                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

     Michael J. HENDERSON, Damage Control Fireman Apprentice
                       U.S. Navy, Appellant

                              No. 03-0470

                         Crim. App. No. 200101752


       United States Court of Appeals for the Armed Forces

                        Argued December 9, 2003

                         Decided March 26, 2004

     ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.

                                  Counsel

For Appellant:    Lieutenant Rebecca S. Snyder, JAGC, USNR.

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued);
Commander R. P. Taishoff, JAGC, USN (on brief).

Military Judge:    B. W. MacKenzie


  This opinion is subject to editorial correction before final publication.
United States v. Henderson, No. 03-0470/NA


       Judge ERDMANN delivered the opinion of the Court.

       Appellant Damage Controlman Fireman Apprentice (DCFA)

Michael J. Henderson was charged with making a false official

statement, willful damage to military property, willfully

hazarding a vessel, wrongfully using marijuana, larceny of

military property, and wrongful appropriation, in violation of

Articles 107, 108, 110, 112a, and 121 of the Uniform Code of

Military Justice [UCMJ], 10 U.S.C. §§ 907-908, 910, 912a, and

921 (2000), respectively.       The only charge at issue in this

appeal is “willfully hazarding a vessel” in violation of Article

110.

       Henderson was convicted by a military judge at a special

court-martial of the lesser-included charge of negligently

hazarding a vessel and other charges pursuant to his pleas, and

sentenced to a bad-conduct discharge, confinement for five

months, forfeiture of $500 pay per month for five months, and

reduction to the lowest enlisted grade (E-1).      Pursuant to the

pretrial agreement, the convening authority approved the

sentence as adjudged and suspended all confinement in excess of

51 days.   The Navy-Marine Corps Court of Criminal Appeals

affirmed the findings of guilty and the sentence in an

unpublished opinion.

       We granted review of the following issues pursuant to

Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):



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United States v. Henderson, No. 03-0470/NA


   I.        WHETHER APPELLANT'S SPECIAL COURT-MARTIAL LACKED
             JURISDICTION TO TRY HIM FOR AN ALLEGED VIOLATION
             OF ARTICLE 110, UCMJ, A CAPITAL OFFENSE, WHERE
             THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY
             REFERRED THE CHARGE TO A SPECIAL COURT-MARTIAL
             WITHOUT OBTAINING CONSENT FROM APPELLANT'S
             GENERAL COURT-MARTIAL CONVENING AUTHORITY.
   II.       WHETHER APPELLANT'S PLEA OF GUILTY TO NEGLIGENTLY
             HAZARDING A VESSEL WAS IMPROVIDENT.


        We hold that the special court-martial lacked jurisdiction

over the charge of willfully hazarding a vessel and the lesser-

included charge of negligently hazarding a vessel, and therefore

the findings related to the lesser-included offense of

negligently hazarding a vessel are void.      In light of this

disposition, we do not reach Issue II.

                                    FACTS

        Henderson was stationed on board the USS TARAWA.    He built

an improvised explosive device out of urine sample tubes,

crushed flare powder, electrical wires, oil and washers.

According to Henderson, he intended to detonate the device

onboard ship in order to commit suicide.      He planned to detonate

the device by inserting the wires into an electrical socket,

which he believed would heat the wires and ignite the flare

powder thereby causing a chain reaction which would expel the

burning oil and washers.       After Henderson built the device he

placed it in a box which he taped shut and stored in the fan

room onboard ship.     Before he could initiate his suicide plan,

the device was discovered and removed.


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United States v. Henderson, No. 03-0470/NA


        The charges against Henderson, including the charge of

willfully hazarding a vessel in violation of Article 110, were

referred to a special court-martial by the commanding officer of

the USS TARAWA, an officer who exercised only special court-

martial jurisdiction.      Henderson entered into a plea agreement

in which he agreed to plead guilty to, inter alia, the lesser-

included offense of negligently hazarding a vessel.     The charge

of willfully hazarding a vessel, however, was not dropped from

the charge sheet and the lesser-included offense was not

referred separately.      The military judge conducted a providence

inquiry after which Henderson was convicted of those charges to

which he had pleaded guilty and was acquitted of the charges to

which he had pleaded not guilty, including the offense of

willfully hazarding a vessel.

                                 DISCUSSION

        The jurisdiction of a special court-martial over a non-

mandatory capital offense is a legal question which we review de

novo.    See United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F.

