United States v. Page

4 M.J. 683, 1977 CMR LEXIS 639
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedNovember 14, 1977
DocketNCM 77 1535
StatusPublished
Cited by5 cases

This text of 4 M.J. 683 (United States v. Page) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Page, 4 M.J. 683, 1977 CMR LEXIS 639 (usnmcmilrev 1977).

Opinions

GREGORY, Judge:

Appellant was tried by a special court-martial military judge, sitting alone. He stands convicted of an unauthorized absence of 35 days, being disrespectful in language toward his superior noncommissioned officer, and assault and battery on this same noncommissioned officer. The sentence, as approved on review below, provides for a bad conduct discharge, confinement at hard labor for 3 months, and forfeiture of $245.00 pay per month for 3 months. The bad conduct discharge has been suspended on probation.

Appellant has assigned the following errors before this Court:

I. THE STAFF JUDGE ADVOCATE’S POST-TRIAL REVIEW MATERIALLY AND SUBSTANTIALLY MISLEAD THE REVIEWING AUTHORITY CONCERNING THE ADMISSIBILITY OF PROSECUTION EXHIBIT 1 THEREBY SUBSTANTIALLY PREJUDICING THE ACCUSED. UNITED STATES V. WHITE, 3 M.J. 619 (N.C.M.R.1977).
II. PROSECUTION EXHIBIT 1, A RECORD OF A NONJUDICIAL PUNISHMENT, WAS NOT PROPERLY ADMITTED INTO EVIDENCE WHERE THE DOCUMENT FAILED TO REFLECT WHETHER AN APPEAL WAS PENDING. UNITED STATES V. WHITE, 3 M.J. 619 (N.C.M.R.1977).
III. THE EVIDENCE OF RECORD IS NOT SUFFICIENT TO ESTABLISH, BEYOND REASONABLE DOUBT, THAT APPELLANT WAS NOT ACTING IN SELF-DEFENSE.
IV. THE EVIDENCE FAILS TO ESTABLISH, BEYOND REASONABLE DOUBT, THAT CORPORAL GRAHAM HAD NOT ABANDONED HIS CLAIM TO RESPECT AS A RESULT OF HIS CONDUCT.

We do not concur in the assignments of error, and we affirm.

I and II

Prosecution Exhibit 1 is a page from appellant’s service record book, containing entries as to imposition of nonjudicial punishment on two prior occasions. The second of these entries does not indicate whether the punishment imposed had been appealed. The Marine Corps Individual Records Administration Manual (IRAM), Marine Corps Order P1070.12C, Section 4014.2(a), directs that information as to whether an appeal [685]*685was made and action on the appeal, if any, be included in service record book entries concerning nonjudicial punishment. At trial, appellant objected to admission of this second entry, arguing that “there is no indication of finality.” (R. 29). The military judge overruled the objection, relying on United States v. Hiler, 47 C.M.R. 817 (N.C.M.R.1973), which involved a similar Marine Corps nonjudicial punishment entry and in which this Court held that a presumption arose that such punishment had not been appealed in view of the lapse of time and the absence of any evidence to show that the punishment had been appealed.

In his post-trial review, the staff judge advocate advised the supervisory authority that the military judge had been correct in his ruling. In the response to the staff judge advocate’s review pursuant to United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), and again before this Court, appellant has contended that the military judge and the staff judge advocate were in error. In support of his contention, appellant relies on United States v. White, 3 M.J. 619 (N.C.M.R.1977), in which a panel of this Court did not follow Hiler and indicated that admission of an entry concerning a prior nonjudicial punishment such as is involved in the instant case would be inconsistent with the requirement that a Government agency abide by its own regulations where the underlying purpose of such regulations is the protection of personal liberties or interests, citing United States v. Heflin, 23 U.S.C.M.A. 505, 50 C.M.R. 644, 1 M.J. 131 (1975) and United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975).

The requirement noted in Russo and Heflin cannot be disputed; however, we believe the decision in United States v. White, supra, places undue emphasis on the application of this requirement in Heflin. In Heflin, the Court of Military Appeals was concerned with an Army regulation which required the custodian of personnel records to reflect completion of supervisory authority action on DA Form 20B with respect to summary court-martial convictions. In Heflin, the Court found that the absence of the required notation as to supervisory authority action affirmatively established a lack of finality and rendered the document inadmissible. That situation does not exist in the case of Marine Corps non judicial punishment service record entries as contemplated by Section 4014.2(a) of the IRAM. There is no automatic appellate review of nonjudicial punishment which would correspond to the required supervisory authority action in the case of a summary court-martial. An appeal of nonjudicial punishment must be initiated by the accused. The absence of a notation as to whether or not a particular non judicial punishment has been appealed is actually a neutral circumstance. It could reflect that no appeal was made. On the other hand, it may indicate that an appeal is pending.

The real issue to be confronted in this case would appear to be whether the absence of any notation concerning appeal precludes this service record entry from qualifying for admission into evidence as an official record. We believe not. A mere irregularity or omission in the entry of a fact required to be recorded in an official record does not of itself place the record outside the exception to the hearsay rule and make it incompetent. Only those irregularities or omissions material to the execution of the document would have that effect. United States v. Tuten, 15 U.S.C.M.A. 387, 35 C.M.R. 359 (1965); United States v. Anderten, 4 U.S.C.M.A. 354, 15 C.M.R. 354 (1954). The only defect in the service record book entry in this case is the omission of any notation as to appeal. As noted previously, an appeal must be initiated by the accused. As a result, in this case the entry fails to inform us whether or not the accused initiated an appeal. This omission may affect the weight to be attached to the document but should not rule out its admissibility. United States v. Phillips, 3 U.S.C.M.A. 557, 13 C.M.R. 113 (1953).

We believe that United States v. Hiler, supra, adopts the proper rationale concerning nonjudicial punishment entries which fail to note any action as to appeal. Hiler analogizes this situation to that of evidence [686]*686of a court-martial conviction where the approved sentence requires review beyond the supervisory authority level. In such cases, a court-martial order showing completion of review through the supervisory authority level has consistently been held sufficient to make a prima facie showing of a former conviction, recognizing that such showing may be overcome by other evidence in the record or by rebuttal by the accused. See United States v. Larney, 2 U.S.C.M.A. 563, 10 C.M.R. 61 (1953); United States v. Reed, 23 U.S.C.M.A. 558, 50 C.M.R. 777, 1 M.J. 166 (1975); United States v. Graham, 24 U.S.C.M.A. 118, 51 C.M.R. 308, 1 M.J. 308 (1976). Also see United States v. Heflin, supra, 23 U.S.C.M.A. at 506, n. 4, 50 C.M.R. at 645, n. 4, 1 M.J. at 132, n. 4.

The theory behind Larney and its successors and also Hiler, whereby a prima facie showing of finality is presumed, rests upon the passage of time.

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Bluebook (online)
4 M.J. 683, 1977 CMR LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-page-usnmcmilrev-1977.