United States, Appellee
Mark P. ARIAIL, Specialist
U. S. Army, Appellant
Crim. App. No. 9501908
United States Court of Appeals for the Armed Forces
Argued January 13, 1998
Decided August 27, 1998
For Appellant: Captain Paul J. Perrone, Jr. (argued); Colonel John T. Phelps, II, Lieutenant Colonel Michael L. Walters, and Major Leslie A. Nepper (on brief); Captain John M. Head.
For Appellee: Captain Chris A. Wendelbo (argued); Colonel Joseph E. Ross and Lieutenant Colonel Frederic L. Borch, III (on brief); Major Virginia G. Beakes.
Military Judge: Craig S. Schwender
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Opinion of the Court
Pursuant to his pleas, appellant was convicted of operating a motor vehicle without a license, making a false official statement, damaging personal property, larceny (2 specifications), and making a false claim (2 specifications), in violation of Articles 92, 107, 109, 121, and 132, Uniform Code of Military Justice, 10 USC §§ 892, 907, 909, 921, and 932, respectively. The judge sentenced appellant to a bad-conduct discharge, 2 years' confinement, total forfeitures, and reduction to the lowest enlisted grade. Acting pursuant to a pretrial agreement, the convening authority approved the sentence but suspended confinement in excess of 8 months. The Court of Criminal Appeals affirmed the findings and sentence.
We granted review of the following issue raised by appellate defense counsel:
WHETHER THE MILITARY JUDGE ERRED WHEN HE ADMITTED,
OVER DEFENSE OBJECTION, DD FORM 398-2, NATIONAL
AGENCY QUESTIONNAIRE (PROSECUTION EXHIBIT 3),
WHICH THE GOVERNMENT OFFERED AS PRIOR CONVICTIONS
OF APPELLANT, WHICH WERE NOT CONVICTIONS UNDER THE CONTROLLING STATE LAW.
We also specified the following issue:
WHETHER THE STAFF JUDGE ADVOCATE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE CONCEDED
THAT APPELLANT HAD BEEN IMPROPERLY REDUCED PRIOR
TO THE ACTION OF THE CONVENING AUTHORITY BUT, IN
EFFECT, STATED THAT NO CORRECTIVE ACTION WAS
With respect to the granted issue, we hold that the military judge did not abuse his discretion in admitting Prosecution Exhibit (PE) 3.*/ With respect to the specified issue, the Government concedes administrative error. Thus, corrective action must be taken.
At trial, the prosecutor sought to introduce appellant’s Department of Defense (DD) Form 398-2, National Agency Questionnaire, marked PE 3, as part of appellant’s personnel record. The judge overruled trial defense counsel’s objection, which was based on RCM 1001(b)(2), Manual for Courts-Martial, United States (1995 ed.), and paragraph 5-26(a), Department of the Army Regulation (AR) 27-10 (8 August 1994).
Paragraph 18 of appellant’s DD Form 398-2, PE 3, provides, in part, as follows:
|18. ARRESTS * * * * *|
|a. Have you ever been arrested, charged, cited, held, or detained by Federal, State, or other law enforcement or juvenile authorities regardless of whether the charge was dropped or dismissed or you were found not guilty?|
|b. List details of "Yes" answers|
PE 3 lists the judgments and sentences, including fines, entered against appellant. Two of these were pleas of nolo contendere. Appellant did not claim the information was incorrect or inaccurate. In fact, he had completed the form personally and signed it prior to its being entered into his personnel file.
RCM 1001(b)(1)-(3) allows the prosecution to introduce into evidence service data from the charge sheet, personal data properly kept pursuant to service regulations, and prior convictions of an accused. RCM 1001(b)(2) states:
Personal data and character of prior service
of the accused. Under regulations of the
Secretary concerned, trial counsel may obtain
and introduce from the personnel records of the accused ... copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under
"Personnel records of the accused"
records made or maintained in accordance with
departmental regulations that reflect the past
military efficiency, conduct, performance, and
history of the accused. If the accused objects
to a particular document as inaccurate or incom-
plete in a specified respect, or as containing
matter that is not admissible under the Military
Rules of Evidence, the matter shall be determined by the military judge. Objections not
asserted are waived.
Paragraph 5-26(a), AR 27-10, provides in relevant part:
For purposes of R.C.M. 1001(b)(2) and (d),
trial counsel may, in the trial counsel’s
discretion, present to the military judge
(for use by the court-martial members or
military judge sitting alone) copies of
any personnel records that reflect the
past conduct and performance of the
accused, made or maintained according to
departmental regulations. Examples of
personnel records that may be presented
(1) DA Form 2 (Personnel Qualification
Record-Part I), DA Form 2A (Personnel
Qualification Record - Part I - Enlisted
Peacetime), and DA Form 2-1 (Personnel
Qualification Record - Part II).
The fact that PE 3 may not meet the criteria for admission under RCM 1001(b)(3) as a prior conviction, cf. United States v. White, 47 MJ 139 (1997), does not prevent its admission under RCM 1001(b)(2) if relevant and reliable.
[T]here is no rule of evidence which provides that testimony admissible for one purpose and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the case. It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar.
United States v. Abel, 469 U.S. 45, 56 (1984).
RCM 1001(b)(2) does not provide blanket authority to introduce all information that happens to be maintained in the personnel records of an accused. Personnel records may contain entries of questionable accuracy, relevance, or completeness. Appellant, however, did not object on these grounds to the admission of his DD Form 398-2, which he had prepared.
Paragraph 5-26(a), AR 27-10, sets forth examples of personnel records of past conduct that may be admissible, including DA Form 2 (Personnel Qualification Record - Part I) and DA Form 2-1 (Personnel Qualification Record - Part II), which were PE 2 in this case. The Personnel Service Battalion noncommissioned officer-in-charge certified both PE 2 and 3 as personnel records of appellant. Both exhibits reflect appellant’s "past conduct and performance" and were "maintained according to" Army regulations. Since this was a judge alone trial, the judge could determine the relevance and reliability of PE 3 for sentencing.
For the reasons set forth above, we hold that the judge did not abuse his discretion.
The decision of the United States Army Court of Criminal Appeals is affirmed. The record of trial is returned to the Judge Advocate General of the Army for corrective action consistent with this opinion.
Chief Judge COX and Judges GIERKE and EFFRON concur.
*/ See United States v. Sullivan, 42 MJ 360, 363 (1995).
SULLIVAN, Judge (concurring in part and dissenting in part):
Concerning Issue I, I conclude that, if error occurred here, it was harmless. Art. 59(a), UCMJ, 10 USC § 859(a). This was a trial by judge alone, who was not likely to be unduly influenced by this evidence. Appellant was found guilty of numerous serious offenses permitting 35 years’ confinement. The evidence of prior state court traffic offenses was de minimis in light of these offenses. The resulting 2 year sentence of the trial judge confirms this fact.
On Issue II, although not an ex post facto issue, the proper remedy should be a remand to the Court of Criminal Appeals. See United States v. Roseboro, No. 98-0439/AR, ___ MJ ___ (Daily Journal July 27, 1998); United States v. Gorski, 47 MJ 370, 376 (1997)(Sullivan, J., concurring in part and in the result).