2000)(in personam jurisdiction).

        The elements of Article 110, “improper hazarding of

vessel,” are “(1) [t]hat a vessel of the armed forces was

hazarded in a certain manner; and (2) [t]hat the accused by

certain acts or omissions, willfully and wrongfully, or

negligently, caused or suffered the vessel to be hazarded.”



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United States v. Henderson, No. 03-0470/NA


Manual for Courts-Martial, United States (2002 ed.) [MCM], Part

IV, para. 34.b.     Willfully hazarding a vessel is a non-mandatory

capital offense, punishable by “[d]eath or such other punishment

as a court-martial may direct.”        Id. at Part IV, para. 34.e.

Negligently hazarding a vessel is a lesser-included, noncapital

offense, punishable by “[d]ishonorable discharge, forfeiture of

all pay and allowances, and confinement for 2 years.”        Id.

      Article 19, UCMJ, 10 U.S.C. § 819 (2000) “jurisdiction of

special courts-martial,” provides in pertinent part: “[S]pecial

courts-martial have jurisdiction to try persons subject to this

chapter for any noncapital offense made punishable by this

chapter, and, under such regulations as the President may

prescribe, for capital offenses.”         Rule for Courts-Martial

201(f)(2)(C) [R.C.M.], a regulation prescribed by the President,

withholds jurisdiction over mandatory capital cases from special

courts-martial, but does provide for jurisdiction over non-

mandatory capital offenses under two circumstances: (1) when

permitted by an “officer exercising general court-martial

jurisdiction over the command which includes the accused”; and

(2) when authorized by regulation by the Secretary concerned.

R.C.M. 201(f)(2)(C)(ii)-(iii).        There is neither evidence nor

argument that either of the exceptions in R.C.M. 201(f)(2)(C)

applied in Henderson’s case.




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United States v. Henderson, No. 03-0470/NA


      The Government argues that despite the lack of permission

under R.C.M. 201(f)(2)(C)(ii) or (iii), the special court-

martial had jurisdiction in this case because: (1) the convening

authority “functionally” referred the charge of negligently

hazarding the USS TARAWA when Henderson entered into the

pretrial agreement; (2) even if this Court were to find that the

pretrial agreement was not the functional equivalent of a formal

referral, the lesser-included charge was still implicitly

referred to the special court-martial when the convening

authority referred the capital charge; and, in any event, (3)

the failure to obtain the permission of the officer exercising

general court-martial jurisdiction over an accused prior to

referring a capital offense is a nonjurisdictional, procedural

defect which is forfeited if not raised at trial.

     We will first address the Government’s argument that the

referral of a non-mandatory capital offense to a special court-

martial without first securing permission from the officer

exercising general court-martial jurisdiction over the accused

is a nonjurisdictional, procedural defect, as that issue is

largely dispositive of the remaining issues.

      1.   Nonjurisdictional Procedural Defect

      The Government asks us to find that the error here was a

nonjurisdictional procedural defect and urges us to overrule

United States v. Bancroft, 3 C.M.A. 3, 11 C.M.R. 3 (1953).



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United States v. Henderson, No. 03-0470/NA


Bancroft was a Korean War case where the accused had been

charged with violation of Article 113, UCMJ, 10 U.S.C. § 913

(2000) for sleeping at his post.          A conviction for violation of

Article 113 during time of war was (and still is) punishable “by

death or such other punishment as a court-martial may direct.”

The charges were referred to a special court-martial which found

Bancroft guilty and sentenced him to a bad-conduct discharge,

forfeiture of $30 a month for six months, and confinement for

six months.

      A Navy board of review1 held that because a violation of

Article 113 could be punished by death when committed in time of

war and because the offense occurred in Korea during wartime,

the case was capital and the special court-martial had no

jurisdiction.    The Judge Advocate General of the Navy certified

that issue to this Court which analyzed the limited jurisdiction

of special courts-martial under Article 19, and paragraph 15 of

the MCM (1951 ed.).2     This Court noted that neither the officer




1
  The term “board of review” was replaced by “Court of Military
Review” in 1968. Military Justice Act of 1968, Pub. L. No. 90-
632, § 25, 82 Stat. 1335, 1341 (1968). That term was in turn
replaced by “Court of Criminal Appeals” in 1994. National
Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-
337, § 924(b), 108 Stat. 2663, 2831 (1994).
2
  MCM (1951 ed.) paragraph 15 is the predecessor to R.C.M.
201(f)(2). The limitations and exceptions with regard to
jurisdiction over capital cases are unchanged.

