United States v. Kahmann

BRYANT, Judge: On 2 July 2001, a military judge, sitting as a special court-martial, convicted the appellant, pursuant to his pleas, of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. The convening authority approved the adjudged sentence to confinement for 90 days, forfeiture of $695.00 pay per month for 3 months, and a bad-conduct discharge, but pursuant to the pretrial agreement suspended all confinement in excess of 30 days. The case was originally submitted without specific assignment of error. On 12 June 2002, in an unpublished decision, Panel 3 of this Court sua sponte determined that the military judge committed plain error by the erroneous admission of the record of a prior summary court-martial without evidence of compliance with United States v. Booker, 5 M.J. 238 (C.M.A.1977), as modified by, United States v. Mack, 9 M.J. 300 (C.M.A.1980), and without evidence of a judge advocate review, as required by Article 64, UCMJ, 10 U.S.C. § 864. United States v. Kahmann, No. 200200355, 2002 WL 1343459 (N.M.Ct. CrimApp. 12 June 2002)(unpublished op.). In view of the perceived error, Panel 3 reassessed the sentence. On 25 June 2002, the Government requested en banc reconsideration of that decision. Motion to Reconsider En Banc of 25 Jun 2002. On 4 September 2002, we granted the Government’s motion and specified the following issue for review: IN THE ABSENCE OF DEFENSE COUNSEL OBJECTION, WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE OF APPELLANT’S PRIOR SUMMARY COURT-MARTIAL WITHOUT ALSO REQUIRING A SHOWING OF COMPLIANCE WITH UNITED STATES V. BOOKER, 5 M.J. 238 (C.M.A.1977), as modified by, UNITED STATES V. MACK, 9 M.J. 300 (C.M.A.1980), AND COMPLETION OF A JUDGE ADVOCATE REVIEW, AS REQUIRED BY ARTICLE 64, UCMJ? Court Order of 4 Sep 2002. After considering the record of trial and briefs by the appellant and the Government filed in response to our 4 September 2002 Order, we answer the specified issue in the negative. We hold that the military judge properly admitted the evidence of the appellant’s prior summary court-martial. As explained in more detail below, we are not attempting to abrogate, by this decision, the mandate of Booker/Mack that a servicemember must be afforded an opportunity to consult with counsel prior to accepting nonjudicial punishment (NJP) or a summary court-martial in order for that disciplinary action to be admissible in aggravation at a subsequent court-martial. See Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C § 0109 (Ch-3, 27 Jul 1998)(JAGMAN). Nor are we saying that the requirement for a post-trial review of a summary court-martial pursuant to Article 64, UCMJ is not a condition precedent for admissibility of that summary court-martial in aggravation at a servicemember’s subsequent court-martial. We are merely saying that when, as in this case, the Government offers evidence of a prior summary court-martial in aggravation and there is no objection for lack of proof that a Booker/Mack advisory and/or an Article 64, UCMJ, review was completed, any issue as to the evidence’s admissibility for the alleged failure to provide Booker/Mack advisory and/or conduct an Article 64, UCMJ, review is forfeited. See Mil. R. Evid. 103(a), Manual for Courts-Martial, United States (2000 ed.). We presume compliance with Booker/Mack and Article 64, UCMJ, when trial defense counsel raises no objection at trial to the admission of a prior NJP or summary court-martial in aggravation. Accordingly, we hold that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Background During pre-sentencing, the trial counsel offered excerpts from the appellant’s military service record. Prosecution Exhibit 1. Among the documents offered was a “Record of Conviction by Court-Martial (1070).” Id. at 9. The document (hereinafter “Page 13”) reflected the appellant’s punishment at sum — 669 — maj*y court-martial on 30 August 2000 for a variety of UCMJ offenses, including Article 86, UCMJ, 10 U.S.C. § 886, unauthorized absence. But for one minor omission, all blocks on the front page of the pre-printed form document were complete.1 Block “4A” of the Page 13 notes that the appellant “waived representation by counsel.” Id. The Page 13, however, contains no specific space or block on the front page to reflect, nor does the document anywhere so reflect, whether the appellant was provided the opportunity to consult with counsel pursuant to Booker/Mack prior to accepting trial by summary court-martial, or whether the summary court-martial was reviewed by a judge advocate after trial pursuant to Article 64, UCMJ. Although objecting without success to the summary of the non-Article 86, UCMJ, offenses on the Page 13, trial defense counsel had no objection to the admission into evidence of the document itself. Record at 21-22. Booker and Its Progeny In United States v. Booker, a divided Court of Military Appeals held that a record