United States v. McCullers

OPINION OF THE COURT PER CURIAM: Contrary to his pleas, the appellant was convicted of three specifications of absence without leave by a special court-martial composed of a military judge alone.1 He was sentenced to a bad-conduct discharge, confinement at hard labor for two months, forfeiture of $100.00 pay per month for two months, and reduction to Private E-l. The convening authority approved the findings and sentence. The appellant assigns two errors, only one of which merits discussion. Appellant asserts the military judge violated his Sixth Amendment right to confront witnesses against him by admitting into evidence as exceptions to the hearsay rule Prosecution Exhibits 1 through 16.2 Appellant specifically argues that Prosecution Exhibits 4 and 6 were not prepared in accordance with paragraph 5-9f, AR 680-1 (C8, 21 February 1975). Government appellate counsel argue that Prosecution Exhib [825] its 1 through 16 were properly admitted into evidence pursuant to paragraph 144b, Manual for Courts-Martial, United States, 1969 (Revised edition), which sets forth the official records exception to the hearsay rule. Government counsel further argue that any discrepancy with regulatory requirements on the face of Prosecution Exhibits 4 and 6 is a mere administrative irregularity and does not deprive the exhibits of officiality. The military judge must conduct a trial within sound legal principles, admitting only factually and legally relevant evidence. United States v. Heflin, 1 M.J. 131 (C.M.A.1975). The DA Forms 4187, upon which his unauthorized absence convictions are based, become admissible hearsay only when prepared in accordance with AR 680-1. See United States v. Fowler, 48 C.M.R. 94 (A.C.M.R.1973). But not every deviation from the prescriptive regulation will destroy this admissibility. Only those material to the execution of the documents have that effect. United States v. Anderten, 4 U.S.C.M.A. 354, 15 C.M.R. 354 (1954).3 DA Forms 4187 may be used to evidence a service member’s request for personnel action or to evidence a change in duty status. Paragraph 5-9, AR 680-1, requires that the DA Form 4187 be prepared in accordance with Procedure 5-27, DA Pamphlet 600-8. That Procedure provides in part: “[The Unit Commander must] verify [the] information and place an ‘x’ in the box ‘has been verified.’ ” It is hornbook law that an official record is a writing, properly prepared, United States v. Parlier, 1 U.S.C.M.A. 433, 4 C.M.R. 25 (1952), United States v. Fowler, supra, by an official with a duty to prepare the record, United States v. Bennett, 4 U.S.C.M.A. 309, 15 C.M.R. 309 (1954), and a duty to know or ascertain, through trustworthy channels, the truth of the facts recorded. Certainly verification of the truth of the fact recorded goes to the heart of the rule and cannot be called an immaterial deviation. Where, on its face, the form is incorrectly completed according to the regulation, the Government is not aided by any inference that the record was made by an authorized person and that person performed his duty properly. See paragraph 144b, MCM, 1969 (Rev.). To the contrary, the only inference to be drawn from such noncompliance is either that he was ignorant of the requirements of the regulation or that he chose to violate them. Either, because they touch upon verification of the truth of the fact reported, is fatal.4 Accordingly, we hold the failure to properly note verification of the entry made in Section II of the form to be a material and substantial deviation from regulatory requirements and to have removed Prosecution Exhibits 4 and 6 from the official records exception to the rule against hearsay. There being no other basis of record for their admissibility, Prosecution Exhibits 4 and 6 were improperly admitted into evidence. The allied papers reveal that Prosecution Exhibit 2 was missing from the record of trial prior to authentication. A brief, written description was substituted for the exhibit, the record of trial authenticated and action taken by the convening authority. Prosecution Exhibit 2, or an authorized copy thereof, is still missing from the record; however, we are satisfied of the accuracy of the description for purposes of our review. Based upon the foregoing dispositions of Prosecution Exhibit 4 (which established [826] the termination date of the period of unauthorized absence charged in Specification 1) and Prosecution Exhibit 6 (which established the inception date of the period of unauthorized absence charged in Specification 2), we can only approve a portion of the findings of guilty of the specifications of Charge I. Prosecution Exhibit 2 established appellant’s unauthorized absence at 0600 hours, 24 April 1976 (less than one day). Prosecution Exhibit 8 established that appellant was in an unauthorized status from at least the effective date contained therein (0800 hours, 25 May 1978) with Prosecution Exhibit 10 establishing the date of his return to military control (effective 1045 hours, 21 June 1978). Accordingly, only so much of the approved finding of guilty of Specification 1 of Charge I as finds that the appellant did, at the place alleged, on or about 0600 hours, 24 April 1976, without authority, absent himself from his unit and remain so absent until 2400 hours, 24 April 1976. Only so much of the approved finding of guilty of Specification 2 of Charge I as finds that the appellant did, at the place alleged, on or about 25 May 1978, without authority, absent himself from his unit and remain so absent until on or about 21 June 1978 is affirmed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the errors noted and the entire record, the Court affirms only so much of the approved sentence as provides for confinement at hard labor for two months, forfeiture of $100.00 pay per month for two months, and reduction to the grade of Private E-1. Footnotes [1] These offenses were in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866. [2] Prosecution Exhibits 1, 3, 5, 7, 9, 11, 13, and 15 are DA Forms 2496, authentication certificates, while Prosecution Exhibits 2, 4, 6, 8, 10, 12, 14, and 16, are DA Forms 4187, Personnel Actions, which were offered to establish inception, dropped from rolls, and return dates related to the charged absence without leave offenses. [3] Prosecution Exhibits 10 and 16 are also not prepared in full accordance with the regulation in that they depict a status change “Dropped From Rolls to present for duty” when they should have read “DFR to attached.” This is not “material to the execution of the documents” in the sense of United States v. Anderten, 4 U.S.C.M.A. 354, 15 C.M.R. 354 (1954), in that, whether the appellant was assigned or attached, he was still present for duty, which fact was properly verified and certified. [4] A third possible cause of the wrong block having been checked might be sheer inadvertence. We decline to indorse the kind of casual approach to the certification of official records that this would reflect. Public confidence in the accuracy of public records demands at least a modicum of care in certifying verification of the facts they record.