           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                           Staff Sergeant MYRANDA I. DECKER
                                   United States Air Force

                                             ACM S32173

                                           15 October 2014

         Sentence adjudged 8 July 2013 by SPCM convened at Keesler Air Force
         Base, Mississippi. Military Judge: Ronald A. Gregory (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 45 days, fine
         of $600.00, and reduction to E-3.

         Appellate Counsel for the Appellant: Major Matthew T. King.

         Appellate Counsel for the United States:               Major Roberto Ramírez and
         Gerald R. Bruce, Esquire.

                                                  Before

                               ALLRED, HECKER, and TELLER
                                  Appellate Military Judges

                    This opinion is subject to editorial correction before final release.



PER CURIAM:

       The appellant was convicted, consistent with her pleas, by a military judge sitting
as a special court-martial, of signing a false official statement, stealing a hunting camera
from a fellow Airman, and, on divers occasions, stealing over $500.00 from her
squadron’s “snack fund,” in violation of Articles 107 and 121, UCMJ, 10 U.S.C. §§ 907,
921. The adjudged sentence consisted of a bad-conduct discharge, confinement for
45 days, hard labor without confinement for 45 days, a fine of $600.00, and reduction to
E-3. The convening authority approved the sentence as adjudged except for the hard
labor without confinement.
       On appeal, the appellant argues the military judge abused his discretion by
admitting two prosecution exhibits regarding the appellant’s disciplinary record. Finding
no error materially prejudicial to the substantial rights of the appellant, we affirm.

                                       Background

       At the time of her court-martial, the appellant had been in the Air Force for over
nine years and was serving as a technical school instructor at Keesler Air Force Base,
Mississippi. From January to March 2013, the appellant took approximately $600.00
from her squadron’s Snack and Fundraiser Fund. Although she was not the fund’s
custodian, she served as a building facility manager and therefore had keys that provided
her access to the locked room where the money was kept. On multiple occasions, in the
middle of the night, she would access the room and take $20–$50 in cash. On one of
these occasions, she discovered a camera in the room that she believed was videotaping
her larcenous activities. She took the camera from the room and, after a few days,
delivered it to a local pawn shop, where it was sold before law enforcement could recover
it.

       In March 2013, the appellant went to the base clinic to be seen for a migraine
headache. After giving her medicine, her doctor told the appellant that she could go
home if her unit authorized it. Instead of requesting the day off from her unit, the
appellant drafted a false Quarters Authorization form in order to stay home and
recuperate.

       The military judge conducted a providence inquiry and accepted the appellant’s
pleas of guilty. During the sentencing phase of the court-martial, the military judge
admitted two prosecution exhibits over trial defense counsel’s objections.

       First, trial counsel offered a memorandum for record signed by the appellant’s
commander which stated he had verbally counseled the appellant following the
appellant’s first fitness test failure (Prosecution Exhibit 5). Trial defense counsel
objected based on hearsay and relevancy. The military judge determined the record was
admissible for sentencing, finding it was relevant to the appellant’s performance of duty
and was “properly certified . . . on the side [of the document] as [having been] maintained
in the squadron records.” The military judge did note, however, that he would “give it
whatever weight it deserves.”

       Trial counsel next offered an unsigned memorandum for record containing the
signature block of a noncommissioned officer who verbally counseled the appellant when
she arrived late to work for the second consecutive day (Prosecution Exhibit 6). Trial
defense counsel objected that the document was neither relevant nor an administrative
action. The military judge determined the record was documentation of an oral



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counseling and that, while “it ha[d] very minimal relevance,” it was admissible because it
was maintained in a squadron personnel information file.

                           Admission of Sentencing Evidence

       The appellant argues the military judge abused his discretion by admitting both
documents under Rule for Courts-Martial (R.C.M.) 1001(b) as they did not meet the
requirement for admission under that rule.

