply the test provided by the Supreme Court, first in
Middendorf v. Henry and later in Weiss v. United
States. 71 Considering “the factors militating in favor”
of trial by a panel of members—here, Appellant offers
only that “it's always been thus” as the sole factor—in
contrast to the increased efficiency and reduced
burden of prosecution, the sentence limitations in
Article 19, the offense limitations in R.C.M.
201(f)(2)(E), and the rights to counsel, a military
67. See Middendorf, 425 U.S. at 44 (holding servicemembers
do not have a right to counsel at summary courts-martial); see
also Weiss, 510 U.S. at 177-78 (applying the same test in holding
that due process does not require that military judges have fixed
terms of office).
68. Youngstown, 343 U.S. at 635.
69. Rostker, 453 U.S. at 68.
70. Graf, 35 M.J. at 464.
71. Middendorf, 425 U.S. at 44; Weiss, 510 U.S. at 177-78.
44a
judge, and appeal guaranteed elsewhere in the UCMJ,
we cannot conclude that the benefit of a panel of
members in such cases is “so extraordinarily weighty”
as to overcome the balance struck by Congress and the
President.
We therefore hold that Articles 16 and 19, UCMJ,
and R.C.M. 201 are not facially unconstitutional. We
now turn to how these provisions were applied in
Appellant's case.
E. As-Applied Challenge
No one claims that the convening authority in this
case acted contrary to the requirements and
limitations of R.C.M. 201(f)(2)(E). Appellant cites no
authority to say the existence of a judge-alone special
court-martial is itself unconstitutional. He would,
apparently, take no issue with referral of a so-called
“petty offense” to such a forum. Instead, he objects to
the convening authority's referral of an alleged
violation of Article 95, UCMJ, to such a court-martial,
as that offense as it applies to Appellant carries a
maximum penalty of a year's confinement, total
forfeitures, and a dishonorable discharge.
As previously discussed, the Sixth Amendment's
Jury Clause does not apply at courts-martial. And the
Fifth Amendment says nothing regarding a panel of
members at courts-martial or what offenses are
properly triable without such a panel. Appellant must
show, then, that denial of members (or the right to
object to trial by a judge-alone special court-martial)
in his case undermined his right to a “fair trial in a
fair tribunal.” 72
Our superior Court has decried any reliance “on
the concept of ‘military due process,’ an amorphous
72. Weiss, 510 U.S. at 178 (quoting In re Murchison, 349 U.S.
133, 136 (1955)).
45a
concept ... that appears to suggest that
servicemembers enjoy due process protections above
and beyond the panoply of rights provided to them by
the plain text of the Constitution, the UCMJ, and the
[Manual for Courts-Martial]. They do not.” 73
We discussed this “panoply of rights” in the
previous section, finding that they are not outweighed
by any benefit Appellant may have received from
being tried before a panel of members. Appellant has
the burden to show that the convening authority's
referral decision, taken in full accordance with
existing law and regulation, was invalid in light of the
balance of equities struck by Congress and the
President in Articles 16 and 19 and R.C.M.
201(F)(2)(E). He has not done so.
III. CONCLUSION
After careful consideration of the record, as well as
the briefs and oral argument of appellate counsel, we
have determined that the findings and sentence are
correct in law and fact and that no error materially
prejudicial to Appellant's substantial rights
occurred. 74
The findings and sentence are AFFIRMED.
KIRKBY, Judge (concurring in the judgment):
I write separately to express my concern with the
methodology used by Congress in creating a military
judge-alone special court-martial. While I concur with
the majority that neither the changes to Articles 16
and 19, UCMJ, nor the creation of Rule for CourtsMartial 201(f)(2)(E)), on their face or as-applied,
violate either the Fifth or Sixth Amendments to the
Constitution, my position on this would be different if
73. Vazquez, 72 M.J. at 19.
74. Articles 59 & 66, UCMJ.
46a
the current limited protections offered to
servicemembers by R.C.M. 201(f)(2)(E) were eroded in
the future without full congressional oversight.
I. DISCUSSION
A. Importance of Members.
Panel members represent a safeguard in the
military justice system that has no civilian equivalent
and represent not only a procedural hurdle for a
convening authority but also an equity shield for
servicemembers. Having some number of fact finders
who come from outside the military justice
establishment creates a safeguard that the courts, and
the President, should not casually discard. In Ballew
v. Georgia, the Supreme Court articulated the
importance of jury sizes and discussed at length the
dangers of reducing the size of a group of decisionmakers below six. The Court explained that “[b]ecause
of the fundamental importance of the jury ... any
further reduction [below six members] that promotes
inaccurate and possibly biased decision making, that
causes untoward differences in verdicts, and that
prevents juries from truly representing their
communities, attains constitutional significance.” 1 Of
significance to the case at bar, the Court rejected
Georgia's argument that if six member juries are
constitutionally acceptable for felony trials, five
member juries should be acceptable for misdemeanor
trials. The Court responded that:
[t]he problem with this argument is that the
purpose and functions of the jury do not vary
significantly with the importance of the crime.
