## Facts

- Lt. Col. David P. Bartlett Jr., U.S. Army, pleaded guilty at a general court-martial to unpremeditated murder under Article 118, UCMJ.
- A military judge convicted Bartlett pursuant to his pleas; a members panel sentenced him to a dismissal and 25 years’ confinement.
- The convening authority, consistent with a pretrial agreement, deferred and then waived certain automatic forfeitures for a limited period and otherwise approved the findings and sentence.
- Before trial, the Fort Meade staff judge advocate advised the general court-martial convening authority that officers in specified “special branches” (including certain medical corps, chaplains, veterinarians, and inspectors general) could not be detailed as members.
- The advice relied on Army Regulation 27-10, which categorically excluded those branches from court-martial member service.
- The parties stipulated that the convening authority followed the advice and did not detail any officer within the excluded classes.
- Bartlett moved for a new panel, arguing the categorical exclusions conflicted with Article 25’s member-selection criteria; the motion was denied.
- The Army Court of Criminal Appeals affirmed the findings and sentence; the Court of Appeals for the Armed Forces granted review on the legality of the exclusions.

## Issues

1. Whether the Secretary of the Army may, by regulation, categorically exempt specified “special branch” officers from court-martial member service when Article 25(d)(2), UCMJ, requires member selection based on individualized statutory criteria.
2. If the regulation contravened Article 25, whether the resulting error in member selection required relief or was harmless on the record.

## Decision

- The Court of Appeals for the Armed Forces held that the Army regulation’s categorical exclusion of special-branch officers from member eligibility impermissibly contravened Article 25, UCMJ.
- The court nevertheless concluded the error was harmless under the facts presented.
- The court affirmed the decision of the Army Court of Criminal Appeals, leaving the findings and sentence intact.
- A separate concurrence was filed by Judge Erdmann.

## Legal Principles

- Article 25(d)(2), UCMJ, directs convening authorities to select members “best qualified” using individualized criteria: age, education, training, experience, length of service, and judicial temperament.
- Executive or service regulations cannot narrow the statutory pool of eligible court-martial members through categorical exclusions that conflict with Article 25’s criteria absent statutory authorization.
- Improper member-selection criteria that violate Article 25 may be reviewed for prejudice; reversal is not automatic if the government shows the error was harmless on the record.

## Conclusion

A regulation that categorically bars otherwise eligible special-branch officers from court-martial panels conflicts with Article 25’s individualized selection requirements, but the conviction and sentence were affirmed because the unlawful exclusion did not materially prejudice Bartlett on these facts.


United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008)