Military Times

Limits on junior troops for courts-martial panels under scrutiny

The military's highest court will consider whether a Navy rule that restricted junior enlisted service members from serving on some court-martial panels is unfair and unlawful.

The case stems from a 2008 order from the commander of Naval Air Force Atlantic, instructing subordinate commands to limit the nomination of prospective court-martial panel members to paygrades E-7 through 0-5, regardless of the rank of the accused service member.

The case that the Court of Appeals for the Armed Forces will hear March 17 involves a sailor in paygrade E-2, Culinary Specialist Seaman Apprentice Darron Ward, who was convicted of rape and other charges at a court-martial in September 2013.

His attorneys say the "systematic exclusion by rank in the member selection process" creates the "appearance of unfairness" and violates the law. Allowing the Navy to have a standing policy excluding junior enlisted troops from the court-martial panel selection process "undermines the entire military justice system," Ward's attorneys say.

The Uniform Code of Military Justice sets parameters for selection of court-martial panel members, requiring commanders to find the "best qualified" troops based on "age, education, training, experience, length of service, and judicial temperament." It does not explicitly say anything about rank.

Navy lawyers say the Navy instruction under scrutiny was not meant to exclude anyone from the panels, nor influence the outcome of any court-martial. Even if the rule was somehow improper, there was in this case an overall "lack of harm."

That was a winning argument when the same E-2 rape case came before a lower court.

Judges on the Navy-Marine Corps Court of Appeals agreed that "the record is clear that service members were impermissibly excluded from the member selection process by virtue of their rank."

But the judges went on to conclude that the error did not ultimately affect the outcome in the case, violate the rights of the defendant or make the trial unfair.

If the court decides that the Navy rule was improper, the ruling could affect the way court-martial panels are selected across the military criminal justice system.

The Navy Office of the Judge Advocate declined to comment on the case or the 2008 order from Naval Air Force Atlantic restricting the nomination of junior-ranking sailors.

Ward is at the Navy Consolidated Brig in Virginia serving a 2½-year sentence for his conviction on charges of rape, fleeing apprehension and communicating a threat.

Court records show that in February 2013, while assigned to the aircraft carrier George H.W. Bush in Virginia, he met a 19-year-old girl on a social media site, asked her to meet him, took her to a hotel room and raped her.

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