Who Is the Court? Appellate Panels, Quorums, and Any Questions

A two-part look at CCA panel composition and United States v. Forrest

Part 1: What is a lawfully composed and acting CCA panel?

UCMJ art. 66(a), 10 U.S.C. § 866(a), sets the floor: each Court of Criminal Appeals (CCA) panel must include at least three appellate military judges. The cases address what happens when fewer than three judges participate in a decision or when a supposed member no longer has authority to serve.
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The cases separate composition from quorum. Composition asks whether a lawful panel exists. Quorum asks how many members of that panel must act before the panel may decide. A two-judge quorum may decide a case. A two-judge panel may not.

Petroff-Tachomakoff: two judges may act as a quorum

In United States v. Petroff-Tachomakoff, 5 C.M.A. 824, 19 C.M.R. 120 (1955), three judges sat on the panel, and two decided the case. The United States Court of Military Appeals (CMA) upheld the decision under a uniform rule that made two members a quorum. The case did not hold that two judges could constitute the panel. It held that two members of an existing three-member panel could exercise the panel's authority.

Elliott: a quorum cannot supply a missing member

United States v. Elliott, 15 M.J. 347 (C.M.A. 1983), marks the limit. The United States Navy-Marine Corps Court of Military Review (NMCMR) decided the case with two assigned judges, while the supposed third judge had not yet taken the oath or begun serving. The government relied on Petroff-Tachomakoff. The CMA distinguished it: three members actually served on the Petroff-Tachomakoff panel, whereas the third member in Elliott had not begun serving. A quorum rule presupposes a lawful panel. It does not create one.

Lee: quorum and composition remain distinct

United States v. Lee, 54 M.J. 285 (C.A.A.F. 2000), reaffirmed that two judges may decide a case when they constitute a majority of a properly constituted panel. The United States Court of Appeals for the Armed Forces (CAAF) left Elliott intact because the two cases address different questions. When three qualified judges are assigned and one does not participate, the issue is quorum. When only two qualified judges make up the panel, the issue is composition.

Lane: a proper panel is a prerequisite to Article 66 review

United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006), took the inquiry beyond internal court procedure. CAAF held that assigning then-Senator Lindsey Graham, a reservist, to an Air Force Court of Criminal Appeals (AFCCA) panel violated the Incompatibility Clause, U.S. Const. art. I, § 6, cl. 2. The defect left the panel unable to complete the Article 66 review the accused was owed. "Only a properly constituted appellate panel can complete the review required by Article 66." Id. at 7 (internal quotation marks omitted). Accordingly, a court asks whether the tribunal was lawfully constituted before it asks whether a quorum acted.

Abdullah: authority must exist when the decision issues

United States v. Abdullah, No. 25-0070/AR, __ M.J. __ (C.A.A.F. June 12, 2026), applied that principle to a judge's status on the day a decision issues. The Army Court of Criminal Appeals (ACCA) decided Abdullah en banc on November 5, 2024. Its former chief judge had retired on October 31, and nothing in the record showed that he had been reassigned to ACCA after retirement. CAAF held that "a case is decided when the court's decision is issued," found the en banc court improperly constituted, and ordered a new Article 66 review. United States v. Forrest, No. 25-0081/AR, slip op. at 4–5 (C.A.A.F. Sept. 21, 2026) (per curiam) (describing and quoting Abdullah).

Abdullah also stressed an affirmative limit on military judicial power. Quoting Weiss v. United States, 510 U.S. 163, 168 (1994), CAAF noted that military judges, appellate judges included, may perform judicial duties only when the appropriate Judge Advocate General assigns them to do so. CAAF also quoted the Army Code of Judicial Conduct, which applies when judges serve in a judicial assignment or perform judicial functions on active duty.
Abdullah reserved a second question: whether then-Senior Judge Elizabeth Walker could take part while on terminal leave. Forrest answers it.

