UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant DEQUES A. SMITH
United States Army, Appellant

ARMY 20180156

Headquarters, Fort Carson
Tiernan P. Dolan, Military Judge
Colonel Robert A. Borcherding, Staff Judge Advocate

For Appellant: Captain Alexander N. Hess, JA (argued); Colonel Elizabeth G.
Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L. Borchers, JA
(on brief); Lieutenant Colonel Christopher D. Carrier, JA; Captain Steven J. Dray,
JA; Captain Alexander N. Hess, JA (on reply brief); Major Kyle C. Sprague, JA.

For Appellee: Captain Christopher K. Wills, JA (argued); Colonel Steven P. Haight,
JA; Major Virginia Tinsley, JA; Major Joshua Banister, JA (on brief); Major Craig
Schapira, JA.

20 November 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BROOKHART, Senior Judge:

A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted murder, one specification of
aggravated assault, and two specifications of obstruction of justice, in violation of
Articles 80, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 928,
and 934 [UCMJ].! An enlisted panel then sentenced appellant to be discharged from

 

' After findings but before pre-sentencing proceedings, the military judge
conditionally dismissed the specification of aggravated assault subject to the
attempted murder specification surviving the completion of appellate review.
SMITH—ARMY 20180156

the service with a dishonorable discharge and confinement for twelve years. The
convening authority approved the sentence as adjudged and credited appellant with
464 days against his sentence to confinement.

This case comes before us for review under Article 66, UCMJ. Appellant’s
sole assignment of error alleges that the convening authority improperly considered
criteria not listed in Article 25, UCMJ, when selecting the panel members for
appellant’s sentencing hearing.” For the reasons set forth below, we disagree.’

BACKGROUND

Appellant pleaded guilty and elected to be sentenced by a panel composed of
officer and enlisted members. Neither the underlying facts nor the charges of which
appellant was found guilty and sentenced are relevant to the resolution of the issue
raised on appeal. Accordingly, we will focus on the facts surrounding the convening
authority’s selection of appellant’s panel members.

Prior to entering his pleas, appellant filed a motion challenging the convening
authority’s selection of members for his sentencing hearing. After holding an
Article 39(a), UCMJ, session, the military judge found that on 21 November 2017,
the convening authority issued an annex to a standing order directing his subordinate
commanders to nominate panel members for a new convening order. The annex to
the order directed the subordinate commanders to nominate those best qualified
“based upon their age, education, training, experience, length of service, and judicial
temperament.” Paragraph 3.e.(3) of the order further limited eligibility for
nomination to those soldiers not scheduled to “PCS, ETS, retire, or be absent more
than 30 days” prior to 1 October 2018. The last sentence of paragraph 3.e.(3)
further advised the subordinate commands not to nominate soldiers “pending or
possibly pending adverse action.”

A signed memorandum, included as Appendix 1, accompanied the order. The
memorandum emphasized the importance of serving as a panel member and restated
the Article 25, UCMJ, selection criteria from the order. Paragraph 3 of the
memorandum reiterated the order’s guidance regarding availability and included the
charge that those “pending possible disciplinary or adverse action” should not be
nominated. The memorandum also directed that the applicable Officer Record Brief
or Enlisted Record Brief accompany each nominee. Finally, in addition to by-name

 

* We heard oral argument on the Article 25, UCMJ, assignment of error on 19
September 2019.

3 We have given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they are without merit.
SMITH—ARMY 20180156

nominations, both the order and the appended memorandum directed subordinate
units to submit their entire alpha roster* to the convening authority for use in panel
selection. The nominating units were directed to indicate on their alpha rosters
those soldiers who did not meet the eligibility requirements established by the
convening authority.

The subordinate units submitted several hundred by-name nominations to the
convening authority. Those names were compiled onto a spreadsheet which was
printed out and presented to the convening authority to facilitate his personal
selection. He was also provided the combined alpha rosters on a compact disk.

Despite the convening authority’s guidance, some units did not comply with
the instructions provided by the convening authority in the order and accompanying
memorandum. Annotations accompanying the name of one nominee indicated that
he was “flagged for investigation,” while that of another indicated he was “flagged
legal.” Additionally, the notes accompanying numerous other nominees reflect that
they were nominated despite being “known loss(es)” or “on assignment.” The notes
accompanying four other nominees reflected that they had each received a General
Officer Memorandum of Reprimand at some point prior to their nomination.

Ultimately, the convening authority selected all the members of appellant’s
panel from the spreadsheet of nominees. He did not consult the combined alpha
roster, although it was available. None of the nominees with annotations reflecting
either pending adverse action, or completed adverse action, were selected for
appellant’s panel.

In his pretrial motion, appellant argued that pending possible adverse actions,
as well as completed adverse actions, were improper criteria under Article 25,
UCMgJ, resulting in the exclusion of otherwise qualified members. However, the
military judge ruled that it was appropriate for the convening authority to consider
completed adverse action in selecting members because the adverse action was
reflective of a nominee’s “experience” under Article 25, UCMJ. He further found
that the convening authority could consider pending potential adverse action based
upon availability concerns related to the pending adverse action. We agree with the
military judge, and discuss each consideration in turn.

