U.S. v. Mack, 58 M.J. 413

Military Justice Personnel: Court Members: Generally

1. the responsibility for the composition of a court-martial panel rests with the convening authority; when a service member exercises the right to request a panel that includes enlisted members, the convening authority must ensure compliance with the statutory requirement that enlisted members compose at least one-third of the panel; the convening authority may accomplish this through a variety of actions, including orders that automatically add specific members to the panel upon the occurrence of well-defined triggering events
2. when a convening authority refers a case for trial before a panel identified in a specific convening order, and the convening order identifies particular members to be added to the panel upon a triggering event, the process of excusing primary members and adding the substitute members involves an administrative, not a jurisdictional matter; absent objection, any alleged defects in the administrative process are tested for plain error

Military Justice Personnel: Court Members: Eligibility/Selection

1. only those service members who are detailed to a specific court-martial can serve on that court-martial panel; when the convening orders and the record make it clear that an individual who served on a court-martial panel was never detailed to do so, we have held that the court-martial was improperly constituted and the findings must be set aside
2. when the record reflects an ambiguity as to whether an individual was detailed to serve at a particular court-martial, we look to the intent of the convening authority with respect to service of that member on that court-martial panel; when there is an ambiguity but no evidence that the convening authority’s intent was to the contrary, the construction of the convening orders by the participants of the trial is controlling
3. no prejudicial plain error occurred in the process of excusing members and adding two members, each of whom had been specifically identified by the convening authority to be added in the occurrence of a triggering event, notwithstanding that the trial counsel did not address the circumstances of the triggering event on the record; on the contrary, the record is consistent with the occurrence of a triggering event, and the government was not obligated to produce evidence of the actual operation of the triggering mechanism absent evidence in the trial record or adduced after trial raising reasonable questions regarding the triggering mechanism

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. it is the agreement which constitutes the conspiracy; one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one