In Baldwin 2... the Court held that the right to a
1. Ballew v. Georgia, 435 U.S. 223, 238 (1978).
2. Baldwin v. New York, 399 U.S. 66 (1970).
47a
jury trial attached in both felony and
misdemeanor cases. Only in cases concerning
truly petty crimes, where the deprivation of
liberty was minimal, did the defendant have no
constitutional right to a trial by jury. 3
In United States v. Corl, 4 this Court's predecessor
rejected the application of Ballew to courts-martial
and affirmed the practice of five member panels.
While the Supreme Court has not upset that decision,
it remains significant that the Supreme Court has
articulated the danger of reducing the number of
decision-makers. In my view, these concerns must
come into play when we, over the objection of the
accused, reduce the number of fact finders in a courtmartial to one. Even in the military environment,
recognized as unique by the Corl court and others,
there is a vast difference between accepting fewer
than six decision-makers and abandoning entirely the
practice of a member panel over an accused objection.
B. Procedural Due Process
The Fifth Amendment provides, in part, that “[n]o
person shall be ... deprived of life, liberty, or property,
without due process of law.” 5 While “constitutional
rights may apply differently to members of the armed
forces than they do to civilians,” 6 “the Due Process
Clause of the Fifth Amendment applies to
Servicemembers at courts-martial.” 7 “Due process,
unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and
3. Id. at 247.
4. United States v. Corl, 6 M.J. 914 (N.C.M.R. 1979).
5. U.S. Const. amend. V.
6. United States v. Marcum, 60 M.J. 198, 205 (C.A.A.F. 2004).
7. United States. v. Graf, 35 M.J. 450, 454 (C.M.A. 1992).
48a
circumstances.” 8 “[D]ue process is flexible and calls for
such procedural protections as the particular
situation demands.” 9
The Supreme Court found that the resolution of
the issue of whether certain administrative
procedures were constitutionally sufficient required
an analysis of the governmental and private interests
that are affected. 10 The Court noted that prior
decisions indicated that identification of the specific
dictates of due process generally requires
consideration of three distinct factors: (1) the private
interest that will be affected by the official action; (2)
the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value,
if any, of additional or substitute procedural
safeguards, and; (3) the government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail. 11
While I recognize the applicability of these principles
to an administrative arena, I believe servicemembers
facing a criminal conviction should be afforded no less
protection. The President's decree in R.C.M. 201 that
offenses are “minor” tests the limits of such “fairness”
when a criminal conviction attaches to their records
for the remainder of their career (if any) and into the
civilian world. Simply put, any future employer will
not see “minor” offense anywhere in the record and
will potentially see only the maximum punishment
decreed for a specific offense. While there has been a
8. Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
9. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
10. Arnett v. Kennedy, 416 U.S. 134 167-68 (1974) (Powell, J.,
concurring in part); Goldberg v. Kelly, 397 U.S. 254, 263-66
(1970); Cafeteria Workers, 367 U.S. at 895.
11. See, e.g., Goldberg, 397 U.S. at 263-271.
49a
long standing, and appropriate, recognition that those
who serve relinquish certain rights in order to meet
the military mission, there is simply no military
necessity accomplished by the “shortcut” contained in
R.C.M. 201(f)(2)(E).
Congress has long sought to make military courts
more akin to our civilian federal counterparts, the
military judge-alone court-martial could, and I would
argue should, have followed that example by creating
classes of offenses with defined maximum
punishments. 12 As the majority points out, in drawing
this presumptive line between petty and serious
offenses, the Supreme Court sought to ground the
distinction in “objective indications of seriousness
with which society regards an offense.” 13 Of those
indications, the Court held “most relevant ... the
maximum authorized penalty.” 14 Against this was
balanced “the benefits that result from speedy and
inexpensive nonjury adjudications.” 15 However, the
“presumptive line” is a presumption that crimes with
a maximum punishment of less than six months are
petty, not a presumption that crimes with a maximum
punishment greater than six months are serious. The
Supreme Court leaves open the possibility that a
crime with a maximum punishment of less than six
months can still be serious. In the arena of military
justice where loss of pay, reduction in grade, and other
associated punishments foreign to the civilian world
are authorized, I believe our analysis should not forget
that while the Supreme Court dictates maximum
punishments are “most relevant,” they are not the
12. See 18 U.S.C. § 3559(a)(7)-(8).
13. United States v. Nachtigal, 507 U.S. 1, 3 (1993) (quoting
Blanton v. North Las Vegas, 489 U.S. 538, 541 (1989)).
