                        UNITED STATES, Appellee

                                    V.

                  Michael D. ANDERSON, Airman Recruit
                          U.S. Navy, Appellant


                              No. 00-0480


                        Crim. App. No. 99 0586



       United States Court of Appeals for the Armed Forces

                       Argued February 28, 2001

                         Decided June 21, 2001

     GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., SULLIVAN, EFFRON, and BAKER, JJ., joined.
             SULLIVAN, J., filed a concurring opinion.

                                 Counsel
For Appellant: Major Charles C. Hale, USMC (argued); Lieutenant
   Commander L. J. Lofton, JAGC, USN.

For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR
   (argued); Colonel Marc W. Fisher, Jr., USMC (on brief);
   Colonel K. M. Sandkuhler, USMC.

Military Judge:    Thomas P. Tielens


    This opinion is subject to editorial correction before publication.
United States v. Anderson, No. 00-0480/NA


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a special court-martial

convicted appellant, pursuant to his pleas, of an unauthorized

absence commencing on September 19, 1997, and terminated by

apprehension on September 28, 1998; and wrongful use of

marijuana, in violation of Articles 86 and 112a, Uniform Code of

Military Justice, 10 USC §§ 886 and 912a, respectively.      The

adjudged and approved sentence provides for a bad-conduct

discharge, confinement for 60 days, and forfeiture of $600.00 pay

per month for 3 months.       The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

      This Court granted review of the following issue:

      WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
      JUDGE DID NOT VIOLATE M.R.E. 410 BY ADMITTING, DURING
      SENTENCING, EVIDENCE CONCERNING APPELLANT’S REQUEST FOR AN
      OTHER THAN HONORABLE DISCHARGE IN LIEU OF TRIAL BY COURT-
      MARTIAL.

We hold that the military judge erred but that the error was

harmless.

      During its case in sentencing, the Government offered a

document dated September 10, 1997, from the Commanding Officer,
Naval Air Station, Jacksonville, Florida, purporting to approve

appellant’s request for discharge in lieu of trial for offenses

preceding those before the court-martial (Prosecution Exhibit 5).

      Defense counsel objected, citing Mil. R. Evid. 410(A)(4),

Manual for Courts-Martial, United States (2000 ed.), and arguing

that the document was derived from statements made in the course

of negotiating a disposition of the earlier case.      The Government

responded by arguing that the document was admissible under RCM

1001(b)(2), Manual, supra, as a military personnel record.


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United States v. Anderson, No. 00-0480/NA


      The military judge ruled that because the document was not

related to the charges before the court-martial, it was not

within the ambit of Mil. R. Evid. 410.      He admitted the document

and announced that he would consider it solely for the purpose of

explaining why appellant was in Jacksonville, Florida, shortly

before the date the unauthorized absence before the court for

trial commenced.

      The prosecution also presented evidence, without defense

objection, that appellant fraudulently enlisted by concealing

arrests for use of marijuana and petty theft (Prosecution Exhibit

2).   Finally, the prosecution presented evidence, without defense

objection, reflecting the following unauthorized absences:

February 20-21, 1996; March 28, 1996, for 1 hour and 15 minutes;

March 29, 1996, for 1 hour and 15 minutes; May 10-11, 1996; May

15-17, 1996; May 20-27, 1996; June 8-19, 1996; June 22-25, 1996;

June 27-July 3, 1996; July 4-8, 1996; July 31, 1996, for an

unspecified period that caused him to miss the sailing of his

ship; and September 19-October 19, 1997 (Prosecution Exhibit 6).

      Before the Court of Criminal Appeals as well as this Court,

appellant contends that the military judge erred by admitting the

correspondence pertaining to his administrative discharge,

because it was barred by Mil. R. Evid. 410(a)(4).     The court

below held that the correspondence pertaining to an

administrative discharge in lieu of court-martial was admissible

as a personnel record; that it was not within the ambit of Mil.

R. Evid. 410 because it did not pertain to the charges before the

court-martial; and that, even if the military judge erred, the




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United States v. Anderson, No. 00-0480/NA


error was harmless.      Art. 59(a), UCMJ, 10 USC § 859(a).      Unpub.

op. at 2-3.

