UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                            Before the Court Sitting En Banc

                           UNITED STATES, Appellee
                                        v.
                        Staff Sergeant DANIEL GASKINS
                          United States Army, Appellant

                                   ARMY 20080132

         Headquarters, United States Army Southern European Task Force
           Timothy Grammell and Gregg Marchessault, Military Judges
     Lieutenant Colonel Harrold J. McCracken, Staff Judge Advocate (pretrial)
      Colonel Harrold J. McCracken, Staff Judge Advocate (recommendation)
         Major Sean T. McGarry, Acting Staff Judge Advocate (addendum)

For Appellant: William E. Cassara, Esquire (argued); Captain Elizabeth Turner, JA;
William E. Cassara, Esquire, (on brief).

For Appellee: Captain Nicole L. Fish, JA (argued); Colonel Norman F.J. Allen, III,
JA; Lieutenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA; Captain
Nicole L. Fish (on brief).


                                    27 August 2010

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------
HOFFMAN, Judge:

       A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of carnal knowledge, indecent acts with a
child, and indecent assault, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for twelve years, forfeiture of all pay and allowances, and reduction to the grade of
Private E1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant has
alleged, inter alia, a substantial omission from the record of trial rendering it
incomplete within the meaning of Article 54, UCMJ. We return the record of trial to
the convening authority for a limited hearing to determine whether substantial
matters were omitted from the record and, if so, whether it is incomplete under
Article 54, UCMJ.
GASKINS—ARMY 20080132

                                       FACTS

      The court-martial panel found appellant guilty of carnal knowledge and
indecent acts with the 12-year-old daughter of a fellow soldier and indecent assault
on another female soldier. Following his conviction, the defense’s sentencing case
consisted of three witnesses (a captain, a chief warrant officer three, and appellant’s
brother), appellant’s unsworn statement and the admission of Defense Exhibit A,
appellant’s “Good Soldier Book.” During his unsworn statement, appellant
described ten photographs contained in Defense Exhibit A. Though the panel
received the exhibit for their consideration in sentencing, the exhibit was not
included when appellant’s record of trial was assembled.

      In his Rule for Courts-Martial [hereinafter R.C.M.] 1105/1106 clemency
submission, appellant’s counsel noted Defense Exhibit A was missing from the
record of trial. Counsel claimed the missing exhibit contained “a compilation of
[appellant’s] awards, certificates, letters of commendation and character letters from
family and friends, as well as a number of photographs.”

       In response, the acting staff judge advocate (SJA) prepared an addendum to
the SJA recommendation, noting Defense Exhibit A “could not be located.” The
SJA provided a memorandum describing the omitted exhibit for the record. 1
Additionally, the SJA provided appellant’s Official Military Personnel File (OMPF)
for the convening authority to review in an effort to supplement information
pertaining to appellant’s military background. Further, appellant’s R.C.M. 1105
matters contained twenty-one letters of support. The convening authority reviewed
the materials and approved the adjudged sentence without clemency.

                                         LAW

       A complete record of the proceedings and testimony must be prepared for any
general court-martial resulting in a punitive discharge. UCMJ, art. 54(c)(1). A
complete record includes “exhibits . . . which were received in evidence.” R.C.M.
1103(b)(2)(D)(v). A substantially verbatim record is necessary to support a sentence
which includes a punitive discharge or exceeds six months confinement. R.C.M.
1103(b)(2)(B) and 1103(f)(1). Article 19, UCMJ, states “[a] bad-conduct discharge,
confinement for more than six months, or forfeiture of pay for more than six months
may not be adjudged unless a complete record of the proceedings and testimony has
been made . . . .” The requirement a record of trial be complete and substantially
verbatim to support a sentence exceeding these limits amounts to a jurisdictional
requirement that cannot be waived. United States v. Henry, 53 M.J. 108, 110
(C.A.A.F. 2000) (citing United States v. Gray, 7 M.J. 296 (C.M.A. 1979); United


1
 The “substitution memorandum” was written by the “Senior Court Reporter,” rather
than the court reporter at appellant’s trial.


                                           2
GASKINS—ARMY 20080132

States v. Whitney, 48 C.M.R. 519 (C.M.A. 1974)). When faced with an incomplete
record, this court may order a new trial, order reconstruction of the record, or simply
approve a sentence that meets the mandates of R.C.M. 1103, Article 19, and Article
54. See United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1980).

       The test for determining whether the record is incomplete is whether the
omitted matter constitutes a “substantial” omission from the record. United States v.
McCullah, 11 M.J. 234, 237 (C.M.A. 1981). Whether or not an omission is
substantial is analyzed on a case-by-case basis. United States v. Embry, 60 M.J.
976, 979 (Army Ct. Crim. App. 2005) (citing United States v. Abrams, 50 M.J. 361,
363 (C.A.A.F. 1999)). Omissions from the record of trial, which affect the rights of
the accused at trial or make proper appellate review impossible are substantial
omissions. See Abrams, 50 M.J. at 363. To evaluate whether an omission from the
record is substantial, the court must “ascertain whether the omitted material was
‘substantial,’ either qualitatively or quantitatively,” when considered in light of the
rest of the record. Lashley, 14 M.J. at 9.

      A substantial omission from the record “raises a presumption of prejudice
which the government must rebut.” United States v. Cudini, 36 M.J. 572, 573
(A.C.M.R. 1992) (citing Gray, 7 M.J. 296). “Conversely, an insubstantial omission
does not raise the presumption and does not change a record's characterization as
complete.” Cudini, 36 M.J. at 573 (citing McCullah, 11 M.J. at 237). Thus, before
affirming any record of trial from which an exhibit is missing, this court must
determine, first, whether the absence of the omitted exhibit is substantial and
renders the record of trial incomplete, and, second, if so, whether the government
has successfully rebutted the presumption of prejudice to the accused which
automatically arises therefrom.

       The court is well aware of the many cases finding a substantial omission when
an exhibit is omitted. See United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000)
(though the findings could be affirmed, absence of all of the defense sentencing
exhibits was substantial as it pertained to sentence); Abrams, 50 M.J. 361
(substantial omission where military judge reviewed the military record of a key
witness in camera, denying defense counsel’s motion to review the record himself,
and failed to attach the evidence in question to the record); McCullah, 11 M.J. 234
(omitted letter of dishonor in a worthless check case used to prove mens rea
amounted to a substantial omission); United States v. Seal, 38 M.J. 659 (A.C.M.R.
1993) (omission of a videotape showing the accused flying during Desert
Shield/Storm, which was admitted during the sentencing portion of the trial, was
substantial).

      However, when courts have found an omitted exhibit not in dispute or
unimportant, these courts have further found the omission insubstantial. See Henry,
53 M.J. at 111 (missing exhibits were not substantial omission where they were part



                                           3
GASKINS—ARMY 20080132

of a series of similar exhibits offered for the same evidentiary purpose); United
States v. White 52 M.J. 713, 716 (Army Ct. Crim. App. 2000) (missing defense
videotape of car interior found insubstantial, because the interior of the car was
portrayed in the record by other means); United States v. Johnson, 33 M.J. 1017,
1019 (A.C.M.R. 1991) (missing flier, which was provided to the members,
insubstantial given the military judge's preliminary instructions, the stipulation of
fact, counsel's arguments, and the appellant's unsworn statement); United States v.
Harper, 25 M.J. 895, 897-98 (A.C.M.R. 1988) (missing accused's personnel record
insubstantial where it could be ascertained from military judge's comments that he
examined a letter of reprimand reflecting accused was no longer qualified for
reenlistment); United States v. Carmans, 9 M.J. 616, 621 (A.C.M.R. 1980) (missing
photographic exhibits of stolen property insubstantial, because there was no contest
regarding identity of property); United States v. Henthorn 58 M.J. 556, 559 (N. M.
Ct. Crim. App. 2003) (missing twenty-four pornographic photographs insubstantial
where the record was replete with descriptions of the general nature of the omitted
photographs); United States v. Burns, 46 C.M.R. 492, 494 (N.C.M.R. 1972) (missing
topographical chart showing location of victim’s body was insubstantial omission
where its “importance to the outcome of the case is considered minimal”).

