                           UNITED STATES, Appellee

                                           v.

                        Lester R. HARRIS, Corporal
                       U.S. Marine Corps, Appellant

                                    No. 01-0226
                          Crim. App. No. 2000-0354

       United States Court of Appeals for the Armed Forces

                           Argued October 23, 2001

                            Decided June 19, 2002

     BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J.,
joined.
                             Counsel


For Appellant:     Lieutenant Glenn Gerding, JAGC, USNR (argued).


For Appellee: Lieutenant R. W. Weiland, JAGC, USNR (argued);
Commander P.A. Dutton, JAGC, USN (on brief); Colonel Marc W.
Fisher, Jr., USMC, and Lieutenant James E. Grimes, JAGC, USNR.


Military Judge:      W. P. Hollerich



        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States V. Harris, No. 01-0226/MC


    Judge BAKER delivered the opinion of the Court.

    A military judge sitting as a general court-martial tried

appellant.    In accordance with his pleas, he was found guilty of

conspiracy to wrongfully dispose of M112 Demolition Charge (C-

4), dereliction of duty in failing to report to appropriate

authorities the known location of the stolen C-4, wrongful

disposition of these explosives, and a violation of 18 USC

§ 842(h), by unlawfully possessing, transporting, and/or storing

the C-4, in violation of Articles 81, 92, 108, and 134, Uniform

Code of Military Justice, 10 USC §§ 881, 892, 908, and 934,

respectively.     Appellant was sentenced to a dishonorable

discharge, confinement for ten years, total forfeitures, and

reduction to pay grade E-1.       The convening authority approved

the adjudged sentence and, except for the punitive discharge,

ordered it executed.      However, in compliance with a pretrial

agreement, he suspended all confinement in excess of forty-nine

months for a period of twelve months from the date of his final

action.

      The Court of Criminal Appeals affirmed the findings in an

unpublished opinion.      However, in connection with appellant’s

conviction for violating 18 USC § 842(h), it excepted the word

“transporting” from the specification.       The court also ruled

that appellant’s sentence was inappropriately severe and




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United States V. Harris, No. 01-0226/MC


reassessed.    Upon reassessment, the court reduced appellant’s

confinement to forty-two months.

      This Court granted review of the following issue:

      WHETHER APPELLANT’S SUBSTANTIVE RIGHTS WERE MATERIALLY
      PREJUDICED BY THE CONVENING AUTHORITY’S FAILURE TO
      GIVE HIM NOTICE OF AND AN OPPORTUNITY TO REBUT ADVERSE
      PREENLISTMENT JUVENILE MATTERS FROM OUTSIDE THE
      RECORD, THAT THE CONVENING AUTHORITY CONSIDERED BEFORE
      TAKING ACTION ON APPELLANT’S CASE.

Appellant complains on appeal that the convening authority

improperly considered certain matters contained in his service

record prior to taking action under RCM 1107, Manual for Courts-

Martial, United States (2000 ed.).1         We resolve this issue

against appellant and affirm.

                                 Discussion

      During post-trial review, the convening authority stated in

his final action, “I considered the Staff Judge Advocate’s

recommendation, record of trial, the Service Record Book [SRB]

of Corporal Lester R. Harris, and the matters submitted by the

defense pursuant to R.C.M. 1105, MCM, 1995.”           As appellant’s

brief states, his “SRB contained three pages documenting

criminal offenses that he committed before he enlisted in the

Marine Corps, many of which he committed while a juvenile.”

Final Brief at 4.     Specifically, the SRB contained a one-page

form titled “Request for Waiver of Enlistment Criteria,” from

1
  All Manual provisions cited in this opinion are identical to the ones in
effect at the time of appellant’s court-martial.


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United States V. Harris, No. 01-0226/MC


the Commanding Officer, United States Marine Corps Recruiting

Station, Dallas, to the Commanding General, Marine Corps Recruit

Depot, San Diego.     This document includes blocks for “Drug” use

and “Offenses,” including space to record the nature and

disposition of such offenses.        Included with this form is a two-

page document with the following heading:          “Subj:    Request for

Waiver Case of Harris, Lester R.”         This latter document provides

in narrative form, inter alia, background on appellant’s use of

marijuana, LSD, and cocaine prior to enlistment, some of which

occurred while appellant was a juvenile.          Appellant’s

submissions pursuant to RCM 1105, Manual, supra, did not address

these SRB entries.2

      Appellant first argues that the documents do not fall

within the matters delineated within the meaning of RCM 1107

that the convening authority may consider without giving

appellant an opportunity to respond.         RCM 1107(b)(3) provides:

      Matters considered.

      (A)   Required matters. Before taking action, the convening
            authority shall consider:

            (i)      The result of trial;

                                    * * *

            (ii)     The recommendation of the staff judge advocate
                     or legal officer under RCM 1106, if applicable;
                     and
2
  These pages, along with other entries from appellant’s SRB, were submitted
by the Government to the Court of Criminal Appeals for inclusion in the
appellate record.


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United States V. Harris, No. 01-0226/MC


            (iii)    Any matters submitted by the accused under RCM
                     1105 or, if applicable, RCM 1106(f).

