UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                      Specialist CHRISTOPHER L. PONCE
                         United States Army, Appellant

                                   ARMY 20140556

                       Headquarters, 25th Infantry Division
                  David L. Conn, Military Judge (arraignment)
                      Craig S. Denney, Military Judge (trial)
   Lieutenant Colonel Steven M. Ranieri, Acting Staff Judge Advocate (pretrial)
           Colonel William D. Smoot, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
Gordon, JA (on brief and on brief in response to specified issues).

For Appellee: Major A.G. Courie III (on brief); Colonel John P. Carrell, JA; Major
A.G. Courie III; Major John K. Choike, JA; Captain Jihan Walker, JA (on brief in
response to specified issues).

                                     11 March 2016

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

CELTNIEKS, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave, one
specification of willfully disobeying a superior commissioned officer, one
specification of failure to obey a lawful general order, one specification of wrongful
possession of marijuana, and one specification of wrongful use of marijuana, in
violation of Articles 86, 90, 92, and 112a, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 890, 892, 912a (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for eight months, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with forty-two days of pretrial confinement credit.

       This case is before the court for review under Article 66, UCMJ. The initial
briefs submitted by the parties assigned no errors, and appellant personally raised
PONCE— ARMY 20140556

matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), that
were without merit. This court specified three issues for further review and
briefing; the following issue was specified in our order:

             WHETHER THE MILITARY JUDGE ABUSED HIS
             DISCRETION BY ADMITTING, OVER DEFENSE
             OBJECTIONS, PROSECUTION EXHIBIT 2, THE
             APPELLANT’S ENTIRE OFFICIAL MILITARY
             PERSONNEL FILE (OMPF), WHICH INCLUDED A
             COMPLETED STANDARD FORM 86 SECURITY
             CLEARANCE APPLICATION, INTO EVIDENCE
             DURING THE GOVERNMENT’S SENTENCING CASE?

                                       FACTS

       During presentencing, trial counsel offered and the military judge admitted,
over defense counsel’s objections, Prosecution Exhibit [hereinafter PE] 2,
appellant’s entire official military personnel file [hereinafter OMPF]. The OMPF
included appellant’s United States Office of Personnel Management Standard Form
86, Questionnaire for National Security Positions (revised September 1995)
[hereinafter SF 86]. Appellant completed the SF 86 on 23 February 2007, eleven
days before he entered active duty. 1 In response to questions on the SF 86, appellant
listed offenses he had been arrested for, charged with, or convicted of, and described
his experimental use and possession of illegal drugs. All incidents and activities
appellant entered on the SF 86 predated his military service, and several entries
involved juvenile misconduct.

       Trial counsel argued the OMPF was admissible under Rule for Courts-Martial
[hereinafter R.C.M.] 1001(b)(2) (authorizing admission of personal data and
character of prior service of the accused from personnel records maintained in
accordance with departmental regulations). Defense counsel objected to the
admission of the OMPF on foundation, authentication, and hearsay grounds. The
following discussion occurred between the military judge and counsel regarding
R.C.M. 1001(b)(2):

             DC: Sir, in reading the rule, I believe it says more
             information that [sic] is necessary. I think that what the
             rule intends is an opportunity to introduce evidence about
             the accused’s marital status, number of dependents, and
             his character of prior service. If that’s the case, I would

1
 Appellant’s active duty enlistment contract (also included in PE 2) is dated 6
March 2007. This date corresponds with appellant’s basic active service date
(BASD), pay entry basic date (PEBD), and basic enlisted service date (BESD) on his
enlisted record brief enclosed within the stipulation of fact (PE 1).
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         ask for an opportunity to review that OMPF and remove
         those documents that I don’t think the court should
         support [sic] their rule. It’s not an all-inclusive -- just
         because it happens to be part of the OMPF, everything is
         included.

         MJ: Well R.C.M. 1001(b)(2) [sic] says that personnel
         records of the accused -- any records maintained in
         accordance with departmental regulation will reflect past
         military efficiency, conduct, performance, and history of
         the accused. If the accused objects to a particular
         document that is inaccurate or incomplete or any matter
         that is not admissible, the matter shall be determined. I
         guess what I need to do is know which ----

         DC: Sir, I’m specifically talking about the SF 86 -- the
         mission [sic] that was presented for purposes of a security
         clearance. That contains information outside of his
         military service which I don’t think is relevant here today.

         MJ: Okay, so is that -- is there a particular page you’re
         referring to? It looks like this [PE 2] for identification is
         [a] 128-page document; do you know what page you’re
         referring to?

         ....

         TC: I’m not sure what page it is, sir, but I can direct you
         to it when I see it. That’s the document that the
         government is interested in presenting, Your Honor. The
         government’s argument is that it goes to [appellant’s]
         rehabilitative potential.

