U.S. v. Morgan, 57 M.J. 119

First Principles: Jurisdiction: Of Trial Court

1. where the record established that the selection of an enlisted forum was appellant’s choice and there were many opportunities to voice an objection to having enlisted members on the panel, the failure to get appellant’s request on the record was a procedural error, not a jurisdictional defect

Military Justice Personnel: Court Members: Enlisted Members

1. where the record established that the selection of an enlisted forum was appellant’s choice and there were many opportunities to voice an objection to having enlisted members on the panel, the failure to get appellant’s request on the record was a procedural error, not a jurisdictional defect
2. although the military judge failed to obtain appellant’s personal election of trial with enlisted members, there was substantial compliance with Article 25, UCMJ, where: (1) four officers and five noncommissioned officers were empanelled in the presence of the appellant to hear the case; (2) after challenges, the remaining three officers and five enlisted members heard this fully contested case, including the appellant’s testimony; (3) at no time during the trial did the appellant object to trial with enlisted members; (4) appellant did not object to the composition of his court-martial in either his post-trial submissions or his initial appellate pleadings; and (5) there was no allegation that the appellant lacked the competence to make a knowing and intelligent election or that he was coerced