                       UNITED STATES, Appellee

                                    v.

   Darron D. WARD, Jr., Culinary Specialist Seaman Apprentice
                      U.S. Navy, Appellant

                              No. 15-0059

                       Crim. App. No. 201400021

       United States Court of Appeals for the Armed Forces

                        Argued March 17, 2015

                        Decided June 11, 2015

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel


For Appellant:    Lieutenant Jessica L. Ford, JAGC, USN (argued).

For Appellee: Major Suzanne M. Dempsey, USMC (argued); Colonel
Mark K. Jamison, USMC, Captain Matthew M. Harris, USMC, and
Brian K. Keller, Esq. (on brief); Lieutenant Commander Keith
Lofland, JAGC, USN.

Military Judge:   Michael J. Luken


       This opinion is subject to revision before final publication.
United States v. Ward, Jr., No. 15-0059/NA

       Judge ERDMANN delivered the opinion of the court.

       Contrary to his pleas, Culinary Specialist Seaman

Apprentice (E-2) Darron D. Ward, Jr., was convicted by a panel

of officer and enlisted members sitting as a general court-

martial of fleeing apprehension, rape, and communicating a

threat, in violation of Articles 95, 120, and 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 895, 920, 934 (2012).

Ward was sentenced to 933 days of confinement and a dishonorable

discharge.    The convening authority approved the sentence as

adjudged.    The United States Navy-Marine Corps Court of Criminal

Appeals (CCA) affirmed the findings and sentence, holding that

while “servicemembers were impermissibly excluded from the

member selection process by virtue of their rank,” the error was

harmless.    United States v. Ward, No. NMCCA 201400021, 2014 CCA

LEXIS 535, at *6-*7, 2014 WL 3797429, at *2 (N-M. Ct. Crim. App.

July 31, 2014).    We granted review to determine whether Ward was

prejudiced by the selection process error. 1    Finding no

prejudice, we affirm.


1
    We granted review of the following issue:

       The convening authority issued an instruction that
       limited court-martial member nominations to personnel
       only in the pay-grades between E-7 and O-5. The lower
       court found this systematic exclusion of personnel to
       be error, but harmless. Should this court set aside
       Appellant’s convictions based on the rationale of
       United States v. Kirkland due to the unresolved
       appearance of unfairness?



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United States v. Ward, Jr., No. 15-0059/NA

                             Background

     On July 29, 2008, the Commander of Naval Air Force Atlantic

(COMNAVAIRLANT), a general court-martial convening authority,

issued an instruction entitled NOMINATION FOR MEMBERSHIP ON

COURTS-MARTIAL CONVENED BY COMNAVAIRLANT, the purpose of which

was “[t]o publish procedures for submission of nominations for

prospective court[s]-martial members to [the convening

authority].”   Dep’t of the Navy, Commander Naval Air Force

Atlantic Instr. 5813.1H, Nomination for Membership on Courts-

Martial Convened by COMNAVAIRLANT, para. 1 (July, 29, 2008)

[hereinafter COMNAVAIRLANTINST 5813.1H].   The Instruction

recognized that all of the convening authority’s staff was

subject to nomination as potential court-martial members, and in

fact, each member of the staff, regardless of rank, was required

to complete a court-martial questionnaire upon arrival at

station.    Id. at para. 5. COMNAVAIRLANTINST 5813.1H, para. 5,

provides:

     5. Action. In addition to COMNAVAIRLANT [s]taff
     members who regularly sit on courts-martial, the
     commands listed below are required to submit quarterly
     nominations for prospective members in the number and
     grade indicated, to serve as court-martial members for
     a period of three months.

COMNAVAIRLANTINST 5813.1H went on to restrict the personnel that

could be nominated by the subordinate commands to officers in



United States v. Ward, ___ M.J. ___ (C.A.A.F. 2014) (order
granting review).

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United States v. Ward, Jr., No. 15-0059/NA

the grades of 0-5 and below and to enlisted members in the

grades of E-7, E-8, and E-9.   Id.   Therefore, under

COMNAVAIRLANTINST 5813.1H, the subordinate commands could not

nominate personnel who were 0-6 and above or E-6 and below.

