UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                       Sergeant ANTONIO N. HEYWARD
                         United States Army, Appellant

                                  ARMY 20120469

              Headquarters, National Training Center and Fort Irwin
                         Michael Walther, Military Judge
             Lieutenant Colonel Gail A. Curley, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                 24 September 2014

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

LIND, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of one specification of disrespect toward a superior
commissioned officer, two specifications of making a false official statement, one
specification of assault consummated by a battery, one specification of disorderly
conduct, and three specifications of wearing unauthorized badges in violation of
Articles 89, 107, 128, and 134, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 889, 907, 928, 934 (2006). The convening authority approved
the adjudged sentence of a bad-conduct discharge and reduction to the grade of E-1.

      This case is before the court for review pursuant to Article 66, UCMJ. We
have considered appellant’s assignment of error and find it to be without merit. We
have also considered matters raised personally by appellant pursuant to United
HEYWARD—ARMY 20120469
 
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find one error that warrants
discussion, but no relief. 1

                                                               FACTS

       During sentencing proceedings trial counsel offered and the military judge
admitted Prosecution Exhibit (PE) 16, a field grade Article 15 (Department of the
Army Form [hereinafter DA Form] 2627, Record of Proceedings under Article 15,
UCMJ) reflecting that appellant was found guilty in June 2011 of disrespect to a
noncommissioned officer, committing an assault consummated by a battery against
his spouse, and willfully altering a public record: his noncommissioned officer
evaluation report (NCOER). 2

       As part of PE 16, trial counsel also sought to admit the allied documents to
the Article 15 by offering a copy of the entire Article 15 package maintained by the
paralegal specialist. The allied documents consisted of a two-page military police
desk blotter entry and seven pages of sworn statements regarding the assault
consummated by a battery against appellant’s spouse, as well as a sixty-page
Commander’s Inquiry 3 regarding appellant’s alteration of his NCOER, to include all
of the enclosures to that administrative investigation. Trial counsel argued that
Army Regulation 27-10 [hereinafter AR 27-10], paragraph 5-29(a)(4), authorized
admission of records of punishment under Article 15 “from any file in which the
                                                            
1
  In his post-trial matters, appellant complained of three legal errors. The Staff
Judge Advocate’s (SJA’s) failure to comment in the addendum on one of appellant’s
allegations of legal error—admission of testimonial hearsay—constitutes error. See
Rule for Courts-Martial [hereinafter R.C.M.] 1106(d)(4). However, our superior
court has permitted us to examine the underlying allegation of error, and if we find
“there is no error in the first instance at trial, [then] we will not find prejudicial
error in the failure of the SJA to respond . . . .” United States v. Welker, 44 M.J. 85,
88-89 (C.A.A.F. 1996); see also United States v. Hill, 27 M.J. 293, 297 (C.M.A.
1988) (“[Service courts are] free to affirm when a defense allegation of legal error
would not foreseeably have led to a favorable recommendation by the [SJA] or to
corrective action by the convening authority.”). Appellant has again raised the issue
of improper admission of testimonial hearsay via Grostefon on appeal. Having
thoroughly reviewed his claim, we hold it lacks merit and would not have resulted in
a favorable recommendation by the SJA or any corrective action by the convening
authority.
2
 The Article 15 specifications alleged violations of Articles 91, 128, and 134,
UCMJ, respectively.
3
    See R.C.M. 303 (Preliminary inquiry into reported offenses).



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HEYWARD—ARMY 20120469
 
record is properly maintained by regulation,” and that the allied papers were
properly maintained in accordance with paragraph 3-37(h) of AR 27-10, which
stated: “the paralegal Specialist will maintain a copy of the completed DA Form
2627 with all allied documents for a period of two years.” 4

       Defense counsel objected to the admission of the allied papers as hearsay and
argued that R.C.M. 1001(b)(2) (authorizing admission of personal data and character
of prior service of an accused) allowed only for admission of the record of
punishment under Article 15 documented on DA Form 2627 and not the allied
documents. Finally, defense counsel objected under Military Rule of Evidence
[hereinafter Mil. R. Evid.] 403 (exclusion of relevant evidence on grounds of
prejudice, confusion, or waste of time). Over defense objections, the military judge
admitted PE 16 in its entirety, ruling:

                             Here is my decision. The only thing I have read so far is
                             the first page of the 2627. . . . [O]n their face, these
                             allegations are serious. . . . and yet, this was handled by
                             nonjudicial punishment. I think, I owe it to [appellant] to
                             find out as much as I can about this so I will know how
                             serious they are and not just take at face value that there
                             was an assault of [sic] conduct. That there is a forgery so
                             . . . part of my ruling is based on my rule of completeness.
                             This is a single record. Part of my ruling is based on [a]
                             balancing test and relevance—relevance and balancing. I
                             find that in all things considered I think it’s critical that I
                             have all of the information in the record.