of a summary court-martial may not be admitted as a sentencing exhibit in a subsequent special or general court-martial unless the “exhibit ... affirmatively establishes] a valid waiver” of the right to consult with counsel prior to accepting punishment under Article 20, UCMJ, 10 U.S.C. § 820. Booker, 5 M.J. at 244. This requirement was subsequently extended to sentencing exhibits relating to NJP awarded pursuant to Article 15, UCMJ, 10 U.S.C. § 815. United States v. Mathews, 6 M.J. 357, 358 (C.M.A.1979). Under Booker and Mathews, if the document was insufficient on its face, regardless of whether there was a defense objection, the onus fell on the military judge to “conduct an inquiry on the record to establish the necessary information.” Booker, 5 M.J. at 244; accord Mathews, 6 M.J. at 358-59. These rulings were affirmed in Mack, 9 M.J. at 323. The Booker Court did not specify the manner in which the record was to be developed or the level of proof required to overcome a deficiency on the face of the exhibit. In Mathews, our superior Court held that the military judge satisfied his obligation to develop the record where he questioned the accused and learned directly from him that the necessary advisement, followed by a valid waiver, had occurred. Mathews, 6 M.J. at 358-59. In Mack, our superior Court stated that where the exhibit lacks information concerning access to counsel, the document is “inadmissible despite defense failure to object, unless the Government independently establishes that such information was provided to the accused before he received nonjudicial punishment” or elected trial by summary court-martial. Mack, 9 M.J. at 321. The Booker, Mathews, and Mack decisions required either the Government or the military judge to develop proof of advisement and waiver regardless of whether the defense raised an objection. Even in Mack, however, our superior Court acknowledged that the then-recent adoption of the Military Rules of Evidence foretold a change.2 With the promulgation of the Military Rules of Evidence in 1980,3 the legal landscape in which the above-cited decisions were made shifted dramatically. Mil. R. Evid. 103, which has remained unchanged since its 1980 debut, imposes a general obligation on counsel to lodge a timely objection whenever counsel is opposed to the admission of evidence. This Rule provides in pertinent part: (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and — 670 — (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection---- (d) Plain Error. Nothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge. The emergence of Mil. R. Evid. 103, and by implication its effect on the Booker/Mack rule, was first addressed by our superior Court in United States v. Dyke, 16 M.J. 426 (C.M.A.1983). In Dyke, the prosecution offered a record of NJP as a sentencing exhibit. The document was remarkable in that it contained: [N]o signatures — legible or otherwise — in any of the four places where normally a signature would have appeared: the commander had not signed to indicate that he had advised [Dyke] of his rights; [Dyke] had not signed to indicate whether he demanded trial by court-martial; the commander had not signed to attest the nonjudicial punishment that he was imposing; and [Dyke] had not signed to indicate his election as to an appeal. Id. at 426. The document was received into evidence without defense objection. Id. The Dyke Court acknowledged that its blanket prohibition against the admission of documents that did not comply with applicable regulations, whether or not there was a defense objection, developed in a pre-Mil. R. Evid. 103(a)(1) setting. Id. at 427. The Dyke Court noted that the Rules, however, placed “additional responsibility upon ... defense counsel” to raise a timely objection with respect to sentencing evidence, including any document relating to a prior punishment. In the absence of such an objection, the Dyke Court stated that a reviewing court should consider whether the admission of the document in question amounted to “plain error” under Mil. R. Evid. 103(d). Id. Looking solely at the exhibit, the Dyke Court determined that: [A] purported record of nonjudicial punishment which has no signatures whatsoever — including no signature by the commander, who purportedly imposed the punishment — is such a deviation from customary practice that to receive it into evidence constitutes plain error____[The] exhibit ... was so incomplete on its face that the judge should have excluded it on his own motion. Dyke, 16 M.J. at 427 (emphasis added). In United States v. Kelly, 45 M.J. 259 (1996),4 another case decided well after the adoption of the Military Rules of Evidence, our superior Court reiterated the general viability of Booker/Mack. In quoting from Mack, however, the Court in Kelly provided guidance on the pivotal issue of this case. The issue in this case — unlike Kelly — is not whether the