United States v. Lecolst

GLADIS, Judge: As this case reaches us, the accused stands convicted of eight unauthorized absences, totalling 95 days, and disorderly conduct. The sentence, as approved by prior reviewing authorities, consists of a bad conduct discharge and reduction to pay grade E-1. The accused contends that introduction after findings of evidence of four prior shipboard nonjudicial punishments was prejudicial error. We disagree and affirm; holding that evidence of prior nonjudicial punishment imposed upon an individual attached to a vessel is admissible in aggravation, even though he has not been afforded the opportunity to consult with counsel or to demand trial by court-martial in lieu of such punishment. The issue presented in this case is whether, in light of the principles announced in United States v. Booker, 3 M.J. 443 (C.M.A. 1977), evidence of prior shipboard nonjudicial punishment is admissible, as evidence of the character of the accused’s prior service, to aggravate the penalty, within the parameters prescribed under MCM, 1969 (Rev.), para. 127c, for the offenses of which he stands convicted. The accused bases his contention that he was prejudiced by receipt, after findings, of evidence of prior shipboard nonjudicial punishments upon the equal protection principles encompassed in the Due Process Clause of the Fifth Amendment, the reasoning of the Court of Military Appeals in Booker, and the intent of Congress. Article 15, UCMJ, 10 U.S.C. § 815, which establishes nonjudicial punishment as an administrative method of dealing with minor offenses, provides that, except in the case of a service member attached to or embarked in a vessel, such punishment may [801] not be imposed upon a service member who has demanded trial by court-martial in lieu of nonjudicial punishment. Article 20, UCMJ, 10 U.S.C. § 820, provides that no person may be brought to trial before a summary court-martial if he objects. In Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court held that the Congressional determination that counsel is not required in summary courts-martial violates neither the Sixth nor the Fifth Amendment to the U. S. Constitution, because a summary court-martial is not a criminal prosecution for purposes of the Sixth Amendment and, upon analysis of the interests of the individual and of the regime to which he is subject, the due process of law guaranteed by the Fifth Amendment does not embody a right to counsel at such a proceeding. In Booker, the Court of Military Appeals held that, because the consequences of a decision to accept an Article 15 or a summary court-martial disciplinary action involve due process considerations (that is, waiver of a right to a full adversary criminal proceeding with its attendant Fifth and Sixth Amendment protections) and only a legally trained person can supply the requisite quantum of information necessary for an informed decision, an individual must be told of his right to confer with counsel before he opts for disposition at the Article 15 or summary court-martial level. In Middendorf, the Supreme Court gave particular deference to the determination of Congress, made under its Constitutional authority to regulate the land and naval forces, that counsel should not be provided in summary courts-martial; noting that the framers of the Constitution especially entrusted to Congress the task of adjusting the precise balance between overriding demands of discipline and duty and the rights of men in the armed forces that must, perforce, be conditioned to meet those demands. We have no doubt that the Supreme Court would treat with equal deference the Congressional determination that a service member attached to or embarked in a vessel does not have the right to demand trial by court-martial in lieu of nonjudicial punishment. No extraordinarily weighty factors militate in favor of upsetting the balance struck by Congress. We do not doubt the authority of Congress to refuse to afford military personnel, members of a society in which the rights of individuals may be conditioned to meet overriding demands of discipline and duty, the right to demand trial by court-martial in lieu of action that is an administrative method of dealing with minor offenses. See Middendorf v. Henry, supra. See also Parker v. Levy, 417 U.S. 738, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), in which the Supreme Court applied a less stringent standard in determining the Constitutionality of penal legislation regulating members of the armed forces than it would apply in scrutinizing civilian legislation; holding that, for the reasons that differentiate military society from civilian society, Congress is permitted to legislate with both greater breadth and greater flexibility when prescribing the rules governing military society. We do not find the statutory distinction between service members who are attached to or embarked in a vessel and those who are not to be violative of the equal protection principles encompassed in the Fifth Amendment’s Due Process Clause. Persons attached to or embarked in vessels are treated differently from all other service members insofar as the latter have been afforded the right to demand trial by court-martial in lieu of nonjudicial punishment under Article 15, UCMJ, while the former have not. Statutory classifications are not per se unconstitutional; the matter depends on the character of the discrimination and its relation to legitimate legislative aims. Mathews v. Lucas, 427 U.S. 495, 503, 504, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). To decide whether a law violates the Equal Protection Clause, we must look to three things: (1) the character of the classification in question; (2) the individual interests affected by the classification; and (3) the Governmental interests asserted in support of the classification. Dunn v. Blumstein, [802] 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The right to demand trial by court-martial in lieu of nonjudicial punishment is not a fundamental Constitutional right. The statutory classification in question is not based upon an inherently suspect distinction such as race, religion, or alien-age. Therefore, the test in determining whether equal protection principles have been violated is the “rational basis” standard; that is, whether the classification rationally furthers a legitimate Governmental purpose or interest. