                         UNITED STATES, Appellee

                                         v.

            David P. BARTLETT Jr., Lieutenant Colonel
                       U.S. Army, Appellant

                                  No. 07-0636
                         Crim. App. No. 20021244

       United States Court of Appeals for the Armed Forces

                             Argued May 6, 2008

                           Decided July 7, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER and RYAN, JJ., joined. ERDMANN, J., filed a
separate concurring opinion.

                                     Counsel


For Appellant: Captain Candace N. White Halverson (argued);
Colonel Christopher J. O’Brien and Major Sean F. Mangan (on
brief); Lieutenant Colonel Steven C. Henricks, Captain Tyesha
Elizabeth Lowrey, and Captain Kathleena R. Scarpato.

For Appellee: Captain Sarah J. Rykowski (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain Michael C.
Friess (on brief); Captain Trevor B. A. Nelson.

Military Judge:    Ronald W. White


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bartlett, No. 07-0636/AR


     Judge STUCKY delivered the opinion of the Court.

     A military judge sitting as a general court-martial

convicted Appellant, Lieutenant Colonel David P. Bartlett Jr.,

pursuant to his pleas, of unpremeditated murder, in violation of

Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 918 (2000).   A panel of members sentenced him to a dismissal

and confinement for twenty-five years.   In accordance with a

pretrial agreement, the convening authority deferred automatic

forfeitures until his action, waived them thereafter for six

months, and otherwise approved the findings and sentence.   The

United States Army Court of Criminal Appeals affirmed the

findings and sentence.   United States v. Bartlett, 64 M.J. 641,

649 (A. Ct. Crim. App. 2007).

     We granted review of the following issue:

     WHETHER THE SECRETARY OF THE ARMY’S DECISION TO EXEMPT
     FROM COURT-MARTIAL SERVICE OFFICERS OF THE SPECIAL
     BRANCHES NAMED IN AR 27-10 CONTRADICTS ARTICLE
     25(d)(2), UCMJ, WHICH REQUIRES A CONVENING AUTHORITY
     TO SELECT COURT-MARTIAL MEMBERS BASED UPON AGE,
     EDUCATION, TRAINING, EXPERIENCE, LENGTH OF SERVICE,
     AND JUDICIAL TEMPERAMENT.

     We hold that the Secretary of the Army impermissibly

contravened the provisions of Article 25, UCMJ, 10 U.S.C. § 825

(2000).   However, we conclude that on these facts, the error was

harmless.   We therefore affirm.




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United States v. Bartlett, No. 07-0636/AR


                                 I.

     Prior to trial, on July 18, 2002, the garrison staff judge

advocate for Fort Meade, Maryland, sent a memorandum to the

garrison commander, who was the general court-martial convening

authority (GCMCA) for the present case.   The memorandum dealt

with the selection of court members for Appellant’s trial.    It

recited, inter alia, that the GCMCA could not “detail officers

assigned to the Medical Corps, Medical Specialist Corps, Army

Nurse Corps, Dental Corps, Chaplain Corps, Veterinary Corps, nor

those detailed to Inspector General duties as courts-martial

panel members.”   The authority for this statement was given as

“AR 27-10, Chapter 7.”    The parties stipulated that the GCMCA

acted in accordance with this advice and did not detail any

officer to the court-martial who fell within one of the

prohibited classes.   The parties further stipulated that the

GCMCA had, at the time of selecting the panel, eleven officers

within his general court-martial convening authority who were

senior in grade or rank to Appellant but who fell within one of

the prohibited classes.

     At trial, the defense moved for a new court-martial panel,

arguing that the Secretary of the Army exceeded his authority in

exempting officers of the branches, set out in Dep’t of the Army

Reg. (AR) 27-10, Military Justice (Aug. 20, 1999), from service

on courts-martial.    The military judge made extensive findings


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United States v. Bartlett, No. 07-0636/AR


of fact and law and denied the motion.      The Army Court of

Criminal Appeals affirmed, citing Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

and the analysis therein.    Bartlett, 64 M.J. at 645-49.

                                  II.

        We review claims of error in the selection of members of

courts-martial de novo as questions of law.      United States v.

Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004); United States v.

Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000).

        At the outset, we are constrained to point out that

although relied on by both sides, Chevron is inapposite to this

case.    Chevron deals with the deference given to an

administrative agency’s interpretation of a regulatory statute,

the administration of which has been committed to it by

Congress.    467 U.S. at 839.   That is not this case.   Instead,

here Congress has enacted a detailed statute -- Article 25, UCMJ

-- which deals explicitly with the question of who may serve on

courts-martial.    Congress has further, in Article 36, UCMJ, 10

U.S.C. § 836 (2000), delegated to the President the authority to

prescribe by regulation procedures for the trial of courts-

martial, insofar as such regulations are not inconsistent with

the UCMJ.    United States v. Jenkins, 7 C.M.A. 261, 262-63, 22

C.M.R. 51, 52-53 (1956).    Such regulations are also to be

“uniform insofar as practicable.”       Article 36(b), UCMJ.