 

4 The convening authority directed each subordinate unit to “submit an alpha roster
containing every Soldier in their jurisdiction . . . sorted by rank then alphabetically.”
SMITH—ARMY 20180156
LAW AND DISCUSSION

Whether there was an error in the panel selection is a question of law which is
reviewed de novo. United States v. Riesbeck, 77 M.J. 154, 162 (C.A.A.F. 2018)
(citing United States v. Bartlett, 66 M.J. 426, 427 (C.A.A.F. 2008)). We are bound
by the military judge’s findings of fact unless they are clearly erroneous. United
States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004) (citing United States v. Benedict,
55 M.J. 451, 454 (C.A.A.F. 2001)).

An accused enjoys the right to an impartial and unbiased panel. United States
v. Mack, 41 M.J. 51, 54 (C.M.A. 1994) (citation omitted). The defense bears the
initial burden of demonstrating that improper selection criteria were used to exclude
otherwise qualified panel members. Dowty, 60 M.J. at 171. If that burden is met,
the government must then show, beyond a reasonable doubt, that no improper
criteria were used, or that the convening authority’s motive was benign. Riesbeck,
77 M.J. at 165. Where the motive for the improper criteria is benign, the
government must still demonstrate a lack of harm. United States v. Gooch, 69 M.J.
353, 361 (C.A.A.F. 2011) (citing Barlett, 66 M.J. at 430). In this case, appellant has
failed to meet his initial burden of demonstrating improper criteria. Further, even if
improper selection criteria were used, the government has met its burden to establish
that appellant did not suffer material prejudice to his right to a fair and impartial
panel.? See id.

Article 25, UCMJ, establishes the criteria by which a convening authority
must select panel members. In accordance with Article 25, UCMJ, the convening
authority shall detail such members who are, in his opinion, “best qualified” by
reason of “age, education, training, experience, length of service, and judicial
temperament.” UCMJ art. 25. While the criteria are not exclusive, there are very
few recognized exceptions. Gooch, 69 M.J. at 358. In this case, both the order and
the memorandum implementing the order stressed that nominations should be based
on the enumerated factors contained in Article 25, UCMJ.

 

> We note the three categories of selection error under Article 25, UCMJ, and their
corresponding burdens for establishing prejudice as laid out by our superior court.
Gooch, 69 M.J. at 361 (citing Bartlett, 66 M.J. at 430). After analyzing the three
categories and the facts of this case, we find that any error in the selection criteria
used by the convening authority was not in an attempt to “stack” appellant’s court-
martial, nor was it an administrative error. Accordingly, we apply a prejudice
analysis wherein the government must establish that appellant’s right to a fair and
impartial panel was not materially prejudiced by any error in the convening
authority’s selection criteria. See id.
SMITH—ARMY 20180156
Consideration of Completed Adverse Actions

The “best qualified” standard articulated in Article 25, UCMJ, anticipates that
a convening authority will apply a quantitative and qualitative analysis to the
statutory criteria when he personally selects nominees. Exercising the discretion
afforded by Congress, it is perfectly reasonable for a convening authority to weigh
the quantity of enumerated factors such as age or length of service when determining
who is best qualified. United States v. Roland, 50 M.J. 66, 68 (C.A.A.F. 1999)
(citing United States v. White, 48 M.J. 251, 254-55 (C.A.A.F. 1998) (stating that it is
not improper to appoint senior qualified members)). Likewise, a convening
authority can assess the quality of a nominee’s education, experience, training, and
judicial temperament. See, e.g., White, 48 M.J. at 255 (citing United States v.
Carman, 19 M.J. 932, 936 (A.C.M.R. 1985) (finding that officers selected for
command positions have qualities “totally compatible” with Article 25, UCMJ)).

While neither experience nor judicial temperament are explicitly defined by
the statute, regulation, or case law, this court finds that both criteria contain
elements of judgment and respect for good order and discipline, such that they could
be negatively impacted by a completed adverse action. Therefore, it is not
inappropriate for a convening authority to consider completed adverse actions when
determining who is “best qualified” for the solemn responsibility of serving on a
court-martial panel. Doing so is not injecting adverse action as an additional criteria
under Article 25, UCMJ, but rather applying a reasonable qualification to the
existing criteria. This court recognizes that some convening authorities might find
value in the perspective of members who have been rehabilitated from a completed
adverse action, while others may not. Nonetheless, the application of the “best
qualified” standard is left to the discretion of each convening authority. See UCMJ
art. 25; Bartlett 66 M.J. at 429 (“Congress and the President crafted few prohibitions
on court-martial service to ensure maximum discretion to the convening authority in
the selection process... .”). Given this discretion, it was appropriate for the
convening authority in this case to consider completed adverse actions in
determining which members were “best qualified” for court-martial duty.