appellant must have been afforded an opportunity to consult with counsel before accepting summary court-martial for his earlier disciplinary proceeding to be admissible at this, his subsequent special court-martial. It is whether, absent defense objection at trial, evidence of the summary court-martial is inadmissible unless accompanied by other evidence that the appellant was afforded Booker/Mack advisement. On this issue, Kelly emphasized the critical part that an objection at trial plays. Quoting its earlier holding in Mack, the Kelly Court stated: Accordingly, in the words of the lead opinion in Mack: “[A]n accused may properly object to admission of a record of prior nonjudieial punishment [or summary court-martial] which does not recite that he was offered some opportunity to consult with counsel. Also, even if the form purports to have offered him an opportunity for such consultation, the objection would be valid, if by credible evidence, he persuades the trial judge that, despite the form’s recital to the contrary, he was not — 671 — offered such an opportunity or that, although he exerted every reasonable effort to see a lawyer before receiving nonjudicial punishment [or summary court-martial], he could not do so. Under such circumstances the purported offer of an opportunity to consult with counsel is a sham or is illusory and should be disregarded.” Kelly, 45 M.J. at 264 (quoting Mack, 9 M.J. at 323)(emphasis added). Further emphasizing the critical nature of an objection at trial, the Court thereafter stated: During the presentencing proceedings at appellant’s special court-martial, the military judge admitted into evidence over defense objection a record of a previous summary court-martial that did not reflect that the appellant had been advised consistent with Booker. That ruling was error when made ... and it remains error under our holding today. Id. (emphasis added). Although not specifically mentioning Mil. R. Evid. 103(a)(1), the repeated reference to the accused’s/defense’s option to object to the admission of a prior disciplinary action clearly evidences the fact that the Court in Kelly was fully cognizant of the evidentiary rule’s implications. United States v. Edwards, 46 M.J. 41 (1997), further illustrates the critical role a timely objection at trial plays in the admission of evidence of an earlier disciplinary action impacted by Booker/Mack. In Edwards, the appellant appealed the military judge’s admission, over objection, of a prior NJP without a Booker/Mack advisory. The appellant argued that he received the NJP aboard a vessel that was not in an operational status at the time of his NJP and, therefore, the vessel exception to Booker/Mack was not applicable.5 In setting aside this Court’s affirmance of the military judge’s admission of the NJP, our superior Court stated that: Because the document appears regular on its face, defense counsel had the burden of raising the issues as to the applicability of the vessel exception and Booker. See United States v. Moschella, 20 USCMA 543, 43 CMR 383, 1971 WL 12804 (1971)(official document entitled to presumption of regularity). Once the defense objection was timely made and the defense asserted that the CONSTELLATION was undergoing long-term overhaul and was not an operational vessel, the military judge should have given the parties an opportunity to present evidence. If the defense had produced sufficient evidence to raise the Booker issue, the Government would have had the burden, as proponent of the evidence, to show compliance with Booker or the applicability of the vessel exception. Edwards, 46 M.J. at 45-46 (emphasis added). In both Kelly and Edwards our superior Court could have easily reverted to its per se requirement that Booker/Mack advisement evidence is an essential condition precedent for the admissibility of any antecedent disciplinary action, regardless of whether an objection was offered at trial. They did not. Instead, in Kelly and Edwards, the Court unmistakably emphasized the need for the defense to interpose an objection at trial. The purpose of requiring a trial objection is to allow the parties and the military judge to address any issue of admissibility and cure any defects at trial. United States v. Cardreon, 52 M.J. 213, 216 (1999). “The military judge should not exclude evidence which is not objected to by a party except in extraordinary circumstances.” Rule for Courts-Martial 913(c)(4), Manual for Courts-Martial, United States (2000 ed.), Discussion. Our superior Court has frequently cited Mil. R. Evid. 103(a)(1) in denying objections to the admission of evidence made for the first time on appeal. See United States v. Green, 55 M.J. 76, 81 (2001); United States v. Tarleton, 47 M.J. 170, 172 (1997); United States v. Davis, 44 M.J. 13, 20 (1996). See also United States v. Gordon, 10 M.J. 278, 279 — 672 — (C.M.A.1981)(“Moreover, the defense counsel was specifically