                                                               LAW AND DISCUSSION

       We hold the military judge erred by admitting the allied documents to the
Article 15 under the facts of this case.

       When a military judge admits evidence in aggravation during sentencing over
defense objection, we review the judge’s decision for an abuse of discretion. United
States v. Ashby, 68 M.J. 108, 120 (C.A.A.F. 2009) (citing United States v. Stephens,
67 M.J. 233, 235 (C.A.A.F. 2009)). When we conclude the military judge has so
abused his discretion, we must determine whether admission of the evidence
substantially influenced the adjudged sentence. United States v. Griggs, 61 M.J.
402, 410 (C.A.A.F. 2005) (citing United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F.
2001)); see also United States v. Reyes, 63 M.J. 265, 267-68 (C.A.A.F. 2006).
                                                            
4
  Army Reg. 27-10, Legal Services: Military Justice (3 Oct. 2011) was in effect at
the time of appellant’s trial.



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HEYWARD—ARMY 20120469
 
       R.C.M. 1001(b)(2) authorizes admission of personnel records of an accused
“[u]nder regulations of the secretary concerned.” Personnel records include
“evidence of any disciplinary actions including punishments under Article 15” and
“any records made or maintained in accordance with departmental regulations that
reflect the past efficiency, conduct, performance, and history of the accused.”
R.C.M. 1001(b)(2). 5 However, even if evidence is admissible under R.C.M.
1001(b)(2), the evidence may be excluded under Mil. R. Evid. 403 if “its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues . . . .” Cf. Ashby, 68 M.J. at 120. 6

       The Secretary of the Army promulgated AR 27-10, and this regulation has
several provisions governing the admission of records of Article 15 punishment
under R.C.M. 1001(b)(2), including the following:

      Paragraph 5-29(a) authorizing trial counsel to admit “copies of personnel
records that reflect the past conduct and performance of the accused, made or
maintained according to departmental regulations. Examples include . . . (4) Except
for summarized records of proceedings under UCMJ, Art. 15 (DA Form 2627-1),
records of punishment under UCMJ, Art. 15, from any file in which the record is
properly maintained by regulation”;


                                                            
5
  See also United States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998) (“R.C.M.
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.”); United
States v. Delaney, 27 M.J. 501, 504 (A.C.M.R. 1988) (holding that “bootstrapping”
impermissible information to an otherwise admissible personnel record is prohibited)
(“‘[W]hat the [g]overnment cannot successfully introduce into evidence through the
front door it cannot successfully introduce through the back door via an
administrative record-keeping regulation.’” (quoting United States v. Brown, 11 M.J.
263, 266 (C.M.A. 1981))). Cf. United States v. Douglas, 57 M.J. 270, 273-281
(C.A.A.F. 2002) (Baker, J., concurring) (Sullivan, J., concurring) (Effron, J.,
dissenting) (concluding that a stipulation of fact from a prior court-martial was
inadmissible as a “personnel record” under R.C.M. 1101(b)(2)).
6
  A military judge who conducts a proper balancing test under Mil. R. Evid. 403
will not be overturned unless there is a “clear abuse of discretion.” United States v.
Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (quoting United States v. Ruppel, 49 M.J.
247, 250 (C.A.A.F. 1998)). A military judge receives less deference if he fails to
articulate his balancing analysis on the record and receives no deference if he fails
to conduct the Mil. R. Evid. 403 balancing test at all. Id.




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HEYWARD—ARMY 20120469
 
    Paragraph 3-36 providing that:

             [A]ll actions taken under Article 15, including
             notification,    acknowledgement,       imposition,    filing
             determinations, appeal, action on appeal, or any other
             action taken prior to action being taken on appeal, except
             summarized proceedings . . . will be recorded on DA Form
             2627. The DA Form 2627 is a record of completed actions
             and either the DA Form 2627 or a duplicate as defined in
             [Mil. R. Evid.] 1001(4) may be considered for use at
             courts-martial . . . independently of any written statements
             or other documentary evidence considered by an imposing
             commander, a successor, or a superior authority”;

       Paragraph 3-37(a) stating that “[t]he original DA Form 2627 will include as
allied documents all written statements and other documentary evidence considered
by the imposing commander or the next superior authority acting on an appeal”;

     Paragraph 3-37(h) requiring the paralegal specialist to maintain a copy of the
completed DA Form 2627 with all allied documents for two years;

      Paragraph 3-44(a) authorizing the use of records of proceedings and
supplementary actions under Article 15 recorded on DA Forms 2627 and 2627-2 and
providing that “[a]llied documentation transmitted with the original or copies of DA
Forms 2627 and 2627-2, where filed with any of these forms, will be considered to
be maintained separately for the purpose of determining the admissibility of the
original or copies of DA Forms 2627 or 2627-2 at courts-martial . . .”; and

      Paragraph 3-44(b) authorizing a record of non-judicial punishment “not
otherwise inadmissible” to be admitted at courts-martial from any file in which it is
properly maintained by regulation. (Emphasis added).

