Overview

The Navy-Marine Corps Court of Criminal Appeals (NMCCA) decided United States v. Selleneit on 17 March 2026, affirming the findings and sentence of a general court-martial tried at Naval Station Rota, Spain. Fire Controlman Aegis Petty Officer Second Class (E-5) George B. Selleneit faced charges of sexual assault under Article 120, UCMJ, and unlawful entry under Article 129, UCMJ. A panel of officer and enlisted members acquitted him of sexual assault but convicted him of unlawful entry. The court sentenced Selleneit to reduction to E-3, restriction to USS Porter for two months, and forfeiture of all pay and allowances for two months (with the convening authority waiving forfeitures above two-thirds pay per month).

Factual Background

In April 2019, Operations Specialist Second Class (OS2) Alpha arrived at her new duty station at Naval Station Rota, Spain. Selleneit and OS2 Alpha were acquaintances from a prior posting, and they ran into each other by coincidence shortly after her arrival. Selleneit helped OS2 Alpha check into her first-floor barracks room. During the check-in, Selleneit asked if he could open the window. OS2 Alpha refused, telling Selleneit she did not feel safe with a first-floor window open. Selleneit opened it anyway.

That evening, Selleneit invited OS2 Alpha to a local off-base bar. During the evening, OS2 Alpha left the bar without telling Selleneit. When Selleneit realized she had gone, he returned to base, went to OS2 Alpha’s barracks room, and knocked on her door. OS2 Alpha did not answer. Selleneit then approached and entered her room through the window. A sexual encounter followed. Prosecutors charged Selleneit with sexually assaulting OS2 Alpha and with unlawful entry. Members acquitted him of sexual assault but convicted him of unlawful entry.

Erroneous SJA Advice

Selleneit argued that the convening authority violated Article 25, UCMJ, when he excluded potential members whose grade was E-5 and below, and when he considered only the names the Staff Judge Advocate (SJA) provided.

What the SJA Did Wrong

On 8 April 2022, the SJA sent an Article 25, UCMJ, advice letter to the convening authority. That letter instructed the convening authority to select members who were commissioned officers, warrant officers, or enlisted persons ‘over the rank of E-5.’ The SJA repeated the same erroneous language in a follow-up excusal letter dated 22 April 2022.

The SJA assembled a roster of 19 prospective members and attached it to the 8 April 2022 letter. The convening authority selected 15 members from that list. The court later directed the Government to produce the SJA’s explanatory email—dated 2 May 2022—in which the SJA admitted the ‘over the rank of E-5’ language was inadvertent. He explained that the error arose because of difficulties he had finding members senior to the accused in a different court-martial involving a very senior E-5, and that he should have instructed the convening authority to select members ‘senior to the accused’ rather than ‘over the rank of E-5.’

The NMCCA held that the SJA’s advice had the practical effect of excluding all personnel in the grade of E-5 and below—a clear violation of Article 25, UCMJ, which restricts only members junior to the accused in rank or grade, not entire pay grades.

Standard of Review and the Dowty Framework

The court reviewed the member selection issue de novo as a question of law, applying the three-factor framework from United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004): (1) whether the convening authority acted with improper motive; (2) whether the process systematically excluded otherwise qualified members on an impermissible basis; and (3) whether the Government made good-faith efforts to keep the process open and inclusive.

The court also drew on United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2011), for the proposition that where the government intentionally includes or excludes a class of eligible members, the government must demonstrate that the error caused no harm—specifically that it did not ‘materially prejudice the substantial rights of the accused.’ The defense bears the initial burden of showing improper exclusion; if it succeeds, the burden shifts to the Government.

Why the Court Found No Prejudice

Although the court found that the SJA’s advice crossed the line under Dowty factor two—systematically excluding qualified prospective members by grade—it found that Appellant’s substantial rights suffered no prejudice. Seven key findings supported that conclusion:

First, the convening authority was a person lawfully authorized to convene a general court-martial. Second, the members ultimately selected met every requirement of Article 25, UCMJ. Third, the convening authority personally selected the panel from a pool of eligible candidates. Fourth, the convening authority understood that the selection decision was his alone, anchored in each candidate’s age, education, training, experience, length of service, and judicial temperament. Fifth, the military judge presided over vigorous voir dire during which Selleneit successfully challenged several venire members, and the members who ultimately sat all acknowledged their duty to follow the judge’s instructions and decide the case fairly and impartially. Sixth, the members acquitted Selleneit of the most serious charge—sexual assault—and its specifications. Seventh, the members imposed a lenient sentence.

Relying on United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), which holds that an administrative error in the Article 25 selection process requires a showing of prejudice, and on United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000), and United States v. Bartee, 76 M.J. 141 (C.A.A.F. 2017), the court concluded that the SJA’s erroneous advice, though flawed, did not materially prejudice Selleneit’s substantial rights.