Forrest: continued active duty and assignment

Forrest holds that an appellate judge's participation in an ACCA panel decision "was permissible where she was on active duty and assigned to the ACCA when the case was decided." Slip op. at 2. Senior Judge (COL) Walker wrote ACCA's opinion for a three-judge panel, issued on November 22, 2024. United States v. Forrest, No. ARMY 20200715, 2024 CCA LEXIS 504 (Army Ct. Crim. App. Nov. 22, 2024) (unpublished). A footnote in that opinion noted that she took final action on the case before her retirement. Id. at *1 n.1.

That footnote is a familiar ACCA device. United States v. Hatfield, ARMY 202000410, 2022 CCA LEXIS 62, at *1 n.1 (A. Ct. Crim. App. Jan. 26, 2022) (mem. op.), for example, notes that a judge "decided this case while on active duty." The practice suggests ACCA had long treated a judge's status at the moment of decision as the question that mattered, which is the rule CAAF applied in Abdullah and Forrest.

CAAF built the Forrest record in stages. It first ordered an affidavit establishing when terminal leave began and when Senior Judge Walker retired. United States v. Forrest, 85 M.J. 406, 407 (C.A.A.F. 2025) (order). It later ordered her orders and a declaration stating "where and when she began any follow-up employment." United States v. Forrest, 86 M.J. 462 (C.A.A.F. 2025) (order); slip op. at 3. The resulting record showed continuous active duty from 2001; an assignment as an ACCA judge from July 5, 2019, until retirement; a transition administrative absence from September 20 to 29, 2024; an involuntary separation administrative absence from September 30 to October 9; terminal leave from October 10 until retirement on November 30; and an appointment to her position at CAAF on October 21. Slip op. at 3–4.

CAAF concluded that Senior Judge Walker "was on continuous active duty and assigned as an ACCA judge at the time the case was decided and until the date of her retirement." Slip op. at 5. Relying on former Chief Judge Ohlson's Abdullah concurrence, the Court reasoned that "a person must be properly serving as a CCA judge" to participate in a decision and held that her participation "was not barred by statute or rule." Id.

Forrest is Abdullah's mirror image. A judge who has retired and is no longer assigned cannot participate. A judge who remains on active duty and assigned can, at least on the facts in Forrest.

The rule after Forrest

The cases support a two-step inquiry. First, did at least three qualified, assigned appellate military judges constitute the panel when the CCA issued its decision? Second, if so, did a quorum act? Elliott, Lane, Abdullah, and Forrest govern the first step. Petroff-Tachomakoff and Lee govern the second. The order matters because a quorum rule cannot cure a defect in the tribunal itself.
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That framework settles most panel questions. Forrest presents one more. Senior Judge Walker did not simply remain on active duty while awaiting retirement. She had been away from ordinary duty since September 20, was on terminal leave, and had been appointed to a position at CAAF before ACCA issued its decision, and CAAF developed those facts before ruling. That raises a question separate from whether she remained on active duty and assigned: did she remain authorized to perform Army judicial duties while on terminal leave after her appointment to a position at CAAF?

Part II. Any questions?

Active-duty status, assignment to a court, availability, and authority to perform a judicial act while on terminal leave are related concepts, but are they identical?

1. What does terminal leave do?

Forrest treats terminal leave as a status in which COL Walker remained on continuous active duty. The question of what that status means is not new.

The argument can be stated narrowly: Forrest correctly recognized that COL Walker remained an active-duty officer and that her ACCA assignment had not formally expired. But those facts do not necessarily resolve whether she was authorized to perform ACCA judicial duties while on terminal leave. Spriggs recognizes that terminal leave permits a servicemember to relinquish full-time military duties and begin civilian employment. Section 5534a expressly permits federal civilian employment during that period of continuing military status. Abdullah separately emphasizes authority to perform judicial duties.

Is it necessary to determine whether COL Walker’s leave status permitted her to perform the judicial act at issue, and, if not automatically, whether the record contains an affirmative authorization, recall, or interruption of leave that supplied that authority?

