       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                 David L. JERKINS, Major
                United States Army, Appellant
                          No. 17-0203
                    Crim. App. No. 20140071
     Argued November 28, 2017—Decided February 8, 2018
                Military Judge: Rebecca Connally
   For Appellant: Robert A Feldmeier, Esq. (argued); Captain
   Cody Cheek and James S. Trieschmann, Esq. (on brief).
   For Appellee: Captain Allison L. Rowley (argued); Lieuten-
   ant Colonel A. G. Courie III and Major Melissa Dasgupta
   Smith (on brief); Major Michael E. Korte.
   Chief Judge STUCKY delivered the opinion of the
   Court, in which Judge SPARKS and Senior Judge
   EFFRON joined. Judge OHLSON filed a separate dis-
   senting opinion, in which Judge RYAN joined.
                        _______________

   Chief Judge STUCKY delivered the opinion of the Court.

   We granted review to decide whether the military judge
abused her discretion by admitting a general officer memo-
randum of reprimand (GOMOR) into evidence during sen-
tencing rebuttal. We hold that she did, as the evidence in-
vaded the province of the court-martial.
                     I. Procedural History
    A general court-martial panel convicted Appellant, con-
trary to his pleas, of one specification of assault consummat-
ed by a battery upon a child, his three-year-old stepson, by
striking him on the back, arms, and buttocks with a belt, in
violation of Article 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 928 (2012). The panel sentenced Appel-
lant to a dismissal from the service and confinement for six
months. The convening authority approved only so much of
           United States v. Jerkins, No. 17-0203/AR
                    Opinion of the Court

the sentence as provided for a dismissal and confinement for
five months.
    Appellant assigned six issues before the United States
Army Court of Criminal Appeals (CCA). The CCA found only
one of the six issues, not the one on which we granted re-
view, merited discussion. It affirmed the findings and sen-
tence. United States v. Jerkins, No. ARMY 20140071, slip op.
at 5 (A. Ct. Crim. App. Nov. 30, 2016).
                       II. Background
   During the sentencing hearing, the Government’s initial
case in aggravation consisted of testimony from the victim’s
father (TRB) and the introduction into evidence of Appel-
lant’s Official Military Personnel File (OMPF). TRB testified
that he had previously complained to the boy’s mother about
Appellant and her mistreating the boy.
    Among the otherwise excellent officer evaluation reports
(OER) in his OMPF was one for a two-year period ending in
November 2011, during which Appellant was deployed to
Kuwait. In it, his rater stated that Appellant’s duty perfor-
mance during combat operations was unsatisfactory, having
“dramatically decreased” once he was notified of his pending
reassignment to a unit serving in Afghanistan. Appellant’s
intermediate and senior raters concurred. Appellant’s appeal
of the OER was partially successful but did not in the end
alter the overall rating of unsatisfactory performance or the
recommendation therein that he should not be promoted. It
appears that no administrative action was taken adverse to
Appellant’s continued service on active duty in the Army.
When charges were preferred in this case, Appellant had
nineteen years total service and was therefore close to eligi-
bility for retirement.
    During the defense sentencing case, three colonels and
two retired major generals testified to Appellant’s excellent
duty performance and his high rehabilitative potential. One
colonel testified that he had personally nominated Appellant
for the General Douglas MacArthur Leadership Award,
which Appellant received in 2007. A clinical social worker
who was a facilitator for Family Behavioral Health Services
described Appellant’s participation in and completion of a
therapeutic parenting program and group therapy and


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            United States v. Jerkins, No. 17-0203/AR
                     Opinion of the Court

opined that he had high rehabilitative potential. Appellant
made an unsworn statement. After the prosecution objected
to defense sentencing exhibits, Appellant asked the military
judge to relax the rules of evidence. The military judge
granted the request, and the offered exhibits were admitted.
    During rebuttal, the Government offered into evidence a
GOMOR Appellant received for engaging in a sexual rela-
tionship with an Army enlisted woman, the victim’s mother,
who had since become Appellant’s wife. The charge sheet
had initially included this offense, charged as a violation of
an Army regulation under Article 92, UCMJ, 10 U.S.C. § 892
(2012), but it was withdrawn three days before Appellant
was arraigned.
   The GOMOR read, in part:
            Your decision to fraternize and engage in an in-
       appropriate relationship with an enlisted person
       indicates a serious lack of judgment and responsi-
       bility. You have failed to live up to the Army values
       and you have betrayed our trust. I have serious
       doubts regarding your ability for continued service
       in the United States Army. I am profoundly disap-
       pointed that a commissioned officer would engage
       in this type of misconduct. You have fallen short of
       the high standards expected of you as a Soldier.
       Furthermore, I expect my commissioned officers to
       lead by example and conduct themselves in a pro-
       fessional manner at all times. Your actions have
       brought discredit upon you, your unit, and the
       United States Army.
(Emphasis added.)
    In the GOMOR, Major General (MG) Warren E. Phipps
Jr. stated that the reprimand was imposed as an adminis-
trative measure under AR 600-37, 1 not as a punitive meas-
ure under the UCMJ, and that he had not yet determined
whether he would file the reprimand and, if so, where. He
granted Appellant seven days to submit a rebuttal. Appel-
lant’s military defense counsel submitted a request for an
extension of time to respond, which would have expired
three days after the court-martial concluded. There is no ev-