       We review a military judge’s decision to admit sentencing evidence for an abuse
of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). Such a review
implicitly acknowledges a military judge has a range of choices, and we will not overturn
an action taken within that range. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F.
2013). We test the erroneous admission of evidence during the sentencing portion of a
court-martial to determine if the error substantially influenced the adjudged sentence.
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).

       Rule for Courts-Martial 1001(b)(2) provides that, during sentencing, trial counsel
may introduce personal data and information pertaining to the character of the accused’s
prior service. This rule provides as follows:

             Under regulations of the Secretary concerned, trial counsel
             may obtain and introduce from the personnel records of the
             accused evidence of the accused’s . . . character of prior
             service. Such evidence includes copies of reports reflecting
             the past military efficiency, conduct, performance, and
             history of the accused and evidence of any disciplinary
             actions including punishments under Article 15[, UCMJ].

             “Personnel records of the accused” includes any 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 incomplete 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.

(Emphasis added.)

       In the Air Force, the “regulation[] of the Secretary concerned” is Air Force
Instruction (AFI) 51-201, Administration of Military Justice (6 June 2013). See United


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States v. Sheridan, 43 M.J. 682, 685 (A.F. Ct. Crim. App. 1995) (to be admissible under
R.C.M. 1001(b)(2), reprimand need not comply with regulation governing unfavorable
information files, but must meet requirements of military justice regulation governing
presentencing matters).

     In pertinent part, AFI 51-201 sets the following guidelines for admission of
documents from an accused’s personnel information file:

             Section 8E—Pre-sentencing Matters (RCM 1001)

             8.13. Personnel Data and Character of Prior Service.
             “Personnel records of the accused,” as referenced in
             RCM 1001, includes all those records made or maintained in
             accordance with Air Force directives that reflect the past
             military efficiency, conduct, performance, and history of the
             accused, as well as any evidence of disciplinary actions,
             including punishment under Article 15, UCMJ, and previous
             court-martial convictions.

                8.13.1. Personnel Information File. Relevant material
             contained in an accused’s unit personnel information file
             (PIF) may be admitted pursuant to RCM 1001(b) if:

                     8.13.1.1. Counsel provided a copy of the document or
             made the document available to opposing counsel prior to
             trial; and

                   8.13.1.2. There is some evidence in the document or
             attached to it that:

                      8.13.1.2.1. The accused received a copy of the
             correspondence (a document bearing the signature of the
             accused, or a witnessed statement regarding the accused’s
             refusal to sign, would meet this criterion) and had the
             opportunity to respond to the allegation; and,

                      8.13.1.2.2. The document is not over 5 years old on
             the date the charges were referred to trial.

       Applying these requirements to the documents at issue here, we find these two
exhibits did not comply with the regulation of the Secretary concerned. Prosecution
Exhibit 5 contained only the signature of the squadron commander, and Prosecution
Exhibit 6 contained only the signature block of a fellow instructor and staff sergeant,


                                           4                                 ACM S32173
without even that individual’s signature. Neither document bears the signature of the
accused, a witnessed statement regarding the accused’s refusal to sign, nor any other
evidence the appellant received a copy of either document nor had the opportunity to
respond to the allegations made therein. See AFI 51-201, ¶ 8.13.1.2.1. Accordingly,
admission of these exhibits was error.

        Turning to the impact of this error, however, we find none. When admitting the
exhibits, the military judge noted he would give them the weight they deserve. Viewing
the appellant’s guilty plea as a whole, to include her admitted larceny of a fellow
Airman’s camera and $600.00 from her squadron’s Snack and Fundraiser fund, and
several adverse administrative actions properly admitted at trial, we find the record of a
single fitness failure and a late arrival work to have had little-to-no impact on the
sentencing decision of a seasoned military judge and thus did not substantially influence
the adjudged sentence. Particularly in light of the military judge’s express statement that
he considered the exhibits in question to be of “very minimal relevance,” we find the
error to be harmless.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




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