
    UNITED STATES, Appellee v RONALD C. MOTLEY, Private, U. S. Army, Appellant
    15 USCMA 61, 35 CMR 33
    No. 17,610
    September 18, 1964
    
      Colonel Joseph L. Chalk, and Captain Charles W. Schiesser were on the brief for Appellant, Accused.
    
    
      Lieutenant Colonel Francis M. Cooper and Captain Charles M. Pallesen, Jr., were on the brief for Appellee, United States.
    
      
      . Brief under Article 38(c), Uniform Code of Military Justice, 10 USC § 838, filed by Trial Defense Counsel, Captain Jack A. Mullins.
    
   Opinion of the Court

Quinn, Chief Judge:

The accused was convicted of rape and assault and battery, in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 USC §§ 920 and 928, respectively. When the case was before the board of review, the accused contended the method by which the enlisted members of the court-martial were selected arbitrarily excluded enlisted persons in the lower ranks. The contention rests exclusively on statistics as to the composition of courts-martial with enlisted persons within the convening authority’s command, and Army figures for the period from 1959 to 1963. In some of the cited cases, the statutory preference for court members senior in rank to the accused clearly supports the appointment of senior noncommissioned officers. In any event, the proof falls far short of the charge of discrimination in the selection process. Our opinion in United States v Crawford, 15 USCMA 31, 35 CMR 3, provides a full answer to the accused’s challenge.

The decision of the board of review is affirmed.

Kilday, Judge

(concurring in the result) :

I concur in the result.

For the reasons set forth in my separate opinion in United States v Crawford, 15 USCMA 31, 35 CMR 3, I concur in the affirmance of the decision of the board of review.

Ferguson, Judge

(dissenting):

I dissent.

The affidavits and other materials filed in this case indicate that the “request from the Staff Judge Advocate normally requests from 4 to 6 noncom-missioned officers in grade of E-7 or above.” The copies of orders appointing other courts-martial bear out the defense contention that nominations for court membership have systematically been limited to senior noncommis-sioned officers. For the reasons set forth in my separate opinion in United States v Crawford, 15 USCMA 31, 35 CMR 3, I disagree with the affirmance of accused’s conviction. I would reverse the decision of the board of review and order another trial before a properly constituted court-martial.  