                                   DISCUSSION

      If the absence of appellant’s “Good Soldier Book” constitutes a substantial
omission from the record, appellant may have suffered prejudice because the
convening authority did not have an opportunity to review the contents of Defense
Exhibit A as part of his clemency review. Further, appellant could be prejudiced if
we as a court did not have an opportunity to review the exhibit as part of our
consideration of appellant’s sentence pursuant to Article 66, UCMJ. 2 Abrams, 50
M.J. 361 (failure of military judge to seal and attach military records of
government's key witness, after denying defense request for their disclosure for
impeachment purposes, made “proper appellate review impossible”).

      We begin our analysis by first finding there is an omission from appellant’s
record of trial, which did not cease to be an omission when a “substitute
memorandum” was included in the record. A memorandum is typically insufficient



2
  The dissent suggests that appellant was also prejudiced because “the lack of a
complete record ‘transgress[es] a fundamental statutory right enjoyed by’ appellant,”
(quoting and citing McCullah, 11 M.J. at 237). We do not believe McCullah stands
for the proposition that any omission from a record is “fundamental.” Instead, we
conclude that only those omissions which are both substantial and prejudicial
transgress an appellant’s rights under Article 54. Appellant may have been
prejudiced for the reasons we detail; however, an omission from the record is not in
and of itself prejudicial.


                                          4
GASKINS—ARMY 20080132

to substitute for omitted material. See Seal, 38 M.J. at 661; United States v.
Williams, 14 M.J. 796, 800-01 (A.F.C.M.R. 1982).

       Thus, our next task is to determine whether or not the omission of this
particular exhibit is substantial. In this case, however, we cannot complete this
preliminary step because we do not know what, specifically, is missing. While we
are certain that appellant’s “Good Soldier Book” is missing, the contents of that
book are not fully known. Though the test is clear, “a condition precedent to
applying this test is the availability in the record of a sufficient description of the
content of whatever matter has been omitted so as to enable this Court, or any other
reviewing authority, to determine whether such matter could have materially
prejudiced the substantial rights of the accused at trial.” Williams, 14 M.J. at 798.
We cannot presume we know the contents of appellant’s specific “Good Soldier
Book.” See Stoffer, 53 M.J. at 27. The government, thus far, has not described the
contents of the missing exhibit in adequate detail. Therefore, our options are to
affirm only the limited sentence for an incomplete record per R.C.M. 1103, order a
sentence rehearing, or order a DuBay hearing to determine if the matter is
substantial and to potentially reconstruct the omission. 3

        In considering our options, we cannot agree with the dissent that the
appropriate remedy based on the current record is to approve a sentence excluding
discharge or confinement in excess of six months. We are not dealing with whether
appellant should or could have been found guilty due to a missing merits exhibit;
instead we consider whether omission of a sentencing exhibit affected the sentence
as it relates to the convening authority’s action and our review of appellant’s
sentence. In light of the seriousness of appellant’s offenses, the substantial sentence
he received, and the fact the omission in this case relates only to sentencing
evidence rather than to appellant’s guilt, we conclude an eleven and a half-year
reduction in the sentence and disapproval of a punitive discharge is an extreme
remedy insufficiently justified by the current record. The cases cited to by the
dissent where this remedy was used are clearly distinguishable. The remedy in
Stoffer was predicated on judicial economy in light of appellant's short sentence and
comparatively long appellate delay. 53 M.J. at 28. The Seal case did not employ
the remedy of mandating a drastically reduced sentence; instead it remanded the case
to the convening authority to complete the record, or, alternately accept the drastic
remedy of a substantially reduced sentence. 38 M.J. at 663. In light of these
considerations, we choose to return the case for a DuBay hearing. See Appendix.




3
 We recognize an omission from the record may be tested for harmless error.
Stoffer, 53 M.J. at 27. We believe it is in the interests of justice, however, to first
return the case for additional fact finding as to the nature and content of the missing
exhibit.


                                           5
GASKINS—ARMY 20080132

        The government may overcome the presumption of prejudice by producing a
copy of the exhibit or carefully reconstructing the omitted portion of the record.
United States v. Eichenlaub, 11 M.J. 239, 240-41 (C.M.A. 1981); Lashley, 14 M.J.
at 9; Seal, 38 M.J. at 662; United States v. Griffin, 17 M.J. 698, 699 (A.C.M.R.
1983); United States v. Pearson, 6 M.J. 953, 954 (A.C.M.R. 1979); United States v.
Harrow, 62 M.J. 649, 655 (A.F. Ct. Crim. App. 2006); Burns, 46 C.M.R. at 498.
Defense counsel should provide input in such a reconstruction. United States v.
DeWayne, 7 M.J. 755, 756-57 (A.C.M.R. 1979). The government may likewise
overcome a presumption of prejudice by demonstrating from additions to the record
any missing portion of the exhibit was neither qualitatively nor quantitatively
substantial. Lashley, 14 M.J. at 9. That will necessarily entail determining, in some
detail, what was contained in the exhibit. A DuBay hearing will provide an
appropriate forum for both sides to participate. It will also develop the record to
facilitate our further review and ultimate determination of any appropriate remedy.

       Ordering a Dubay hearing to determine if an omission is substantial, to
determine if reconstruction is possible, and to facilitate any reconstruction is hardly
unprecedented. See United States v. Charles 40 M.J. 414, 419 (C.M.A. 1994) (case
remanded to Court of Military Review to “order affidavits from the military judge
and trial counsel reconstructing the lost exhibit, if possible, and clarifying the
ambiguity created by the judge's memorandum for the record”); United States v.
Church, 23 M.J. 870 (A.C.M.R. 1987) (court ordered limited hearing to determine
whether omitted sidebar conference dealt with substantial matters, and, if so,
whether reconstruction of the discussion was necessary and practicable); Williams,
14 M.J. 796 (record returned for a DuBay so parties could attempt to reconstruct the
missing exhibit rebutting evidence of the accused's peaceful character in attempted
murder trial); United States v. Kyle, 32 M.J. 724, 725 (A.F.C.M.R 1991) (DuBay
permitting reconstruction of exhibit would be appropriate, but issue mooted when
appellant’s guilty pleas found improvident); United States v. Widdowson, NMCCA
200700252, 2009 WL 855959 (N. M. Ct. Crim. App. 31 Mar. 2009) (unpub) (DuBay
to reconstruct record where tape recording of appellant’s trial was completely blank
was successful where post-DuBay, appellant failed to identify any missing,
additional, or misstated elements of the final authenticated record of trial).

       We find ourselves in a similar position to the courts in the above cited cases
in which DuBay proceedings were ordered. We lack the factual predicate from
which to determine the substance of the exhibit in question and whether the omission
was, therefore, substantial or insubstantial. As a result we deem it appropriate to
return the record of trial to the convening authority for a limited hearing pursuant to
United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). The hearing will focus on
the contents of the missing exhibit. The DuBay military judge will consider the
OMPF and letters from appellant’s friends and family considered by the convening
authority, as well as any other evidence gathered pursuant to the hearing.