14. Baldwin, 399 U.S. at 68.
15. Id. at 73.
50a
only relevant considerations. I see no reason why the
goals of speed and cost-saving cannot be reached in a
manner that is not so facially one-sided. A scheme
similar to the federal system would distinguish, for
servicemembers, future employers and the civilian
public, the relative seriousness of a specific offense.
The creation of a separate class of offenses, even
simply numbered differently and assigned six-month
maximum punishments, is neither time-consuming
nor burdensome on the Government and offers a
viable alternative to the R.C.M. 201(f)(2)(E) shortcut.
C. Sixth Amendment
While the Sixth Amendment in its entirety may
not apply to courts-martial, the history of courtsmartial raises the question of whether a panel of
members must be considered a procedural due process
right, especially considering the relatively modern
appearance of military judges. If that is the case, I see
no reason to apply a different standard than the
serious-petty standard articulated by the Supreme
Court in determining the limits of that right. The
majority highlights cases concerning impartiality and
the member-selection process, rather than the baselevel right to a panel, in support of the claim that a
“fair and impartial panel” is a fundamental right. I
would suggest that the majority's reliance on these
cases, in the majority's own sentiment, arises from the
fact that never before has the concept of removing the
panel entirely been a consideration. As the majority
points out in its historical analysis – this case takes
us to new ground.
The majority identifies that “[t]he recent changes
to Articles 16 and 19, UCMJ, are simply the next step
51a
in the evolution of special courts-martial.” 16 While I
disagree that this step is in anyway simple or
necessarily next, I do not disagree with the proposition
that the system develops and evolves. In this case
Congress has opted to evolve the system to ease
prosecution and expedite criminal conviction. I believe
alternatives could have involved changes to Article 15,
changes to summary courts-martial proceedings, or
the creation of proceedings that do not result in
criminal convictions. I do however recognize that
where alternatives may have been preferable for
servicemembers, the majority has correctly pointed
out that the power to delegate rests with Congress and
with Congress lies the result. “This power is no less
plenary than other Article I powers.” 17 Furthermore,
Congress may make “measured and appropriate
delegations of this power.” 18
The majority suggests “Congress (in creating the
judge-alone special court-martial) and the President
(in limiting the offenses that could be tried by such a
court-martial over an accused's objection) each struck
a balance between competing interests.” 19 But, I am
unclear how the Soldiers, Sailors, Marines, Airmen,
Coastguardsmen or our Space Guardians in the field
will view the creation of this new forum, one where
they have objectively lost their choice of finder of fact,
as well as any form of balance. Simply put: a
servicemember, charged with an offense that carries a
maximum punishment of 5 years in prison (according
to Presidential decree) is unlikely to believe that this
16. United States v. Wheeler, __ M.J. __, No. 202100091, slip
op. at 10 (N-M. Ct. Crim. App. Feb. 17, 2023).
17. Loving v. United States, 517 U.S. 748, 767 (1996) (citing
Solorio v. United States, 483 U.S. 435, 441 (1987))
18. Loving, 517 U.S. at 767.
19. Wheeler, __ M.J. __, slip op. at 13-14.
52a
change accommodates justice. While this may not
offend the Constitution, we should be wary of the
impact on good order and discipline that
servicemembers, in a wholly voluntary force, must be
able to view as just.
Finally, I will point out that the Government's
arguments and the majority's reasoning in this case
provide no reason that Congress could not amend the
UCMJ and do away with members completely.
Perhaps that too would not offend the Constitution,
but I am hesitant to conclude that the members of the
armed forces who dedicate their lives to upholding the
Constitution should be guaranteed so little due
process when facing prosecution for crimes as serious
as any prosecuted in civilian courts.
II. CONCLUSION
Accordingly, while I do not join the majority
analysis in all respects, I concur with the judgment
reached by the court.
[SEAL]
FOR THE COURT:
/s/
MARK K. JAMISON
Clerk of Court
53a
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
David M. DIAZ, Electronics Technician, Submarine,
Communications Third Class (E-4),
U.S. Navy,
Appellant
No. 202100090
Decided 21 February 2023
Appeal from the United States Navy-Marine Corps
Trial Judiciary, Pursuant to Article 69, UCMJ
Military Judge: Kimberly J. Kelly
Sentence adjudged 27 May 2020 by a special courtmartial convened at Naval Base Kitsap, Bremerton,
Washington, consisting of a military judge sitting
alone. Sentence in the Entry of Judgment: reduction
to E-3, confinement for 30 days.