This question does not ask whether terminal leave itself terminated COL Walker’s ACCA assignment. Instead, it asks whether Forrest equated continuing personnel status with authority to perform duty, without examining the legal consequences of the approved leave status that made simultaneous civilian employment possible.
 
In 1947, a district court held that an Army officer on terminal leave was, "for all practical purposes," separated from the service. Her orders stated that she "need not report hereafter to any superior authority" and that "there remained no duty for her to perform." The court treated her active-duty status as technical, maintaining "only that she might be kept on the army payroll." Durant v. Hironimus, 73 F. Supp. 79, 86 (S.D. W. Va. 1947), rev'd, 168 F.2d 288 (4th Cir.), cert. denied, 335 U.S. 818 (1948). The court drew support from a Senate committee's description of an officer on terminal leave as "for practical purposes relieved from active duty" while remaining on the payroll. Id. at 85.

The declaration in Forrest notes an assignment to “Fort Belvoir TC.” My limited finding is that the Transition Center is where the individual is assigned to complete all important classes and requirements before going on leave. This appears to be part of the Soldier for Life-Transition Assistance Program outlined in AR 600-81. Para. 2-9. g. requires commanders at all levels to “Release eligible Soldiers during duty hours to complete the DOLEW and the VA Benefits Briefings I and II, and exempt them from normal duty for the full 24-hour period of each workshop or briefing day and the 12 hours immediately preceding and following each workshop.” The Fort Belvoir TC operates under the Fort Belvoir Personnel Processing Branch, which manages administrative processing for retirees, among others. If the TC operates under the Fort Belvoir Garrison commander, is that effectively assigning the individual to another command for duty? In my Navy experience, you don’t go to the office or perform regular duties during this period—it is your “place” of duty, although you remain assigned to your primary UIC. Does that matter? I'm sure there's someone Army who can correct me on this.

The Fourth Circuit held that an officer "was on active duty" and subject to court-martial. It rejected the line between actual and technical status: status controls, regardless of the reason. Hironimus v. Durant, 168 F.2d 288, 291, 293 (4th Cir.), cert. denied, 335 U.S. 818 (1948). The Army opinion that both courts read captured the tension in one sentence: an officer on terminal leave "is normally not called upon to perform duty" but "is nevertheless in an active duty status." Id. at 290.

The Court of Military Appeals later cited Hironimus, noting that Captain Durant remained a member of the Army "despite her attenuated connection with the military." United States v. Pearson, 13 M.J. 140, 141 (C.M.A. 1982). Pearson drew the same line in its own case: a Guardsman who "had completed the military duties for which he had been ordered to active duty" still "had not completed his active duty." Id. The Tenth Circuit reached the same conclusion for Feres purposes, calling active duty "a formal status" undisturbed by the "nature" of the member's duty. Madsen v. United States, 841 F.2d 1011, 1012–13 (10th Cir. 1987). The rule is statutory: "Leave taken before discharge is considered to be active service." 10 U.S.C. § 701(d). An earlier form of that sentence appears in the 1946 Armed Forces Leave Act, on which Hironimus relied. 168 F.2d at 291.

Two CAAF decisions, both counsel cases, describe the status of the other side. In United States v. Spriggs, 52 M.J. 235 (C.A.A.F. 2000), an Army captain on terminal leave joined a civilian law firm, and CAAF observed that the leave allowed him to relinquish his full-time military duties and begin a civilian career. Id. at 241. In United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2011), a Marine captain on terminal leave "remained a member of the Marine Corps, but in a leave status without any assigned military duties." Id. at 287. Hutchins also characterized terminal leave as a "discretionary status," one that could have been postponed if the case required the counsel's continued service. Id. at 287–89.

None of these cases involves a judge. Durant, Hironimus, Pearson, and Madsen concern status for jurisdiction or Feres; Spriggs and Hutchins concern counsel. Together, they frame a question that Forrest does not reach. Terminal leave keeps an officer on active duty. Under Hutchins's description, it may also leave the officer without assigned military duties. What does an unexpired assignment to ACCA mean during that leave? The answer may be that the assignment simply continues. Alternatively, the leave may suspend it unless someone cancels, postpones, or interrupts the leave. Forrest sided with status, as the Fourth Circuit did, and describes no cancellation or interruption of Senior Judge Walker's leave.