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United States v. Henderson, No. 03-0470/NA


exercising general court-martial jurisdiction nor the Secretary

of the Navy had authorized the referral and held that the

special court-martial did not have jurisdiction to try the non-

mandatory capital offense of sleeping at a post during wartime

in violation of Article 113.       The special court-martial’s

findings and sentence on that charge were therefore void.

Bancroft, 3 C.M.A. at 11, 11 C.M.R. at 11.

      The Government does not challenge the validity of the

Bancroft holding on legal grounds, but rather argues that

several of our more recent decisions characterizing certain

forms of error in the referral process as nonjurisdictional have

eroded its continued validity.        The Government points to our

decision in United States v. Jeter, 35 M.J. 442, 447 (C.M.A.

1992), where we found that the failure of a general court-

martial convening authority who was also an accuser to forward

charges to the next higher level for referral was

nonjurisdictional error.       See also United States v. Shiner, 40

M.J. 155, 157 (C.M.A. 1994).       Similarly, the Government points

to our decision in United States v. Kohut, 44 M.J. 245, 250

(C.A.A.F. 1996), where we found the referral of charges to a

special court-martial in violation of a service policy to be

nonjurisdictional error.

      Even if we were to assume that our decisions in Jeter and

Kohut represent some form of "evolution" in the law applicable



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United States v. Henderson, No. 03-0470/NA


to jurisdictional defects in the referral process, that

"evolution" does not extend so far as to alter the logic and

holding in Bancroft.      None of the cases relied on by the

Government involves the factors common to both Bancroft and the

present case -- the referral of a capital charge to a special

court-martial without authorization from the officer exercising

general court-martial jurisdiction over the accused or from the

Secretary of the Navy.

      The situation in the present case is strikingly similar to

Bancroft, and we take this occasion to reaffirm our holding in

that case.    As in Bancroft, the officer making the referral here

exercised only special court-martial jurisdiction and referred a

capital charge to a special court-martial without the

authorization to do so.      We therefore find that the court-

martial in the present case lacked jurisdiction over the capital

charge of willfully hazarding a vessel.

      2.   The Functional Equivalent of a Referral

      The Government goes on to argue that even if there was no

jurisdiction over the charge of willfully hazarding a vessel,

when the special court-martial convening authority entered into

a plea agreement with Henderson, in which Henderson agreed to

plead guilty to the lesser-included charge of negligently

hazarding a vessel, that agreement became the “functional

equivalent” of a referral authorized under R.C.M. 601.     The



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United States v. Henderson, No. 03-0470/NA


Government therefore asserts that the plea agreement was

essentially a new referral of the lesser-included charge of

negligently hazarding a vessel, a charge which the commanding

officer of the USS TARAWA was authorized to refer as a special

court-martial convening authority.

      The Government looks to our decision in United States v.

Wilkins, 29 M.J. 421 (C.M.A. 1990), for support of its position.

In Wilkins, the accused was charged with larceny but entered

into a pretrial agreement with the special court-martial

convening authority in which he agreed to plead guilty to

receiving stolen property.       The offense of receiving stolen

property was not included in the original referral of charges,

nor is it a lesser-included offense to the offense of larceny.

This Court concluded that the pretrial agreement between Wilkins

and the convening authority was the functional equivalent of a

referral of the charge and specifications of receiving stolen

property.    Id. at 424.

      In Wilkins, however, the convening authority had the

authority to refer both the larceny and receiving stolen

property charges to the special court-martial, and the court-

martial had subject matter jurisdiction over the offenses.         The

Court’s decision was based on the rationale that while a

referral is a jurisdictional prerequisite, the form of the

referral is not jurisdictional.        Id.   The unusual form of the



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United States v. Henderson, No. 03-0470/NA


referral was therefore a nonjurisdictional irregularity in the

trial process.     Id. at 424-25.

      The Government’s reliance on Wilkins is misplaced.        The

case before us involves a challenge to the jurisdiction of a

special court-martial to try a non-mandatory capital offense in

the absence of authorization from either the officer exercising

general court-martial jurisdiction over the accused or from the

Secretary of the Navy - - it is not simply a challenge to the

“form” of the referral.      Under the circumstances found in this

case, the special court-martial lacked jurisdiction ab initio.

