                       UNITED STATES, Appellee

                                     v.

                   Christopher S. GOGAS, Airman
                     U.S. Air Force, Appellant

                               No. 01-0718

                         Crim. App. No. 34210

    United States Court of Appeals for the Armed Forces

                       Argued December 10, 2002

                       Decided February 14, 2003

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                 Counsel

For Appellant: Captain Antony B. Kolenc (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief);
Lieutenant Colonel Timothy W. Murphy and Captain Patrick J.
Dolan.

For Appellee: Captain Shannon J. Kennedy (argued);
Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel
Lance B. Sigmon (on brief).

Military Judge:      David F. Brash




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gogas, No. 01-0718/AF


     Chief Judge CRAWFORD delivered the opinion of the

Court.

     Pursuant to his pleas, Appellant was convicted by a

military judge of wrongful use and wrongful distribution of

lysergic acid diethylamide (LSD), in violation of Article

112a, Uniform Code of Military Justice [hereinafter UCMJ],

10 U.S.C. § 912a (2002).    The convening authority approved

the sentence of a bad-conduct discharge, 18 months’

confinement, and reduction to the lowest enlisted grade.

The Court of Criminal Appeals affirmed the findings and

sentence.    United States v. Gogas, 55 M.J. 521 (A.F. Ct.

Crim. App. 2001).    We granted review of the following

issues:

     I.     WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED IN HOLDING THAT A LETTER
            APPELLANT WROTE TO HIS CONGRESSMAN
            (PROSECUTION EXHIBIT 9), IN WHICH
            APPELLANT COMPLAINED OF HIS TREATMENT BY
            AIR FORCE AUTHORITIES, WAS PROPERLY
            ADMITTED IN EVIDENCE DURING THE SENTENCING
            PHASE OF HIS COURT-MARTIAL WHERE 10 U.S.C.
            § 1034 (2002) PROHIBITS RETALIATION
            AGAINST SERVICEMEMBERS WHO COMPLAIN TO
            CONGRESS.

     II. WHETHER THE AIR FORCE COURT OF CRIMINAL
         APPEALS ERRED IN HOLDING THAT PROSECUTION
         EXHIBIT 9 WAS PROPERLY ADMISSIBLE IN
         SENTENCING UNDER RULE FOR COURTS-MARTIAL
         1001 AS A MATTER IN AGGRAVATION AND AS A
         MATTER RELATED TO APPELLANT’S
         REHABILITATION POTENTIAL.

For the reasons set forth below, we affirm.


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United States v. Gogas, No. 01-0718/AF


                          FACTS

     On January 27, 2000, Appellant confessed to using LSD

on approximately 20 occasions.        During sentencing, the

Government introduced, without objection, records of two

instances of nonjudicial punishment under Article 15, UCMJ,

10 U.S.C. § 815 (2002).    One was for Appellant’s underage

possession of alcoholic beverages, and the second for

Appellant’s failure to go to an appointed place of duty.

The Government also successfully introduced three letters

of reprimand for Appellant’s minor disciplinary

infractions.

     In addition to personnel records, the Government

offered a letter, dated May 11, 2000, that Appellant wrote

to a Congressman requesting assistance with Appellant’s

impending court-martial.    In the letter, Appellant

recounted his “journey down the road of self-destruction,”

and linked it to his repeated failures to appear for work

and to other disciplinary infractions.        Appellant

complained that the criminal charges had damaged his

reputation at work, and argued that the charges were not

provable because there was no physical evidence, only

witness testimony.

     Defense counsel objected to the letter, arguing that

it was not admissible as a matter in aggravation under Rule


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United States v. Gogas, No. 01-0718/AF


for Courts-Martial [hereinafter R.C.M.] 1001(b)(4), or as

opinion evidence of rehabilitative potential under R.C.M.

1001(b)(5).    The Government argued that Appellant’s views

in the letter about whether he should be prosecuted for the

offenses were evidence of a lack of rehabilitative

potential.    The military judge concluded that the letter

was admissible aggravation evidence because it related to

the crimes in question, and that it was relevant to

Appellant’s rehabilitative potential.

                           DISCUSSION

   I.   The Government did not Retaliate Against Appellant

     Appellant claims that his sentence, aggravated by the

use of his letter as evidence, qualified as an unfavorable

personnel action designed to punish him for writing the

letter.   We disagree.

     Title 10 U.S.C. § 1034(a)(1) provides that “[n]o

person may restrict a member of the armed forces in

communicating with a Member of Congress or an Inspector

General[.]”    The statute further dictates that “[n]o person

may take (or threaten to take) an unfavorable personnel

action, or withhold (or threaten to withhold) a favorable

personnel action, as a reprisal against a member of the

armed forces for making or preparing . . . a communication

to a Member of Congress or Inspector General.”    10 U.S.C.