   1  Dep’t of the Army, Reg. 600-37, Personnel-General, Unfavor-
able Information (Dec. 19, 1986).



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            United States v. Jerkins, No. 17-0203/AR
                     Opinion of the Court

idence of record to establish whether MG Phipps granted the
extension or, if not, whether he made a final decision on fil-
ing the GOMOR. However, the Government has not asserted
that an extension was not granted, and we will assume for
these purposes that it was.
   Appellant objected to the admission of the GOMOR as
not complying with the requirements of Rule for Courts-
Martial 1001(b)(2), because it was not yet part of Appellant’s
personnel records: “there is the possibility that [the
GOMOR] may be torn up by the general pending [Appel-
lant’s] rebuttal.” Appellant further argued that the admis-
sion of the GOMOR would violate Military Rules of Evidence
(M.R.E.) 401 and 403.
   The military judge overruled the M.R.E. 403 objection
without explanation. She concluded that the GOMOR was
“proper rebuttal, specifically with regard to rehabilitative
potential,” but made no analysis on the record. In
surrebuttal, the military judge admitted a copy of the de-
fense counsel’s letter requesting an extension to respond to
the GOMOR.
                        III. Discussion
    We review the military judge’s decision to admit or ex-
clude evidence for an abuse of discretion. United States v.
Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017). “A military judge
abuses [her] discretion if [her] findings of fact are clearly er-
roneous or [her] conclusions of law are incorrect.” United
States v. Mitchell, 76 M.J. 413, 417 (C.A.A.F. 2017) (altera-
tions in original) (internal quotation marks omitted) (cita-
tion omitted).
    “No person subject to this chapter may attempt to coerce
or, by any unauthorized means, influence the action of a
court-martial … in reaching the findings or sentence in any
case .…” Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012). We
review questions of unlawful influence de novo. See United
States v. Chikaka, 76 M.J. 310, 313 (C.A.A.F. 2017). This
Court has been particularly vigilant where the attempt to
unlawfully influence the results of the court-martial involves
an accused’s commanding officer. See id.; United States v.
Cherry, 31 M.J. 1, 5 (C.M.A. 1990); United States v. Ohrt,
28 M.J. 301, 303 (C.M.A. 1989). “The question of appropri-


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            United States v. Jerkins, No. 17-0203/AR
                     Opinion of the Court

ateness of punishment is one which must be decided by the
court-martial; it cannot be usurped by a witness.” Ohrt, 28
M.J. at 305.
    In this case, Appellant was initially charged with wrong-
fully engaging in a sexual relationship with an Army enlist-
ed woman. The convening authority withdrew that charge
from trial three days before arraignment. Nevertheless, af-
ter arraignment, a different general officer decided to issue
the GOMOR to Appellant for the same conduct, with an ex-
plicit suggestion that Appellant was not fit for continued
service in the Army. Moreover, the GOMOR was admitted
into evidence without the normal due process required by
Army regulations, viz., Appellant’s exercise of his right to
rebuttal. Under the circumstances of this case, we hold that
the commander’s opinion that Appellant was unfit for con-
tinued military service—essentially, a recommendation that
he be dismissed from the service—invaded the province of
the members of the court-martial. Therefore, the military
judge abused her discretion by admitting it into evidence.
   Having found error, we must determine whether “the er-
ror materially prejudice[d] the substantial rights of the ac-
cused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012). We
hold that it does.
    The standard for determining prejudice in cases in which
the military judge has abused her discretion by admitting or
excluding sentencing evidence appears to be linked to
whether the evidence has constitutional implications. In
United States v. Griggs, the military judge excluded portions
of six character letters offered by the defense during the sen-
tencing proceeding, based on the prosecution’s claim that
they would mislead the court members “into thinking they
are making a retention decision versus a decision of a puni-
tive discharge.” 61 M.J. 402, 406 (C.A.A.F. 2005) (internal
quotation marks omitted). We applied the harmless error
standard for nonconstitutional issues and concluded that
“the excluded evidence may have substantially influenced
the adjudged sentence in Appellant’s case.” Id. at 410.
   On the other hand, in United States v. Pope, we reviewed
the military judge’s decision to admit a letter from the appel-
lant’s commander during sentencing, which suggested harsh



