## Facts

- A U.S. Navy instructor was charged under the UCMJ with wrongfully socializing with students, maltreating a subordinate, wrongful use of marijuana, and consensual sodomy.
- An Article 32 pretrial investigation recommended trial by general court-martial.
- The accused’s commanding officer served as the special court-martial convening authority and forwarded the charges to the general court-martial convening authority with a recommendation for trial by general court-martial.
- The accused moved to dismiss for selective and vindictive prosecution, alleging the commander had a personal motive stemming from jealousy related to the commander’s future wife.
- The military judge denied dismissal; the Navy-Marine Corps Court of Military Review affirmed; the case was reviewed by the United States Court of Military Appeals.

## Issues

1. Whether a special court-martial convening authority who is an “accuser” under Article 1(9), UCMJ (having an interest other than an official interest in the prosecution) is disqualified from ordering an Article 32 investigation.
2. Whether such an accuser is disqualified from recommending referral to a general court-martial when forwarding charges to the general court-martial convening authority.
3. Whether allegations of personal animus and jealousy established selective or vindictive prosecution requiring dismissal.

## Decision

- The court held that a special court-martial convening authority who qualifies as an accuser is disqualified from ordering an Article 32 investigation.
- The court held that such an accuser is also disqualified from recommending referral to a general court-martial when forwarding charges.
- The court treated the matter primarily as one of statutory and regulatory disqualification from pretrial roles, rather than adopting automatic dismissal based solely on claimed vindictiveness.
- The court required corrective action to address improper participation by a disqualified commander, with the scope of relief tied to eliminating taint and assessing prejudice rather than per se dismissal.

## Legal Principles

- Under Article 1(9), UCMJ, an “accuser” is one with an interest in the prosecution other than an official interest.
- Accuser status is assessed by whether the commander is so closely connected to the matter that a reasonable person would conclude the commander has a personal interest.
- An accuser is barred not only from convening a court-martial under Articles 22(b) and 23(b), UCMJ, but also from performing key pretrial functions that materially influence prosecution decisions.
- A disqualified accuser may not order an Article 32 investigation and may not recommend referral to general court-martial; the proper course is to forward the matter to an unconflicted superior authority.
- Claims framed as selective or vindictive prosecution may be addressed through the accuser-disqualification framework, with relief focused on ensuring an untainted decisionmaking process and evaluating prejudice.

## Conclusion

United States v. Nix establishes that a special court-martial convening authority with an other-than-official personal interest in an accused’s prosecution is an accuser and is disqualified from ordering an Article 32 investigation and from recommending referral to a general court-martial, requiring remedial action to remove any taint from pretrial disposition decisions.


United States v. Nix, 40 M.J. 6 (C.M.A. 1994)