                                           6
GASKINS—ARMY 20080132

       The military judge at the hearing will make findings of fact and conclusions
of law as appropriate. Thereafter, the record will be returned to this court for
further review.

                                     CONCLUSION

       The record of trial is returned to the convening authority for action consistent
with this decision.

    Senior Judge CONN, Senior Judge JOHNSON, Judge COOK, 4 and Judge
BAIME concur.

HAM, Judge, dissenting 5:

        I dissent. A Dubay 6 hearing is inappropriate under the facts of this case and is
almost certainly a waste of time. Despite the exhaustive search for Defense Exhibit
A at the trial level, and the government’s continued opportunity during the pendency
of this appeal to either find Defense Exhibit A or submit an adequate reconstruction
of it, the exhibit is still missing and no adequate reconstruction has been
forthcoming. Defense Exhibit A’s absence from the record is unequivocally a
substantial omission, and the government’s efforts over the last two and one-half
years have not overcome the resulting presumption of prejudice.

        Appellant’s court-martial ended on 8 February 2008, and the convening
authority took action on 8 October 2008. While preparing the record of trial, the
government discovered that Defense Exhibit A was missing. As a result, post-trial
documents reveal that the government conducted an exhaustive search for Defense
Exhibit A in the months preceding the convening authority’s action. On 11 August
2008, the senior judge advocate on the ground concluded that “many efforts by both
parties to track down this exhibit have not been met with success.” These efforts
included obtaining defense counsel’s recollection of the contents of Defense Exhibit
A, and the government contacting appellant while in confinement and inquiring as to
his knowledge of the whereabouts of the exhibit. In the exhibit’s place, the acting
staff judge advocate submitted appellant’s OMPF to the convening authority.
Defense counsel fully addressed Defense Exhibit A’s absence in its post-trial




4
    Judge COOK took final action in this case prior to his retirement.
5
    Judge HAM took final action in this case prior to her permanent change of station.
6
    United States v. Dubay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).


                                             7
GASKINS—ARMY 20080132

submission, and there is no doubt that all parties at the trial level were acutely aware
of the law in this area and the importance of this exhibit. 7

       In addition to the “many efforts” to find Defense Exhibit A or its contents at
the trial level, which involved “both parties,” the case has been pending at this court
since 24 November 2008. The defense filed its brief before this court on 30 April
2009, which again raised the issue of the missing exhibit; the government responded
on 28 December 2009, and a three-judge panel of this court held oral argument on 22
April 2010. Although two issues were set for argument, virtually the entire
argument centered on the issue of the missing exhibit, and all three judges on the
panel which heard the argument join in dissent. Once again, all parties on appeal
were acutely aware of the law in this area and the importance of the exhibit. The
government has made no further submissions to the court since the argument over
three months ago.

       Just as we presume the competence of defense counsel, we must also presume
the competence of the many government counsel who have worked on this case, both
at the trial and appellate levels. Cf. Strickland v. Washington, 466 U.S. 668 (1984).
We must presume those counsel have undertaken all reasonable efforts to complete
the record in this case. We must presume that these many government counsel
considered the efficacy of both a post-trial Article 39(a), UCMJ, session at the trial
level and of a Dubay hearing at the appellate level. The government pointedly has
not requested a Dubay hearing in this case. Nor has the government at any point
moved this court to admit additional documentation concerning the contents of
Defense Exhibit A.

       The case is now before us and I believe we should decide it. Applying the law
as set forth in the UCMJ and the Rules for Courts-Martial, I would affirm only so


7
  The complete search at the trial level for the missing Defense Exhibit A
distinguishes this case from those cited by the majority in support of its decision to
order a Dubay hearing. The cases the majority relies upon contain no evidence of a
trial level search for the exhibit. See United States v. Church, 23 M.J. 870, 871
(A.C.M.R. 1987); (missing sidebar discussion); United States v. Kyle, 32 M.J. 724,
725-26, n.4 (A.F.C.M.R. 1991) (military judge failed to attach sealed exhibit to
record of trial—court notes that “[h]ad anyone detected the error timely, the error
might have been corrected through a post-trial session . . . ”); United States v.
Charles, 40 M.J. 414, 416 (C.M.A. 1994) (missing sealed exhibit). In United States
v. Williams, the court notes there “[t]he record contains no indication that any trial
participant, other than government counsel, had even noted the exhibit’s omission
prior to the time the record was forwarded to the convening authority’s staff judge
advocate . . .” and after that, “no trial participants were asked to assist in
reconstructing the missing exhibit’s contents . . . .” 14 M.J 796, 800 (A.F.C.M.R.
1982). Those are simply not the facts here.


                                           8
GASKINS—ARMY 20080132

much of the sentence as provides for confinement for six months, forfeiture of $884
per month for six months, and reduction to E-1. I cannot agree that applying the law
Congress promulgated and the President implemented is an “extreme remedy.”
Congress determined the appropriate remedy for an incomplete record and we are
bound by it. Whether we agree with the result is not the question; it is the
appropriate result under the law.

       The majority has instead decided to launch an appellate “rescue mission” to
allow the government yet another opportunity to carry its burden and complete the
record in this case. See United States v. Burris, 21 M.J. 140, 145 (C.M.A. 1985).
Dubay hearings are not meant as a vehicle to administer appellate “CPR” to the
government’s case. Nor should this court, in ordering a Dubay hearing, be in the
business of instructing the government how it should best attempt to carry its
burden. See United States v. Gaskins, ARMY 20080132 (Army Ct. Crim. App. 27
Aug. 2010) (order) (unpub.) (Appendix). Specifically, this court should not direct
the government to search for specific documents in order to reconstruct the missing
exhibit. 8 Additionally, this court should not choose the questions it directs the
Dubay judge to answer with an eye toward finding the facts it needs to affirm the
sentence in the case, rather than simply finding the facts the majority asserts are
necessary to decide the legal issue presented. 9 Id. In particular, because there is a
substantial omission and the burden has shifted to the government to overcome the
resulting presumption of prejudice, I do not believe this court should direct
appellant or his trial defense counsel to assist the government in carrying its
burden. 10 In my view, these areas “exceed[] the bounds of permissible fact finding.”

8
 For example, the Dubay order directs the government to “obtain copies of all of
appellant’s awards, certificates, and letters of commendation both from his service
in the Army and in the Marine Corps . . . . and shall announce any willingness to
stipulate to documents it is unable to obtain at that time.”
9
 For example, the Dubay order directs the military judge to determine “Whether the
clemency letters submitted with appellant’s Rule for Courts-Martial 1105 petition
were the same, or substantially the same, as the extenuation/mitigation letters
included in Defense Exhibit A as submitted at the time of trial; if not substantially
the same, what the differences were.”
10
  The Dubay order directs the military judge to determine “[w]hat appellant [and]
trial defense counsel . . . recall were the specific contents of Defense Exhibit A.”
This question is particularly problematic, since the post-trial documents contain the
defense counsel’s contemporaneous recollection of Defense Exhibit A’s contents.
Any further probing of counsel’s recollection at this late date is a waste of time.
Further, the Dubay order directs the parties “to cooperate . . . to reconstruct” the
missing exhibit. While this order might not violate appellant’s constitutional rights,

                                                                       (continued . . .)


                                          9
GASKINS—ARMY 20080132

United States v. Andreozzi, 60 M.J. 727, 743 (Army Ct. Crim. App. 2004) (Barto, J.,
dissenting). “Notwithstanding the broad mandate of Article 66, UCMJ, the proper
function of this court is adjudication, not investigation.” Id. at 745. It is simply not
this court’s business to save the government from itself.