asked by the military judge whether he wanted to object to the admission of the challenged exhibit [NJP], but he declined to do so. Thus, even if we assume that error was committed by receiving the exhibit into evidence, it did not constitute plain error, and therefore was waived by the failure of defense counsel to interpose a timely objection to it at trial.”). The Army Court of Military Review, in United States v. Taylor, 12 M.J. 561 (A.C.M.R.1981), has specifically addressed Booker/Mack since adoption of the Military Rules of Evidence. In Taylor, a case involving the admission of a summary court-martial with neither Booker/Mack advisory documentation nor objection at trial, our brethren on the Army Court stated: This does not end our concern, however, since this case was tried under the new Military Rules of Evidence (MRE). This Court has already held in United States v. Beaudion, 11 M.J. 838 (A.C.M.R.1981), that the erroneous admission of records of nonjudicial punishment bearing no discern-able markings reflecting a lack of demand for trial and other elections is waived under MRE 103(a) in the absence of an objection. Bearing in mind'that the purpose of MRE 103(a) is to litigate all such matters at the trial level and to permit evidentiary foundational defects to be cured by the offering party if possible, we believe the rule for Booker defects should be the same for summary court-martial records as for records of nonjudieial punishment. In the instant case, there was no defense objection. Had there been one, the trial counsel may well have been able to lay a proper foundation through the testimony of a witness or by means of other available records. Thus, the error, not rising to the level of “plain error” contemplated in Rule 103(d), was waived. Taylor, 12 M.J. at 562-63 (footnote omitted); accord United States v. Sims, 28 M.J. 578, 583 (A.C.M.R.1989); United States v. King, 27 M.J. 545, 549-50 (A.C.M.R.1988). In light of our superior Court’s emphasis on the responsibility of defense counsel to object and its adoption of the plain error analysis, as well as the Army service Court’s position on this issue, we hold that the appellant in the case at bar failed to lodge a timely objection and, thus, forfeited his right to raise this issue on appeal, absent a finding by this Court of plain error. Mil. R. Evid. 103(a) and (d); see Dyke, 16 M.J. at 427. Article 64, UCMJ, Review R.C.M. 1001(b)(3) clearly sets forth the general rule that allows, during pre-sentencing, evidence of an accused’s prior court-martial conviction. The Rule. states that: (A) In general. The trial counsel may introduce evidence of military ... convictions of the accused. For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged. (B) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that a conviction by summary court-martial ... may not be used for purposes of this rule until review has been completed pursuant to Article 64[, UCMJ]. Article 64, UCMJ, states that any summary court-martial in which there have been findings of guilty “shall be reviewed by a judge advocate under regulations of the Secretary concerned.” Such a review shall be in writing and include conclusions as to jurisdiction, whether the charges and specifications stated offenses, and whether the sentence was within the limits prescribed by law. Id. The “[m]ethod of proof’ with respect to prior convictions is accomplished by bringing forth “any evidence admissible under the Military Rules of Evidence.” R.C.M. 1001(b)(3)(C). In published decisions from this Court, we have heretofore invoked forfeiture when the trial defense counsel did not object to the admission of a summary court-martial for failure to provide evidence of completion of review pursuant to Article 64, UCMJ. In United States v. Williamson, 42 M.J. 613 (N.M.Ct.Crim.App.1995), we said: This record of summary court-martial was admitted without defense objection. The record contains no evidence of the — 673 — required review under Rule for Courts-Martial 1001(b)(3)(B) that would make this evidence admissible. The failure to object waives the error for our current review. Mil.R.Evid. 103. Williamson, 42 M.J. at 618 n. 6. In this Court’s Kelly decision, we said: Defense counsel did not object on grounds there was no showing the appellant had been advised of his right to object to trial by summary court-martial. That objection was, therefore, waived. See United States v. Elston, 34 M.J. 1036, 1038 (N.M.C.M.R.1992)(citing cases)____ Defense counsel also did not object to the summary court-martial conviction on grounds it had not been shown that review had been completed. See Rule for Courts-Martial [R.C.M.] 1001(b)(3)(B). Likewise, that objection was waived. Mil.R.Evid. 103. Kelly, 41 M.J. 833, 834 n. 5 (alteration in original). As previously noted, the purpose of requiring a trial objection, be it for compliance with the Booker/Mack advisory, or