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            United States v. Jerkins, No. 17-0203/AR
                     Opinion of the Court

punishment was appropriate for the type of offenses the ap-
pellant had been convicted of committing. 63 M.J. 68, 75
(C.A.A.F. 2006). We noted that, while the letter did “not
suggest that one convicted of this type of misconduct should
be punitively separated, the appearance of improperly influ-
encing the court-martial proceedings is troubling because it
conveys the command’s view that harsh action should be
taken against an accused.” Id. at 76 (internal quotation
marks omitted) (citation omitted). In that case, we applied
the constitutional harmless beyond a reasonable doubt
standard. Id.
    Application of the harmless beyond a reasonable doubt
standard is consistent with this Court’s position that unlaw-
fully influencing a court-martial raises constitutional due
process concerns where, as here, it undermines an accused’s
right to a fair trial. United States v. Salyer, 72 M.J. 415, 423
(C.A.A.F. 2013). “ ‘[B]efore a federal constitutional error can
be held harmless, the court must be able to declare a belief
that it was harmless beyond a reasonable doubt.’ ” United
States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). To conclude
that such an error is harmless beyond a reasonable doubt,
we must be convinced that the error did not contribute to the
sentence. United States v. Hills, 75 M.J. 350, 357 (C.A.A.F.
2016).
    Ultimately, we need not definitively determine the ap-
propriate standard in this case, as the outcome is the same.
The Government failed to establish that the error was harm-
less, let alone harmless beyond a reasonable doubt.
    At the time of trial, Appellant was forty-one years old,
had nine children, and had served in the Army for nineteen
years, mostly as a reservist. After the terrorist attack of
September 11, 2001, he volunteered to deploy to the combat
zone in the Middle East. Upon his return from deployment,
he became a medical retention company commander. In con-
trast to the media reports and investigative findings of seri-
ous neglect in other medical retention units, Appellant was
awarded the General Douglas MacArthur Leadership Award
for his outstanding care for wounded warriors. When charg-
es were preferred, his own medical evaluation board for in-



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           United States v. Jerkins, No. 17-0203/AR
                    Opinion of the Court

juries sustained during combat in Iraq, which might have
resulted in retirement for disability, was stopped.
    This was a case tried to a panel of officer members. Ap-
pellant exercised his right to rebut the uncomplimentary
OER and was partially successful; his rebuttal was before
the members. In the case of the GOMOR, however, it was
not. MG Phipps’s opinion that Appellant was unfit for fur-
ther service was placed before the members even though
Appellant had not been afforded the full opportunity to
submit a rebuttal for the general’s consideration. The mili-
tary judge admitted the GOMOR over the defense’s M.R.E.
403 objection without providing any real explanation of her
ruling on the record. Under the circumstances of this case,
the Government failed to establish that the GOMOR did not
substantially influence the sentence.
                       IV. Judgment
   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed as to the findings but reversed as to
the sentence. The record is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal
Appeals, which may reassess the sentence or order a rehear-
ing on the sentence.




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            United States v. Jerkins, No. 17-0203/AR


   Judge OHLSON, with           whom Judge       RYAN joins,
dissenting.
    I agree with the majority that the military judge erred in
admitting the General Officer Memorandum of Reprimand
(GOMOR). However, the appropriate test for prejudice due
to the erroneous admission of evidence during sentencing is
whether it “substantially influenced the adjudged sentence.”
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).
Because I conclude that the military judge’s error did not
substantially influence the sentence imposed on Appellant, I
respectfully dissent.
   My conclusion in this case is based on several factors.
First, the GOMOR was only offered during rebuttal and
neither the Government nor the defense mentioned the
GOMOR in their sentencing arguments. Instead, the
Government focused on the underlying offense and on
Appellant’s highly negative Officer Evaluation Report (OER)
which is discussed immediately below. Therefore, the
GOMOR’s role in the Government’s sentencing case was
quite limited.
    Second, the OER—which was properly admitted into
evidence during sentencing—was particularly damaging to
Appellant’s case and presumably weighed far more heavily
in the minds of the panel members than the GOMOR did.
Three different raters painted a harshly negative picture of
Appellant’s performance by stating, among other things,
that Appellant:

