          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                         Senior Airman DANIEL G. CHAPPELL
                                 United States Air Force

                                        ACM S32027 (rem)

                                         25 February 2014

         Sentence adjudged 9 January 2012 by SPCM convened at Francis E.
         Warren Air Force Base, Wyoming. Military Judge: Scott E. Harding
         (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 45 days,
         forfeiture of $800.00 pay per month for 2 months, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Luke D. Wilson.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Erika L. Sleger; and Gerald R.
         Bruce, Esquire.

                                                 Before

                                ROAN, HARNEY, and WEBER
                                  Appellate Military Judges

                                         UPON REMAND

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

       A special court-martial composed of a military judge sitting alone convicted the
appellant, in accordance with his pleas, of one specification of making a false official
statement; one specification of wrongfully using marijuana; and one specification of
wrongfully distributing marijuana, in violation of Articles 107 and 112a, UCMJ,
10 U.S.C. §§ 907, 912a. The military judge sentenced the appellant to a bad-conduct
discharge, confinement for 45 days, forfeiture of $800 pay per month for 2 months, and
reduction to E-1. The convening authority approved the sentence as adjudged.
       On appeal, the appellant argued the convening authority failed to properly refer
the charges to a court-martial, resulting in a jurisdictional defect that invalidates the
sentence. On 22 August 2013, we issued a decision denying the appellant relief. United
States v. Chappell, ACM S32037 (A.F. Ct. Crim. App. 22 August 2013) (unpub. op.).
The appellant then filed a petition for review with the Court of Appeals for the Armed
Forces. On 19 November 2013, the Court granted the appellant’s petition for review on
the issue of whether the Court of Criminal Appeals panel that reviewed the case was
properly constituted. United States v. Chappell, ___ M.J. ___, No. 14-0141/AF
(Daily Journal 19 November 2013). In the same order, the Court set aside our decision
and remanded the case for further review and consideration of the panel constitution
under Article 66(c), 10 U.S.C. § 866(c). Id.

       Our decision today reaffirms our earlier decision dated 22 August 2013.

                                       Background

       On 27 December 2011, the appellant’s commander preferred and served the
charges and specifications on the appellant. Those charges were receipted for in
Block 13 of the DD Form 458 (hereinafter “charge sheet”) on the same date. The referral
block, Block 14a of the charge sheet, was prepared for the staff judge advocate to sign
“for the commander”; however, it was never signed. Block 15 of the charge sheet
indicates that trial counsel caused a copy of the charge sheet to be served on the appellant
on 27 December 2011. Trial defense counsel acknowledged receipt of the referral
package, to include the charge sheet, on 29 December 2011.

                                    Improper Referral

       Questions of jurisdiction are reviewed de novo. United States v. Alexander,
61 M.J. 266, 269 (C.A.A.F. 2005). A court-martial may only consider charges properly
referred to it by a convening authority. United States v. Wilkins, 29 M.J. 421, 423-24
(C.M.A. 1990); Rule for Courts-Martial (R.C.M.) 201(b)(3). Although referral is a
jurisdictional prerequisite, the “law is well settled” that the form of the order is
procedural. United States v. Ballan, 71 M.J. 28, 32 (C.A.A.F. 2012) (citing Wilkins,
29 M.J. at 424). When the error is procedural rather than jurisdictional we “test for
material prejudice to a substantial right.” Id. (citing Alexander, 61 M.J. at 269). Even
though R.C.M. 601(e) requires the referral to be a personal order of the convening
authority, it does not require the order to be in writing, nor require a signature. As our
superior court explained in Wilkins and reiterated in Ballan, the “functional equivalent”
of a referral order will satisfy the R.C.M. requirements. Wilkins, 29 M.J. at 424; Ballan,
71 M.J. at 32.




                                             2                              ACM S32027 (rem)
       It is uncontroverted in the present case that the convening authority and/or his
designee failed to sign Block 14a of the charge sheet. Nor was there a mutually agreed-
upon pretrial agreement, as in both Wilkins and Ballan, which served as the “functional
equivalent” of a referral in those cases. The record, however, is not void of the
convening authority’s intent to refer the charges to a special court-martial. On
27 December 2011, the date of the preferral, the convening authority selected eight
primary members and three alternate members to hear the appellant’s case. This was not
a standing panel, but a panel selected specifically for the charges levied against the
appellant. Moreover, the memorandum selecting members, signed by the convening
authority, specifically states, “The charges and specifications pertaining to [the appellant]
are referred to trial by special court-martial.” There is no need to engage in a “functional
equivalent” analysis because the convening authority patently referred the appellant’s
charges. Although the form of the referral was irregular, it was no less a referral.

       The appellant cites a concern that such language by the convening authority was
vague and did not explain which specific charges were referred to trial. See Ballan,
71 M.J. at 32. However, the selection memorandum explicitly referred “the charges . . .
pertaining to [the appellant].” There was no confusion at trial which charges pertained to
the appellant. The appellant waived the reading of the charges, no objection was raised
to the charge sheet when inserted into the record by either of the appellant’s trial defense
counsel, no objection was raised when trial counsel stated the charges were properly
referred, and the appellant was able to provide a provident guilty plea. All parties to the
court understood which charges had been referred to that court.

       Additionally, further evidence of the convening authority’s intent to refer the
charges is his 6 January 2012 review and disapproval of the appellant’s Request for
Administrative Discharge in Lieu of Court-Martial. That request outlined the charges
facing the appellant. On that same day, the convening authority also excused some court-
martial panel members and selected replacement members.

        Despite the appellant’s concern that the convening authority did not know the
exact charges and specifications referred to trial, the record indicates otherwise. Given
the totality of the circumstances in this case, there is no doubt that the convening
authority understood the charges and specifications against the appellant and intended to
refer the charges and specifications pertaining to the appellant to trial. The error cited by
the appellant was procedural only and did not affect the validity of the convening
authority’s referral of charges in this case.




                                             3                               ACM S32027 (rem)
                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            4                             ACM S32027 (rem)