Article 64, UCMJ, review, is to allow the parties and the military judge to address any issue of admissibility and cure any defects at trial. Cardreon, 52 M.J. at 216. Inasmuch as there was no objection at trial concerning the completion or not of an Article 64, UCMJ, review, the issue, like the Booker/Mack advisement issue, is forfeited. Mil. R. Evid. 103(a) and (d); see Green, 55 M.J. at 81; Tarleton, 47 M.J. at 172; Davis, 44 M.J. at 20. We find no compelling reason to overrule our previous decision in Williamson. No Plain or Obvious Error “Plain error” as a legal term requires that an error in fact exists; that it be plain or obvious; and that it materially prejudices the substantial rights of the accused. United States v. Finster, 51 M.J. 185, 187 (1999); United States v. Fuson, 54 M.J. 523, 526 (N.M.Ct.Crim.App.2000). Assuming arguendo there was error in the admission of the summary court-martial for not attaching to the Page 13 evidence of Booker/Mack advisement, and/or evidence of an Article 64, UCMJ, review, for the reasons discussed in more detail below we find that the error was neither plain nor obvious. As such, we further find that in this case there was no plain error. Mil. R. Evid. 103(a) and (d). In so deciding, we are mindful of Senior Judge Price’s dissent wherein he references JAGMAN § 0109, and, specifically, its language that “[fjailure to provide the opportunity for an accused to consult with counsel prior to nonjudicial punishment does not preclude the imposition of the nonjudicial punishment; it merely precludes the admissibility of the record ... in aggravation and a later court-martial.” As Senior Judge Price notes, this particular provision is directed at documents relating to NJPs rather than summary courts-martial and, thus, its application to the case at bar is questionable. Assuming for the moment that the spirit of the JAGMAN does apply to the instant ease, we nevertheless believe Senior Judge Price reads too much into this provision. The JAGMAN adopts the Booker/Mack advisory rule discussed above by precluding the admissibility of the service record entry whenever there is a “[fjailure to provide the opportunity for an accused to consult with an attorney.” Id. (emphasis added). Absent from this provision, however, is any wording supporting Senior Judge Price’s position that the failure to document the opportunity to consult with counsel works as an evidentiary bar to admission of the service record entry documenting the disciplinary action.6 Nor does this JAGMAN provision do more than state a basis for not admitting the document; specifically, it does not purport to address the impact of the Military Rules of Evidence on this rule of admissibility. That, of course, is the issue we address today. Senior Judge Price also makes reference to the U.S. Marine Corps Individual Records — 674 — and Administration Manual (IRAM). Marine Corps Order P1070.12K (Ch-1, 14 Jul 2000). Specifically, he reads Section 4008, paragraph 2b(l) as specifically “calling]” for an appropriate entry on the reverse side of the Page 13 attesting that the Marine has been advised of his right and opportunity to consult with counsel. We note that the referenced provision states that compliance with Booker/Mack “may be accomplished by recording an entry on the reverse side” of the Page 13.7 IRAM § 4008, 112b(l)(emphasis added). The wording of the provision is, clearly, permissive in construction and not mandatory. Furthermore, no mention is made of how to notate the completion of an Article 64, UCMJ, review. Finally, absent from this regulation is any language prohibiting documents that do not contain this particular notation from being admitted at court-martial with or without objection. Senior Judge Price elevates these administrative regulations to the status of “evidentiary prerequisites.” However, the evidentiary prerequisites for this case are found in the Military Rules of Evidence, not service regulations. See R.C.M. 1001(b)(3)(C). Moreover, the ease at bar involves a record of summary court-martial punishment offered under R.C.M. 1001(b)(3)(A), not an NJP offered under R.C.M. 1001(b)(2). The distinction is important, because unlike R.C.M. 1001(b)(2), R.C.M. 1001(b)(3)(A) does not require that the service record entry offered to establish prior punishment at a summary court-martial be “made or maintained in accordance with departmental regulations.” Compare R.C.M. 1001(b)(2)(establishing compliance with departmental regulations as a prerequisite to the admission as evidence of “[p]ersonal data”), with R.C.M. 1001(b)(3)(A) (containing no such compliance requirement with respect to “[ejvidence of prior convictions”). Finally, even in cases involving a record of NJP offered under R.C.M. 1001(b)(2), neither the JAG Manual, the MILPERSMAN, nor the IRAM would preclude admission of a document that lacks a Booker/Mack advisory certification, because none of