UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                          Specialist LANCE K. PEOPLES
                          United States Army, Appellant

                                     ARMY 20160664

                            Headquarters, Fort Campbell
                         Matthew A. Calarco, Military Judge
              Lieutenant Colonel Robert C. Insani, Staff Judge Advocate


For Appellant: Captain Cody D. Cheek, JA; Major J. David Hammond, JA (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Lieutenant Colonel Teresa T. Phelps, JA (on brief).


                                        1 May 2018
                        --------------------------------------------------
                                 SUMMARY DISPOSITION
                        --------------------------------------------------

Per Curiam:

       This case involves the admission over defense objection during sentencing of
documents culled from the appellant’s Army Military Human Resources Records
(AMHRR). A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of a four year absence without leave from his unit in
violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886
[hereinafter UCMJ]. Appellant did not have the benefit of a pre-trial agreement.
The convening authority (CA) approved the adjudged sentenced to a bad-conduct
discharge, sixty-five days confinement, and reduction to the grade of E-1. The CA
also credited appellant with seven days of confinement credit against the sentence to
confinement. This case is before the court for review pursuant to Article 66, UCMJ.
PEOPLES—ARMY 20160664

      Appellant alleges the military judge erroneously admitted during sentencing
two prosecution exhibits consisting of documents found in his AMHRR. 1 Both
documents regarded his failure to assess into the National Guard out of high school,
two years before he entered active duty. Appellant further alleges the erroneous
admission of the documents prejudiced the military judge’s view of appellant and
negatively influenced the adjudged sentence.

       While we agree that military judge’s admission of the National Guard
enlistment documents was error, we find appellant’s lenient sentence belies any
prejudice to him and determine no relief is warranted. We discuss admission of the
documents below.

                              LAW AND DISCUSSION

       Not all documents found in appellant’s AMHRR are relevant or admissible.
See United States v. Ponce, 75 M.J. 630 (Army Ct. Crim. App. 2016). Personnel
records that reflect “the past military efficiency, conduct, performance, and history
of the accused” are admissible. Rule for Court-Martial (R.C.M.) 1001. But even
those documents must pass the Military Rule of Evidence (Mil. R. Evid.) 403
balancing test and be found to be more probative on an issue than the danger of
unfair prejudice or confusion of the issues. Whether evidence is properly admitted
during sentencing is reviewed for an abuse of discretion. United States v. Ashby, 68
M.J. 108, 120 (C.A.A.F. 2009).

        In our review of a military judge’s decision to admit evidence we give the
most deference to well-reasoned articulations on the record of the balancing test,
less deference for failing to articulate the balancing analysis on the record, and no
deference if the military judge fails to conduct the Mil. R. Evid. 403 balancing test
at all. Ponce, 75 M.J. at 634.

       As aggravation evidence during sentencing, the trial counsel first attempted to
introduce appellant’s entire AMHRR. The military judge sustained the defense
counsel’s objection citing both Ponce and Mil. R. Evid. 403 and did not admit the
entire AMHRR. He further instructed trial counsel that if they wanted “to properly
separate admissible documents” from the entire AMHRR at a recess he would allow
them to attempt to admit any such documents later in the proceeding. Trial counsel
then separated out two exhibits, one that related to appellant’s previous attempt to
join the National Guard out of high school and another that showed appellant
required a waiver to enter active duty. The documents showed that appellant was


1
 Consistent with the Army practice of changing acronyms every decade or so, the
Official Military Personnel File (OMPF) was renamed the AMHRR.




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PEOPLES—ARMY 20160664

discharged from the National Guard because he “failed to ship,” a term the military
judge was unfamiliar with and asked the trial counsel to explain.

       The trial counsel defined the term as follows “failure to ship means that he
did not report to his appointed place of duty when he enlisted in the Air [sic]
National Guard, to his first assignment.” The defense objected to the “proffer” from
the government as to what “failure to ship” meant and asked that the government be
required to provide further clarification or evidence as to the term’s meaning. The
military judge overruled the objection and admitted the document.

       The next document the trial counsel admitted over defense objection was a
DD Form 1966/4 that showed in the remarks section that appellant required an “HQ
Waiver” so that he could be assessed onto active duty because of his “discharge from
the ARNG for FAILURE TO SHIP TO IADT.” The document further contained the
notation “Appl was a HSSR at the time and moved, could not find a new unit to drill
with and became apathetic.” Tellingly, the document also states “Appl has zero days
active duty (never shipped).”

A. Do the documents reflect the past military efficiency, conduct, performance, and
                              history of the accused?

       In beginning our analysis we find a broad reading of R.C.M. 1001 could
capture the prosecution exhibits taken from appellant’s AMHRR that relate to his
failed attempt to join the Army National Guard. The documents potentially would
be admissible under the theory they are part of the “past military … history of the
accused.” R.C.M. 1001(b)(2). Here, appellant received an uncharacterized
discharge after having served “zero days active duty.” However, even if we were to
find the documents admissible under such an expansive reading, they are only
admissible if relevant.

          B. What is relevance of evidence that appellant “failed to ship.”

       As stated above, the government argued that appellant’s failure to ship was
the moral equivalent of having been absent without leave, and was therefore
indicative of a pattern of behavior. If the government was correct, we would agree
that the documents were relevant to determining an appropriate sentence. See Mil.
R. Evid. 401. But, the defense disagreed with this characterization and rejected the
government’s proffer as to the meaning of the term.

      Thus, the relevance of the documents turned on their meaning, and that
meaning was never resolved at trial. It could be, that failure to ship after having
served zero days of active duty was irrelevant sentencing evidence if failure to ship
meant only that appellant was no longer eligible to serve after having failed to
graduate high school on time. (This was the explanation offered by appellant in his



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PEOPLES—ARMY 20160664

unsworn statement). It is the offering party’s, i.e. the government’s, failure to
provide proper authority for the definition of “failure to ship” with which we find
fault. Without this explanation, the relevance of the documents to sentencing cannot
be determined. Thus, we find it was error to admit the documents under Mil. R.
Evid. 402. 2

                                    C. Prejudice

       The two documents we discuss today, even if not probative, were also not
prejudicial. On their face they indicated that appellant had zero days of active
service. Thus, whatever meaning the documents purported to have, the weight to be
given the documents was de minimis. Accordingly, and after having reviewed the
entire record, we fail to find material prejudice to appellant.

       Indeed, the lack of prejudice from the erroneous admission is reflected in
appellant’s lenient sentence. That is, the erroneous admission of the documents did
not “substantially influence[] the adjudged sentence.” United States v. Griggs, 61
M.J. 402, 410 (C.A.A.F. 2005). Appellant’s sentence of 65 days confinement, and a
bad-conduct discharge (that he requested), for a four year AWOL contradicts any
claim that the erroneous admission of two documents improperly influenced
appellant’s sentence.

       Based on the entire record, we find the military judge was not substantially
influenced in adjudging the sentence by the admission of the failed National Guard
enlistment or the subsequent waiver required for appellant to enter active duty.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court


2
 While there was no specific objection to the documents under Mil. R. Evid. 402,
we treat the Mil. R. Evid. 403 objection as having included a relevance objection
for purposes of our analysis today. See UCMJ, art. 66(c).




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