     Prior to the convening authority’s selection of panel

members in the present case, the Force Judge Advocate (FJA) to

the Commander, Naval Air Force Atlantic, provided the convening

authority with a draft convening order that detailed potential

members to serve on the panel, along with the members’

questionnaires.   The FJA advised the convening authority that

the proposed members were “best qualified” by reason of age,

education, training, experience, length of service, and judicial

temperament.   The FJA also advised the convening authority that

he could choose the panel members recommended or choose anyone

else within his claimancy that he deemed best qualified. 2   The

convening authority approved the convening order as drafted,

which detailed two 0-5s, three 0-4s, one E-8, and six E-7s to

the court-martial.

     Four months prior to trial, the defense had served the

government with a discovery request, which included, in part, a

request for:   “[c]opies of all information . . . used by the


2
  The CCA granted a government consent motion to attach
affidavits from the two FJAs and the COMNAVAIRLANT who served
during the relevant time periods. These affidavits generally
describe the manner in which members were nominated, screened
and detailed to courts-martial by this convening authority.

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United States v. Ward, Jr., No. 15-0059/NA

convening authority . . . in nominating prospective, and in

selecting final court members for all court-martial orders in

this case.”   In its response to the defense request, the

government did not provide or reference COMNAVAIRLANTINST

5813.1H.

     During trial, the panel members detailed by the convening

authority were extensively voir dired.   The defense made three

challenges for cause, two of which were granted.   The defense

chose not to use its peremptory challenge on the member whose

challenge was denied.   The panel that was ultimately assembled

was comprised of one 0-4, one E-8, and 6 E-7s.

     Approximately four months after Ward was convicted, the

defense became aware of COMNAVAIRLANTINST 5813.1H.   The defense

submitted a supplemental clemency request to the convening

authority, arguing that the Instruction’s limiting of potential

court-martial members by rank was a violation of Article 25,

UCMJ.   The FJA recommended that the convening authority provide

no relief to Ward as he believed the issue had been waived.

Following the FJA’s advice, the convening authority denied the

requested relief.

     On appeal to the CCA, Ward again challenged the convening

authority’s court-martial member selection process under

COMNAVAIRLANTINST 5813.1H.   Ward also asserted a discovery

violation for the government’s failure to provide the



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United States v. Ward, Jr., No. 15-0059/NA

Instruction to the defense.    Ward, 2014 WL 3797429, at 2014 *1,

2014 CCA LEXIS 535, at *1-*2.    The CCA agreed with Ward on both

issues, ruling that the government’s failure to produce the

Instruction was a discovery violation and that Article 25, UCMJ,

had been violated when “service members were impermissibly

excluded from the member selection process by virtue of their

rank.”   Id. at *6-*7, 2014 WL 3797429, at *2.   However, the CCA

found both errors to be harmless.     Id. at *6-*7, *9, 2014 WL

3797429, at *2-*3.   Before this Court, Ward argues that the CCA

erred when it determined he was not prejudiced by the convening

authority’s violation of Article 25.

                              Discussion

     The sole issue before this court is whether the violation

of Article 25, UCMJ, as held by the CCA, prejudiced Ward. 3   Where

there is a “nonconstitutional error in the application of

Article 25, UCMJ, we must determine if the error ‘materially

3
  The government did not certify the CCA’s findings of error and
has not argued that the “law of the case” doctrine is
inapplicable in this case. See United States v. Lewis, 63 M.J.
405, 412-13 (C.A.A.F. 2006) (“Where neither party appeals a
ruling of the court below, that ruling will normally be regarded
as law of the case and binding upon the parties. The law of the
case doctrine is a matter of discretionary appellate policy and
does not prohibit this court from reviewing the ruling below.
However, under the law of the case doctrine this court will not
review the lower court’s ruling unless the lower court’s
decision is clearly erroneous and would work a manifest
injustice if the parties were bound by it. That standard is
difficult to achieve: a finding of manifest injustice requires a
definite and firm conviction that a prior ruling on a material
matter is unreasonable or obviously wrong.”) (internal quotation
marks and citations omitted); see also C.A.A.F. R. 19(b)(3).

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United States v. Ward, Jr., No. 15-0059/NA

prejudiced the substantial rights of the accused’” under Article

59(a), UCMJ.   United States v. Gooch, 69 M.J. 353, 360 (C.A.A.F.

2011) (citation omitted).   We review prejudice determinations

under a de novo standard of review.   United States v. Diaz, 45

M.J. 494, 496 (C.A.A.F. 1997).

