United States v. Boles

11 M.J. 195, 1981 CMA LEXIS 14508
CourtUnited States Court of Military Appeals
DecidedJune 15, 1981
DocketNo. 38,418; ACM S24825
StatusPublished
Cited by31 cases

This text of 11 M.J. 195 (United States v. Boles) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boles, 11 M.J. 195, 1981 CMA LEXIS 14508 (cma 1981).

Opinions

Opinion of the Court

FLETCHER, Judge:

Consistent with his pleas, the appellant was found guilty of larceny of motorcycle parts of some value, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. On August 21, 1979, the members of his special court-martial sentenced him to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $279.00 pay per month for 6 months and reduction to E-l.1 The convening and supervisory authorities approved this sentence. The United States Air Force Court of Military Review reduced the approved sentence of confinement and forfeitures by a period of 2 months due to the improper admission of evidence of the appellant’s pri- or service use of drugs, but otherwise affirmed the findings and sentence.

The issue granted for review (9 M.J. 4 (1980)) by this Court is:

WHETHER THE LETTER OF REPRIMAND GIVEN TO THE APPELLANT FOR AN ALLEGED OFF-BASE, OFF-DUTY FIRE-BOMBING WAS ADMISSIBLE TO AGGRAVATE THE SENTENCE SINCE THE APPELLANT WAS STILL PENDING TRIAL FOR THE OFFENSE IN CIVILIAN COURTS.

This letter of reprimand was administrative rather than punitive in nature because it was not a product of a court-martial or Article 15, UCMJ, 10 U.S.C. § 815, proceeding. Para. 128c, Manual for Courts-Martial, United States, 1969 (Revised edition). See paras. 126/ and 131c, Manual, supra. It was issued to the appellant by his immediate commanding officer on August 15, 1979. The latter ordered it included in the appellant’s Unfavorable Information File (UIF) on August 16, 1979, five days before his court-martial for the larceny offense. See generally Unfavorable Information Files (UIFs), Control Rosters, Administrative Reprimands and Admonitions, AFR 35-32 (September 22,1975, as amended by Change 2, July 10,1978).2 It was actually placed in his file on August 17, 1979. The letter states:

1. Preliminary investigation has disclosed that you did, at Clovis, N.M., on or about 5 Aug. 79, willfully and maliciously throw a molotov cocktail that set fire to the house door and automobile, the property of Tony Garcia.
2. You are hereby reprimanded. By your conduct you adversely reflected upon yourself as a member of the United States Air Force. Further, incidents of this nature will not be tolerated and it is expected that your future conduct will set and [sic] example for your fellow associates.

The letter of reprimand was also accompanied by a report of the civilian police investigation of this offense. See para. 5a. It included inter alia a report of the appellant’s arrest and his purported confession.

Defense counsel objected to the introduction at trial of these matters as evidence to be considered by the members in arriving at an appropriate sentence for the appellant’s larceny offense. He argued that such evidence was inflammatory and hurriedly prepared for court-martial rather than for the legitimate administrative purposes intended in the service regulations. Trial counsel responded that such matters were included in the appellant’s UIF in accordance with service regulations for the purpose of aggravating the appellant’s case. The military judge reviewed the applicable service regulations and overruled the objection without comment. The exhibit was admitted by the military judge. Later, trial counsel examined defense witnesses with respect to this alleged civilian offense and [197]*197made repeated direct references to it in his closing argument on sentence.

The first question we must address is whether prosecution. exhibit 4, which contained the above materials, was properly admitted by the military judge during the sentencing portion of appellant’s court-martial. Article 36, UCMJ, 10 U.S.C. § 836; see generally para. 75, Manual, supra. If this evidence was inadmissible at the court-martial, we must then determine whether the appellant was prejudiced as a result of its erroneous admission by the military judge. Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970).

I

Government counsel argues that evidence of alleged criminal misconduct by the appellant in the civilian community was admissible during the sentencing portion of his court-martial under paragraph 75d, Manual, supra. See generally United States v. Mack, 9 M.J. 300, 315-19 (C.M.A. 1980). He first asserts that such information was properly maintained in appellant’s UIF in accordance with departmental regulations. See generally AFR 35-32. Secondly, he notes that because a UIF is a record maintained at the Consolidated Base Personnel Office (CBPO) (para. 3) as a personnel record of the appellant’s past conduct, it automatically qualifies for admission at the court-martial under the above Manual provision. Para. 5-13, AFM 111-1 (5 March 1979). We find such an argument to be unpersuasive in the present case.

A similar question involving civilian criminal misconduct was addressed in United States v. Cook, 10 M.J. 138 (C.M.A.1981). There, this Court held that a record of a Florida procedure of withholding adjudication after a plea of guilty was a record of “civil court convictions, or judgments equating to convictions” within the meaning of paragraph 5b(2), AFR 35-32.3 We held that it was properly included in the appellant’s UIF in accordance with this provision of the regulation and was admissible as evidence at Cook’s court-martial as a personnel record of past conduct under paragraph 75d, Manual, supra.

In the present case, information concerning the appellant’s alleged involvement in a civilian criminal offense was included in the appellant’s UIF by means of an administrative letter of reprimand and accompanying documentation. Unlike the situation in United States v. Cook, supra, no serious argument can be made that this administrative action falls within the ambit of paragraph 5b(2). Moreover, the Government would also be sorely pressed to argue that the civilian police report with its record of arrest and purported confession is a “civil court convictio[n] or judgmen[t] equating to [a] convictio[n],” since appellant had not yet been tried in the civilian community. Accordingly, this information could not properly be included in the appellant’s UIF on the basis of the particular regulatory provision utilized in United States v. Cook, supra, nor could it be admitted at the court-martial in this evidentiary posture.

Nevertheless, the Government asserts that an administrative reprimand and its accompanying documentation themselves are properly included in the appellant’s UIF under a different provision of this same regulation. See para. 5a(7).4 Therefore, it argues that all the above information concerning allegations of civilian criminal misconduct could be maintained as a personnel record in accordance with this regulatory [198]

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11 M.J. 195, 1981 CMA LEXIS 14508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boles-cma-1981.