“[W]hen a criminal action is tried before a court which does not

have jurisdiction, the entire proceedings are a nullity.”3

Bancroft, 3 C.M.A. at 11, 11 C.M.R. at 11.

      The primary distinction between this case and Bancroft is

that Henderson was not convicted of a capital offense but only

of a noncapital, lesser-included offense.        That distinction,

however, does not change the result.         Because the offense of

negligently hazarding a vessel never achieved the status of an

independent charge, the court’s jurisdiction over it derived

only from the improperly referred capital offense of willfully

hazarding a vessel, and thus rises and falls with the


3
  In Bancroft the only charge was the jurisdictionally-defective
capital charge. Jurisdiction over a charge unrelated to a
jurisdictionally-defective charge or a lesser-included offense
of the unrelated charge remains valid. Only the finding and
sentence related to the defective charge are a nullity.

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United States v. Henderson, No. 03-0470/NA


jurisdiction over the greater offense.       To recognize the pre-

trial agreement in this case as the “functional equivalent” of a

new referral would require this Court to find jurisdiction where

it does not otherwise exist.       This we cannot do.

      3.    Implicit Referral

      The Government alternatively argues that when the special

court-martial convening authority referred the charge of

willfully hazarding a vessel to the special court-martial, it

implicitly referred the lesser-included offense of negligently

hazarding a vessel at the same time, under the general

principles of notice pleading.        The Government relies primarily

on our statement in United States v. Virgilito, 22 C.M.A. 394,

396, 47 C.M.R. 331, 333 (1973), that a lesser-included offense

does not have to be independently referred if the allegations

“fairly embrace the elements of the lesser offense and thus give

adequate notice to the accused of the offenses against which he

must defend.”    Id.

      Virgilito does not control the outcome here because it did

not involve any defect in the court’s jurisdiction over the

originally preferred charge.       Henderson’s special court-martial

had no jurisdiction to try a capital charge without

authorization from either the officer exercising general court-

martial jurisdiction over the accused or from the Secretary of

the Navy.    Since the lesser-included charge of negligently



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United States v. Henderson, No. 03-0470/NA


hazarding a vessel was never formally referred under R.C.M. 601,

it was dependent on the greater charge and was fatally tainted

by the lack of jurisdiction.

      For all these reasons, Henderson’s conviction for

negligently hazarding a vessel cannot stand.

                                  DECISION

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals as to Charge III and the sentence is

reversed, but is affirmed in all other respects.   The finding of

guilty of Charge III and the sentence are set aside.   The record

of trial is returned to the Judge Advocate General of the Navy

for remand to the Court of Criminal Appeals.   That court may

either dismiss Charge III and reassess the sentence based on the

affirmed guilty findings or order a rehearing.




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United States v. Henderson, No. 03-0470/NA


     CRAWFORD, Chief Judge (dissenting):

     The majority holds that the lesser-included charge of

negligently hazarding a vessel was “fatally tainted” by the lack

of jurisdiction for the greater charge.    On the contrary, the

convening authority’s derivatively defective referral of the

lesser-included charge constituted waivable, nonjurisdictional

error, which not only failed to prejudice Appellant, but

actually benefited him.    For this reason, I respectfully dissent

from the lead opinion.

     “[I]t is well established that a defective referral . . .

does not constitute jurisdictional error.”    United States v.

King, 28 M.J. 397, 399 (C.M.A. 1989).     Indeed, this Court has

repeatedly opined that errors in the referral process are not

jurisdictional.   In King, we held that the trial of an accused

by a court-martial panel other than the one to which the case

had been referred was nonjurisdictional error.    Id.   In United

States v. Kohut, 44 M.J. 245, 250 (C.A.A.F. 1996), this Court

found nonjurisdictional error in the trial of a case by court-

martial without approval of the Judge Advocate General after the

same case had been previously tried by the state.    In United

States v. Hayward, 47 M.J. 381, 383 (C.A.A.F. 1998), we held

that the post-arraignment referral of a second charge was

nonjurisdictional error.   Finally, this Court found

nonjurisdictional error in the convening authority’s failure to
United States v. Henderson, No. 03-0470/NA


forward charges against the accused to the next higher level of

command when that convening authority was an accuser, and

therefore prohibited from convening the court-martial.      United

States v. Jeter, 35 M.J. 442, 446 (C.M.A. 1992); see United

States v. Tittel, 53 M.J. 313, 314 (C.A.A.F. 2000); United

States v. Shiner, 40 M.J. 155, 157 (C.M.A. 1994).