       Taken together, these paragraphs of AR 27-10 authorize admission of records
of Article 15 (as recorded on DA Forms 2627 or 2627-2) that are “not otherwise
inadmissible” as personnel records in accordance with R.C.M. 1001(b)(2) and
require that the Article 15 (as recorded on DA Forms 2627 or 2627-2) and the allied
papers be considered to be filed separately when determining the admissibility of the
Article 15 forms.

       Army Regulation 27-10 does not contain a rule of completeness authorizing
admission of allied papers along with the record of punishment under Article 15.
Allied papers, which may contain all sorts of inadmissible hearsay and extraneous
material, may themselves be admissible in whole or in part separately from the
Article 15 as recorded on DA Forms 2627 or 2627-2. However, the allied papers


                                          5 
HEYWARD—ARMY 20120469
 
must have an independent basis for admission and pass the Mil. R. Evid. 403
balancing test. 7

       In this case, the military judge erred on both prongs of his ruling allowing
admission of the allied papers. First, he ruled that the DA 2627 and the allied
papers were one record and admitted the allied papers based on a rule of
completeness. This was error because AR 27-10 specifically severs the admissibility
analyses regarding records of nonjudicial punishment and the allied papers related to
those records. Consequently, the judge abused his discretion by admitting the allied
documents under “the rule of completeness.”

       Second, the military judge erred when he admitted the allied papers “based on
[a] balancing test.” The military judge did not read the allied papers prior to
admitting them. A military judge cannot conduct a proper analysis under Mil. R.
Evid. 403 to determine whether the probative value of evidence is substantially
outweighed by the danger of unfair prejudice without first knowing what the
evidence is. Therefore, we afford the judge no deference. In this case, the allied
papers contain inadmissible hearsay and extraneous information derogatory to
appellant, such as witness statements describing specific instances of uncharged
misconduct that appellant: missed duty hours at one point for 90 days; argued with
other soldiers; confronted other noncommissioned officers (NCOs) in the section;
called a female NCO a “bitch”; made racist, disrespectful, and unprofessional
comments; lost his security clearance; had alcohol related issues; engaged in
inappropriate behavior with another soldier; and was removed from the Advanced
Non-Commissioned Officer Course. 8 The military judge’s ruling that the probative
value of the allied papers was not substantially outweighed by the danger of unfair
prejudice was premature and constituted an abuse of discretion.

       Assuming that all of the allied papers were not admissible, we nonetheless
hold that appellant was not materially prejudiced by the admission of these
documents. To examine prejudice, we must determine whether admission of the
allied papers substantially influenced the adjudged sentence. See Griggs, 61 M.J. at
410; Reyes, 63 M.J. at 268. In this evaluation, we “weigh factors on both sides.”
United States v. Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011).

      On the one hand, the military judge considered the allied papers that
contained the inadmissible hearsay and extraneous information derogatory to

                                                            
7
 To the extent that United States v. Robinson, 30 M.J. 548 (A.C.M.R. 1990) can be
construed as inconsistent with this opinion, it is overruled.
8
    One witness described appellant as “garbage” in the allied papers.




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HEYWARD—ARMY 20120469
 
appellant described above. The military judge also sentenced appellant to the
sentence the government requested, reduction to the grade of E-1 and a bad-conduct
discharge. Furthermore, appellant presented mitigation evidence that included
15 years of service with two combat tours and a diagnosis of post-traumatic stress
disorder. On the other hand, the government presented extensive admissible
evidence in aggravation, to include the DA Form 2627 record of punishment under
Article 15 that was properly admitted under R.C.M. 1001(b)(2) and Mil. R. Evid.
403. This Article 15 provided aggravating evidence that appellant, within several
years of his current misconduct, while holding the rank of Staff Sergeant, engaged in
misconduct remarkably similar to the disrespect, assaultive conduct, and
unauthorized wearing of badges that form the gravamen of his current convictions.
The government also properly admitted aggravating evidence of appellant’s 2007
civilian conviction for driving under the influence of alcohol and appellant’s 2005
record of punishment under Article 15 for incapacity for duty due to overindulgence
of alcohol and failure to repair. Finally, trial counsel did not reference any of the
inadmissible information in the allied papers in his sentencing argument.

       Considering the record as a whole, to include the offenses for which appellant
was convicted and the significant amount of evidence properly admitted in
aggravation, extenuation, and mitigation, we are confident the military judge was
not substantially influenced by the inadmissible information in the allied papers in
arriving at the adjudged sentence in this case. See id.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge KRAUSS and Judge PENLAND concur.


                                       FORTHE
                                       FOR THECOURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLMH.H.SQUIRES,     JR.JR.
                                                         SQUIRES,
                                       Clerk
                                       ClerkofofCourt   
                                                 Court




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