these regulations make the preparation of such a certification mandatory. Additionally, both the appellant’s and Senior Judge Price’s reliance on Dyke is misplaced. In Dyke, our superior Court determined that “a purported record of nonjudicial punishment which has no signatures whatsoever ... is such a deviation from customary practice that to receive it into evidence constitutes plain error.” Dyke, 16 M.J. at 427. In this case, not only is there no evidence of any “deviation from customary practice” in the completion of the Page 13, there is no suggestion it was “incomplete on its face.” Id. The Page 13 was prima facie admissible. See Edwards, 46 M.J. at 45 (because the document appears regular on its face, defense counsel had the burden of raising the issues as to the applicability of the vessel exception and Booker); Elston, 34 M.J. at 1038-39 (N.M.C.M.R.1992)(record of NJP admitted at trial without objection was error, inasmuch as the record specifically indicated that the appellant had refused NJP); United States v. Yarbough, 30 M.J. 1292, 1296-97 (N.M.C.M.R.1990)(era banc), aff'd, 33 M.J. 122 (C.M.A.1991). There was no regulation — 675 — that required any notation either on the front or back of the Page 13 reflecting compliance with Booker/Mack. IRAM § 4008, If 2b(l). In sum, to overcome forfeiture of the issue by failure to object at trial, the admission of the Page 13 must have constituted plain error. A prerequisite for any plain error determination, assuming there was error, must be a determination that the assumed error was plain or obvious. Any such error in this case is hardly plain or obvious when, among other matters: (1) it is at the very least debatable that the Booker/Mack advisory and Article 64, UCMJ, review are absolute prerequisites to admission of the Page 13, i.e., there is no error, period (see Mil. R. Evid. 103(a) and (d)); (2) our superior Court has repeatedly stressed the critical role that objection at trial plays in the proper admission of evidence at the trial level (see e.g., Kelly, Edwards, and Cardreon)-, (3) this Court and our Army brethren, in published decisions, have specifically stated that any issue as to the admissibility is forfeited when there was no objection at trial (see, e.g., Williamson and Taylor)-, and (4) in unpublished eases over the years this Court has been less than consistent in our resolution of this issue.8 Additionally, there is no evidence in this record to indicate that Booker/Mack advice was not given to the appellant prior to his acceptance of the summary court-martial. Likewise, there is no evidence to indicate that a review pursuant to Article 64, UCMJ, was not completed. If there was a Booker/Mack advisory or Article 64, UCMJ, review, the Government would have been in a position to show as much in the event of an objection by the trial defense counsel. Stated another way, we view Mil. R. Evid. 103, previously cited service regulations, and our superior Court in Kelly and Edwards as saying that the Government’s burden to establish a Booker/Mack advisory and/or Article 64, UCMJ, review compliance is not a standing obligation. The obligation to put forth evidence of compliance is only triggered by a timely objection from the defense or a sua sponte inquiry from the military judge.9 Inasmuch as there was no objection — 676 — at trial, “trial counsel never had the opportunity to litigate those issues, and the military judge never was called upon to rule on the issues raised for the first time on appeal.” Tarleton, 47 M.J. at 172. We, therefore, presume compliance with the Booker/Mack mandate and Article, 64, UCMJ. See Edwards, 46 M.J. at 45; United States v. Masusock, 1 C.M.A. 32, 35, 1 C.M.R. 32, 35, 1951 WL 1504 (1951)(“evidence to the contrary” required to preclude presumption of regularity.). As previously noted, the purpose of requiring a trial objection is to allow the parties and the military judge to address issues of admissibility of the evidence. Cardreon, 52 M.J. at 216. The appellant’s position, if adopted, could encourage trial defense counsel not to litigate and resolve admissibility issues of a prior disciplinary action at the trial level, i.e., play possum,10 hoping that, perhaps years later, an appellate court might grant some type of windfall relief when the availability of records may have long-since evaporated.11 We see no justification in this case to depart from the clear language of Mil. R. Evid. 103(a)(1) and case precedent. Furthermore, we do not discern from applicable case law any requirement on the part of a military judge to make inquiry of the parties as to advisement pursuant to Booker/Mack or completion of Article 64, UCMJ, review concerning a prior summary court-martial offered into evidence, or to sua sponte exclude such a court-marital when no objection to the admissibility is made at trial. Cf. Williamson, 42 M.J. at 618 n. 6; Kelly, 41 M.J. at 834 n. 