         DC: And again, sir the information in the SF 86 details
         information outside of his military service. And with
         respect to information that’s in those documents, I would
         argue that that is hearsay. There is no basis at all with
         respect to the information in there to be able to refute it.
         He doesn’t have any opportunity to -- there is no
         additional information other than what’s there.

         MJ: Yes I understand and the government’s response is
         the business record exception. Do you have any response
         to that?

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       Defense counsel acknowledged the OMPF, including the SF 86, was
“obviously” a business record, but reiterated the SF 86 contains information about
appellant’s “interactions with law enforcement” that occurred prior to his enlistment,
and appellant did not contemplate the information would be used against him at a
subsequent court-martial when he completed the form. The exchange between the
parties continued:

             MJ: The objection is going to be overruled. [PE 2] is
             admitted. The court interprets RCM 1001(b)(2) states
             [sic] that the personnel records of the accused include any
             records made or maintained in accordance with
             departmental regulations that reflect past military
             efficiency, conduct, performance, and the history of the
             accused. While the defense objects to contents,
             specifically the SF 86 form and [PE 2] stating that it is not
             admissible, the court finds that [PE 2] qualifies as a
             business record exception to the rules of hearsay and there
             is a proper authentication -- certification from the iPerms
             [personnel electronic records management system] support
             team Army Soldier Records Branch. The court will ----

             DC: Sorry, sir, we had one other objection that we made
             on the record ----

             MJ: Sure.

             DC: ---- and that was 403 with respect to the document.

             TC: And, Your Honor, the government’s response to that
             is that this definitely is probative and it goes to the
             accused’s rehabilitative potential. The document in
             question details [appellant’s] history with illegal drugs.

             MJ: Okay. The defense’s objection is overruled. [PE 2]
             is in evidence.

             TC: The government rests, Your Honor.

       The military judge then recited the first sentence of Military Rule of Evidence
[hereinafter Mil. R. Evid.] 803(6) and stated: “The court finds that [PE 2] qualifies
as a business record and also has the appropriate self-authenticating certification
under 902(11) of the military rules of evidence for a certified domestic record of
regularly conducted activity. The court finds that [PE 2] is the . . . OMPF

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maintained by the Army . . . for [appellant].” The military judge did not explain
how appellant’s civilian misconduct in the SF 86 squared with R.C.M. 1001(b)(2),
and he did not articulate his Mil. R. Evid. 403 balancing test on the record.

      During closing argument, trial counsel made the following assertion:

             Your Honor, as reflected in his [OMPF], [appellant] has
             been using illegal drugs since at least 2005. Prior to
             entering the Army, [appellant] disclosed that he
             recreationally used marijuana to include pot, Acapulco
             Gold, grass, sensimilla, and Thai sticks. He also disclosed
             that he was ordered to complete a drug program by the
             Downey Superior Court in Los Angeles. Despite all this,
             the Army gave [appellant] a clean, fresh start. He was
             given the opportunity to change his old way of life and
             begin anew. But instead of taking advantage of this
             opportunity and the privilege of service, [appellant]
             selfishly took advantage of the Army.

                             LAW AND DISCUSSION

      We hold the military judge erred by admitting the SF 86 included in PE 2
under the facts of this case. Information that is properly maintained in a military
personnel record is not automatically admissible under R.C.M. 1001(b)(2).

       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
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).

       Rule for Courts-Martial 1001(b)(2) authorizes admission of an accused’s
personnel records “[u]nder regulations of the Secretary concerned.” Personnel
records include “any records made or maintained in accordance with departmental
regulations that reflect the past military efficiency, conduct, performance, and
history of the accused” in the context of his prior service. R.C.M. 1001(b)(2). 2 This
rule, however, “does not provide blanket authority to introduce all information that


2
 Appendix B, para. B-1a of Army Regulation 600-8-104, Personnel-General: Army
Military Human Resources Records Management (7 April 2014), in effect at the time
of the appellant’s trial, lists SF 86 security clearance applications as required
documents in personnel records.
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PONCE— ARMY 20140556

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. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998). “‘[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.’” United States v. Delaney, 27 M.J. 501, 504 (A.C.M.R. 1988) (quoting
United States v. Brown, 11 M.J. 263, 266 (C.M.A. 1981)).

       Even if admissible under R.C.M. 1001(b)(2), evidence may be excluded under
Mil. R. Evid. 403 when “its probative value is substantially outweighed by the
danger of unfair prejudice . . . .” Cf. Ashby, 68 M.J. at 120. 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.

       In this case, the military judge lost sight of the service connection parameters
of R.C.M. 1001(b)(2). In response to defense counsel’s hearsay objection, the
military judge erred by exclusively focusing on whether the SF 86 in PE 2 was a
business record under Mil. R. Evid. 803(6) that was properly authenticated in
compliance with Mil. R. Evid. 902. While R.C.M. 1001(b)(2) provides an
opportunity for the government to introduce evidence from appellant’s personnel
records regarding his character of prior service, an SF 86 security clearance
questionnaire filled with information that predates appellant’s enlistment is not
admissible under this rule. The relevance of the SF 86 does not expand to reflect
appellant’s military history merely because the document is in his OMPF.

