## Facts

- Airman First Class Jesse L. Kirkland (E-3) pleaded guilty at a general court-martial to wrongful possession, use, and distribution of LSD and marijuana over four months, in violation of Article 112a, UCMJ.
- Kirkland requested enlisted members on the court-martial panel.
- The base legal office maintained a standing nomination “pool” for member selection, created by quarterly requests to commanders for nominees by rank categories using a “unit management document,” in part to avoid overtasking units.
- In practice, the pool and the resulting nomination list consisted almost entirely of senior noncommissioned officers (E-7 and above), effectively excluding enlisted personnel E-6 and below from consideration.
- The General Court-Martial Convening Authority selected Kirkland’s entire panel from a prepared list of nine senior NCO nominees, although he retained theoretical authority to choose members outside that list.
- The defense moved for a new panel (styled as a jurisdictional challenge), arguing systematic rank-based exclusion of E-6 and below; the military judge denied the motion.
- A panel of officer and enlisted members sentenced Kirkland to a bad-conduct discharge, one year confinement, total forfeitures, and reduction to E-1; the convening authority approved the sentence, and the Air Force CCA affirmed.

## Issues

1. Whether the military judge erred in denying the defense motion for a new court-martial panel where the member-selection process effectively limited enlisted consideration to E-7 and above.
2. Whether a nomination and selection architecture that systematically excludes otherwise eligible servicemembers by rank violates Article 25, UCMJ.
3. Whether nominal convening-authority discretion to select outside a skewed pool cures an otherwise unlawful selection process.

## Decision

- The C.A.A.F. reversed the Air Force CCA.
- The court held the panel-selection process violated Article 25, UCMJ, because it systematically excluded enlisted personnel below E-7 as a class.
- The military judge erred by denying the defense motion for a new panel.
- The court authorized a rehearing.

## Legal Principles

- Article 25, UCMJ requires member selection based on who, in the convening authority’s judgment, is best qualified by factors such as age, education, training, experience, length of service, and judicial temperament.
- Article 25 does not permit selection on the sole basis of rank or grade, and it forbids systematic exclusion of a qualified segment of the military community.
- A structurally skewed nomination pool that functionally supplies the panel can violate Article 25 even if the convening authority retains theoretical discretion to select outside the pool.
- Administrative convenience (including workload-management goals) cannot replace Article 25’s required selection criteria where the effect is broad rank-based exclusion.

## Conclusion

Because the enlisted-member nomination system effectively restricted the pool to E-7 and above and thereby systematically excluded E-6 and below from consideration, the court-martial panel was selected in violation of Article 25; the denial of a new panel was error, requiring reversal and a rehearing.


United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000)