Personnel records reflecting character of prior service. RCM 1001(b)(2)

uscourtmartiallawyers671. “Under regulations of the Secretary concerned, trial counsel may obtain and introduce from the personnel records of the accused evidence of . . . character of prior service” (emphasis added). These records may include personnel records contained in the Official Military Personnel File (OMPF) or located elsewhere, unless prohibited by law or other regulation. Army Regulation (AR) 27-10, para. 5-29a implements RCM 1001(b)(2).

2. AR 27-10, para. 5-29a illustrates, in a non-exclusive manner, those items qualifying for admissibility under RCM 1001(b)(2) and (d).

3. Personnel records are NOT limited to matters contained in a service member’s Military Personnel Records Jacket (MPRJ), OMPF or Career Management Information File (CMIF). AR 27-10, para. 5-29a. The rule of United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994) (holding that personnel records are only those records in the OMPF, MPRJ, and CMIF) is no longer good law. The key is whether the record is maintained IAW applicable departmental regulations.

a)United States v. Davis, 44 M.J. 13 (1996). By failing to object at trial,

appellant waived any objection to the admissibility of a Discipline and
Adjustment (D&A) report created and maintained by the United States
Disciplinary Barracks in accordance with a local regulation. The Court of
Appeals for the Armed Forces (CAAF) did not decide whether the report was
admissible under RCM 1001(b)(2).

b)United States v. Fontenot, 29 M.J. 244 (C.M.A. 1989). Handwritten

statements attached to appellant’s DD Form 508s (Report of/or Recommendation
for Disciplinary Action) made during the appellant’s pretrial confinement not
admissible under RCM 1001(b)(2). The miscellaneous pieces of paper that
accompanied the DD 508s were not provided for in the applicable departmental
regulation, AR 190-47. The Court of Military Appeals (CMA) did not decide
whether the DD 508s themselves were admissible. Id. at 248 n.2.

c)United States v. Ariail, 48 M.J. 285 (1998). National Agency

Questionnaire, DD Form 398-2, completed by accused and showing history of
traffic offenses, was admissible under RCM 1001(b)(2), where it did not meet
admission criteria under RCM 1001(b)(3) [prior conviction].

d)United States v. Douglas, III, 57 M.J. 270 (2002). A stipulation of fact

from a prior court-martial as evidence of a prior conviction was properly
admissible under RCM 1001(b)(2) not RCM 1001(b)(3) as part of a personnel
record.

e) United States v. Lane, 48 M.J. 851 (A.F. Ct. Crim. App. 1998). AF Form

2098 (reflecting the current AWOL status of the accused who was tried in
absentia
) was admissible pursuant to RCM 1001(b)(2).

f) United States v. Reyes, 63 M.J. 265 (2006). During the sentencing phase,

the trial counsel offered into evidence Prosecution Exhibit (PE) 6, which was
represented to be “excerpts” from Reyes’s Service Record Book. Apparently,
neither the defense counsel nor the military judge checked PE 6 to make sure it
was free of any defects, as it was admitted without objection. There were a
variety of unrelated documents “[t]ucked between the actual excerpts” from the
Service Record Book. Such documents included the entire military police
investigation, the pretrial advice from the SJA, inadmissible photographs, and
appellant’s pretrial offer to plead guilty to charges on which the members had
just acquitted appellant. The sentence was set aside and a rehearing authorized.

4. Article 15s.

a) Ordinarily, to be admissible in sentencing, the proponent must show that

that the accused had opportunity to consult with counsel and that accused waived
the right to demand trial by court-martial. United States v. Booker, 5 M.J. 238
(C.M.A. 1978); United States v. Mack, 9 M.J. 300 (C.M.A. 1980). Absent
objection by defense counsel, however, Military Rule of Evidence (MRE) 103
does not require the military judge to affirmatively determine whether an accused
had an opportunity to consult with counsel and that the accused waived the right
to demand trial by court-martial before admitting a record of nonjudicial
punishment (NJP)
(an accused’s “Booker” rights). Absent objection, a military
judge’s ruling admitting evidence is subject plain error analysis. See United
States v. Kahmann
, 59 M.J. 309, 313 (2004). See also United States v. Dyke, 16
M.J. 426 (C.M.A. 1983) (suggesting without holding that MRE 103 applies to

MJ’s determination of admissibility of NJP records).

b)

United States v. Edwards, 46 M.J. 41 (1997). Whether a vessel is

operational affects the validity of an Article 15 for its subsequent use at a court-
martial. If the vessel is not operational, for a record of prior NJP to be admissible,
the accused must have had a right to consult with counsel regarding the Article
15.

c) United States v. Dire, 46 M.J. 804 (C.G. Ct. Crim. App. 1997). Accused

was awarded Captain’s Mast (NJP) for wrongful use of marijuana and lysergic
acid diethylamide. He was later charged for several drug offenses, including the
two that were the subject of the earlier NJP. He was convicted of several of the
charged offenses, including one specification covering the same offense subject
to the NJP. Defense counsel failed to object to personnel records with references
to a prior NJP. That failure to object waived any objection.

d) United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (per curiam).

Exhibit of previous misconduct containing deficiencies on its face is not qualified
for admission into evidence. Record of NJP lacked any indication of accused’s
election concerning appeal of punishment, and imposing officer failed to check
whether he conducted an open or closed hearing.

e) United States v. Godden, 44 M.J. 716 (A.F. Ct. Crim. App. 1996).