        Fully aware that a description of a missing exhibit is insufficient under the
law to overcome a presumption of prejudice, the majority sidesteps that difficulty by
instead ordering a Dubay hearing to investigate the step prior to that—whether
missing Defense Exhibit A is a “substantial omission.” If it is not, the burden never
shifts to the government to overcome the resulting presumption of prejudice.
Although it is ordering the government to find documents in an attempt to
reconstruct Defense Exhibit A—a task the government has been unable to complete
to this stage—the majority is also ordering witnesses to provide as complete a
description of the exhibit’s contents as possible. The majority transparently desires
to then apply case law finding omissions insubstantial where the record contains a
complete description of the exhibit. The description necessary to avail itself of this
principle, should occur, however, in the record during the trial, not two and one-half
years later.

        This dissent provides an in-depth examination and discussion of the law
surrounding the requirement for a “complete record.” Both the law and the facts of
this case lead me to conclude that there is a substantial omission from the record of
trial rendering it incomplete in contravention of Article 54, UCMJ, and the
government has not carried its burden to overcome the presumption of prejudice to
appellant. In contrast to the majority, I would conclude that the appropriate result
under the law is to affirm a limited sentence.

                                        FACTS

       After a vigorously contested trial on the merits, the members found appellant
guilty of the charges and specifications against him, which included carnal
knowledge and indecent acts with a child against one victim, and indecent assault
against a second victim. The government’s sentencing case consisted of appellant’s


(. . . continued)
it does not make it the right thing to do. This is particularly the case when it is
highly speculative and unlikely that counsel will be able to recall anything in
addition to that reflected in his contemporaneous submissions on the issue which are
already included in the post-trial documents attached to the record. These
submissions are what counsel will most likely review in order to refresh their
recollection of these matters. Moreover, not only is the government now tasked with
overcoming the presumption of prejudice that arises due to a substantial omission,
the preparation of a complete record is the government’s (specifically, the trial
counsel’s) responsibility in the first place. See UCMJ art. 38(a).


                                           10
GASKINS—ARMY 20080132

Enlisted Record Brief (ERB) and testimony from two witnesses—T.S. and
appellant’s first sergeant. The defense called as witnesses a captain and a chief
warrant officer three, who both testified concerning appellant’s rehabilitative
potential. In addition, the defense called appellant’s brother, also a
noncommissioned officer in the Army, who testified briefly about his and
appellant’s upbringing.

       Prior to appellant’s eight-page unsworn statement, the defense offered and the
military judge admitted in evidence Defense Exhibit A, appellant’s “Good Soldier
Book,” in extenuation and mitigation. There was no description on the record
concerning the contents of Defense Exhibit A, including the number or types of
documents included in it. In his unsworn statement, appellant described ten
photographs contained in Defense Exhibit A, including photographs of appellant
with his disabled son, photographs of appellant reenlisting while deployed to
Kuwait, and of appellant while deployed with the 82d Airborne Division to Iraq.
Other than the discussion of the photographs in Defense Exhibit A, appellant did not
otherwise discuss or describe its contents. Appellant also briefly discussed his prior
service in the Marine Corps as well as some of his service in the Army.

       Two military judges, the first presiding over arraignment and initial motions,
the second presiding over the remaining motions and the trial, authenticated the
record of trial. None of the errata sheets noted that Defense Exhibit A was missing
from the record of trial.

       In his Rule for Courts-Martial [hereinafter R.C.M.] 1105/1106 clemency
submission to the convening authority, appellant’s counsel noted that Defense
Exhibit A was missing from the record of trial, and argued to the convening
authority that he was limited to approving a nonverbatim record sentence. The
defense described the missing defense exhibit as “a compilation of [appellant’s]
awards, certificates, letters of commendation and character letters from family and
friends, as well as a number of photographs.”

       In response, the acting staff judge advocate (SJA) prepared an addendum to
the SJA recommendation. In the addendum, the acting SJA agreed Defense Exhibit
A “could not be located” after appellant’s trial concluded. The acting SJA described
Defense Exhibit A, as defense counsel had in his submission, as “a compilation of
the accused’s awards, certificates, letters of commendation, character letters, and a
number of photographs both from [appellant’s] Army career and his time in the
Marine Corps.” The acting SJA advised the convening authority that “[i]t is unclear
what happened to this exhibit and many efforts by both parties to track down this
exhibit have not been met with success.” Further, the acting SJA noted that the
“[d]efense counsel cites this exhibit to be the most crucial evidence used in the
sentencing portion of the appellant’s case,” and defense counsel aver that its




                                          11
GASKINS—ARMY 20080132

omission renders the record “no longer verbatim,” requiring a sentence “no greater
than that which could be adjudged at a Special Court-Martial . . . .”

      In response to defense counsel’s contention, the acting SJA advised the
convening authority as follows:

             According to [R.C.M.] 1103(a)(2), under the discussion
             portion, a verbatim transcript includes “all proceedings
             including sidebar conferences, arguments of counsel, and
             rulings and instructions by the military judge.” The
             request for inclusion of exhibits is addressed in [R.C.M.]
             1103(a)(2)(D) and specially contemplates exhibit
             descriptions as sufficient for a complete record. The loss
             of Defense Exhibit A does not impact either the merits of
             the case or the verbatim requirements under the
             provision[s] of [R.C.M.] 1103. Therefore, the transcript
             remains an accurate, verbatim record of all proceedings
             that occurred throughout the trial. The substitution
             memorandum describing the Defense Exhibit A is included
             . . . . 11



11
  When asked during oral argument if the acting SJA’s advice to the convening
authority was correct, government counsel responded only that the acting SJA’s
“conclusion” was correct. The government was wise not to defend the acting SJA’s
misleading and incomplete “analysis” of R.C.M. 1103 and, in particular, his notable
failure to advise the convening authority of the statutory requirement for a
“complete record of the proceedings and testimony” in this case as well as the law
applicable to that requirement. See UCMJ art. 54(c)(1)(A) (emphasis added);
R.C.M. 1103(b)(2)(A). In fact, R.C.M. 1103 states that “a complete record shall
include . . . exhibits or, with the permission of the military judge, copies,
photographs, or descriptions of any exhibits which were received in evidence . . .”
R.C.M. 1103(b)(2)(D) (emphasis added). In this case, the military judge permitted
copies of Defense Exhibit A to be substituted in the record for the original, but made
no mention that a “description” of Defense Exhibit A was permitted in this case. In
any event, the legal issues that arose from the missing exhibit are as set forth here
and not as described by the acting SJA. While the acting SJA has an obligation to
comment on defense allegations of legal error, he has no obligation to discuss them
in any detail or provide any “analysis or rationale” for his advice. R.C.M.
1106(d)(4); United States v. Diaz, 56 M.J. 795, 804 (Army Ct. Crim. App. 2002)
(“While an analysis of the SJA’s rationale is not required, some sort of minimal
response stating agreement or disagreement is required.”) (citing United States v.

                                                                      (continued . . .)


                                         12
GASKINS—ARMY 20080132

       The undated “substitution memorandum” to which the acting SJA referred was
drafted at some point after appellant’s trial by the “Senior Court Reporter,” who was
not the court reporter at appellant’s trial. 12 There is no evidence that the
“substitution memorandum’s” drafter had any personal knowledge whatsoever of the
facts and circumstances surrounding the missing exhibit. Nonetheless, the
memorandum attempted to lay blame for the missing exhibit on the defense, stating
that “the court reporter placed the exhibit on the defense table in order for a copy to
be made.” The memorandum then attempted to describe the contents of Defense
Exhibit A based on appellant’s unsworn statement at trial. Specifically, the
memorandum described ten photographs included in Defense Exhibit A as described
by appellant during his unsworn statement.