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United States v. Gogas, No. 01-0718/AF


§ 1034(b)(1)(A).    The Supreme Court has highlighted the

statute’s purpose “to let every man in the armed services

have the privilege of writing his Congressman or Senator on

any subject if it does not violate the law or if it does

not deal with some secret matter.”    Brown v. Glines, 444

U.S. 348, 359 (1980) (quoting 97 Cong. Rec. 3776, 3877

(1951)).

     It is clear that to violate 10 U.S.C. § 1034, a person

must initiate a negative personnel action specifically in

retaliation for a servicemember’s communication with a

Member of Congress.   In the present case, there is no

evidence that the Government prosecuted Appellant, and that

the trial counsel subsequently introduced the letter, to

retaliate for any action by Appellant.    The Government

charged Appellant not because he wrote a letter to a

Congressman, but because he wrongfully used and distributed

LSD -- offenses that occurred well before Appellant even

wrote the letter.   In short, while there may be

circumstances where the use of a congressional

communication in the context of a court-martial proceeding




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United States v. Gogas, No. 01-0718/AF


would constitute a prohibited retaliation under 10 U.S.C.

§ 1034, those circumstances are not present here.1

       II.   The Letter was Proper Aggravation Evidence

      Appellant further argues that the letter was

improperly admitted as aggravation evidence and as evidence

of a matter related to his rehabilitation potential.            We

hold that the letter was proper aggravation evidence.             We

need not address the letter’s admissibility as a matter

related to Appellant’s rehabilitation potential, for the

fact that evidence may be inadmissible under one rule does

not preclude its admissibility under a different rule.

United States v. Abel, 469 U.S. 45, 56 (1984); United

States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998).

      R.C.M. 1001(b)(4) permits the Government to introduce

evidence of “any aggravating circumstances directly

relating to or resulting from the offenses of which the

accused has been found guilty.”        Aggravation evidence may

include “evidence of significant adverse impact on the

mission, discipline, or efficiency of the command directly

and immediately resulting from the accused’s offense.”             Id.

1
  In addition to relying on the statute’s prohibition against
retaliatory actions, Appellant asks this Court to establish a broad
privilege or public policy prohibition against use in a court-martial
of communications by servicemembers to Members of Congress, even in the
absence of retaliation. The remedial provisions of the statute are
limited to retaliatory actions, and we decline to extend the statute
further.



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United States v. Gogas, No. 01-0718/AF


Moreover, this Court held in United States v. Vickers, 13

M.J. 403, 406 (C.M.A. 1982), that aggravating evidence

includes “evidence which is directly related to the offense

for which an accused is to be sentenced so that the

circumstances surrounding that offense or its repercussions

may be understood by the sentencing authority.”           Counsel

may present such evidence through a stipulation of fact,

witness testimony, or the accused's own statements.

Accordingly, in United States v. Irwin, 42 M.J. 479, 483

(C.A.A.F. 1995), this Court held that a tape recording of

the appellant’s statement during the providence inquiry was

properly admitted under R.C.M. 1001(b)(4)2 because it was

“directly related to the offenses of which [the] appellant

was found guilty....”

      In accordance with R.C.M. 1001(b)(4), Appellant’s

letter was a statement by the accused directly relating to

the offenses of which he was found guilty.          The letter

revealed an aggravating circumstance: Appellant’s

indifference to anything other than his own pleasure.

Appellant wrote, “I was living my life with blinders on and

not thinking of the consequences at the time.           The only


2
  R.C.M. 1001(b)(4) “is consistent with the interpretation of paragraph
75 b(3) (later amended to be paragraph 75 b(4) of MCM, 1969 (Rev.) by
Exec. Order No. 12315 (July 29, 1981)) . . . [and] United States v.
Vickers, 13 M.J. 403 (C.M.A. 1982).” Manual for Courts-Martial, United
States (2002 ed.) app. 21, at A21-71.


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United States v. Gogas, No. 01-0718/AF


thing I was concerned with was making myself happy with

using [LSD].”     Indifference to the nature or consequences

of criminal conduct is an aggravating factor that may be

considered in determining an appropriate sentence for that

misconduct.3    The military judge did not abuse his

discretion in admitting the letter as aggravation evidence.

See Vickers, 13 M.J. at 406.

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




3
  Moreover, this Court has noted the devastating link between
servicemember drug use and military performance. United States v.
Bickel, 30 M.J. 277 (C.M.A. 1990)(recognizing that drugs diminish the
military effectiveness of servicemembers who use them); United States
v. Beeker, 18 C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969) (identifying
the possession of drugs by military personnel as “a matter of immediate
and direct concern to the military as an act intimately concerned with
prejudice to good order and discipline or to the discredit of the armed
forces").


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