Accused objected to the admission of a prior record of NJP based on
government’s failure to properly complete the form (absence of the typed
signature block of the reviewing attorney and the dates the form was forwarded
to other administrative offices for processing). The Air Force Court concluded
that the omissions were “administrative trivia” and did not affect any procedural
due process rights.

f) United States v. Gammons, 51 M.J. 169 (1999). The accused was court-

martialed for various offenses involving the use of illegal drugs. The accused had
already received an Article 15 for one of those offenses. At the outset of the trial,
the trial counsel offered a record of NJP. Defense counsel had no objection and,
in fact, intended to use the Article 15 themselves. The court pointed out that
under Article 15(f) and United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), the
defense had a gate keeping role regarding the Article 15. If defense says the
Article 15 is going to stay out, it stays out.

g) United States v. LePage, 59 M.J. 659 (N-M. Ct. Crim. App. 2003).

Military judge erred by admitting PE 3, an NJP action which was stale by § 0141
of the JAGMAN because it predated any offenses on the charge sheet by more
than two years. After noting that “plain error leaps from the pages of this record,”
the court determined that the MJ would not have imposed a BCD but for his
consideration of the prior NJP.

h) United States v. Cary, 62 M.J. 277 (2006). Trial counsel introduced

personal data sheet of the accused erroneously indicating that the accused had
received one prior Article 15. Without an objection from defense counsel, CAAF
proceeded under a plain error standard. Although there may have been error and
it may have been plain, the accused’s rights were not materially prejudiced.

5. Letters of Reprimand.

a) United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993). Applying MRE

403, the court held that the MJ erred in admitting LOR given the accused for

sexual misconduct with his teenage stepdaughter and other teenage girls where
accused was convicted of larceny of property of a value less than $100.00. “[The
reprimand’s] probative value as to his military character was significantly
reduced because of its obvious reliability problems. In addition, it is difficult to
imagine more damaging sentencing evidence to a soon-to-be sentenced thief than
also brandishing him a sexual deviant or molester of teenage girls.” Id. at 283.

b) United States v. Williams, 47 M.J. 142 (1997). Pursuant to a pretrial

agreement, the prosecution withdrew a previously referred additional charge and
specification alleging similar misconduct to original charge. The accused’s
commander then issued a memorandum of reprimand for the same misconduct as
contained in the withdrawn charge. The CAAF held lack of objection at trial
constituted waiver absent plain error, and found none “given the other evidence
presented in aggravation.” Court notes matter in letter of reprimand became
uncharged misconduct on basis of mutual agreement, i.e., pretrial agreement, and
does not address the propriety of trying to “back door” evidence of uncharged
misconduct.

c) United States v. Clemente, 50 M.J. 36 (1999). Two letters of reprimand

in accused’s personnel file properly admitted pursuant to RCM 1001(b)(2), even
though letters were for conduct dissimilar to charged offenses. The CAAF noted
there was no defense challenge to the accuracy, completeness or proper
maintenance of the letters, and the evidence directly rebutted defense evidence.
The court applied an abuse of discretion standard and held that the LORs were
personnel records that did reflect past behavior and performance, and MRE 403
was not abused.

6. Caveats.

a) No “rule of completeness.” Trial counsel cannot be compelled to present

favorable portions of personnel records if unfavorable portions have been
introduced in aggravation. See analysis to RCM 1001(b)(2).

b)RCM 1001(b)(2) cannot be used as a “backdoor means” of admitting

otherwise inadmissible evidence. United States v. Delaney, 27 M.J. 501
(A.C.M.R. 1988) (observing that government cannot use enlistment document
(e.g., enlistment contract) to back door inadmissible prior arrests; cannot then use
police report to rebut accused’s attempted explanations of arrests). Compare with
Ariail,
48 M.J. 285 (1998) (holding that information on NAQ that had
information on prior convictions was admissible under RCM 1001(b)(2)).

c) United States v. Vasquez, 54 M.J. 303 (2001). Plea-bargaining

statements are not admissible (MRE 410) even if those statements relate to
offenses that are not pending before the court-martial at which they are offered. It
was error for the judge to admit into evidence a request for an administrative
discharge in lieu of trial by court-martial. See also United States v. Anderson, 55
M.J. 182 (2001).

7. Defects in documentary evidence.

a) United States v. Donohue, 30 M.J. 734 (A.F.C.M.R. 1990). Government

introduced document that did not comply with AF Reg. requiring evidence on the
document or attached thereto that accused received a copy and had an
opportunity to respond. ISSUE: May Government cure the defect with testimony

that accused did receive a copy and was offered an opportunity to respond? “The

short answer is no.” Why – because the applicable AF Reg. required evidence on
the document itself. Absent a specific regulatory requirement such as that in
Donahue, live testimony could cure a documentary/procedural defect. See also,
United States v. Kahmann, 58 M.J. 667 (N-M. Ct. Crim. App. 2003), aff’d, 59
M.J. 309 (2004) supra.

b) MJ must apply MRE 403 to RCM 1001(b)(2) evidence. See United

States v. Zengel, 32 M.J. 642 (C.G.C.M.R. 1991) (suppressing a prior “arrest”
that was documented in the accused’s personnel records). See also United States
v. Stone
, 37 M.J. 558 (A.C.M.R. 1993); and United States v. Zakaria, 38 M.J.
280 (C.M.A. 1993).

 

RCM 1001(b)(2)

Defects in documentary evidence