             In addition to several photos, the defense concurs that the
             exhibit contained records of SSG Gaskins’ Marine Corps
             service, including awards, college transcripts, letters/
             memos of commendation, photos, etc. Also included were
             several awards and decorations which SSG Gaskins
             received throughout this [sic] military career in the Army.
             The defense is willing to provide a generic recollection of
             what was in Defense Exhibit A but is not willing to
             speculate on specific contents. The Service Member’s
             Official Military Personnel File [OMPF] has been
             included in the allied papers and is indicative of the
             awards and honors for which [sic] he received and
             included in the original Defense Exhibit A.

Accordingly, the acting SJA recommended the convening authority grant no
clemency and approve the adjudged sentence. The convening authority agreed.

        In his response to the acting SJA’s addendum, defense counsel characterized
the government’s “substitution memorandum” as “inaccurate and misleading” both
in its attempt to lay blame for the missing exhibit at the defense’s feet and in its
attempt to “recreate” the exhibit. Specifically, the defense contended that “neither
party admitted [appellant’s OMPF] into evidence at trial, yet the [g]overnment
attempts to use it to ‘re-create’ evidence that was admitted at trial, namely [Defense

(. . . continued)
Catrett, 55 M.J. 400, 407-08 (C.A.A.F. 2001)), rev’d on other grounds. See also
United States v. Hill, 27 M.J. 293 (C.M.A. 1988). When an SJA chooses to do so,
however, his advice should be complete and accurate. Cf. United States v.
Emminizer, 56 M.J. 441 (C.A.A.F. 2002).
12
  The record indicates the court reporter for the merits and sentencing portions of
appellant’s trial was Ms. C.D.; the memorandum is signed by Sergeant First Class
A.G. as the “Senior Court Reporter.”


                                          13
GASKINS—ARMY 20080132

Exhibit] A.” In addition, the defense contended that “[t]he [g]overnment’s
[memorandum for record] does not constitute a reasonable substitute or
reconstruction of the missing exhibit, as is required under the law,” and “the acting
SJA misinterpret[ed] [R.C.M.] 1103 and ignore[d] established precedent,”
specifically United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000).

       The defense contended that the “substitution memorandum” and the OMPF
were inadequate for two reasons. First, the government “is supposed to describe
what is missing” from the record of trial, and, instead, the memorandum repeats
descriptions of photographs contained in the record of trial, but “does nothing to
outline what is missing . . . .” Second, the defense contended that

             [t]he [g]overnment’s [memorandum for record] and
             [appellant’s] OMPF do not cover half of what was
             included in DE A. Staff Sergeant Gaskins earned several
             military awards and training certificates while on active
             duty in the U.S. Marine Corp[s]. Neither his Army OMPF
             nor the [g]overnment’s [memorandum for record] includes
             any documents from his four (4) years on Marine active
             duty. 13 Furthermore, multiple civilian education
             certificates, college transcripts, certificate[s] of
             achievement and military awards from SSG Gaskin’s 9
             years in the active duty Army were included in DE A but
             not documented in his OMPF or the [g]overnment’s
             [memorandum for record]. Specifically missing are [Army
             Achievement Medal]s, [Army Commendation Medal]s,
             [Army Good Conduct Medal]s, Iraq Campaign Medal,
             Humanitarian Service medals, Foreign Service awards and
             Foreign Jump wings, a [Combat Action Badge], civilian
             training certificates for electronics training, college
             transcripts, numerous certificates of appreciation from
             civilian organizations like the Special Olympics, etc.
             Finally, DE A contained numerous letters of support from
             family, friends, and members of the military. Neither the
             [g]overnment’s [memorandum for record] nor
             [appellant’s] OMPF allude to any of those letters,
             specifically the content and source of each letter.




13
  We note appellant’s OMPF does include a Department of Defense Form 214
Certificate of Release or Discharge from Active Duty, appellant’s release from
active duty service in the Marine Corps. It summarized his awards, military
schooling, and service history, but it did not contain any further documents.


                                          14
GASKINS—ARMY 20080132

       The defense attached several documents in its response to the acting SJA’s
addendum, including an electronic mail (email) message from the civilian defense
counsel (CDC) who represented appellant at trial. The CDC addressed the email
message to the SJA and other personnel in the SJA’s office, as well as the military
judges, military defense counsel, and court reporters involved in the case. The CDC
stated that “no defense counsel took possession of the exhibit,” “SSG Gaskins denies
taking possession of the exhibit,” and the defense only generated one copy of
Defense Exhibit A or “the defense would have provided a copy for the record rather
than seeking permission of the court for the substitution.” Finally, the defense
stated that it did not maintain any “separate index of the contents of Defense Exhibit
A.” In the email that precipitated the CDC’s response, also attached to the defense
response to the acting SJA’s addendum, the government added that “After checking
with [appellant], his brother who was a defense witness, and the unit, Defense
Exhibit A remains unaccounted for.”

       Appellant’s OMPF, which the convening authority noted he specifically
reviewed prior to taking action in appellant’s case, included, in the convening
authority’s words, “NCOERs covering the period from April 2001 to January 2007,
Service School Academic Evaluation Reports from [Primary Leadership
Development Course] and [Basic Noncommissioned Officer Course], orders
awarding the Good Conduct Medal, Promotion Orders from Sergeant to Staff
Sergeant, and orders awarding the Senior Parachute Badge.” Pointedly not included
in the OMPF as presented to the convening authority, as defense counsel noted, were
any of the twenty-six awards and decorations listed on appellant’s ERB (Prosecution
Exhibit 8) other than the two the convening authority listed, nor any other
certificates concerning appellant’s military or civilian education as reflected on his
ERB.

                             LAW AND DISCUSSION

       A “complete record of the proceedings and testimony shall be prepared . . . in
each general court-martial case in which the sentenced adjudged includes . . . a
discharge . . . .” UCMJ art. 54(c)(1); R.C.M. 1103(b)(2)(A). See also UCMJ art. 19
(“[a] bad conduct discharge, confinement for more than six months, or forfeiture of
pay for more than six months may not be adjudged unless a complete record of the
proceedings and testimony has been made . . .”). Missing exhibits relate to whether
the record of trial is complete, rather than verbatim, a separate requirement under
the Manual for Courts-Martial. See United States v. Cudini, 36 M.J. 572, 573
(A.C.M.R. 1992) (citing United States v. McCullah, 11 M.J. 234, 236 (C.M.A.
1981)); R.C.M. 1103(b)(2)(B). A “complete record” includes “[e]xhibits, or, with
the permission of the military judge, copies, photographs, or descriptions of any
exhibits which were received in evidence and any appellate exhibits.” R.C.M.
1103(b)(2)(D)(v).