   •   should not be promoted;

   •   engaged in “unsatisfactory        performance   during
       combat operations”;

   •   “repeatedly made false statements and            made
       attempts to manipulate events in his favor”;

   •    “spent his time primarily on actions that served self
       rather than the mission”;

   •   demonstrated behavior that did “not meet the
       expectations of any Soldier, let alone a field grade
            United States v. Jerkins, No. 17-0203/AR
                  Judge OHLSON, dissenting

       officer, and [stood] in direct contradiction with the
       Army Values” of honor, integrity, and selfless service;

   •   “failed to transition effectively to the rank,
       responsibility, and capability required of a junior
       Field Grade Officer”;

   •   did not possess the mental and emotional attributes
       of a leader;

   •   failed in the leadership actions of communicating,
       decision-making, planning, executing, building, and
       motivating; and

   •   was ranked number 58 out of 58 majors rated by the
       senior rater.


   These statements, in both content and quantity,
completely overwhelmed the negative sentiments expressed
in the GOMOR about Appellant’s alleged fraternization.
Indeed, this case is similar to United States v. Bridges, 66
M.J. 246 (C.A.A.F. 2008), where this Court considered
whether the admission of a letter from the officer in charge
of the brig where the appellant had been in pretrial
confinement was prejudicial to the appellant’s sentence. We
held that there was no prejudice because the record
contained ample additional evidence in aggravation. Id. at
248.
    Third, it was evident on the face of the document that no
filing determination had yet been made about the GOMOR.
On the other hand, the OER, despite Appellant’s appeal, was
fully filed and part of Appellant’s Official Permanent
Military File. 1
  Fourth, any reference to fraternization in the GOMOR
was completely overshadowed by the offense of which


   1  The Officer Special Review Board declined to follow the rec-
ommendation of the III Corps Commanding General (who was not
in Appellant’s chain of command) to remove the OER from Appel-
lant’s file because there was no clear and convincing evidence
supporting its removal.




                                2
            United States v. Jerkins, No. 17-0203/AR
                  Judge OHLSON, dissenting

Appellant was convicted. Appellant was found guilty of
beating his three-year-old stepson with a belt and inflicting
wounds that resulted in significant bruising and a trip to the
emergency room. As reflected in United States v. Sanders, 67
M.J. 344 (C.A.A.F. 2009), it is appropriate for this Court to
consider the severity of an appellant’s crimes in assessing
prejudice. In Sanders, the appellant was convicted of forcible
sodomy, assault, and indecent assault. Id. at 344. The
military judge admitted into evidence a handwritten letter
found in the appellant’s cell as evidence of a lack of
rehabilitative potential. Id. at 345. This Court concluded
that if there was error in the admission of the letter, the
alleged error was not prejudicial because of the severity of
the appellant’s crimes. Id. at 346. Appellant’s crime is
similarly severe.
    And finally, photographs of the injuries inflicted on
Appellant’s toddler stepson were admitted into evidence.
These photographs depict bruising, welts, and abrasions
that covered practically the child’s entire body. Additionally,
the panel heard evidence that Appellant lied about the
source of these injuries, falsely claiming that his stepson
was injured by an accidental fall or a dog bite and that he
never used a belt to spank his children. It is not difficult to
fathom that the panel concluded that the severity of the
beating    and     Appellant’s      mendacity      about    its
circumstances—standing alone—warranted the sentence
imposed on Appellant. Moreover, Appellant’s position was
further severely undermined by the devastating comments
made by his raters in his OER. 2 Thus, although it clearly
was error for the military judge to admit the GOMOR
pertaining to Appellant’s alleged fraternization, that error
was “unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the
record.” United States v. Moran, 65 M.J. 178, 187 (C.A.A.F.



   2 The sentencing witnesses who testified to Appellant’s “excel-
lent duty performance” could only speak to Appellant’s service
ranging from 2005 to 2008. The OER reflected Appellant’s more
recent service record in 2011.




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           United States v. Jerkins, No. 17-0203/AR
                 Judge OHLSON, dissenting

2007) (internal quotation marks omitted) (quoting Yates v.
Evatt, 500 U.S. 391, 403 (1991)).
    For the reasons cited above, I conclude that the
erroneous admission of the GOMOR did not “substantially
influence[]” Appellant’s sentence. Griggs, 61 M.J. at 410.
Accordingly, I would affirm the decision of the United States
Army Court of Criminal Appeals in this case and I
respectfully dissent.




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