5; Taylor, 12 M.J. at 562-63. However, while we discern no sua sponte requirement for action by a military judge absent objection, there is likewise absolutely nothing to prohibit a military judge from so inquiring of the parties as to the existence of a documented Booker/Mack advisory or Article 64, UCMJ review sua sponte as desired by the military judge.12 A military judge is charged with deciding whether a party has established a sufficient foundation for admission of any evidence. Mil. R. Evid. 104(a). A military judge has considerable discretion in this regard. See United States v. Catrett, 55 M.J. 400, 406 (2001). In this ease, the military judge did not err in admitting evidence of the prior summary court-martial. Any arguable error was forfeited at the trial level by the appellant’s failure to object. Even assuming arguendo it was error to admit evidence of the summary court-martial without supporting documentation of a Booker/Mack advisory and/or Article 64, UCMJ, review, any such error was neither plain nor obvious. As such, the assumed error did not constitute plain error. The appellant, therefore, is entitled to no relief. Blunk Advice As noted in this Court’s original decision, trial defense counsel erred when, during his sentencing argument, he advised the military judge that the appellant had requested a bad-conduct discharge against his advice. Record at 23; see United States v. Lyons, 36 M.J. 425, 427 (C.M.A.1993)(“[D]efense coun — 677 — sel should not disclose to the sentencing authority that his client is acting contrary to advice of counsel.”); United States v. Blunk, 17 C.M.A. 158, 161, 37 C.M.R. 422, 425, 1967 WL 4281 (1967)(finding that defense counsel erred in “advising the court that accused, acting contrary to this advice, desired to present nothing in extenuation and mitigation”). Testing for prejudice, we remain satisfied that the sentence was warranted under the circumstances and was not inappropriately severe. See United States v. Williams, 57 M.J. 581, 582 (N.M.Ct.Crim.App.2002). Conclusion Accordingly, after reconsideration en banc, the Court’s decision dated 12 June 2002 is vacated and the findings and sentence, as approved on review below, are affirmed. Chief Judge LEO, Senior Judge OLIVER, Judge CARVER, Judge VILLEMEZ, and Judge RITTER concur. Footnotes [1] Block 7 does not indicate whether the "Disbursing Officer” was notified of the summary court-martial. Id. [2] See also United States v. Kline, 14 M.J. 64, 66 (C.M.A.1982)(holding the military judge was under a sua sponte obligation to exclude a sentencing document as incompetent hearsay). In Kline, the Court specifically stated, citing Mack as support, that "[o]f course, United. States v. Mack, 9 M.J. 300 (C.M.A.1980), was a case tried before the effective date of the Military Rules of Evidence.” Id. at n. 4. [3] Manual for Courts-Martial, United States, 1969 (Revised ed.), Chapter XXVII (promulgated 1 Sep 1980). [4] In Kelly, our superior Court reversed this Court’s earlier decision. In our decision, United States v. Kelly, 41 M.J. 833 (N.M.Ct.Crim.App.1995), a case in which the appellant did object at trial to the introduction of an earlier summary court-martial, we held that Booker/Mack was not controlling in light of Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Our superior Court found that we exceeded our authority and reversed. [5] See Edwards, 46 M.J. at 43: Of course, if the evidence relating to the nonjudicial punishment shows that the person being punished had no right to demand trial because he was "attached to or embarked in a vessel,” then Booker is inapplicable. See United States v. Mack, 9 M.J. 300, 320 (CMA 1980)(Booker not intended to apply to persons "attached to or embarked in a vessel”). [6] A review of U.S. Navy Military Personnel Manual (MILPERSMAN) reveals that NJPs and summary courts-martial — as significant miscellaneous entries not provided for elsewhere in the regulations governing Naval service records-are documented by noting the date of the offense, the nature of the offense, the date of punishment, and the punishment awarded. See MILPERSMAN, Article 1070-320 §§ 1-4. There is no requirement that Booker/Mack advisory, or Article 64, UCMJ, review be documented anywhere in a Sailor’s service record. [7] The section reads in full is as follows: (1) Reverse Side. Compliance with U.S. Versus Booker, 5 MJ. 238 (CMA 1977) and U.S. Versus McLemore, 10 MJ. 238 (CMA 1981). Before a summary court-martial (SCM) can be considered in aggravation at a subsequent court-martial, the above cases implies [sic] that a written statement is required to show that the accused was given the opportunity to consult with independent counsel prior to accepting trial by SCM, the accused did not exercise the right to refuse trial by SCM, and that acceptance of a trial by GCM [sic] does not preclude the command from taking other adverse administrative action against