                                IN THE CASE OF


                           UNITED STATES, Appellee

                                        v.

                    Steven TSCHIP, Airman First Class
                        U.S. Air Force, Appellant

                                  No. 03-0024
                         Crim. App. No. ACM S30016

          United States Court of Appeals for the Armed Forces

                            Argued April 9, 2003

                            Decided June 11, 2003

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


                                    Counsel


For Appellant: Captain Antony B. Kolenc (argued); Colonel
    Beverly B. Knott and Major Terry L. McElyea (on brief).

For Appellee: Captain Shannon J. Kennedy (argued); Colonel
    LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon (on
    brief).



Military Judge:      Kurt D. Schuman



   THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Tschip, No. 03-0024/AF



   Judge EFFRON delivered the opinion of the Court.

   A special court-martial composed of officer and enlisted

members, convicted Appellant, pursuant to his pleas, of two

specifications of dereliction of duty and one specification of

dishonorably failing to maintain sufficient funds in his credit

union account to pay for checks he uttered, in violation of

Articles 92 and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 892, 934 (2000).   He was

sentenced to a bad-conduct discharge, and reduction to the

lowest enlisted grade.   The convening authority approved these

results, and the Court of Criminal Appeals affirmed in an

unpublished opinion.

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE MILITARY JUDGE COMMITTED PLAIN
          ERROR BY GIVING THE MEMBERS MISLEADING
          INSTRUCTIONS ABOUT THE POSSIBILITY OF
          APPELLANT BEING ADMINISTRATIVELY DISCHARGED
          FROM THE AIR FORCE IN THE EVENT THE MEMBERS
          CHOSE NOT TO ADJUDGE A PUNITIVE DISCHARGE
          AND BY INFORMING THE MEMBERS THAT THEY COULD
          DISREGARD APPELLANT'S REQUEST IN THIS REGARD
          WHICH HE MADE IN HIS UNSWORN STATEMENT.

     For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.




                                 2
United States v. Tschip, No. 03-0024/AF



             I. UNSWORN STATEMENTS DURING SENTENCING

     During sentencing proceedings in a court-martial, the

accused has the right to “testify, make an unsworn statement, or

both in extenuation, in mitigation or to rebut matters presented

by the prosecution[.]”    Rule for Courts-Martial 1001(c)(2)(A)

[hereinafter R.C.M.].    Under R.C.M. 1001(c)(2)(C) the unsworn

statement may be either oral or written, and it may be presented

either by the accused or by counsel.    The accused may not be

cross-examined by the prosecution or questioned by the court-

martial upon it, but the prosecution may introduce evidence to

rebut statements of facts therein.    Id.   Although the scope of

an unsworn statement may include matters that are otherwise

inadmissible under the rules of evidence, the right to make an

unsworn statement is not wholly unconstrained.     See, e.g.,

United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998).

Military judges have broad authority to give instructions on the

“meaning and effect” of the accused’s unsworn statement, both to

ensure that the members place such a statement “in the proper

context” and “to provide an appropriate focus for the members’

attention on sentencing.”    United States v. Grill, 48 M.J. 131,

133 (C.A.A.F. 1998).




                                  3
United States v. Tschip, No. 03-0024/AF



                      II. FACTUAL BACKGROUND

     During sentencing, Appellant presented testimony and

documentary evidence in extenuation and mitigation of his

offenses, including an unsworn statement.   The unsworn statement

covered a wide range of issues.   Appellant apologized to his

wife, his family and the members of his unit; gave brief

highlights from his childhood; talked about his father’s service

of twenty-seven years in the Army; detailed his involvement in

the Air Force Junior Reserve Officer Training Corps in high

school and Army Reserve Officer Training Corps in college;

discussed his efforts to make restitution to the victims of his

crimes; and outlined his service on active duty in the Air

Force.   Appellant concluded his unsworn statement by reading the

following passage to the members:

