United States v. King

Opinion of the Court

This case involves the certified question whether the Commanding Officer, Headquarters Company, Force Troops, Fleet Marine Force, Pacific, is empowered to convene special courts-martial. The board of review held he was not, deeming our decision in United States v Ortiz, 15 USCMA 505, 36 CMR 3, petition for reconsideration denied, 16 *143USCMA 127, 36 CMR 283, this date, in all respects controlling.

It appears that the Commanding General, Force Troops, in accordance with section 0103b (5) of the Navy JAG Manual, purported to designate Headquarters Company “a separate and detached command within the meaning of” Uniform Code of Military Justice, Article 23(a)(6), 10 USC § 823. In United States v Ortiz, supra, we held a separate company not to be a separate and detached command within the meaning of Code, supra, Article 23(a)(6), and that, by section 0103b (5) of the Navy JAG Manual, supra, the Secretary of the Navy did not intend to confer special court-martial appointing authority upon these commands unless they were such “within the meaning of article 23.” The board, therefore, was correct, and the certified question is answered in the affirmative.

The decision of the board of review is affirmed.

(dissenting):

I dissent.

It is conceded that the decision in United States v Ortiz, 15 USCMA 505, 36 CMR 3, petition for reconsideration denied, 16 USCMA 127, 36 CMR 283, is controlling in the case at bar. For the reasons stated in my dissenting opinion on the petition for reconsideration in Ortiz, I would answer the certified question in the negative, and reverse the decision of the board of review.