United States v. Shelwood

EDWARDS, Judge: Appellant has assigned four errors before this Court: I THE COURT-MARTIAL ORDER ERRONEOUSLY RECITES THE SENTENCE. II APPELLANT’S REQUEST FOR TRIAL BY MILITARY JUDGE ALONE WAS NOT “UNDERSTANDINGLY MADE” (MCM, 1969 (REV.), PARA. 53d) AND THEREFORE SHOULD NOT HAVE BEEN ACCEPTED BY THE MILITARY JUDGE. Ill PROSECUTION EXHIBIT 2 (A AND B) WERE INADMISSIBLE OVER DEFENSE OBJECTION ABSENT ANY SHOWING THAT APPELLANT HAD THE OPPORTUNITY TO REBUT THE ADVERSE SERVICE RECORD ENTRIES OR EVEN KNEW OF THE EXISTENCE OF ONE OF THEM. [756] IV THE APPROVED SENTENCE IS INAPPROPRIATELY SEVERE. We agree with Assignment of Error I. Assignments II, III, and IV are rejected. We will discuss assignments I, III, and IV. I The Court-Martial Order erroneously reflects that the sentence included forfeiture of all pay and allowances. The military judge expressly excluded allowances from the forfeitures. Our action will correct this error. Ill Appellant contends that entries A and B of Prosecution Exhibit 2, see Appendix A, are inadmissible hearsay because they do not come within the official records exception to the hearsay rule, arguing that they do not comply with paragraph 1000.3c of MCOP 1070.12c, the Marine Corps Individual Records Administration Manual (IRAM), and Article 1110, U. S. Navy Regulations, 1973. A closer reading of IRAM paragraph 1000.3c and a better understanding of the IRAM is in order. IRAM paragraph 1000, in part, states: 1. Every Marine has an official personnel file at Headquarters, U. S. Marine Corps, which provides a complete military history of his/her career in this branch of the Armed Forces. 3. Unfavorable matter. Items of an unfavorable nature will be placed in personnel files maintained at Headquarters, U. S. Marine Corps, in the following manner: c. Enlisted Personnel Files (1) Matters of an unfavorable nature will not be filed in an enlisted personnel file until such matter has been referred to him/her and the Marine concerned has had an opportunity to make a statement with respect thereto, in accordance with U. S. Navy Regulations 1973, Article 1110. Prosecution Exhibit 2, which includes entries A and B, is the page 11 from appellant’s service record book (SRB); the SRB is not the “official personnel file at Headquarters, Marine Corps” that is the subject of the proscription contained in IRAM paragraph 1000.3c. Entries on page 11 of the SRB are controlled by IRAM paragraph 4013. Nowhere in paragraph 4013 is there a provision similar to paragraph 1000.3c. Paragraph 4013 is replete with examples reporting the factual predicates of matters of an unfavorable nature which should be entered on page 11 of an SRB, with no requirement that the entry be referred to the Marine or affording the Marine an opportunity to make a statement. Appellant’s reliance on IRAM paragraph 1000.3c for objecting to his SRB entries is misplaced. The second prong of appellant's argument is that the entries marked A and B on Prosecution Exhibit 2 are “adverse matter” and because they were not maintained in accordance with departmental regulation they are precluded from admittance into evidence. Article 1110, U. S. Navy Regulations, 1973. The issue is whether the entries contained on page 11 of the SRB constitute the “adverse matter” envisioned to come within the proscription of U. S. Navy Regulations. We think not. The subject of the intent and history of Article 1110, U. S. Navy Regulations, 1973, has been addressed by the Judge Advocate General of the Navy in his opinion contained in correspondence to the Commandant of the Marine Corps. Opinion of the Judge Advocate General of the Navy JAG:131.4:JLW:case Ser 13/5124 of 7 March 1978 (enclosure (14) to Off The Record Issue No. 73). See Appendix B. From this letter we can see that the genesis and subsequent history of this Article is to preclude certain limited types of material from being included within the official personnel record. From the original intended [757] “reports of fitness” or “correspondence relating thereto” to the expanded view precluding the filing of any document containing unfavorable information in a service record without the knowledge or comment of the individual concerned, the proscription is limited to entries which reflect opinions rather than facts. Whenever entries of this type are subjected to analysis as to whether they are opinion or fact it is possible to “dance on the head” of the proverbial “pin.” In engaging in such dances one must not look at page 11 entries of the SRB out of context. The SRB is designed for recording, inter alia, “pertinent events” which affect a Marine’s military service. IRAM paragraph 4000.1. By any criterion, a “pertinent event” in a Marine’s military service is when the Marine’s commanding officer, in exercising his responsibilities as commanding officer and practicing the traditional concepts of Marines Corps leadership, counsels the Marine as to what is perceived as substandard performance. See paragraph 1100, Marine Corps Manual, 1980. The “pertinent event” is the counseling; the recordation of that event is a “fact.” We can not help but note that a primary consideration in sentencing is the tailoring of a sentence to fit the crime and the offender. It follows that the military judge must be provided relevant material concerning the accused. As was stated by Judge William E. Doyle, of the Tenth Circuit United States Court of Appeals, Unless a court has background information concerning the accused, he must rely on statements from the adversaries concerning matters in aggravation or mitigation of a sentence. This is obviously inadequate for the present day idea that criminal justice, and particularly the sentence, is to be administered as factually as possible, and on an individual basis. The ancient hunch method is long since discredited. If the sentence is not to be pronounced upon any disciplinary or revenge basis, the facts about the defendant and his offense are needed.1 It equally follows that the information in Prosecution Exhibit 2, entries A and B, is provided for in the military justice system.2 To accept appellant’s contention would fly in the face of development of a rational basis upon which a sentence can be determined. In addition, at paragraph 75d, MCM, a safeguard provision is made for objection to data which is inaccurate or incomplete. The entries were made in conformance with the IRAM and U. S. Navy Regulation, 1973 and were thus admissible under the provisions of paragraph 75d, MCM. See United States v. Brown, 10 M.J. 589 (N.C.M.R.1980). To further restrict the introduction of such entries would be to encourage the “hunch method” of sentencing. IV The sentence was appropriate, considering the nature of the offense, the character of the offender, and the protection of the public interest. I view appellant’s argument not so much that the sentence was inappropriate generally but that it is inappropriate when compared to his co-actors. I find nothing in this case which indicates that the community’s sense of justice as manifested in the sentence is so harsh as to cry out for sentence equalization. United States v. Usry, 9 M.J. 701 (N.C.M.R.1980). The findings and sentence as approved on review below are affirmed. A supplemental Court-Martial Order shall be issued to accurately reflect the adjudged forfeitures. All rights, privileges and property of which' appellant may have been deprived by virtue of this error will be restored. Judge PRICE concurs. Footnotes [1] J. BURNS AND J. MATTINA, SENTENCING 123 (1978) (published by National Judicial College) [2] Paragraph 75d, Manual for Courts-Martial, 1969 (Rev.) (MCM).