                                         15
GASKINS—ARMY 20080132

       When a record of trial is not “complete” within the meaning of Article 54,
UCMJ, there are three potential ways in which the deficiency may impact an
appellant. First, the lack of a complete record “transgress[es] a fundamental
statutory right enjoyed by” appellant. See McCullah, 11 M.J. at 237 (discussing
requirement of Article 19, UCMJ, for a complete record in a special court martial);
UCMJ art. 54(c)(1). See also United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F.
1999) (quoting United States v. Gray, 7 M.J. 296, 298 (C.M.A. 1979)); United States
v. Sturdivant, 1 M.J. 256, 257 (C.M.A. 1976); United States v. Embry, 60 M.J. 976,
980 (Army Ct. Crim. App. 2005). 14 In addition, an incomplete record impacts
appellant’s opportunity to present clemency matters to the convening authority post-
trial. See R.C.M. 1105, 1106. Finally, an incomplete record prohibits proper
appellate review in our court. We are tasked with affirming “only such findings of
guilty and the sentence or such part of the sentence, as [this court] finds correct in
law and fact and determines, on the basis of the entire record, should be approved.”
UCMJ art. 66(c) (emphasis added). We are also tasked with determining whether an
error of law “materially prejudices the substantial rights of an accused.” UCMJ, art.
59(a). Our performance of both of these statutory duties is potentially thwarted
when we are faced with an incomplete record. See United States v. Santoro, 46 M.J.
344, 345-46 (C.A.A.F. 1997) (affirming lower court decision concluding that, due to
missing exhibits and other deficiencies in the record, it was unable to assess the
appropriateness of the sentence so affirmed a sentence of “no punishment”); Embry,
60 M.J. at 980 (“Documents considered by a military judge in making a ruling
affecting the rights of the accused at trial must be included in the record as appellate
exhibits in order for this court to properly evaluate his decision.” In light of the
missing appellate exhibit the military judge considered in his ruling on a motion to
suppress, court set aside findings and sentence).

       Due to the critical nature of and necessity for a complete record, in its
absence, a service member’s sentence may not include “any . . . punishment which
exceeds that which may otherwise be adjudged by a special court-martial,” Article
54(c)(1)(A), UCMJ, “except that a [punitive] discharge, confinement for more than
six months, or forfeiture of two-thirds pay per month for more than six months, may
not be approved.” R.C.M. 1103(f)(1). See also R.C.M. 1107(d)(4); United States v.
Henry, 53 M.J. 108, 111 (C.A.A.F. 2000) (“Records of trial that are not substantially


14
  The majority’s attempt to dilute Chief Judge Everett’s statement in McCullah is
unconvincing. United States v. Gaskins, __ M.J. __, slip op. at 4, n.2 (Army Ct.
Crim. App. 27 Aug. 2010). Of course, the “fundamental statutory right” to a
“complete record” is transgressed only when the record is “incomplete,” a term of
art defined by R.C.M. 1103 and decades of case law, set forth in depth in this
opinion. In fact, in McCullah, the court found a “substantial” omission. 11 M.J. at
237. It was that “substantial omission” that rendered the record “incomplete” under
the law “and this incompleteness transgressed a fundamental statutory right enjoyed
by McCullah,” i.e the statutory right to a complete record. Id.


                                          16
GASKINS—ARMY 20080132

verbatim or are incomplete cannot support a sentence that includes a punitive
discharge or confinement in excess of 6 months.”) (citing R.C.M. 1103(b)(2)(B)). 15
Remedies other than a limitation on sentence, however, may be appropriate. See
United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982) (noting remedies for
substantial omissions include a new trial or reconstruction of the missing parts of the
record). See also discussion of appropriate remedy, infra. “The requirement that a
record of trial be complete and substantially verbatim in order to uphold the validity
of a verbatim record sentence is one of jurisdictional proportion that cannot be
waived.” Henry, 53 M.J. at 110.

         Not every omission from the record of trial renders it incomplete. “The test
as to whether an omission from a record of trial is a fatal jurisdictional error turns
on whether the omission is substantial.” United States v. Sanders, 37 M.J. 628, 630
(A.C.M.R. 1993) (citing Gray, 7 M.J. at 297). “[A]n insubstantial omission
. . . does not prevent characterizing a record as complete.” United States v. Seal, 38
M.J. 659, 662 (A.C.M.R. 1993) (citations omitted). See also McCullah, 11 M.J. at
237. Conversely, a “substantial omission in a record of trial raises a presumption of
prejudice to an accused which the government must rebut.” Seal, 38 M.J. at 662.

        The government—more specifically, the trial counsel—is statutorily
responsible for preparing the record of trial. UCMJ, art. 38(a) (“The trial counsel
. . . shall, under the direction of the court, prepare the record of proceedings”). See
also R.C.M. 1103(b)(1); Seal, 38 M.J.at 662. Accordingly, since “the Government
bears responsibility for preparing the record, it is fitting that every inference be
drawn against the Government with respect to the existence of prejudice because of
an omission.” McCullah, 11 M.J. at 237 (citing Gray, 7 M.J. at 298). See also
United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973). Whether a
record of trial is complete is a question of law we review de novo. Henry, 53 M.J. at
110.

       With this legal framework in mind, there are three separate issues in this case.
First, does the absence of Defense Exhibit A constitute a “substantial omission?”
Second, if there is a substantial omission, has the government overcome the
resulting presumption of prejudice to appellant? Third, if the government fails to



15
  This provision was amended in 2002, but the amendments do not affect the validity
of the court’s statement. 2002 Amendments to the Manual for Courts-Martial,
United States, 67 Fed. Reg. 18773 (April 11, 2002). Although in 2002, the President
raised the maximum punishment for a special court martial from, inter alia,
confinement for six months to confinement for one year, both Congress, in Article
19, UCMJ, and the President, in R.C.M. 1103 and 1107, kept the requirement for a
complete record and the limitation on the sentence the convening authority could
approve at the six-month level.


                                          17
GASKINS—ARMY 20080132

overcome the presumption of prejudice to appellant, what is the appropriate remedy
in this case?

        A. Whether Missing Defense Exhibit A is a Substantial Omission.

       Whether or not an omission is substantial is analyzed on a case-by-case basis.
Embry, 60 M.J. at 979 (citing Abrams, 50 M.J. at 363). With that said, there is no
consistent analytical methodology apparent in the numerous cases addressing this
issue, although the many cases facing this issue seem to break down into two
different analytical camps.

       The analysis begins with a statement of the obvious—when attempting to
determine whether an omission from the record of trial is substantial “we don’t know
what we don’t know.” See Stoffer, 53 M.J. at 27 (refusing to “presume” what
information was contained in missing defense sentencing exhibits and concluded
their omission was substantial); Abrams, 50 M.J. at 364 (“We cannot review the
omission for its substantiality . . . because we have no records to review.”). Under
the facts of this case we could, therefore, determine that the presumption of
prejudice stemming from a substantial omission “automatically exists.” Williams,
14 M.J. at 799 (concluding that, in the absence of an accurate description of a lost
exhibit, it is impossible to determine whether its absence constitutes a substantial or
insubstantial omission, and applying a presumption of prejudice).

        The majority attempts to use this missing knowledge as a shield to conclude it
cannot determine whether Defense Exhibit A’s omission is “substantial,” and thus
the sword of a Dubay hearing is necessary. In fact, both Stoffer and Williams
concluded that, due to lack of knowledge of the contents of the missing exhibit, the
omission was substantial, and then moved to consider whether the government could
overcome the presumption of prejudice. 14 M.J. at 801; 53 M.J. at 27. Williams,
like the majority, opted for a Dubay hearing to allow the government to attempt to
overcome the presumption of prejudice. 14 M.J. at 801. Again, as stated earlier, in
Williams there was no evidence of an extensive search for the exhibit at the trial
level. 16 Id. at 800.

       Other cases determine whether there is a substantial omission by
“ascertain[ing] whether the omitted material was ‘substantial,’ either qualitatively or
quantitatively.” Lashley, 14 M.J. at 9. This analytical methodology provides a way
to evaluate the qualitative importance of a particular exhibit or testimony to a


16
  A WESTLAW keycite search of Williams reveals the Air Force has not cited it
since 1998, and the Army has never cited it previously in a published case. Only
one published case from any service cites Williams, a Navy-Marine case that was
later reversed by C.A.A.F. See United States v. Dearing, 60 M.J. 892, 904 (N.M. Ct.
Crim. App. 2005), rev’d on other grounds, 63 M.J. 478 (C.A.A.F. 2006).


