United States v. Bennett

28 M.J. 985, 1989 WL 86693

• Court: U S Air Force Court of Military Review
• Decided: July 26, 1989
• Docket: ACM S28096
• Status: Published

Opinions

DECISION

PER CURIAM:

The appellant was convicted by a military judge sitting alone as a special court-martial of wrongfully using marijuana in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. He was sentenced to a bad conduct discharge, confinement for three months, and reduction to airman basic. During the presentencing portion of his trial, the Government, without objection, introduced the appellant’s airman performance reports and the contents of an unfavorable information file. Also introduced were three letters of reprimand (one for driving a vehicle while drunk and two for failing to make satisfactory weight control progress) and notification of a demotion action under Air Force Regulation 39-30 for unsatisfactory progress on the weight management program. These documents were also admitted without defense objection. See Air Force Regulation (AFR) 111-1, Military Justice Guide, para. 13-4b (30 September 1988).

The defense introduced evidence of a petition for bankruptcy by the appellant. It formed part of the defense mitigation effort to limit adjudged forfeitures. The appellant’s first sergeant had also touched briefly on these matter during the Government’s case on sentencing. Indebtedness problems were mentioned in one of the appellant’s performance reports as well. In final argument, the trial counsel opined that: “I just don’t consider filing for bankruptcy taking care of your finances.” Responding to that portion of the prosecution sentencing argument, the military judge commented that bankruptcy was a legitimate option available to the appellant. He was correct.

It is clear that a member of the military can file a voluntary petition in bankruptcy. See United States v. Swanson, 9 U.S.C.M.A. 711, 26 C.M.R. 491 (1958). The military judge is presumed to know and apply the law properly. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227, 231 (C.M.A.1970); United States v. Gudel, 17 M.J. 1075, 1077 (A.F.C.M.R.1984), pet. denied, 19 M.J. 93 (1984). In light of the military judge’s cautionary comment as to bankruptcy being a permissible path for the appellant, we believe the judge understood the situation here and applied the law correctly.

The findings of guilty and the sentence are correct in law and fact and, upon review of the entire record, are .

AFFIRMED.