the accused. Compliance may be accomplished by recording an entry on the reverse side of the page 13, signed by the accused, prior to commencement of the trial. The following is an example of an entry which is sufficient for this purpose. Use of a rubber stamp is authorized. "(Date). I certify I have been given the opportunity to consult with a lawyer, provided by the government at no cost to me, in regard to a pending SCM for violation of Article(s) _of the UCMJ. I understand I have the right to refuse that SCM; I(do) (do not) choose to exercise that right. I further understand that acceptance of trial by SCM does not preclude my command from taking other adverse administrative action against me. I (will) (will not) be represented by a civilian/militaiy lawyer. Signature of Marine." [8] In the 1990’s, a number of unpublished cases from this Court invoked forfeiture when trial defense counsel made no objection at trial to the admission of a prior disciplinary action. See, e.g., United States v. Harper, No. 9602469, 1997 WL 654087 (N.M.Ct.Crim.App. 13 June 1997)(unpublished op.); United States v. Hollingsworth, No. 911351 (N.M.C.M.R. 31 Jan 1992)(unpublished op.); United States v. Paasch, No. 894389 (N.M.C.M.R. 26 Apr 1991); United States v. Ellis, No. 894248 (N.M.C.M.R. 22 Jan 1991)(unpublished op.); United States v. Scott, No. 901166 (N.M.C.M.R. 26 Sep 1990)(unpub-lished op.). By contrast, in the early 2000's a number of unpublished cases tested for prejudice under a plain error analysis when trial defense counsel made no objection at trial. See, e.g., United States v. Moore, No. 200000980 (N.M.Ct. Crim.App. 29 Mar 2002)(unpublished op.); United States v. Cross, No. 200100691 (N.M.Ct.Crim. App. 15 Mar 2002)(unpublished op.); United States v. James, No. 200100280 (N.M.Ct.Crim. App. 30 Nov 2001)(unpublished op.). More recently, several unpublished cases have variously employed one or the other approaches. Compare United States v. Gish, No. 200101810 (N.M.Ct. Crim.App. 26 Mar 2003)(unpublished op.), United States v. Hurst, No. 200200924 (N.M.Ct.Crim. App. 23 Dec 2002)(unpublished op.), and United States v. Hutton, No. 200201056 (N.M.Ct.Crim. App. 23 Dec 2002)(unpublished op.), which tested for prejudice, with United States v. Adelsberger, No. 200101497, 2002 WL 31914929 (N.M.Ct. Crim.App. 30 Dec. 2002)(unpublished op.), United States v. Sinclair, No. 200200873 (N.M.Ct.Crim.App. 19 Dec 2002)(unpublished op.), and United States v. Youmans, No. 200101342 (N.M.Ct.Crim.App. 8 Oct 2002)(unpublished op.), which held any error was forfeited without conducting a plain error analysis. [9] By way of example, the responsible staff judge advocate is obliged by Article 60(d), UCMJ, 10 U.S.C. § 860, and R.C.M. 1106(c) to prepare a recommendation for consideration by the convening authority (CA) prior to the CA taking action on the findings and sentence. Should the staff judge advocate fail to fulfill this obligation, even in the absence of a timely objection by an appellant, the error will be tested for prejudice under a plain error analysis. The same cannot be said of the case at bar, where the Government’s purported obligation to establish Booker/Mack advisory and/or Article 64, UCMJ review compliance was never triggered during trial. The Government was never called upon to justify the admission of the Page 13 relating to the appellant’s summary court-martial and, therefore, it cannot be said that an alleged failure by the Government in this regard rises to the level of a plain or otherwise obvious error. [10] "Possum Pos”sum, n. [Shortened from opossum.] An opossum.[CoIloq. U.S.]. {To play possum}, {to act possum}, to feign ignorance, indifference or inattention, with the intent to deceive; to dissemble; in allusion to the habit of the opossum, which feigns death when attacked or alarmed.” Webster’s Revised Unabridged Dictionary (1913). [11] To adopt the appellant’s position would "encourage the practice of ‘sandbagging’: suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error.” Freytag v. Commissioner, 501 U.S. 868, 895, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)(Scalia, J., concurring in part and concurring in the judgment); see also United States v. Reist, 50 M.J. 108, 110 (1999)(stating that the rules are "designed ‘to prevent defense counsel from remaining silent, making no objection, and then raising the issue on appeal for the first time, long after any possibility of curing the problem has vanished. It is important to encourage all trial participants to seek a fair and accurate trial the first time around.’ ”). [12] If after being so highlighted by the military judge, a trial defense counsel still interposes no objection, then any issue of non-compliance with Booker/Mack or Article 64, UCMJ would be affirmatively waived vice forfeited. See Gordon, 10 M.J. at 279; United States v. Quiroz, 53 M.J. 600, 605 n. 15 (N.M.Ct.Crim.App.2000)(en banc).