United States v. Hardy

21 M.J. 198, 1986 CMA LEXIS 19522
CourtUnited States Court of Military Appeals
DecidedJanuary 13, 1986
DocketNo. 42,589; ACM S25320
StatusPublished
Cited by1 cases

This text of 21 M.J. 198 (United States v. Hardy) 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. Hardy, 21 M.J. 198, 1986 CMA LEXIS 19522 (cma 1986).

Opinion

Opinion of the Court

EVERETT, Chief Judge.

Airman First Class Hardy was tried by a special court-martial composed of a military judge alone. In accordance with his pleas, he was found guilty of possession, use, and transfer of marihuana, and possession and use of cocaine, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge, confinement for 2 months, forfeiture of $200.00 pay per month for 4 months, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged but deferred the confinement, and the supervisory authority approved this action.

However, the Court of Military Review reassessed Hardy’s sentence after it concluded that two errors occurred during the presentencing phase of the trial. Concerning one of those errors, the court below explained:

Prior to admitting in evidence two adverse personnel actions [a record of punishment under Article 15, UCMJ, 10 U.S.C. § 815, and a letter of reprimand] offered by the government for consideration during the sentencing phase of the trial, the military judge questioned the accused to elicit an adequate foundation to establish that the documents were properly entered in the personnel records.

United States v. Hardy, 12 M.J. 883, 884 (1981). The court further elaborated:

In this case, the military judge, following the procedure suggested by the [199]*199Court of Military Appeals in United States v. Booker, 5 M.J. 238, 244 (C.M.A.1977), and expressly sanctioned in United States v. Spivey, 10 M.J. 7 (C.M.A.1980) and United States v. Mathews, 6 M.J. 357 (C.M.A.1979), conducted an inquiry of the accused to determine whether all of the procedural requisites for entering two personnel actions in the accused’s records had been properly accomplished. As related by the accused, both the Article 15, and the letter of reprimand, which were incomplete on their faces, were properly completed. As determined by the trial judge, both actions were properly entered in the accused’s personnel records, and would ordinarily have been admissible for consideration on sentencing. Manual for Courts-Martial, 1969 (Rev.), para. 75d. However, in view of the Supreme Court’s decision in Estelle [v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)], we hold that the military judge’s reliance upon the accused’s responses as foundation for the admission of the Article 15 and the letter of reprimand renders improper their receipt in evidence. United States v. Sauer, 11 M.J. 872 (N.M.C.M.R. 1981).

Id. at 885 (emphasis added).

In light of the above error, the court stated that “we will disregard those exhibits and reassess the sentence” in order “[t]o eliminate any possible prejudice resulting from their consideration by the military judge as sentencing authority.” The Court of Military Review also ruled that the military judge had erred in admitting evidence of appellant’s earlier “drug rehabilitation efforts”; and, with respect to this error, the court stated that it would “eliminate any possibility of prejudice in our reassessment of the sentence.” Id. The reassessed sentence consisted of a bad-conduct discharge and reduction to airman basic.

Questioning the decision of the Court of Military Review as to admission of the Article 15 record and the letter of reprimand, The Judge Advocate General of the Air Force certified these four issues to this Court:

I
WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE ARTICLE 15 AND THE LETTER OF REPRIMAND WERE INCOMPLETE AND THEREBY INADMISSIBLE ON THEIR FACES?
II
IF THE ABOVE ISSUE IS ANSWERED IN THE AFFIRMATIVE, WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE MILITARY JUDGE ERRED IN ASKING THE ACCUSED TO PROVIDE INFORMATION REGARDING THE ADMISSIBILITY OF THE ARTICLE 15 AND LETTER OF REPRIMAND?
III
IF THE ABOVE ISSUE IS ANSWERED IN THE AFFIRMATIVE, DID THE ACCUSED WAIVE HIS RIGHT TO ASSERT THE ERROR BY FAILING TO OBJECT AND/OR PLEADING GUILTY TO ALL CHARGES AND SPECIFICATIONS FOR WHICH HE WAS SENTENCED?
IV
IF THE ABOVE ISSUE IS ANSWERED IN THE NEGATIVE, WAS THE ACCUSED PREJUDICED BY THE ACTIONS OF THE MILITARY JUDGE?

Thereafter, Hardy filed with this Court a cross-petition for grant of review, and we ultimately granted review of these two issues:

I
CHARGING TRANSFER OF COCAINE UNDER ARTICLE 134 FAILED TO ALLEGE A SPECIFIC OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE AND WAS AN UNCONSTITUTIONAL SE[200]*200LECTIVE APPLICATION OF GENERAL FEDERAL LAW TO MILITARY PERSONNEL.
II
CLASSIFICATION OF COCAINE AS A HABIT-FORMING NARCOTIC FOR PUNISHMENT PUPOSES VIOLATES EQUAL PROTECTION, SINCE THERE IS NO RATIONAL BASIS FOR SUCH CLASSIFICATION.

The two issues assigned by Hardy have since been resolved against him by our decision in United States v. Ettleson, 13 M.J. 348 (C.M.A.1982). Upon consideration of the four certified issues, we conclude that the first must be decided in the Government’s favor, so that there is no need to address the others.

A

During the presentencing phase of the trial, the military judge asked if trial counsel had “evidence of any punishments administered pursuant to Article 15.” Thereupon, prosecution exhibit 2, a single Article 15 record, was offered in evidence. After defense counsel stated that he had no objection, this colloquy ensued:

MJ: Just one matter of clarification on the third indorsement to the Article 15, the accused indicates that he did not appeal although he did request three days to submit matters. Airman Hardy, did you appeal that Article 15?
ACC: No, sir.

Immediately thereafter, the military judge admitted the Article 15 record as evidence.

Even though the military judge did ask this question of the accused in order to clarify what the judge perceived as a possible ambiguity, we are unable to see how the nonjudicial punishment record itself was incomplete in any way, as concluded by the court below. Cf. United States v. Negrone, 9 M.J. 171 (C.M.A.1980). Examination of the exhibit makes clear that every requisite entry had been made and was legible. Moreover, the accused did not claim at his trial that the Article 15 record was in any way incomplete, inaccurate, or objectionable. Indeed, on this appeal, he concedes that “it appears that the Article 15 may not have been incomplete on its face as suggested in the decision of the Air Force Court of Military Review.”

As part of the second indorsement to the Air Force Form 3070, “Notification of Intent to Impose Nonjudicial Punishment,” his squadron commander advised Hardy:

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Related

United States v. Alexander
27 M.J. 834 (U.S. Army Court of Military Review, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
21 M.J. 198, 1986 CMA LEXIS 19522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hardy-cma-1986.