12 M.J. 539 | U S Air Force Court of Military Review | 1981
DECISION
Accused, pursuant to his pleas, stands convicted of three specifications of making false official statements in violation of Article 107, Uniform Code of Military Justice, 10 U.S.C. § 907. He was sentenced to a bad conduct discharge.
The first error asserted by appellate defense counsel is that the plea was improvident because the specifications do not allege an offense under Article 107 of the Code. They contend that since the accused, during
Paragraph 186 of the Manual for Courts-Martial, 1969 (Rev.), contemplates the signing of documents as a basis for making a false official statement. The fact that the falsity alleged was a spurious signature does not withdraw the act from the scope of Article 107. United States v. Pineo, 31 C.M.R. 347 (A.B.R. 1961), pet. denied 31 C.M.R. 314; see also United States v. Davenport, 9 M.J. 364 (C.M.A. 1980).
The second assigned error urges that the military judge erred in admitting two records of nonjudicial punishment and a vacation proceeding over the objections of defense counsel. Defense counsel contended that the first Article 15, 10 U.S.C. § 815, was incomplete on its face and thus inadmissible in accordance with United States v. Negrone, 9 M.J. 171 (C.M.A. 1980) and United States v. Cross, 10 M.J. 34 (C.M.A. 1980).
At trial it was established that the commander failed to sign the first page of Prosecution Exhibit 16, an AF Form 3070, Notification of Intent to Impose Non judicial Punishment, dated 20 November 1978. The endorsement returned by the accused a week later clearly established he was fully aware of his rights under Article 15 and his right to demand trial. After a personal hearing, punishment was imposed and the accused so informed. He did not appeal.
The military judge found that the failure of the commander was a procedural error which did not violate any due process rights. While we do not condone such inattention to important matters, we likewise conclude that the missing signature was a procedural error. In Negrone, supra and Cross, supra the omissions went to the core of the accused’s rights under Article 15 and the issue of whether he wished to demand trial. Here the accused was fully informed, counsel was provided and a personal hearing was held. There is no question that the commander did, in fact, intend to impose non judicial punishment, and that the accused knew such when he accepted such punishment. Thus, the administrative error did not prejudice the accused.
Prosecution Exhibit 17 is a record of nonjudicial punishment, imposed on 22 February 1980, and Prosecution Exhibit 18 a record of proceedings to vacate the suspended punishment imposed earlier. The “Notification of Intent to Impose Nonjudicial Punishment” was signed on 24 January 1980, by Major James R. Young II, the commander. The punishment was accepted by the accused and imposed on 22 February 1980, by Lieutenant Colonel Paul McCartin, Jr., the successor commander. At trial the defense counsel contended that Prosecution Exhibit 17 was not completed in accordance with Air Force Regulation 111-9, Non Judicial Punishment, 17 July 1979, para. 6h(l-2) in that the accused was not notified in writing that a different commander would impose punishment. The military judge found that the accused was verbally told, thus placed on actual notice; and that therefore, the lack of written notice was non-prejudicial.
The military judge erred in this regard. Air Force Regulation 111-9, supra, created a substantive right for the accused in requiring that Article 15 recipients be notified in writing whenever the commander imposing the punishment is different than the one signing the letter of notification. The Air Force must abide by its own regulations when the intent of such regulations is the protection of personal rights. United States v. Russo, 50 C.M.R. 650 (C.M.A. 1975). Prosecution Exhibit 17, a record of nonjudicial punishment imposed on 22 February 1980, and Prosecution Exhibit 18, a proceeding to vacate that punishment, should not have been admitted into evidence.
We have considered the remaining assignment of error and resolved it adverse
AFFIRMED.