      In United States v. Vasquez, 54 MJ 303, 305 (2001), we

rejected the notion that plea-bargaining statements are protected

by Mil. R. Evid. 410 only if they relate to offenses pending

before the court-martial at which they are offered.          We also held

that charges are “‘pending’” until an appellant receives “the

quid pro quo for his admission of guilt: an executed discharge.”

Finally, we held that Mil. R. Evid. 410 must be interpreted

broadly in order to carry out the policy underlying the rule,

“which is ‘to encourage the flow of information during the plea-

bargaining process.’”

      RCM 1001(b)(2) permits the prosecution to introduce

information from the accused’s personnel records, but “it does

not provide blanket authority to introduce all information that

happens to be maintained in the accused’s personnel records.”

Id., citing United States v. Ariail, 48 MJ 285, 287 (1998).           In

the present case, the military judge and the court below (unpub.

op. at 2-3) recognized that the correspondence pertained to
disposition of an earlier offense.          The court below focused on

the question whether the correspondence was a “personnel record”

within the meaning of RCM 1001(b)(2).          At trial the parties

agreed that appellant’s administrative discharge in lieu of

court-martial was never executed.

      Although appellant’s statement admitting guilt was not

offered in evidence, as it was in Vasquez, the document approving

the discharge reflected that appellant had bargained for

disposition of the earlier charges without a trial.          Appellant’s


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United States v. Anderson, No. 00-0480/NA


request for discharge was tantamount to a statement because an

admission of guilt “was an integral part of the . . . discharge

process.”    See United States v. Barunas, 23 MJ 71, 75 (CMA 1986);

see also Vasquez supra at 304 (request for discharge included

admission of guilt).      Because the administrative discharge was

not executed and appellant had not received the benefit of his

bargain in the earlier case, those earlier charges were still

“pending.”    United States v. Vasquez, supra.    Accordingly, we

apply the broad interpretation of Mil. R. Evid. 410 adopted in

Vasquez as necessary to carry out the policy underlying the Rule;
and we hold that the military judge and the court below erred,

because Mil. R. Evid. 410 mandated exclusion of the evidence even

if it qualified as a personnel record.

      Testing for prejudice, however, we find none.     Appellant was

convicted of an extended unauthorized absence that was terminated

by apprehension, as well as wrongful use of marijuana.      Other

personnel records were properly admitted in evidence, and they

were replete with evidence of other misconduct throughout his

military service.     Finally, this was a bench trial, and the
military judge significantly limited the purpose for which he

considered the evidence.

                                  Decision

      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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United States v. Anderson, 00-0480/NA



    SULLIVAN, Judge (concurring):

    From my very first opinion on this Court, I have consistently

concluded that Mil.R.Evid. 410 must be applied broadly to be

consistent with its purpose.    United States v. Barunas, 23 MJ 71,

75-76 (CMA 1986).   See also Fed.R.Evid. 410.   Speaking for the

Court in Barunas, I said:



            The general purpose of Mil.R.Evid. 410
          and its federal civilian counterpart,
          Fed.R.Evid. 410, is to encourage the flow
          of information during the plea-bargaining
          process and the resolution of criminal
          charges without “full-scale” trials. See
          United States v. Grant, 622 F.2d at 313;
          see generally Santobello v. New York, 404
          U.S. 257, 260-61, 92 S.Ct. 495, 497-98, 30
          L.Ed.2d 427 (1971). An excessively
          formalistic or technical approach to this
          rule may undermine these policy concerns
          in the long run. United States v. Herman,
          544 F.2d at 797. See generally Wright and
          Graham, Federal Practice and Procedure:
          Evidence § 5345 (1980). A failure to
          recognize and enforce the military
          expansion of this rule may have the same
          effect.

23 MJ at 76.

     Our most recent case, United States v. Vasquez, 54 MJ 303,

305 (2001), was based on the longstanding precedent originating

in Barunas.    The Court’s action today is entirely consistent with

this precedent and I join it.