     Ward contends that while the CCA correctly decided there

was a systematic exclusion of court-martial members based on

rank in this case, it erred when it looked to the factors

considered by the court in United States v. Bartlett, 66 M.J.

426, 431 (C.A.A.F. 2008), to determine prejudice.     Ward argues

that, instead, the CCA should have utilized the standard set

forth in United States v. Kirkland, 53 M.J. 22, 25 (C.A.A.F.

2000), which held that a conviction is reversed for violations

of Article 25, UCMJ, when there exists an unresolved appearance

of unfairness in the court-martial member selection process.

     The government counters that the CCA correctly used the

Bartlett standard, which reviewed prejudice in accordance with

Article 59(a), UCMJ.   Bartlett, 66 M.J. at 429-30.    The

government also argues Kirkland is inapplicable because in that

case the prospective pool of members was limited, while here the

convening authority included members of his staff in the pool

without any restrictions on rank.

     In Kirkland, the convening authority requested subordinate

commanders to nominate a specific number of qualified personnel



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United States v. Ward, Jr., No. 15-0059/NA

to be potential panel members.    53 M.J. at 24.   The request

included a chart which listed the number of nominees to be

submitted from each rank.    Id. at 24-25.   However, the chart did

not list any enlisted grades below the rank of E-7.     Id. at 25.

In that case, we found a violation of Article 25, UCMJ, and held

that “where an unresolved appearance that potentially qualified

court members . . . were excluded, reversal of the sentence is

appropriate to uphold the essential fairness and integrity of

the military justice system.”    Id. (internal quotation marks and

citation omitted).

     In Bartlett, we again considered an alleged Article 25,

UCMJ, violation, this time involving an instruction that

excluded doctors, dentists, nurses, veterinarians, and chaplains

from the nomination process and which “directly conflict[ed]

with the provisions of Article 25, UCMJ, on the same subject.”

66 M.J. at 427, 429.    In determining prejudice, we rejected the

defense’s argument of structural error and held that under

Article 59(a), UCMJ, the court could not find harm “‘unless the

error materially prejudice[d] the substantial rights [of] the

accused.’”   Id. at 429-30 (first alteration in original)

(citation omitted).    We further held that “[t]he burden of

demonstrating prejudice, or the lack thereof, from

nonconstitutional error in the detailing of court members

depends on the manner in which the error occurred.”     Id. at 430.



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United States v. Ward, Jr., No. 15-0059/NA

In cases where “a convening authority has intentionally included

or excluded certain classes of individuals from membership, in

an attempt to comply with the requirements of Article 25,

UCMJ . . . we have placed the burden on the government to

demonstrate lack of harm.”    Id.; see also Gooch, 69 M.J. at 361

(holding the burden was on the government to show a lack of harm

when a selection error was “more than a ministerial mistake”).

     In Bartlett, we considered six factors relevant to the

factual circumstances presented in that case, to determine

whether the government had met its burden of demonstrating that

the error was harmless.    66 M.J. at 431.   Those factors asked

whether:    (1) the convening authority enacted or used the

instruction with a proper motive; (2) the convening authority’s

motivation in detailing the members he assigned to the court-

martial panel was benign; (3) the convening authority who

referred the “case to trial was a person authorized to convene”

the court-martial; (4) the appellant “was sentenced by court

members personally chosen by the convening authority from a pool

of eligible” members; (5) the court members “all met the

criteria in Article 25, UCMJ;” and (6) “the panel was well-

balanced across gender, racial, staff, command, and branch

lines.”    Bartlett, 66 M.J. at 431 (internal quotation marks

omitted).    Evaluating those criteria, we held that the




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United States v. Ward, Jr., No. 15-0059/NA

government had met its burden of demonstrating that the error

was harmless.    Id.

     Unsurprisingly, Ward argues that we should apply the

Kirkland “essential fairness and integrity” appearance standard,

while the government argues that the Bartlett Article 59(a),

UCMJ, criteria should control our prejudice analysis.    In our

view, the two cases can be read in conjunction with one another,

giving effect to both.    Simply put, an accused must be provided

both a fair panel (Bartlett) and the appearance of a fair panel

(Kirkland). 4   This construction is in accord with our precedent.

