United States v. Schmenk

11 M.J. 803, 1981 CMR LEXIS 696

• Court: U S Air Force Court of Military Review
• Decided: July 7, 1981
• Docket: ACM S25155
• Status: Published

Opinions

DECISION

MAHONEY, Judge:

Pursuant to his pleas, the accused was convicted by special court-martial, military judge alone, of three thefts of personal property, and possession of marijuana and benzphetamine, in violation of Articles 121, 134, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 921,934, and 892. He was sentenced to a bad conduct discharge, confinement at hard labor for six months, forfeiture of $200.00 per month for six months, and to be reduced to airman basic.

At trial, the prosecution attempted to introduce evidence of the accused’s participation in an Air Force drug rehabilitation program for consideration in sentencing. The military judge correctly rejected this evidence. United States v. Cruzado-Rodriguez, 9 M.J. 908 (A.F.C.M.R.1980). No information resulting from or concerning an accused’s participation in an Air Force drug rehabilitation program is admissible in an Air Force court-martial unless a specific basis for its admission is established in accord with applicable directives. United States v. Cottle, 11 M.J. 572, note 6 and accompanying text (A.F.C.M.R.1981).

After trial, as a part of the clemency report attached to the review of the staff judge advocate, the accused’s commander stated:

I do not feel that Airman Schmenk has any potential for restoration. He was enrolled in the USAF Drug Rehabilitation Program but continued to use drugs. This demonstrates his lack of potential to rehabilitate.

Before the review was submitted to the supervisory authority, the defense counsel was afforded the opportunity to comment upon the review, including the added adverse information. United States v. Goode, 1 M.J. 3 (C.M.A.1975); United States v. Vara, 8 U.S.C.M.A. 651, 25 C.M.R. 155 (1958). See, Air Force Manual 111-1, Military Justice Guide, paragraphs 7-3 through 7-6, dated 2 July 1973. Despite the lack of comment on this information in the review of the staff judge advocate, we presume that it was considered by the convening and supervisory authorities in determining the accused’s rehabilitation potential, and in deciding whether further efforts at rehabilitation should be made, or whether clemency should be granted.

We have examined the applicable directives and have determined that the convening and supervisory authorities were, under the circumstances, properly permitted to consider records or other evidence of the accused’s participation in the Air Force drug rehabilitation program, the objective of which is “to return all identified drug abusers to unlimited duty status, or assist them in their transition to civilian life.” Air Force Regulation 30-2, Social Actions Program, paragraph 4-25a, dated 8 November 1976. Any commander in an accused’s chain of command, including any convening authority duly acting on an accused’s case, is authorized to review, handle, and have access to drug or alcohol treatment records, and to consider them in determining appropriate disposition of an accused’s ease. Air Force Regulation 30-2, Social Actions Program, Figure 4-6, paragraph IIa(5), and paragraphs 4-8e and 4-25b, dated 8 November 1976.

Although such records and information may not be considered at trial, United States v. Cruzado-Rodríguez, supra; Air Force Manual 111-1, Military Justice Guide, paragraph 5-14, dated 2 July 1973, they are properly subject to consideration by the convening and supervisory authorities in determining whether or not to mitigate the adjudged sentence, and whether or not to afford the opportunity for rehabilitation. See, United States v. Roland, 5 M.J. 935 (N.C.M.R.1978). See also, United States v. Willett, 11 M.J. 723 (A.F.C.M.R.1981); United States v. Pells, 46 CMR 697 (A.C.M. R.1972).

We have considered the assigned error and find that the accused’s plea of guilty to possession of benzphetamine was provident. Although he did not know the precise identity of the drug at the time he possessed it, it is clear that the accused knew it was a proscribed substance and that he was not authorized to possess it. No more is required. The approved findings of guilty and the sentence are

AFFIRMED.

ARROWOOD, Senior Judge, concurs.