      (B)   Additional matters. Before taking action the convening
            authority may consider:

            (i)      The record of trial;

            (ii)     The personnel records of the accused; and

            (iii)    Such other matters as the convening authority
                     deems appropriate. However, if the convening
                     authority considers matters adverse to the
                     accused from outside the record, with knowledge
                     of which the accused is not chargeable, the
                     accused shall be notified and given an
                     opportunity to rebut.

      Appellant asserts that RCM 1107 does not define the term

“personnel record,” but that the term is defined in RCM

1001(b)(2).    According to appellant, since the documents in

issue fail to meet the definition in RCM 1001(b)(2),3 they cannot

be considered personnel records for the purposes of RCM 1107.

Appellant also argues that while these documents were, as a

matter of fact, in his SRB, they are not personnel records kept

in accordance with service regulations and, thus, were

improperly contained in his service record.           Therefore, he

should not be charged with knowledge of the documents’ presence

in his SRB.    In either case, he contends, since the documents

were not personnel records properly considered by the convening


3
 This provision states: “`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.” (Emphasis added.)



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United States V. Harris, No. 01-0226/MC


authority, they were “other matters” for which the convening

authority was obligated to give him notice under RCM

1107(b)(3)(B)(iii).      Finally, appellant argues that once a

servicemember qualifies for enlistment, his past misdeeds should

not be held against him.       He should start with a clean slate,

especially when those misdeeds were committed as a juvenile.

      The problem with appellant’s argument regarding RCM

1001(b)(2) and RCM 1107 is that the Waiver of Enlistment

Criteria, as appellant notes, was part of his SRB, which is a

repository of appellant’s personnel records and was something to

which appellant had access.       Further, Rule 1001(b)(2) is a rule

of admissibility intended to regulate the type of evidence

submitted by counsel as part of the adversarial process during

the presentencing hearing, not as part of the post-trial action

by the convening authority.4       Rule 1107(b)(3) provides the

convening authority with broad discretion as to which matters to

consider prior to acting on a case.         Rule 1107(b)(3) also

provides the accused with constructive notice of the matters

that must and may be considered by the convening authority, such

as “personnel records of the accused.”          RCM 1107(b)(3)(B)(iii)

requires actual notice only “if the convening authority

considers matters adverse to the accused from outside the


4
  Even if the second paragraph of RCM 1001(b)(2) were viewed as a definition
of “personnel record” applicable to RCM 1107, the plain text of the paragraph
is inclusive rather than exhaustive as to the meaning of “personnel record.”


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United States V. Harris, No. 01-0226/MC


record, with knowledge of which the accused is not chargeable .

. . .”

      Both parties agree that the relevant regulation is Marine

Corps Order P1070.12, Individual Records Administration Manual

(known to Marines by its short title “IRAM”), of which we take

judicial notice in this circumstance.         See United States v.

Mead, 16 MJ 270, 273 (CMA 1983).          “The IRAM publishes policies,

procedures, and technical instructions for the administration of

personnel records.”      IRAM at para. 0001 (emphasis added).     The

IRAM “is issued for the guidance and compliance of all

individuals concerned in any aspect of Marine Corps personnel

records administration.”       Marine Corps Order P1070.12J (May 16,

1998) (emphasis added).       Chapter 4 of the IRAM is titled

“Service Record Book (SRB).”        Based on the foregoing, it is

beyond peradventure that the SRB is a repository of “personnel

records.”

      Appellant anticipates this conclusion in arguing that the

presence of the enlistment waiver in his SRB is not controlling

because the waiver was maintained in appellant’s SRB contrary to

service regulations.      Therefore, it was not itself a “personnel

record.”    Chapter 4 of the IRAM arguably suggests otherwise.

Paragraph 4000 anticipates the inclusion of preenlistment

information, stating:      “The SRB is designed for recording

specified information about a Marine at the time of enlistment.”


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United States V. Harris, No. 01-0226/MC


(Emphasis added.)     Paragraph 4001(c)(2)(48) of the regulation

states that the following documents are to be inserted in the

SRB, if applicable:      “Any special authority for

enlistment/reenlistment or extension.”         However, we need not

ultimately determine the scope of these provisions.           Appellant

has not carried his burden of demonstrating before this Court

that the enlistment waiver documents maintained in his service

record do not constitute “special authority” within the meaning

of subparagraph (48).      Therefore, we need not decide today

whether a document improperly maintained in an accused’s SRB may

be considered.5

                                 Conclusion

       The documents were part of appellant’s SRB, a repository

of an enlisted Marine’s personnel records.          Appellant had a

right to review his SRB and address any potentially adverse

information contained in the SRB as part of his clemency

petition.    See IRAM at para. 4001.3 (“When Marines desire to

examine their SRB, they may do so. . . .”).          Therefore,

appellant was “chargeable” with knowledge of the contents of his

SRB and was on notice, pursuant to RCM 1107(b)(3)(B), that the

enlistment waiver documents could be considered by the convening


5
 Appellant’s argument that preenlistment and juvenile conduct should not be
held against him is a prudential argument founded on policy considerations
rather than legal dictates. It is also an argument that can appropriately be
made as part of an RCM 1105 submission.



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United States V. Harris, No. 01-0226/MC


authority.    Under these circumstances, the convening authority

properly considered the enlistment waiver documents in the SRB

prior to his action and was not obligated to further notify

appellant that he would do so.

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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