       There is no supplemental rationale to explain why the military judge admitted
the SF 86 into evidence because he did not articulate a Mil. R. Evid. 403 balancing
analysis on the record. Moreover, it does not appear the military judge adequately
reviewed all 128 pages of PE 2 prior to his ruling. “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.” United States v. Heyward, 73 M.J. 905, 908
(Army Ct. Crim. App. 2014) (pet. denied 73 M.J. 319). Consequently, we afford the
military judge no deference.

       We conducted a Mil. R. Evid. 403 balancing test for the SF 86 information in
the absence of such analysis from the record and consistent with methodology
applied by this court in Heyward. Appellant self-reported the following pre-service
misconduct on his SF 86: Juvenile offenses comprising possession of graffiti tools,
obstructing a peace officer, campus disruption, loitering, failure to appear, and

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PONCE— ARMY 20140556

trespassing between 2000 and 2002 (while appellant was 14 and 16 years-old);
possession of less than an ounce of marijuana and underage possession of alcohol in
2005; 3 and “experimental” marijuana use in 2006. Given there is no evidence of any
misconduct by appellant until the first of the offenses to which he pleaded guilty in
2013, coupled with the derogatory nature of his extraneous juvenile record, we find
the danger of unfair prejudice substantially outweighs the probative value of the SF
86 information in this particular case.

       Paragraph 5-29(a) of Army Regulation 27-10, Legal Services: Military
Justice (3 October 2011), lists specific examples of personnel records that may be
presented by trial counsel at sentencing for purposes of R.C.M. 1001(b)(2).
Notably, the SF 86 is not included in this provision. 4 As a practical matter, adverse
use of pre-service information from security clearance questionnaires at subsequent
criminal proceedings could have a chilling effect on the background investigation
process. Using such information for purposes other than determining suitability for
clearances may deter recruits and new soldiers from being forthcoming.

       Notwithstanding the military judge’s abuse of discretion, we hold that
appellant was not materially prejudiced by the admission of the SF 86 in PE 2. To
examine prejudice, we must determine whether admission of the SF 86 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.’” Heyward, 73 M.J. at
908 (quoting United States v. Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011)).

       On one side, the military judge considered evidence that was improperly
admitted under R.C.M. 1001(b)(2), and trial counsel referenced extraneous
derogatory information from the inadmissible SF 86 in his sentencing argument.
Additionally, appellant presented mitigation evidence that included seven years of
service with two twelve-month combat tours in Afghanistan, and hospitalization for
depression following his most recent deployment.




3
  For the marijuana possession and underage possession of alcohol in 2005, appellant
listed completion of an eight-hour drug program and twenty-four hours of
community service, respectively, ordered by the Downey Superior Court in Los
Angeles County, California. Under the circumstances, we do not evaluate whether
these entries constitute prior civilian convictions of the appellant under R.C.M.
1001(b)(3) because this rule was not invoked during trial and there is not enough
information in the record to make a determination.
4
 The SF 86 and other documents related to security clearances are also not included
on a list of “memoranda, reports, records, or data compilations normally admissible”
as records of regularly conducted activity pursuant to Mil. R. Evid. 803(6).
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PONCE— ARMY 20140556

       On the other side, the weight of the factors cuts against concluding appellant
was prejudiced. The government presented significant admissible evidence in
aggravation related to the charged offenses to which appellant pleaded guilty,
including testimony describing appellant’s blatant possession of marijuana in the
barracks, his direct disobedience of a lawful order in front of fellow unit members
commanded by the issuing officer, and the repetitive nature of his misconduct.
Further, the civilian misconduct in the SF 86 was relatively minor and occurred at
least seven years before the offenses. Finally, appellant faced a maximum
punishment of thirteen years of confinement, forfeiture of all pay and allowances,
reduction to the grade of E-1, and a dishonorable discharge; he received eight
months of confinement, reduction to the grade of E-1, and a bad-conduct discharge.
The military judge sentenced appellant to substantially less punishment than the
government requested, and four months less confinement than appellant bargained
for in the pretrial agreement. 5

       Considering the record as a whole, to include the offenses of which appellant
was convicted and the evidence properly admitted in aggravation, extenuation, and
mitigation, we are confident the military judge was not substantially influenced by
the inadmissible information from the SF 86 in arriving at the adjudged sentence in
this case.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CAMPANELLA concurs.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




5
 Trial counsel argued for fifteen months confinement, reduction to the grade of E-1
and a bad-conduct discharge. The pretrial agreement in this case capped
confinement at no more than twelve months.
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