                                          18
GASKINS—ARMY 20080132

particular case in light of the entire record. On the one hand, for example, if a
similar sentencing exhibit was missing in two different cases, our consideration of
the “qualitative” nature of the exhibit in light of the entire record of those cases
could potentially lead us to conclude that the exhibit’s omission is substantial in the
first case, and insubstantial in the second case. On the other hand, the same analysis
applied to similar missing exhibits on findings might not yield different results.
This is the essence of the command to scrutinize whether the missing exhibit is
substantial on a “case by case basis.”

       Applying the Lashley framework to different scenarios, courts have
determined that certain types of missing exhibits or testimony constitute substantial
omissions, even where the court does not state that it is engaging in the “qualitative/
quantitative” paradigm. Where, for example, missing testimony “related directly to
the sufficiency of the Government’s evidence on the merits,” it is a substantial
omission. Id. Similarly, when a missing exhibit provided prima facie evidence of
the required mens rea for a criminal offense, its absence was a substantial omission,
McCullah, 11 M.J. at 237, as is missing defense witness testimony. Boxdale, 22
U.S.C.M.A. at 415, 47 C.M.R. at 352 (holding that missing testimony of five
principal “witnesses to the accused’s defense of alibi” and “proceedings in
connection with a motion for a mistrial” was a substantial omission). In addition, a
missing exhibit relied upon by a military judge in denying a motion to suppress was
also a substantial omission, because the missing exhibit rendered the record not
sufficiently complete “to determine with reasonable certainty” the legal issues on
appeal. Embry, 60 M.J. at 981. In Abrams, in answering the question whether a
missing appellate exhibit relevant to potential discovery violation was a substantial
omission, the court noted that it “involve[d] a ruling by the [military] judge
affecting the rights of the accused at trial.” 50 M.J. at 363 (quoting Sturdivant, 1
M.J. at 257). In finding the omission substantial, the court’s concern was that the
exhibit’s omission “[made] proper appellate review impossible.” Id. at 364. 17

       On the other hand, where a missing exhibit is “merely demonstrative evidence
on an issue . . . not in dispute,” “unimportant,” or “uninfluential,” when viewed in
light of the entire record, or of “minimal importance to the outcome” of the case, it
is qualitatively insubstantial. United States v. White, 52 M.J. 713, 715-16 (Army Ct.
Crim. App. 2000) (demonstrative videotape). 18 Similarly, an omission of an exhibit

17
  See also Gray, 7 M.J. at 298 (unrecorded sidebar conference is a substantial
omission where it “involve[es] a ruling by the judge affecting rights of the accused
at trial . . . .”) (quoting United States v. Richardson, 21 U.S.C.M.A. 383, 45 C.M.R.
157 (1972)); Sturdivant, 1 M.J. at 257 (argument concerning court member
challenges).
18
     See also Henry, 53 M.J. at 111 (missing exhibits were not substantial omission

                                                                        (continued . . .)


                                            19
GASKINS—ARMY 20080132

is insubstantial where a verbal description on the record of the subject matter of the
exhibit was “completely adequate and [the exhibit] did not provide any meaningful
clarification of [the] testimony.” Burns, 46 C.M.R. at 497. 19 The majority is
latching on to this case law, incorrectly in my view.

       Particularly relevant to the inquiry here, both this court and our superior
court, in contrast to the majority, have determined that missing defense sentencing
exhibits are substantial omissions from the record of trial. See Seal, 38 M.J. at 663
(omission of a defense videotape exhibit showing the accused flying during Desert
Shield/Desert Storm admitted during sentencing substantial omission); Stoffer, 53
M.J. 27 (finding a substantial omission where three defense exhibits admitted at
sentencing were missing from the record).

       Any analysis of the quantity or quality of Defense Exhibit A is hampered by
our lack of knowledge of its contents as Stoffer, Abrams, and Williams recognized.
In contrast to the majority, this leads us to overwhelmingly conclude that its
omission is substantial. First, Defense Exhibit A was the sole defense exhibit
admitted during sentencing and considered by the panel in crafting appellant’s
sentence. Second, while ten photographs were briefly described on the record,
including photographs of appellant deployed on combat tours, there is no further
description on the record of the rest of Defense Exhibit A. In fact, the remaining
contents of what was characterized as a three-inch thick, three-ring binder were only
vaguely described by the government and appellate defense counsel in post-trial
documents. The record does not contain an index of the exhibit or detailed
description of the documents it included. “[W]e will not ‘presume’ what
information was contained” in Defense Exhibit A. Stoffer, 53 M.J. at 27.

(. . . continued)
where they were part of a series of similar exhibits offered for the same evidentiary
purpose); United States v. Burns, 46 C.M.R. 492 (N.C.M.R. 1972) (missing
topographical chart showing location of victim’s body was insubstantial omission
where its “importance to the outcome of [the] case is considered minimal”); Sanders,
37 M.J. at 630 (finding insubstantial omission where record failed to reflect “a short
recess when the military judge excused the court members, recessed the court, and
then called the court to order”); Cudini, 36 M.J. at 573 (holding that “the failure to
attach the flyer as an appellate exhibit is not a substantial omission”); United States
v. Johnson, 33 M.J. 1017, 1019 (A.C.M.R. 1991) (same).
19
  See also White, 52 M.J. at 716 (subject of missing videotape was “portrayed in the
record by means other” than the videotape); United States v. Harper, 25 M.J. 895,
898 (A.C.M.R. 1988) (holding that failure to attach missing personnel record as
appellate exhibit was not a substantial omission where the court could “ascertain” its
contents from the military judge’s comments); United States v. Baker, 21 M.J. 618,
620 (A.C.M.R. 1985) (holding that missing court member’s written question was not
a substantial omission where the military judge asked the question on the record).


                                          20
GASKINS—ARMY 20080132

       The defense in its post-trial submission, however, did describe the missing
exhibit as containing “a compilation of [appellant’s] awards, certificates, letters of
commendation and character letters from family and friends, as well as a number of
photographs,” and the government did not then, and does not now disagree with that
description. It is obvious that defense counsel offered the exhibit to highlight
appellant’s approximate thirteen years of honorable service in the Army and the
Marine Corps, including service deployed in combat. Defense counsel also offered
the exhibit to describe appellant’s family life and his character and rehabilitative
potential, all in order to mitigate his punishment. I cannot and will not conclude
that under the facts of this case the defense submission is “unimportant” or
“uninfluential.” Cf. White, 52 M.J. at 716.

       Defense Exhibit A’s omission clearly prejudiced appellant in all three of the
areas an incomplete record potentially impacts. First, the convening authority was
not able to consider the materials contained in Defense Exhibit A in mitigation, and
the defense was not able to call his attention to them; second, this court’s duty and
ability to review the appropriateness of appellant’s sentence is hampered, thereby
making “proper appellate review impossible,” Abrams, 50 M.J. at 364; 20 and third,
appellant’s statutory right to a complete record is fettered. McCullah, 11 M.J. at
237; UCMJ art. 54(c)(1). One of the repercussions of the exhibit’s omission is that
our Article 66, UCMJ, review is hindered because we cannot fully consider the
mitigating effect of appellant’s “particular acts of good conduct or bravery and
evidence of [appellant’s] reputation or record . . . in the service for efficiency,
fidelity, subornation, temperance, and courage . . .” See R.C.M. 1001(c)(1)(B).
Accordingly, Defense Exhibit A’s absence is a substantial omission.