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United States v. Bartlett, No. 07-0636/AR


     A general and wholly separate statute, 10 U.S.C. § 3013

(2000), establishes the position of Secretary of the Army and

grants the Secretary broad general powers over the Department of

the Army.    Subsection (g), in pertinent part, states:

     (g)    The Secretary of the Army may --

     (1) assign, detail, and prescribe the duties of
     members of the Army and civilian personnel of the
     Department of the Army;

            . . . .

     (3) prescribe regulations to carry out his functions,
     powers, and duties under this title.

     It appears clear that the Secretary issued the underlying

personnel management regulations collected in AR 27-10 pursuant

to his authority to “prescribe the duties of members of the

Army.”1    Id.   We, therefore, are faced with a situation in which

Congress has enacted detailed and specific legislation dealing

with a subject common to all the armed forces, while a service




1
  While the authority cited for the exclusions is AR 27-10,
Chapter 7, Court Membership and Other Related Military Justice
Duties by Non-JAGC Personnel, it is clear from the text of that
regulation that it is a collection of substantive prohibitions
applicable to particular branches and duties and contained in
individual personnel management regulations. E.g., AR 165-1,
Chaplain Activities in the United States Army, ch. 4, para.
4-3.e.(2) (Mar. 25, 2004); AR 40-1, Medical Services,
Composition, Missions and Functions of the Army Medical
Department, ch. 2 (July 1, 1983) (medical, dental, nurse,
veterinary, and medical service corps, medical specialist
corps); AR 20-1, Inspector General Activities and Procedures,
ch. 2, para. 2-6 (Feb. 1, 2007).

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United States v. Bartlett, No. 07-0636/AR


secretary, pursuant to a separate general statute, has issued

regulations2 dealing with the same subject.

     In addressing the apparent tension between Article 25,

UCMJ, and the Secretary’s implementation of his enabling

authority, we apply standard principles of statutory

construction.   See United States v. Lopez, 35 M.J. 35, 39

(C.M.A. 1992); United States v. Baker, 18 C.M.A. 504, 507, 40

C.M.R. 216, 219 (1969).   While statutes covering the same

subject matter should be construed to harmonize them if

possible, this does not empower courts to undercut the clearly

expressed intent of Congress in enacting a particular statute.

United States v. Johnson, 3 M.J. 361, 363 (C.M.A. 1977); United

States v. Walker, 7 C.M.A. 669, 674, 23 C.M.R. 133, 138 (1957);

United States v. Lucas, 1 C.M.A. 19, 22, 1 C.M.R. 19, 22 (1951).

     Congress did not see fit to include in Article 25, UCMJ,

any limitations on court-martial service by any branch, corps,

or occupational specialty among commissioned officers of the


2
  It appears that only the Army exempts medical and related
personnel and inspectors general from court-martial duty by
regulation. The services appear to have a uniform policy of
exempting chaplains. Air Force Instr. 52-101, Chaplain,
Planning and Organizing, para. 2.1.7. (May 10, 2005); Secretary
of the Navy Instr. 1730-7B, Religious Ministry Support Within
the Department of the Navy, para. 4.a. (Oct. 12, 2000). Navy
chaplains serve the needs of the Coast Guard and are not to be
assigned collateral duties which involve serving as a member of
a court-martial. Coast Guard Chaplains Orientation Manual, ch.
3, para. B.7.(5), at 63, available at http://www.uscg.mil/comdt/
cocg/docs/orientationmanual.pdf (last visited June 25, 2008).

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United States v. Bartlett, No. 07-0636/AR


armed forces.   Rather, it cast the eligibility of such officers

to serve in broad and inclusive terms in Article 25(a), UCMJ

(emphasis added):   “Any commissioned officer on active duty is

eligible to serve on all courts-martial for the trial of any

person who may lawfully be brought before such courts for

trial.”    Within that broad class, the convening authority of a

court-martial is to detail those members who, “in his opinion,

are best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament.”   Article 25(d)(2), UCMJ.

     Equally as important, Congress limited the broad and

inclusive terms of Article 25, UCMJ, by prohibiting only certain

members of the armed forces from acting as members of courts-

martial.    For example, a member who is the accuser or a witness

for the prosecution, or who has acted as investigating officer

or counsel in a case, may not sit on that case.   Article

25(d)(2), UCMJ.   Nor may a warrant officer or enlisted person

sit as a member in a case involving a commissioned officer, like

this one.   Article 25(b), 25(c)(1), UCMJ.   Unless it is

unavoidable, no member of the armed forces junior in rank or

grade to the accused member may sit on that member’s court-

martial.    Article 25(d)(1), UCMJ.




