United States v. Vandelinder

GARVIN, Judge: Appellant was convicted by special court-martial, contrary to his pleas, of the possession, transfer and sale of a controlled substance in violation of Article 1151, U.S. Navy Regulations, 26 February 1973 (Navy Regs.), which is a violation of Article 92, 10 U.S.C.A. § 892, Uniform Code of Military Justice (UCMJ). The members sentenced him to be confined at hard labor for 90 days, to forfeit $382.00 pay per month for three months, to be reduced to pay grade E-l and to be discharged from the naval service with a bad-conduct discharge. He has assigned two errors on appeal. We initially dispose of the second assignment. A bad-conduct discharge is an appropriate sentence for illegal drug trafficking. In the second assignment, appellant urges the court to find that: THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT IN EXCLUDING EVIDENCE OF APPELLANT’S GOOD MILITARY CHARACTER OFFERED ON THE MERITS. We have drawn heavily on the government’s brief and have determined that the military judge did not err when he excluded the defense evidence of good military character. The critical question is whether evidence of appellant’s good military character was pertinent in reaching the guilty findings. We find that illegal drug dealings are not uniquely military in nature. Good military character is clearly relevant to an offense such as disrespect or a disobedience of orders, but it is not relevant to offenses which are not of a military orientation. We have searched the record to determine how appellant’s good military character may be relevant to the off-base drug transaction which involved a military person. We find no relevance. The probative value of such evidence, on the issue of guilt for the charged offenses, is nonexistent. Performance eváluations do not address lawabidingness and therefore are not relevant, especially when the accused denied the commission of the charged offense. In United States v. Clemons, 16 M.J. 44 (C.M.A.1983), the accused admitted the facts alleged and based his defense on a contention that he properly performed his military duties as the Charge of Quarters. He attempted to avoid criminal responsibility for his conduct by establishing that his actions conformed to his established trait of good military character. In that setting the good military record of the accused was obviously pertinent to a resolution of the issue of guilt and the exclusion of such evidence may have affected the decision of the fact finders. The exclusion of performance evaluations in this drug sale/transfer situation would not have affected findings. Military Rule of Evidence (MRE) 404(a) clearly states the rule to be applied in military trials. MRE 101(a) makes it unmistakably clear that the Military Rules of Evi [712] dence are the primary source of evidentiary law for the military and we need not go beyond the clear mandate of MRE 404(a) to resolve the issue. We reiterate that the rejected performance evaluations evidence no pertinent trait of the character of appellant which is relevant to the resolution of his guilt in light of his defense, the complete denial of the government’s allegations. United States v. Weeks, 17 M.J. 613 (N.M.C.M.R.1983). Accordingly, the findings of guilty and sentence, as approved on review below, are affirmed. Judge BYRNE concurs.