United States v. Tennent

7 M.J. 593, 1979 CMR LEXIS 719

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 9, 1979
• Docket: NCM 78 1198
• Status: Published

Opinions

GREGORY, Judge:

Pursuant to his pleas, appellant was found guilty at a special court-martial bench trial of three specifications of willful disobedience of orders of superior commissioned officers and one specification of failure to obey a lawful general regulation, in violation of Articles 90 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892. The sentence approved on review below includes an unsuspended bad-conduct discharge.

In his single assignment of error on appeal, appellant contends that the military judge erred in receiving into evidence a record of prior conviction of appellant by general court-martial. He argues that the documentary evidence in question fails to establish that review of the conviction was completed and that the conviction was final. See Article 44(b), Uniform Code of Military Justice, 10 U.S.C. § 844(b); paragraph 75b(2), Manual for Courts-Martial, United States, 1969 (Revised edition). We do not concur in appellant’s contention.

The evidence of prior conviction by general court-martial was set forth on a Record of Conviction by Court-Martial (NAVMC 118(13)). This form was completely filled out in all necessary respects and showed the action of the convening authority taken on 23 January 1978. The approved sentence did not include a punitive discharge or confinement of 1 year or more. For this reason, examination of the record of trial in the Office of the Judge Advocate General was required before the conviction would become final. See Article 69, Uniform Code of Military Justice. Completion of this review in the Office of the Judge Advocate General would properly have been shown on a Supplementary Record of Convictioin by Court-Martial (NAVMC 118(13A)). See paragraph 4015, Marine Corps Individual Records Administration Manual (IRAM), MCO P1070.12. Neither a Supplementary Record (NAVMC 118(13A)) nor other evidence of examination in the Office of the Judge Advocate General was offered into evidence in this case.

No objection was offered by the defense to the admission of the Record of Conviction by Court-Martial (NAVMC 118(13)) which, as previously indicated, included information as to the action of the convening authority. In United States v. Larney, 2 U.S.C.M.A. 563, 570, 10 C.M.R. 61, 68 (1953), the Court of Military Appeals held:

. when an order publishing the result of trial or a service record entry showing conviction and the promulgation of the result of trial is admitted in evidence a prima facie showing of a former conviction has been established. The showing may be overcome by other evidence in the record or it may be rebutted by the accused, but unless there is evidence in the record from which it can be determined that subsequent steps required by the particular findings and sentence have not been completed, the conviction may be used as a basis for increasing the severity of the sentence. .

This holding has been cited with approval in the more recent decision in United States v. Reed, 1 M.J. 166 (C.M.A.1975). The facts of the instant case are distinguishable, however, from those in United States v. Reed, supra, and United States v. Heflin, 1 M.J. 131 (C.M.A.1975), where the service record entry in question was incomplete on its face.

Under the circumstances of this case, we find the military judge to have had before him evidence sufficient to establish a prima facie showing of a prior conviction of appellant by general court-martial. As noted above, no objection to this evidence or other rebuttal was interposed by the defense. The question then becomes whether the evidence itself may have shown the improbability of completion of final review. Cf. United States v. Anderson, 2 U.S.C.M.A. , 10 C.M.R. 104 (1953). In this case, the service record entry showed that the convening authority took his action on appellant’s prior conviction on 23 January 1978. The current trial was being held 95 days later on 28 April 1978. Recognizing that the completion of review in this case would probably consist only of examination in the Office of the Judge Advocate General, rather than by this Court with the opportunity for the filing of pleadings and the possibility of further review by the Court of Military Appeals,¹ we find the lapse of 95 days to be sufficient to create a reasonable presumption that review was complete.

In summary, we conclude that the completed NAVMC 118(13), the absence of objection or any indication of lack of finality by the defense at trial, and the lapse of time between the convening authority’s action on the prior conviction and the instant trial authorized the military judge to consider the prior conviction in determining an appropriate sentence.

Accordingly, the findings of guilty and the sentence as approved on review below are affirmed.

Senior Judge FERRELL concurs.

1 . We recognize that the Judge Advocate General could have directed that the record of appellant’s prior general court-martial be reviewed by this Court. Article 69, Uniform Code of Military Justice, 10 U.S.C. § 869. However, we also note that the evidence in question indicates appellant entered a guilty plea to a lengthy unauthorized absence, thereby making referral rather unlikely.