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Equal protection principles are not violated merely because the classification is imperfect or there is some inequality in the manner in which the rationale is achieved. Id., at 50, 51, 93 S.Ct. 1278. Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 316, 96 S.Ct. 2562. The Congressional determination that service members attached to or embarked in a vessel may not demand trial by court-martial in lieu of non judicial punishment is rationally related to the objective of achieving discipline by providing an administrative method of dealing with minor offenses in situations in which trial by court-martial is not feasible. Convening a special court-martial is normally not feasible when a ship is at sea or in a foreign or domestic port where legal support facilities are not readily available. Affording the right to demand trial by court-martial to a service member attached to or embarked in a vessel might well consume “the resources of the Navy to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses.” Perfection in making the classification is unnecessary. If the classification has some reasonable basis, it does not offend the Constitution simply because it is not made with mathematical nicety or because, in practice, it results in some inequality. Mathews v. deCastro, 429 U.S. 181, 184, 97 S.Ct. 431, 434, 50 L.Ed.2d 389, 394 (1976). If there are alternatives, Congress is not required to choose the least restrictive one in achieving its objective. San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 51, 93 S.Ct. 1278. Therefore, we conclude that the Congressional determination that service members attached to or embarked in a vessel may not demand trial by court-martial in lieu of non judicial punishment under Article 15, UCMJ, does not violate equal protection principles. Having concluded that the different treatment of service members attached to or embarked in a vessel, with respect to the imposition of non judicial punishment, does not violate Constitutional equal protection principles; we must now determine whether evidence of imposition of nonjudicial punishment upon members attached to or embarked in a vessel is admissible, in a subsequent trial by court-martial, as evidence of the character of prior service, to aggravate the penalty within the parameters prescribed under MCM, 1969 (Rev.), para. 127c. Clearly, the introduction of such evidence does not offend equal protection principles. Service members attached to or embarked in a vessel are not treated differently from those who are not so attached or embarked. Evidence of prior nonjudicial punishment that does not offend the due process guarantees of the Fifth Amendment or other Constitutional principles is admissible against both classes of service members. Such evidence is received as evidence of the character of an accused’s prior service. It may not be used to escalate the penalty, because it does not constitute evidence of prior convictions, which may authorize a greater punishment. This evidence is similar to other personal records reflecting the past conduct and performance of the accused and may be properly admitted pursuant to MCM, 1969 (Rev.), para. 75d. We reject the accused’s contention that use of evidence of any non [803] judicial punishment in aggravation constitutes utilization of it as evidence of prior convictions, contrary to the intent of Congress. The Court of Military Appeals has rejected this position, which is based upon the dissent of Judge Ferguson in United States v. Johnson, 19 U.S.C.M.A. 464, 42 C.M.R. 66 (1970). United States v. Booker, supra, at 449 n. 24. Derogatory performance evaluations and other adverse matters may be properly recorded in official records and introduced, even though the accused has not been provided with counsel or afforded a hearing with respect to such matter. Evidence of nonjudicial punishment properly imposed is, justifiably, treated no differently. The reasoning in United States v. Booker, supra, does not support the exclusion of such evidence. In Booker the Court of Military Appeals merely held that, when an individual has a right to demand trial by court-martial in lieu of nonjudicial punishment, he must be advised of his right to consult with counsel before he opts for nonjudicial punishment, because of the due process considerations involved in the waiver of his right to a full adversary criminal proceeding. In order to give meaning to the due process requirement that the individual be advised of his rights, the Court provided for the exclusion at subsequent courts-martial of evidence of non judicial punishment, absent a showing that the required advice had been given. Id. 3 M.J. at 449 n. 24. The Court, however, had no sound reason for and revealed no intention of mandating the exclusion of evidence of legally imposed nonjudicial punishment in cases in which no advice is required because the individual has no right to demand trial. Booker only excludes evidence of defective nonjudicial punishment. Evidence of nonjudicial punishment that offends no Constitutional principle is admissible. As we have seen, imposition of non judicial punishment upon service members attached to or embarked in a vessel who have not been afforded the right to demand trial by court-martial in lieu thereof offends no Constitutional principle. Therefore, evidence of such punishment may be used in a subsequent court-martial as evidence of the character of an accused’s prior service, for the purpose of aggravation. Accordingly, the findings of guilty and sentence as approved on review below are affirmed. Judge GRANGER concurs.