2. What 5 U.S.C. § 5534a does, and does not, do

Section 5534a allows a member on terminal leave pending separation under honorable conditions to accept a federal civilian office or position and draw its pay, in addition to military pay and allowances, for the rest of the leave. 5 U.S.C. § 5534a. Double-dipping is permitted; it is a pay statute. It says nothing about whether the member may also continue performing military duties, judicial or otherwise, during the leave.

3. What affirmatively authorized the ACCA judicial act?

Forrest holds that COL  Walker remained assigned to ACCA and that no statute or rule barred her participation. Abdullah and Weiss frame the matter differently: military judges may perform judicial duties only when the appropriate Judge Advocate General assigns them. Is assignment to the TC a de facto removal from judicial duties on ACCA?
The two framings lead to different inquiries. One asks whether any law prohibited COL Walker from participating. The other asks what authority permitted her to perform an Army judicial duty while on terminal leave and after her appointment to a position at CAAF.

The orders the opinion describes bear on that second inquiry. Each absence and leave order listed her unit as the U.S. Army Legal Services Agency (USALSA), the agency that houses ACCA, and a November 30 order reassigned her from USALSA to the Fort Belvoir Transition Center, the installation office that processes separations and retirements. Slip op. at 4.

4. Why ask about follow-on employment?

CAAF asked COL Walker to state "where and when she began any follow-up employment." Slip op. at 3. Her declaration provided an appointment date: October 21, 2024. Id. at 4.
One reading: the Court wanted to rule out a break in active duty, found none, and let the employment facts do the work by dropping out. Another: the Court thought the facts might matter, received a narrower answer than it asked for, and decided the case without saying whether the gap mattered.

Query. Assume COL Walker was a staff member at CAAF; would not her employment require her to be present for duty at the Court full-time? If she was required to work at the court, then when was she available to work as an appellate judge? Is that conflict relevant, and if so, how is it resolved?

5. Assignment and authority

Abdullah asked whether the judge had authority when the decision was issued, not when the panel drafted or voted. Then Chief Judge Ohlson's phrase, "properly serving as a CCA judge," can support either answer. The government reads it as satisfied by active duty and an unexpired assignment. The other reading asks whether a judge on terminal leave, already appointed to a civilian position elsewhere, was serving as a CCA judge at all when the decision was issued.

The government's answer is straightforward. An assignment does not lapse merely because the officer takes leave. Judges on ordinary leave retain their commissions and seats, and nothing in § 5534a provides that a civilian appointment ends a military assignment. The orders here show her USALSA assignment running unbroken until the day she retired. Under that view, the Judge Advocate General's assignment remained the affirmative authority Weiss requires until retirement ended it. Cf. Hironimus, 168 F.2d at 291 (rejecting a distinction between actual and technical active-duty status).

Does anything remain open

The question is narrow. It does not require concluding that COL Walker ceased being an Army officer when terminal leave began; the status cases and § 701(d) say otherwise. Nor does it require concluding that her CAAF position ended her ACCA assignment; § 5534a allows active-duty status and federal civilian employment to coexist, and the orders show that her USALSA assignment continued until she retired.

Three questions remain that Forrest does not squarely address. First, what authority permits an officer assigned to the TC or on terminal leave to perform an assigned judicial act? Second, is an unexpired assignment sufficient on its own, as the status line from Hironimus through Madsen suggests by analogy? Third, does terminal leave affect a judicial designation in a way it does not affect status, as Hutchins's description of an officer "without any assigned military duties" might suggest?

Forrest settled the practical question: COL Walker's participation stands. Whether status and assignment are the full answer, or only as much of the answer as the Court needed to decide Forrest, remains open.