The Military Judge Did Not Abuse His Discretion When He Denied Appellant’s Request For A Novel Instruction Relating to Appellant’s Defense of the Unlawful Entry Charge

The Defense Proposed a Non-Standard ‘Innocent Trespass’ Instruction

Selleneit’s defense counsel requested the following specially tailored jury instruction:

“The evidence has raised the issue of good faith on the part of the Accused concerning OS2 Alpha’s health and well-being in relation to the offense of unlawful entry. The Accused is not guilty of the offense of unlawful entry if (1) there was an innocent trespass, and (2) it was committed either unintentionally or in good faith. The burden is on the prosecution to prove the Accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged offense, the Accused did not have a good faith then the defense of innocent trespass does not exist.”

Defense counsel argued that four pieces of evidence raised the ‘innocent trespass’ issue: (1) OS2 Alpha had left Selleneit at the bar without telling him; (2) after she left, Selleneit went to look for her; (3) Selleneit entered through the window to ‘check’ on OS2 Alpha; and (4) OS2 Alpha had a history of inviting Selleneit into her room at a previous posting in Virginia.

Standard of Review

Whether members received proper instructions is a question of law the NMCCA reviewed de novo. Whether to give a particular instruction, however, rests within the military judge’s discretion—the court reviews that decision for an abuse of discretion. Under United States v. White, 69 M.J. 236 (C.A.A.F. 2010), the abuse-of-discretion standard requires more than a mere difference of opinion; the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.

A military judge must instruct members on any affirmative defense that is ‘in issue.’ Under United States v. Schumacher, 70 M.J. 387 (C.A.A.F. 2011), an affirmative defense is ‘in issue’ when ‘some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose.’ United States v. Maynulet, 68 M.J. 374 (C.A.A.F. 2010) and United States v. McDonald, 57 M.J. 18 (C.A.A.F. 2002) confirm that while the military judge enjoys substantial discretionary power in choosing instructions, he must ensure those instructions are accurate, complete, and intelligible, tailored to the circumstances of the case.

Why the Military Judge Was Right to Refuse the Instruction

The military judge denied the requested instruction after finding that the evidence did not raise innocent trespass. The NMCCA agreed. The court emphasized that even if the proposed instruction were legally sound—an issue the court expressly declined to resolve—the military judge correctly found that defense counsel had not shown ‘some evidence’ putting innocent trespass in issue.

The record contained no evidence that Selleneit’s late-night entry through OS2 Alpha’s window was, in fact, ‘innocent.’ The court applied United States v. Schumacher, 70 M.J. 387 (C.A.A.F. 2011) and found the military judge’s rejection of the proposed instruction well within the bounds of his broad discretion. The court also noted that the cited precedent—United States v. Rockwell, No. ARMY 20011057 (Army Ct. Crim. App. June 28, 2004)—addressed factual sufficiency and did not support the instruction for the purpose defense counsel intended.

The NMCCA further confirmed that the military judge’s final instructions sufficiently covered the issues in the case and focused on the evidence presented, consistent with United States v. McDonald, 57 M.J. 18 (C.A.A.F. 2002).

Outcome

The NMCCA affirmed both the findings and the sentence, concluding that no error materially prejudiced Selleneit’s substantial rights under Articles 59 and 66, UCMJ. The court confirmed: (1) the SJA’s Article 25 advice was erroneous but caused no prejudice; (2) the military judge acted within his discretion in refusing the novel ‘innocent trespass’ instruction; (3) the sealed appellate exhibits issue lacked merit; and (4) the non-unanimous verdict was constitutionally permissible.

Defending Service Members at Courts-Martial: Cave & Freeburg, LLP

When your military career, freedom, and reputation are on the line, you need counsel who understands every dimension of military justice—from member selection challenges to the most technical evidentiary disputes.

Cases like United States v. Selleneit demonstrate that courts-martial raise complex, multi-layered legal issues that require aggressive, experienced advocacy at every stage—from the convening authority’s initial member selection through the appellate courts. A single procedural misstep by the government can create grounds for relief, but only if defense counsel recognizes and pursues it with precision.

Cave & Freeburg, LLP brings deep, specialized experience to courts-martial defense across all branches of the U.S. Armed Forces. The firm’s attorneys have successfully handled courts-martial involving the full spectrum of charges—from unlawful entry and sexual assault allegations to fraud, drug offenses, and complex financial crimes. Cave & Freeburg counsel understand the unique constitutional and statutory framework that governs military proceedings: Article 25 member selection, R.C.M. 920 jury instructions, voir dire strategy, and post-trial and appellate practice before the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces (C.A.A.F.).

The firm’s attorneys have litigated the precise issues that decided Selleneit—including challenges to panel composition under the Dowty factors, instruction disputes under Schumacher and McDonald, and constitutional challenges to non-unanimous verdicts. Whether facing charges at a special or general court-martial, service members trust Cave & Freeburg to fight for the best possible outcome at every level of the military justice system.

If you or a family member faces court-martial charges, contact Cave & Freeburg, LLP today for a confidential consultation. Time-sensitive military proceedings require immediate, knowledgeable action.

 

This analysis is provided for informational and educational purposes–it is not legal advice. More general information about trials and appeals can be found at court-martial.com