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United States v. Bartlett, No. 07-0636/AR


     The President, to whom regulatory authority is committed

by Article 36, UCMJ, has similarly seen fit to take a

nonrestrictive view of court-martial service.   Rule for Courts-

Martial (R.C.M.) 502(a), which sets out the basic qualifications

of members of courts-martial, adds nothing to the statutory

language.   R.C.M. 912(f), which does deal with disqualification

for service, is cast not in terms of prohibition from detail to

court-martial service, but in terms of allowable challenges for

cause.   The disqualifying factors in the Rules for Courts-

Martial, as in Article 25, UCMJ, are limited to two:    (1) actual

involvement in the case (as, for example, an investigating

officer); and (2) formal distinctions of grade or rank (as in,

for example, the prohibition of a warrant officer’s sitting on a

commissioned officer’s court-martial).   The implication is

clear:   Congress and the President crafted few prohibitions on

court-martial service to ensure maximum discretion to the

convening authority in the selection process, while maintaining

the basic fairness of the military justice system.

     It is inescapable, then, that the Army regulations limiting

detail of commissioned officers to court-martial duty, collected

in AR 27-10, directly conflict with the provisions of Article

25, UCMJ, on the same subject.   Congress did not simply set out

broad criteria in that article and leave it to administrative

implementation; rather, it set out detailed requirements,


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United States v. Bartlett, No. 07-0636/AR


disqualifications, and prohibitions for courts-martial of

varying classes of members of the armed forces.    As such, the

Army regulations must yield to the clear language of Article 25,

UCMJ.    See, e.g., United States v. Simpson, 10 C.M.A. 229, 232,

27 C.M.R. 303, 306 (1959).3

        Moreover, the Secretary’s application of 10 U.S.C. §

3013(g) (2000) runs afoul of the accepted principle of statutory

construction that in cases of direct conflict, a specific

statute overrides a general one, regardless of their dates of

enactment.    2B Norman J. Singer, Statutes and Statutory

Construction § 51.02, at 187 (7th ed. 2000); Morton v. Mancari,

417 U.S. 535, 550-51 (1974); Bulova Watch Co. v. United States,

365 U.S. 753, 758 (1961); United States v. Mitchell, 44 C.M.R.

649, 651 (A.C.M.R. 1971).     The general grant of authority to the

Secretary to run the Army, broad and necessary as it is, cannot

trump Article 25, UCMJ, which is narrowly tailored legislation

dealing with the precise question in issue.    We are left, then,

with a clear explication of the convening authority’s broad

power to detail any officer to a panel as long as the

requirements of Article 25, UCMJ, are met.

3
  In Simpson, we held that a Manual provision concerning
automatic reduction in grade contravened the statutory
prohibition against increasing the severity of an adjudged
sentence. 10 C.M.A. at 232, 27 C.M.R. at 306. Congress
responded by amending the UCMJ to insert the present Article



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United States v. Bartlett, No. 07-0636/AR


                                III.

     This does not, however, end our inquiry.     Having found

error, we must determine what, if any, relief to grant

Appellant.    As Appellant pled guilty before the military judge,

he has asked only for a new sentencing hearing.    We may not find

the sentence incorrect in law “unless the error materially

prejudice[d] the substantial rights to the accused.”    Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

     Citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991), and

United States v. Greene, 20 C.M.A. 232, 239, 43 C.M.R. 72, 79

(1970), Appellant asserts that the error was structural, thus

obviating the need to show prejudice.   Alternatively, he argues

that he was prejudiced because his panel lacked the benefit of

the special skills and education of the special branch officers.

Both arguments fail.

                                 A.

     There is a strong presumption that an error is not

structural.   Rose v. Clark, 478 U.S. 570, 579 (1986), overruled

on other grounds by Brecht v. Abrahamson, 507 U.S. 619, 637

(1993).   In Fulminante, the Supreme Court noted that certain

constitutional errors, such as “the unlawful exclusion of

members of the defendant’s race from a grand jury,” were


58a, UCMJ, 10 U.S.C. § 858a (2000), giving legislative sanction
to the practice. Pub. L. No. 86-633, 74 Stat. 468 (1960).

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United States v. Bartlett, No. 07-0636/AR


structural defects in the trial mechanism which defied analysis

for harmless error.   499 U.S. at 309-10 (citing Vasquez v.

Hillery, 474 U.S. 254 (1986)).   Appellant’s case, however, deals

with a statutory rather than constitutional error.

