14 M.J. 64 | United States Court of Military Appeals | 1982
Lead Opinion
Opinion of the Court
Appellant was tried by military judge sitting alone as a general court-martial on three specifications of unauthorized absence, in violation of Article 86 of the Uniform Code of Military Justice, 10 U.S.C. § 886. Pursuant to his pleas of guilty, he was found guilty and sentenced to a bad-conduct discharge, confinement at hard labor for 8 months, total forfeitures, and reduction to the lowest pay grade. Because the convening authority concluded that the plea of guilty to one of the specifications
On June 20, 1980, a rehearing on the same three specifications took place before the same military judge, who again was sitting alone as a general court-martial.
I
Both at the first trial and the rehearing, the prosecution — without defense objection — offered into evidence portions of appellant’s service record. Prosecution exhibit 1 — appellant’s “Enlisted Performance Record” — consisted of page 9 of Kline’s record and reflected the various ratings that he had received during his enlistment as to these five traits: professional performance, military behavior, leadership and supervisory ability, military appearance, and adaptability. Prosecution exhibits 2, 3, and 4 were extracts of “Administrative Remarks” entered on page 13 of appellant’s service record.
Several of the ratings given Kline — as reflected in prosecution exhibit 1 — fell below 3.0 and so, under Naval directives, they were “adverse.” See para. 2-4, Navmilperscominst 1616.1, August 10, 1979. Naval regulations require that “[ajdverse matter ... not be placed in ... [a sailor’s service] record ... without his knowledge” and without an opportunity to make “such statement as he may choose ... If ... [he] does not desire to make a statement,” then he should “state [this] in writing.” Article 1110, United States Navy Regulations, 1973.
On its face prosecution exhibit 1 would appear to have been properly prepared. However, prosecution exhibits 2, 3, and 4 apparently were introduced by the Government — perhaps in an excess of caution — in order to show compliance with the requirements of Article 1110. Prosecution exhibit 3 (see appendix) was fully and correctly completed but the other two were not. While prosecution exhibit 2 contains entries purporting to advise Kline of his “adverse” ratings for July 31, 1978,
Finally, appellant notes that, when his military performance rating of 1.0 was entered for July 31,1978, he was an unauthorized absentee and that the Bureau of Naval
II
Paragraph 75d of the Manual for Courts-Martial, United States, 1969 (Revised edition), was the provision under which the prosecution offered these exhibits. At the time of appellant’s court-martial, the trial counsel was allowed to present during sentencing proceedings any “[personnel records of the accused ... made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” Clearly, prosecution exhibits 2 and 4 do not meet this standard. Accordingly, they were inadmissible. See United States v. Boles, 11 M.J. 195 (C.M.A.1981).
In the absence of the other exhibits, the presumption of regularity would have sustained the admissibility of prosecution exhibit 1, which contains no defect on its face. However, when the other exhibits offered into evidence at the same time make clear that the entries on prosecution exhibit 1 were not made in accordance with regulations, that presumption is dispelled.
Nonetheless, the Government urges this Court to hold that appellant waived any evidentiary objection by his failure to object to the exhibits at trial. Indeed, at the time of trial paragraph 75 d provided specifically that “[objections” to records such as these “not asserted will be regarded as waived.” However, in United States v. Mack, 9 M.J. 300, 321 (C.M.A.1980), we reminded:
Under our decisions the failure to object to an official record [from the personnel records of an accused submitted under the provisions of paragraph 75d] because it was not completed as required by applicable regulations has not relieved the military judge of the duty to exclude the document. United States v. Negrone, ... [9 M.J. 171 (C.M.A.1980)]; United States v. Morales, 1 M.J. 87 (C.M.A.1975).
Where nothing on the face of a document indicates that it has not been prepared in accord with regulations, the failure to object — and thereby to place the judge on notice — waives an objection that the document was not properly prepared. However, where, as here, a companion document introduced at the same time makes it clear that an exhibit was not prepared as required by applicable regulations, the judge was under an obligation sua sponte to exclude that document as incompetent hearsay. See para. 139a, Manual, supra.
Ill
Although we conclude that prosecution exhibits 2 and 4, as well as the corresponding portions of prosecution exhibit 1, were inadmissible, it also is clear that appellant was not prejudiced by this error. In this connection, we acknowledge that Kline introduced significant evidence in extenuation and mitigation and that, both at the original trial and the rehearing, trial counsel stated that the Government was not specifically asking for a bad-conduct discharge but was leaving this to the discretion of the military judge. Furthermore, trial counsel in his argument on sentence emphasized the poor quality of appellant’s performance of duty, as demonstrated by the ratings in his service record — ratings which we now hold were inadmissible. Nonetheless, when we consider that appellant was found guilty of three absences totaling approximately 15 months and that the sentence finally approved pursuant to
Accordingly, the .decision of the United States Navy-Marine Corps Court of Military Review is affirmed.
. No challenge was made to the military judge and appellant again specifically requested trial by judge alone.
. Two of the marks noted on prosecution exhibit 2 — 3.0 in professional performance and 3.0 in adaptability — are at variance with the marks on prosecution exhibit 1 to which they referred — 2.8 in each instance.
. Specification 3 of the Charge.
. Of course, United States v. Mack, 9 M.J. 300 (C.M.A.1980), was a case tried prior to the effective date of the Military Rules of Evidence.
Dissenting Opinion
(concurring in the result):
I concur in the result. See my dissenting opinion in United States v. Boles, 11 M.J. 195, 201 (C.M.A.1981).
