United States v. Kirk

31 M.J. 84, 1990 CMA LEXIS 1048, 1990 WL 134813
CourtUnited States Court of Military Appeals
DecidedSeptember 20, 1990
DocketNo. 62,736; ACM S27869
StatusPublished
Cited by20 cases

This text of 31 M.J. 84 (United States v. Kirk) 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. Kirk, 31 M.J. 84, 1990 CMA LEXIS 1048, 1990 WL 134813 (cma 1990).

Opinion

Opinion of the Court

SULLIVAN, Judge:

On May 24, 1988, appellant was tried by a special court-martial composed of officer members at Lackland Air Force Base, Texas. Pursuant to her pleas, she was found guilty of missing movement through design and violating a lawful general regulation “by developing a personal relationship with” her instructor, in contravention of Articles 87 and 92, Uniform Code of Military Justice, 10 USC §§ 887 and 892, respectively. She was sentenced to a bad-conduct discharge. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated January 31, 1989.

This Court granted review of the following four issues of law on October 4, 1989:

I
WHETHER THE MILITARY JUDGE ERRED BY PERMITTING APPELLANT’S COMMANDER, MAJOR BALL, TO TESTIFY THAT IN HIS OPINION APPELLANT LACKS REHABILITATION POTENTIAL, WHERE HIS OPINION WAS BASED SOLELY ON THE OFFENSES TO WHICH APPELLANT PLED GUILTY.
II
WHETHER APPELLANT’S PLEAS OF GUILTY TO CHARGE III AND ITS SPECIFICATION WERE IMPROVIDENT BECAUSE THE PROVIDENCY INQUIRY WAS INCOMPLETE.
III
WHETHER APPELLANT WAS A STUDENT WITHIN THE MEANING OF ATC REGULATION 30-4 WHICH PROHIBITED PERSONAL RELATIONSHIPS BETWEEN STUDENTS AND INSTRUCTORS.
IV
WHETHER THE REVIEWING SJA ERRED BY FAILING TO PROVIDE THE ADDENDUM TO THE SJA REVIEW TO THE TRIAL DEFENSE COUNSEL FOR COMMENTS ON NEW MATTERS RAISED WITHIN THE ADDENDUM.

We affirm the findings of guilty in this case but set aside the sentence because of the military judge’s prejudicial error in allowing Major Ball’s sentencing testimony. See generally United States v. Cherry, 31 MJ 1 (CMA 1990); United States v. Ohrt, 28 MJ 301, 307 (CMA 1989).

The record of trial reflects the following testimony for the prosecution from the commander of appellant’s student squadron:

Q. You are Major Jesse W. Ball Jr.?
A. Yes, I am.
Q. The commander of the 3295th Student Squadron, is that correct?
A. That’s right.
Q. Here at Lackland Air Force Base, is that right?
A. That’s correct.
Q. How long have you had that assignment?
A. I’ve been commander of the 3295th Student Squadron for ten months now. Q. And, where were'you before that?
A. I was commander of the 3291st School Squadron here.
[86]*86Q. Could you explain the difference between those two units?
A. Okay. The 3291st School Squadron was under a different setup, whereas I had both permanent party personnel instructors and students. Under the student group setup my squadron is made up primarily of students who were in training.
Q. So, for ten months you’ve been the commander of that squadron?
A. Right.
Q. What about the other squadron? How many months were you the commander of that squadron?
A. Approximately one year.
Q. How long have you been on station at Lackland?
A. Approximately twenty-one months.
Q. How long have you been in the Air Force?
A. Sixteen years.
Q. What’s the mission of your unit, the 3295th Student Squadron?
A. The primary mission of my unit is to— the responsibility for health, morale and welfare of the student population of my squadron and to support, which is in direct support of the training mission.
Q. So you kind of go hand-in-hand with the training function?
A. That’s correct.
Q. Approximately, if you know, how many students are assigned to your squadron?
A. Approximately two hundred.
Q. Do you know the accused in this case?
A. Yes, I do.
Q. If she’s present, would you point to her and state her name.
A. (Pointing at the accused) It’s, uh, uh, Airman uh — I’ve got so many. Uh, what’s her name?
Q. Are you drawing another blank today?
A. Yes. Airman uh — I can’t even remember her name.
Q. Can you read her name tag from there?
A. Yes.
(Major Ball rose from his seat and leaned over toward the accused who leaned forward and framed her name tag with her fingers.)
A. Oh boy. I can’t even see it without my glasses.
Q. Is that Airman Kirk?
A. Airman Kirk. I’m sorry. Airman Kirk.
Q. Sometimes you have a lot of blanks, so, don’t worry about it. How do you know Airman Kirk?
A. Airman Kirk became assigned to my squadron back in, I would say, approximately three to four months ago, and she came to me from the 3292nd Student Squadron.
Q. Are you the accuser in this case?
A. Yes, I am.
Q. So, you preferred court-martial charges in this case?
A. Yes, I did.
Q. What did you do before you preferred charges in this case?
A. Well, I reviewed her collateral training folder. We keep what we call a collateral training folder in the squadron in which we will gather counseling forms from the tech training community, and also we will keep counseling forms that are generated by my squadron, and also other data pertaining to the individual.
Q. And you say you reviewed that file?
A. Yes, I did.
Q. And is there any other information that you took into account before you preferred charges?
A. The only thing that I probably took under consideration was that she had previous counseling, but other than that, nothing else.
Q. So had you spoken with — I’m assuming you weren’t her instructor, is that correct?
A. No, I wasn’t.
Q. Did you talk to her instructor or team chief or student training advisers?
A. Well, I had talked to her — Of course, I talked to her STAs on a consistent basis [87]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Quick
74 M.J. 332 (Court of Appeals for the Armed Forces, 2015)
United States v. Eslinger
70 M.J. 193 (Court of Appeals for the Armed Forces, 2011)
United States v. Yerich
47 M.J. 615 (Army Court of Criminal Appeals, 1997)
United States v. Reid
43 M.J. 906 (Army Court of Criminal Appeals, 1996)
United States v. Williams
41 M.J. 134 (United States Court of Military Appeals, 1994)
United States v. Hampton
40 M.J. 457 (United States Court of Military Appeals, 1994)
United States v. Davis
39 M.J. 281 (United States Court of Military Appeals, 1994)
United States v. Sylvester
38 M.J. 720 (U.S. Army Court of Military Review, 1994)
United States v. Malone
38 M.J. 707 (U.S. Army Court of Military Review, 1993)
United States v. Williams
35 M.J. 812 (U S Air Force Court of Military Review, 1992)
United States v. Bolden
34 M.J. 728 (U.S. Navy-Marine Corps Court of Military Review, 1991)
United States v. Pompey
33 M.J. 266 (United States Court of Military Appeals, 1991)
United States v. St. Romain
33 M.J. 689 (U S Air Force Court of Military Review, 1991)
United States v. Rhoads
32 M.J. 114 (United States Court of Military Appeals, 1991)
United States v. Rosato
32 M.J. 93 (United States Court of Military Appeals, 1991)
United States v. Pompey
32 M.J. 547 (U S Air Force Court of Military Review, 1990)
United States v. Aurich
31 M.J. 95 (United States Court of Military Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 84, 1990 CMA LEXIS 1048, 1990 WL 134813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kirk-cma-1990.