     Both before and after the Supreme Court’s decision in

Fulminante, this Court has employed a case-specific rather than

a structural-error analysis in deciding issues of improper court

member selection.   See, e.g., Greene, 20 C.M.A. at 238, 43

C.M.R. at 78 (reversing after concluding that the record raised

a reasonable doubt as to whether the proper standard for

selecting members had been used); United States v. McClain, 22

M.J. 124, 132 (C.M.A. 1986) (holding that the government failed

to prove beyond a reasonable doubt that members were not

selected for the improper purpose of avoiding lenient

sentences); United States v. Hilow, 32 M.J. 439, 440-42 (C.M.A.

1991) (concluding that the government failed to prove beyond a

reasonable doubt that members were not selected for the improper

purpose of limiting the panel to “‘supporters of a command

policy of hard discipline’”); United States v. Upshaw, 49 M.J.

111, 113 (C.A.A.F. 1998) (finding that the appellant did not

demonstrate prejudice from an administrative error that resulted

in an improper limitation on the pool of potential members).

Appellant has not shown that a structural error approach is

warranted under the circumstances of this case.


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United States v. Bartlett, No. 07-0636/AR


     The 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.   In those

cases where we have concluded that the error resulted from

unlawful command influence -- attempts to affect the outcome of

the trial through the selection of particular members -- we have

not affirmed unless the government established beyond a

reasonable doubt that the error was harmless.   See Hilow,

32 M.J. at 442; McClain, 22 M.J. at 132.    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 -- such as exclusion of junior

officers and enlisted members because senior officers possess

better maturity and judgment -- we have placed the burden on the

government to demonstrate lack of harm.    See Dowty, 60 M.J. at

173-75 (holding that the government established lack of

prejudice where convening authority’s legal staff employed novel

selection process -- from volunteers).    On the other hand, when

there is a simple administrative error, the burden is on the

appellant to show prejudice.   Upshaw, 49 M.J. at 113 (concluding

that the burden was on the appellant to show prejudice when the

staff judge advocate improperly limited the pool of eligible

court members because he thought the accused was an E-6, when he

was an E-5).


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United States v. Bartlett, No. 07-0636/AR


                                B.

     This case represents a novel question in that the source of

the error is the Army regulation that required the convening

authority to exclude certain classes of officers from

consideration.   Nevertheless, as this error was not a simple

administrative mistake, we conclude the Government has the

burden of showing the error was harmless.4

     In Appellant’s case (1) there is no evidence that the

Secretary of the Army enacted the regulation with an improper

motive; (2) there is no evidence that the convening authority’s

motivation in detailing the members he assigned to Appellant’s

court-martial was anything but benign -- the desire to comply

with a facially valid Army regulation; (3) the convening

authority who referred Appellant’s case to trial was a person

authorized to convene a general court-martial; (4) Appellant was

sentenced by court members personally chosen by the convening

authority from a pool of eligible officers; (5) the court

members all met the criteria in Article 25, UCMJ; and, (6) as


4
  Although the burden is on the Government to show there was no
prejudice, Appellant has alleged that he was prejudiced because
his panel lacked the benefit of the special skills and education
of the special branch officers. Appellant offers nothing more
than supposition that the special branch officers would bring
skills unique to their occupations -- “critical thinking”
(doctors and nurses), “compassion” (chaplains), and “neutrality”
(inspectors general). While such prejudice is speculative at
best, we considered this allegation of prejudice in determining
whether the Government had met its burden.

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United States v. Bartlett, No. 07-0636/AR


the military judge found, the panel was “well-balanced across

gender, racial, staff, command, and branch lines.”   Under these

circumstances, we are convinced the error in this case was

harmless.

                               IV.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Bartlett, No. 07-0636/AR


     ERDMANN, Judge (concurring):

     I agree with the majority’s holding that the Secretary of

the Army impermissibly contravened the provisions of Article 25,

Uniform Code of Military Justice, 10 U.S.C. § 825 (2000), and

with the conclusion that on the facts of this case, the error

was harmless beyond a reasonable doubt.    While I also agree that

a structural-error analysis is not warranted in this case, I

write separately to emphasize that the issue as to whether a

structural-error approach could ever be the appropriate

framework for considering alleged errors in the selection of

courts-martial members was neither briefed nor argued by the

parties and is not an issue that is necessary to the resolution

of this case.   The majority opinion states, “Both before and

after the Supreme Court’s decision in Fulminante, this Court has

employed a case-specific rather than a structural-error analysis

in deciding issues of improper court member selection.”     United

States v. Bartlett,      M.J.       (11) (C.A.A.F. 2008).   I do not

believe that language should be read to foreclose the possible

application of structural-error analysis to other member-

selection cases.
