Hiatt v. Brown/Concurrence Burton

Mr. Justice BURTON, concurring.

I concur on the ground that the clause in the 8th Article of War, which deals with the availability of an officer of the Judge Advocate General's Department and is here at issue, is purely directory, and not jurisdictional. The 8th Article, in any event, calls for the appointment as the law member of a general court-martial of an officer meeting certain specifications. He must be either an officer of the Judge Advocate General's Department or he must be selected by the appointing authority as specially qualified for his duties. The unavailability of an officer of the Judge Advocate General's Department merely opens the field of eligibility to other branches of the service.

It may be assumed that, when the general court-martial involved in this case was appointed, it was a jurisdictional requirement that there be a law member appointed to it. It also may be assumed that it was a jurisdictional requirement that, if the appointing authority determined that no officer of the Judge Advocate General's Department was then 'available for the purpose,' such authority was restricted to the appointment of 'an officer of some other branch of the service selected by (him) * *  * as specially qualified to perform the duties of law member.' (Emphasis supplied.) If the officer who was appointed met neither requirement, it may be assumed that the court-martial would have been without jurisdiction. If, however, as in this case, it is not questioned that the law member met the second requirement, I believe that we should not permit a review here of the discretion used by the appointing authority in determining the preliminary administrative question of whether or not an officer of the Judge Advocate General's Department was 'available for the purpose.' We should not permit it, even if it is alleged that the appointing authority's discretion in this regard was grossly abused. That detail was a matter within his administrative responsibility and should not be available as a basis for collateral attack upon the jurisdiction of an otherwise qualified and competent general court-martial.