See United States v. McClain, 22 M.J. 124, 132 (C.M.A. 1986)

(“[W]e note that -- because [d]iscrimination in the selection of

court members on the basis of improper criteria threatens the

integrity of the military justice system and violates the

Uniform Code, . . . this Court is especially concerned to avoid

either the appearance or reality of improper selection.”)

(alteration in original) (internal quotation marks and citation

omitted); United States v. Clay, 64 M.J. 274, 276-77 n.1

(C.A.A.F. 2007) (“The criteria for member selection specified by

Article 25, and challenges for cause based on R.C.M. 912(f) are

additional safeguards against both the reality and perception of


4
  We further note that while Kirkland did not expressly reject
the application of the structural error rule to violations of
Article 25, as we did in Bartlett, it did so impliedly by
articulating a type of prejudice which would warrant reversal
(the unresolved appearance of unfairness).

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United States v. Ward, Jr., No. 15-0059/NA

unfairness.” (citations omitted)).   Accordingly, Bartlett and

Kirkland are not mutually exclusive and can be construed in

harmony with one another.

     We commence our analysis by noting that there has been no

allegation in this case that that the panel members ultimately

selected did not qualify under Article 25, UCMJ, on the basis of

age, education, training, experience, length of service, and

judicial temperament.   It is rather the process utilized by the

convening authority which either did, or did not, prejudice

Ward.   Based on our review of the convening authority’s actions

in this case, we believe that the government has met the

standards under both Bartlett and Kirkland. 5

     Under Bartlett, the government has shown that the convening

authority used the instruction without an improper motive.

Bartlett, 66 M.J. at 431.   In his post-trial affidavit, the

convening authority stated that in selecting members for courts-

martial, it was not his intent to “systematically exclude anyone

on the basis of rank alone.”   The record supports that

assertion.   Both the FJA and the convening authority

acknowledged the convening authority was aware he could select

5
  This court recognizes that, under the current state of the law,
even if an appellant establishes a violation of Article 25,
UCMJ, there exists no remedy for that violation if the
government shows it was harmless. We note this situation to
alert the Joint Service Committee on Military Justice, in the
event it may wish to consider a recommendation to the President
a procedure by which the requirements of Article 25, UCMJ, may
be enforced in the absence of prejudice.

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United States v. Ward, Jr., No. 15-0059/NA

anyone he chose from within his command, including members of

his staff, as long as they met the Article 25, UCMJ, criteria.

Importantly, the convening authority had each member of his

staff, regardless of rank, fill out a court-martial member

questionnaire upon arriving on station.    Because a stated

purpose of COMNAVAIRLANTINST 5813.1H was to supplement the pool

of potential panel members from the convening authority’s staff,

and because the convening authority did not utilize

COMNAVAIRLANTINST 5813.1H to systematically exclude specific

ranks from his consideration, the instruction was not used with

an improper motive.    The government has also shown that the

convening authority’s motivation in detailing the members was

benign.   Bartlett, 66 M.J. at 431.   Indeed, a review of the

post-trial affidavits shows an honest, though erroneous, attempt

to meet the requirements of both Article 25, UCMJ, and the

command’s mission. 6   Thus, this is not a scenario where

applicable instructions systematically excluded members of a

certain grade.   Nor was that the convening authority’s intent.

     As we have noted, the holding in Kirkland focused on the

“unresolved appearance that potentially qualified court members

. . . were excluded, [and therefore] reversal . . . is

6
  The government has also established that the convening
authority was a person authorized to convene the court-martial,
that Ward was sentenced by court members personally chosen by
the convening authority from a pool of eligible members, that
the court members all met the criteria in Article 25, UCMJ, and
that the panel was balanced. Bartlett, 66 M.J. at 431

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United States v. Ward, Jr., No. 15-0059/NA

appropriate to uphold the essential fairness and integrity of

the military justice system.”    53 M.J. at 25 (internal quotation

marks and citation omitted).    In this case, however, due to the

record developed at the court-martial and the CCA, there is no

“unresolved appearance that potentially qualified court members

were excluded.”   Id.   Although COMNAVAIRLANTINST 5813.1H by its

own terms excluded certain categories of eligible court members,

that exclusion only applied to potential members from the

subordinate commands, not to potential members from the

convening authority’s staff.    Therefore, the member selection

process utilized by the convening authority met the Bartlett

criteria and did not leave an “unresolved appearance that

potentially qualified court members . . . were excluded” from

consideration.    Kirkland, 53 M.J. at 25.

                               Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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