Consideration of Pending Adverse Actions

With regard to the limitation on nominees facing potential adverse action, we
also agree with the military judge that there was no impropriety. One of the
recognized screening criteria not specifically listed in Article 25, UCMJ, is
availability. In Gooch, the Court of Appeals for the Armed Forces (CAAF) found
that availability was an appropriate screening criteria “implicit in the overall
structure of the UCMJ, which is intended to promote justice as well as to assist
maintaining good order and discipline in an operational context.” 69 M.J. at 358
(citations omitted). However, the CAAF noted that availability cannot be used to
“mask exclusion or evade Article 25, UCMJ, criteria.” Id.
SMITH—ARMY 20180156

In this case, the military judge found that potential members with pending
adverse action might eventually be court-martialed, administratively discharged
from the service, or transferred to other units for rehabilitative purposes. The
military judge ruled that such contingencies would impact availability in much the
same way as reassignment or deployment. We agree with the findings of the
military judge and further find that pending adverse action could also affect
availability if the member is required to participate in formal proceedings, such as a
separation board, related to their adverse action.© Accordingly, potential nominees
with pending adverse action might become unavailable because of the timing of
proceedings related to their pending adverse action, because the completed adverse
action results in their discharge from the service or transfer to another unit, or
because the completed adverse action renders them no longer “best qualified” in the
eyes of the convening authority. Given the range of possibilities, we hold that it was
not improper for the convening authority to consider pending adverse action as
impacting availability when screening potential panel members.

Citing Gooch, appellant also contends that the convening authority’s
nominating order was too broad because those “pending” adverse action might
ultimately be cleared or otherwise suffer no disruptions to their availability.
However, Gooch addressed a convening authority’s screening of members who might
have personal knowledge of the case, based on contemporaneous service, or who
might have personal knowledge of the accused. Gooch, 69 M.J. at 358. The CAAF
held that those criteria were not appropriate for consideration under Article 25,
UCM], because they ultimately went to the “bias, potential for bias, or the
appearance of bias” of members serving on Gooch’s panel, and voir dire is the
appropriate avenue to address bias concerns. /d. at 360. In this case, we agree with
the military judge that consideration of pending adverse action was focused on
availability rather than potential bias. Further, we find that the common factors used
to screen for availability will almost always be over inclusive. Potential members
may not ultimately deploy, change stations, or leave the service for many months
after a panel is selected given the ever-changing operational landscape of the
military. As such, those members might well be available for at least some courts-
martial taking place during their remaining time in the command. Yet, convening
authorities are permitted to select panel members based on a member’s projected
future availability at the time of panel selection. See id. at 358 (citing United States
v. Wiesen, 56 M.J. 172, 176 (C.A.A.F. 2001)). In this case, we find that pending
adverse action is no broader than other criteria used to screen panel members for
availability.

 

® See Army Reg. 635-200, Personnel Separations: Active Duty Enlisted
Administrative Separations, ch. 2 (19 Dec. 2016); Army Reg. 600-8-24, Personnel-
General: Officer Transfers and Discharges, ch. 4 (12 Apr. 2006).
SMITH—ARMY 20180156
Prejudice

Finally, we note that even if the convening authority intentionally excluded an
entire category of otherwise qualified members, we find that it was done in a good
faith effort to comply with Article 25, UCMJ. Bartlett, 66 M.J. at 430. Where a
convening authority’s motives are benign, an appellant is entitled to relief only if he
has suffered material prejudice to his right to a fair and impartial panel. Gooch, 69
M.J. at 361. In this case, we conclude that appellant suffered no such prejudice.
The facts indicate that the panel members comprising appellant’s venire were
personally selected by the convening authority based upon criteria enumerated in
Article 25, UCMJ. See United States v. Sullivan, 74 M.J. 448, 450 (C.A.A.F. 2015).
Moreover, the members who sat for appellant’s sentencing hearing were selected
after a rigorous voir dire process in which appellant successfully exercised two
challenges for cause, as well as his preemptory challenge. Gooch, 69 M.J. at 361.
Finally, once selected, the panel considered all of the evidence presented on
sentencing and adjudged a sentence to confinement that was significantly less than
what the government asked for, and even less than what the convening authority had
agreed to in appellant’s pretrial agreement.’ There is no evidence, beyond pure
speculation, that members who had prior adverse action or who were undergoing
proceedings related to adverse action, would have settled on a sentence that was any
more fair and impartial than that adjudged. See Sullivan, 74 M.J. at 451.
Accordingly, we find the government has met its burden of demonstrating a lack of
harm.

CONCLUSION

Upon consideration of the entire record, we find appellant failed to meet his
initial burden of demonstrating the convening authority considered improper criteria
in selecting appellant’s panel, and even if an improper selection criteria was used,
the government has met its burden to establish that appellant did not suffer material
prejudice to his right to a fair and impartial panel.

As noted by the military judge, Charge II and its Specification are
conditionally dismissed subject to Charge I and its Specification surviving the
completion of appellate review. The remaining findings of guilty and sentence are
AFFIRMED.

Judge SALUSSOLIA and Judge SCHASBERGER concur.

 

7 Appellant’s pretrial agreement with the convening authority included a nineteen-
year cap on confinement, while the panel sentenced appellant to confinement for
twelve years.
SMITH—ARMY 20180156

FOR THE COURT:

ebeke
MALCOLM H. SQUIRES, JR.

Clerk of Court