For Appellant: Captain Jasper W. Casey, USMC
(argued)
For Appellee: Lieutenant Michael A. Tuosto, JAGC,
USN, Lieutenant Commander Jeffrey S. Marden,
JAGC, USN
Before
HOLIFIELD,
DEERWESTER,
STEWART, Appellate Military Judges
and
54a
PER CURIAM:
Appellant was convicted, contrary to his pleas, of
one specification of willful dereliction of duty and one
specification of assault, in violation of Articles 92 and
128, Uniform Code of Military Justice [UCMJ] for
willfully failing to follow firearm safety protocols and
pointing a loaded pistol at another Sailor. 1 His
conviction and sentence were subsequently reviewed
by a judge advocate pursuant to Article 65(d), UCMJ. 2
In response to the reviewing judge advocate's
conclusion that, inter alia, the court-martial had
jurisdiction over Appellant, Appellant sought relief
from the Judge Advocate General of the Navy under
Article 69, UCMJ. 3 The Judge Advocate General
considered Appellant's petition and forwarded the
record of trial to this Court, recommending review of
the following issue:
Did the convening authority violate the Fifth
and Sixth Amendments of the Constitution by
referring charges for which the President
authorized a penalty of over six months of
confinement, forfeiture of all pay, and a
punitive discharge to a judge-alone special
court-martial
under
Article
16(c)(2)(A),
UCMJ[?]
1. 10 U.S.C. § 892, 928.
2. 10 U.S.C. § 865(d).
3. 10 U.S.C. § 869.
55a
Having answered this question in the negative in
our recent decision in United States v. Wheeler, we
find no prejudicial error and affirm. 4
Conclusion
After careful consideration of the record and briefs
of appellate counsel, we have determined that the
findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant's
substantial rights occurred. 5
The findings and sentence are AFFIRMED.
4. United States v. Wheeler, ––– M.J. ––––, 2023 WL 2055914,
No. 202100091 (N-M. Ct. Crim. App. Feb. 17, 2023),
https://www.jag.navy.mil/courts/documents/archive/2022/WHEE
LER_202100091_EN-BANC_PUB-Concur.pdf.
5. Article 59 & 66, UCMJ.
56a
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
Thomas H. MARTIN,
Aviation Ordnanceman Second Class (E-5),
U.S. Navy,
Appellant
No. 202100089
Decided 21 February 2023
Appeal from the United States Navy-Marine Corps
Trial Judiciary, Pursuant to Article 69, UCMJ
Military Judge: Kimberly J. Kelly (arraignment), Ann
K. Minami (motions), Lawrence C. Lee (trial)
Sentence adjudged 20 February 2020 by a special
court-martial convened at Naval Base Kitsap,
Bremerton, Washington, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: a
reprimand, reduction to E-3, and restriction for 60
days.
For Appellant: Captain Jasper W. Casey, USMC
For Appellee: Lieutenant Megan E. Martino, JAGC,
USN, Lieutenant John L. Flynn IV, JAGC, USN
Before
HOLIFIELD,
DEERWESTER,
STEWART, Appellate Military Judges
and
57a
PER CURIAM:
Appellant was convicted, contrary to his pleas, of
one specification of violating a lawful general order, in
violation of Article 92, Uniform Code of Military
Justice [UCMJ] for violating the Department of the
Navy Policy on Sexual Harassment by creating a
hostile work environment for four Sailors. 1 His
conviction and sentence were subsequently reviewed
by a judge advocate pursuant to Article 65(d), UCMJ. 2
In response to the reviewing judge advocate's
conclusion that, inter alia, the court-martial had
jurisdiction over Appellant, Appellant sought relief
from the Judge Advocate General of the Navy under
Article 69, UCMJ. 3 The Judge Advocate General
considered Appellant's petition and forwarded the
record of trial to this Court, recommending review of
the following issue:
Did the convening authority violate the Fifth
and Sixth Amendments of the Constitution by
referring charges for which the President
authorized a penalty of over six months of
confinement, forfeiture of all pay, and a
punitive discharge to a judge-alone special
court-martial
under
Article
16(c)(2)(A),
UCMJ[?]
1. 10 U.S.C. § 892.
2. 10 U.S.C. § 865(d).
3. 10 U.S.C. § 869.
58a
Having answered this question in the negative in
our recent decision in United States v. Wheeler, we
find no prejudicial error and affirm. 4
Conclusion
After careful consideration of the record and briefs
of appellate counsel, we have determined that the
findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant's
substantial rights occurred. 5
The findings and sentence are AFFIRMED.
4. United States v. Wheeler, ––– M.J. ––––, 2023 WL 2055914,
No. 202100091 (N-M. Ct. Crim. App. Feb. 17, 2023),
https://www.jag.navy.mil/courts/documents/archive/2022/WHEE
LER_202100091_EN-BANC_PUB-Concur.pdf.
5. Article 59 & 66, UCMJ.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.