       Importantly, errors which are nonjurisdictional, such as

defective referrals, “are normally waived when they are not

timely raised at trial.”   United States v. Joseph, 11 M.J. 333,

335 (C.M.A. 1981).   Moreover, a guilty plea “waives all

nonjurisdictional defects in all earlier stages of the

proceedings against an accused.”       United States v. Lopez, 20

C.M.A. 76, 78, 42 C.M.R. 268, 270 (1970).      Because Appellant in

this case failed to object at trial, and in fact pled guilty to

the lesser-included offense after the initial defective

referral, he waived the error and, having done so, must

demonstrate prejudice to prevail on appeal.      Hayward, 47 M.J. at

383.

       In United States v. Wilkins, 29 M.J. 421 (C.M.A. 1990), the

appellant was charged with specifications of larceny, but under

the terms of a pretrial agreement pleaded guilty to receiving

stolen property.   Although the convening authority accepted the

plea offer, he did not order the stolen property charges

referred to trial.   The lower court found the court-martial did


                                   2
United States v. Henderson, No. 03-0470/NA


not have jurisdiction to find the appellant guilty of receiving

stolen property “because no such charge had been properly

referred to the court-martial for trial.”     Id. at 423.   This

Court reversed, holding that the convening authority’s entry

into the pretrial agreement was the “functional equivalent of an

order by the convening authority that the charges be referred to

the court-martial for trial.”   Id. at 424.

      The convening authority, on the one hand, and [the
      appellant] and his defense counsel, on the other, were
      aware that the court-martial could not enter the
      findings of guilty contemplated by the pretrial
      agreement unless the court-martial had jurisdiction
      over the receiving charge, and it could not have
      jurisdiction unless that charge was referred to the
      court-martial by the convening authority. Implicit in
      the convening authority's personal decision to enter
      into the pretrial agreement was his personal decision
      that the receiving charge be referred to the general
      court-martial where the larceny charges were pending.

Id.   The Court noted that the appellant had waived any post-

trial claim of procedural irregularity, which in any event had

failed to cause him prejudice: “Indeed, the usual court-martial

procedure was modified by and for the benefit of the accused;

and under such circumstances, he cannot complain after trial.”

Id. at 425 (emphasis added).

      Applying the Wilkins prejudice analysis to the case at bar,

it is clear that Appellant suffered no harm whatsoever by the

convening authority’s derivatively defective referral of the

lesser-included charge.   The majority observes that because it



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United States v. Henderson, No. 03-0470/NA


was never formally referred, the lesser-included “charge” of

negligently hazarding a vessel never achieved the status of an

independent charge, and therefore inherited the defectiveness of

the original referral.   Even assuming defectiveness transferred

in this manner, we must acknowledge that the transfer occurred

by and for the benefit of Appellant, through the pretrial

agreement.   In other words, the convening authority’s initial

improper referral of charges for a capital offense to a special

court-martial was, through the pretrial agreement, “modified by

and for the benefit of the accused” to secure conviction of a

non-capital, and therefore much less severe, offense.   Having

reaped the great benefit of his own chosen bargain, Appellant

cannot now complain that the charge originated defectively.

     The majority relies upon United States v. Bancroft, 3

C.M.A. 3, 11 C.M.R. 3 (1953), in which this Court held that a

special court-martial lacked jurisdiction over a charge of

sleeping on post in the time of war, due to the convening

authority’s failure to comply with prescribed requirements that

would vest it with jurisdiction over a nonmandatory capital

offense.   In my view, Bancroft should not control this Court’s

decision for two reasons.   First, the more recent trend by this

Court, embodied in King, is to treat referral defects as

waivable, nonjurisdictional error.   Moreover, the charges in

Bancroft were referred for, and the accused convicted of, a


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United States v. Henderson, No. 03-0470/NA


capital offense.   By contrast, in the present case, the

derivatively defective referral secured Appellant’s conviction

of a non-capital offense.   Thus, far from being harmed by the

convening authority’s error in this case, Appellant benefited

from the resulting conviction of a much less severe offense.

     Accordingly, I would hold that the convening authority’s

defective referral in this case was waivable, nonjurisdictional

error, the ultimate results of which benefited Appellant.   Given

the clear absence of prejudice, I would affirm the decision of

the lower court.




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