          No matter what happens at the end of today I
          know in my heart I will overcome the
          mistakes I made and move on with my life. I
          accept total responsibility for what I have
          done and the fact that my Air Force career
          is most likely over with now. I would still
          like to stay in the Air Force though. As
          much as I would like the chance to redeem
          myself, I know that my commander can
          discharge me even if I do not receive a bad
          conduct discharge today. The worst
          punishment for me will be wondering every
          day for the rest of my life what my life
          would have been like if I would have just
          been able to stay in the Air Force. Even
          though this chapter in my life is most
          likely over with I still have a lot of
          ambition. I’d like to finish college and


                                  4
United States v. Tschip, No. 03-0024/AF


          earn a bachelors [sic] degree in engineering
          which is something that I’ve been wanting to
          do ever since I was in high school. With
          this degree, I wanted to try to receive a
          commission[,] as an officer in the Air
          Force[,] like my father. Please don’t
          shatter these dreams by giving me a bad
          conduct discharge. I want to continue
          serving the Air Force, but if that is not
          possible, please be fair and just.


     Prior to closing argument by the prosecution and defense

counsel on sentencing, the military judge conducted a session

pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000) to

review proposed instructions.   The proposed instructions

included the following regarding Appellant’s unsworn statement:

          In his unsworn statement, the accused made
          reference to the possibility of an
          administrative discharge. Although an
          unsworn statement is an authorized means to
          bring information to your attention, and
          must be given the consideration it is due,
          as a general evidentiary matter, information
          about administrative discharges and the
          procedures related thereto, are not
          admissible in trials by courts-martial.

          The issue concerning the possibility of the
          administrative discharge of the accused is
          not a matter before this court. This is
          what we call a collateral matter. You
          should not speculate about it. After due
          consideration of the accused’s reference to
          this matter, you are free, in your
          discretion, to disregard the reference if
          you see fit. This same caution applies to
          any references made concerning this
          information by counsel during arguments.




                                 5
United States v. Tschip, No. 03-0024/AF


     During this session, the military judge asked counsel if

they had any objections or proposed revisions to the proposed

instructions.   Counsel for both parties stated that they had no

objections or recommended additions.

     In closing argument, defense counsel contended that a

punitive discharge would be disproportionate, that Appellant

possessed good rehabilitation potential, that the shame of a

federal conviction constituted significant punishment, and that

other punishment options were much more appropriate, such as

“taking stripes,” “restriction to base,” or “hard labor without

confinement.”   Defense counsel made no mention of the

possibility of administrative discharge.

     Following arguments by counsel, the military judge provided

the members with instructions on sentencing, which tracked the

instructions he previously reviewed with counsel.    At the

conclusion of instructions, the military judge asked whether

either counsel objected to the instructions as given or wished

to request any additional instructions.     Both counsel responded

in the negative.



                          III. DISCUSSION

     In this appeal, Appellant contends that his right to give

an unsworn statement was impermissibly impaired by the reference

to administrative discharges in the military judge’s


                                 6
United States v. Tschip, No. 03-0024/AF


instructions.   Such an issue is a question of law, which we

review de novo.    United States v. Hibbard, 58 M.J. 71, 75

(C.A.A.F. 2003).    In the absence of an objection, we review

deficiencies in the instruction for plain error.    See United

States v. Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).

      In the present case, Appellant made a passing, vague

reference in his unsworn statement to the possibility that his

commander might initiate administrative discharge proceedings

against him.    He did not specifically ask the members to take or

refrain from any specific action in light of his comment, and

defense counsel did not raise the subject of an administrative

discharge during closing argument.    Under these circumstances,

we decline to speculate as to the message that Appellant was

intending to convey to the members through a reference to an

administrative discharge.

      The military judge instructed the members that the subject

of an administrative discharge was a collateral matter, that

they should give that aspect of Appellant’s unsworn statement

due consideration, and that they had discretion to disregard the

reference to an administrative discharge if they saw fit to do

so.   In view of Appellant’s unfocused, incidental reference to

an administrative discharge, the military judge did not err by

providing instructions that placed Appellant’s statement in the

appropriate context for purposes of their decision-making


                                  7
United States v. Tschip, No. 03-0024/AF


process.   We need not decide whether the instructions provided

by the military judge would be appropriate in a case involving

different references to an administrative discharge.   Under

facts of this case, the instructions by the military judge did

not constitute error, much less plain error.   See Glover, 50

M.J. at 478.



                           IV. DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 8