     B. Whether the Government Has Overcome the Presumption of Prejudice

       We would conclude that the substantial omission of Defense Exhibit A from
the record of trial raises a rebuttable presumption of prejudice against the
government. Boxdale, 22 U.S.C.M.A. at 415, 47 C.M.R. at 352. Although we would
apply “every inference . . . against the Government with respect to the existence of
prejudice because of an omission,” McCullah, 11 M.J. at 237 (citing Gray, 7 M.J. at
298), we would next decide whether the remedy the government implemented in this
case overcomes the presumption. The government’s remedy consists of the
“substitution memorandum,” described earlier, the assertion in the memorandum that


20
  Defense Exhibit A’s absence makes it impossible for this court to properly conduct
a sentence appropriateness review, a critical part of the court’s statutory duty under
Article 66, UCMJ. “Generally, sentence appropriateness should be judged by
‘individualized consideration’ of the particular accused ‘on the basis of the nature
and seriousness of the offense and the character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (emphasis added) (citing United States v.
Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81 (1959)).


                                          21
GASKINS—ARMY 20080132

appellant’s OMPF “is indicative of the awards and honors for which [sic] he
received and included in original Defense Exhibit A,” and the government’s
attaching appellant’s OMPF to the Addendum.

       Once again, the numerous cases in this area do not provide a uniform
analytical methodology to apply to decide this issue. In fact, a number of cases
appear to conflate the issue of whether an omission is substantial with the question
of whether the government has overcome the presumption of prejudice. See note 16,
infra.

       As with the issue of whether the omission of Defense Exhibit A was
substantial, we would begin with the premise that “without knowing the details of
the evidence which has been omitted from the record of trial, an appellate court
usually is unable to decide that the omission was not prejudicial to an appellant.”
McCullah, 11 M.J at 237. Moreover, we are cognizant that “the threshold the
Government must meet is substantial essentially because ‘what is of concern here is
not the sufficiency of the record for purposes of review, but with the statutory
command regarding the type of record that must be made of courts-martial
proceedings.’” Adams, 50 M.J. at 363 (quoting Gray, 7 M.J. at 298).

      We discern from the case law in this area, however, one consistent manner in
which the government may overcome the presumption of prejudice—a timely and
“meticulous” recreation of the missing exhibit or testimony at issue. 21 For example,


21
  This court has also indicated that the government can overcome the presumption of
prejudice where a missing exhibit “add[s] little or nothing to the testimony found
elsewhere in the record.” White, 52 M.J. at 716. In White, although we held that a
missing demonstrative exhibit was not a substantial omission, when we assumed
arguendo, that it was a substantial omission, the government overcame the
presumption where “extensive testimony . . . provided a thorough basis” for the
court to evaluate the evidentiary purpose of the missing exhibit, it was “of minimal
importance to the outcome of [the] case, and its omission in no way impede[d] our
appellate review.” Id. In our view, the obiter dicta in White applies more
appropriately to the conclusion that the omission was not substantial, rather than that
the same rationale allowed the government to overcome the presumption of
prejudice. See also Harrow, 62 M.J. at 655 (government overcame presumption of
prejudice from missing testimony concerning a government motion where “based
solely upon the record, [the court knew] the general nature of the evidence and the
judge’s ruling on it” which was in favor of the defense); United States v. Henthorn,
58 M.J. 556, 560 (N.M. Ct. Crim. App. 2003) (government overcame presumption of
prejudice due to missing pictures of child pornography where, in a guilty plea,
“record is replete with descriptions of the general nature of the omitted photographs,

                                                                       (continued . . .)


                                          22
GASKINS—ARMY 20080132

the government was able to rebut the presumption of prejudice that arose when the
military judge’s announcement of sentence, as well as his remarks prior to and
following his announcement were not recorded, by a “summarization [that]
meticulously detail[ed] what matters were discussed,” and where there was not the
“slightest hint anywhere in the record that there was any disagreement . . . as to
accuracy and completeness of the summarization.” United States v. Eichenlaub, 11
M.J. 239, 241 (C.M.A. 1981) (noting also that “[a]t this stage of the trial, where
testimony and legal rulings are not involved, the substance, rather than the exact
words uttered by the judge, was critical to the accused’s rights.”). 22 A meticulous
recreation, while unable to take the place of a missing exhibit or testimony,
overcomes the presumption of prejudice by serving as an adequate substitute for that
missing exhibit or testimony.

        In contrast, where the government is unable to “meticulously” recreate
missing testimony or exhibits, it does not meet its burden of overcoming the
presumption of prejudice to appellant that arises when there is a substantial omission
in the record. For example, in United States v. Snethen, the government attempted
during a post-trial session held under Article 39(a), UCMJ, to reconstruct “at least
an hour” of a pretrial suppression motion that was not recorded at the time of the
motions hearing, including testimony of two witnesses and argument. 62 M.J. 579,
580, 581 (A.F. Ct. Crim. App. 2005). Unfortunately, “[t]he problem was not
discovered until nearly two months after the court-martial adjourned,” and the post-
trial session was not convened until a third month passed. Id. at 580. The military


(. . . continued)
that is, graphic images of children engaged in sexual activity with adults”). In
contrast, where a missing sentencing exhibit was at issue, and we could not “say that
the appellant’s [or other] testimony in extenuation and mitigation is sufficiently
duplicative of the contents of [the exhibit] to minimize [its] omission,” the
government does not rebut the presumption of prejudice. Seal, 38 M.J. at 663.
22
  See also Lashley, 14 M.J. at 9 (holding that “due to the unusual combination of
factors present,” record as reconstructed was “substantially verbatim” and
government overcame presumption of prejudice); Burns, 46 C.M.R. at 493 (in
addition to finding missing exhibit “unimportant” and “uninfluential,” a “recreated
authenticated copy of the missing exhibit” was attached to the record); United States
v. Harrow, 62 M.J. 649, 654-55 (A.F. Ct. Crim. App. 2006) (finding that the
government overcame the presumption of prejudice that arose when witness’
testimony was lost by “meticulous” recreation of testimony at trial while testimony
was “still fresh in everyone’s mind”); United States v. Griffin, 17 M.J. 698, 699-700
(A.C.M.R. 1983) (finding the government overcame presumption of prejudice caused
by missing witness testimony by “prompt remedial action” of recalling witness to go
through testimony again and instructing members to disregard original testimony—
“the reconstruction provided a verbatim record”).


                                         23
GASKINS—ARMY 20080132

judge attempted the reconstruction by utilizing his trial notes, materials from both
the prosecution and defense, the court reporter’s notes, as well as recalling the two
witnesses whose testimony was lost. Id. The court held that, “despite [the military
judge’s] best efforts to reconstruct the record, the hurdles were too great,” and the
government did not overcome the presumption of prejudice from the substantial
omission. Id. at 581. The government was unable to make the record complete and
“‘substantially verbatim’ given the importance of the lost testimony and arguments,
the lengthy duration of the [missing testimony and arguments] and the length of time
between the trial and the reconstruction efforts.” Id. As noted earlier, neither the
convening authority nor the military judge in this case utilized the option of a post-
trial session in an attempt to either locate or recreate Defense Exhibit A.

       Specifically relevant to our analysis here, numerous cases from this court and
other service courts, as well as our superior court all hold that a “memorandum”
attempting to describe a missing exhibit or testimony—particularly one the
government drafted—is insufficient to recreate a missing exhibit or testimony, does
not equate to an adequate substitute, and does not overcome the presumption of
prejudice. Seal, 38 M.J. at 661, 663 (trial counsel’s affidavit describing missing
defense sentencing exhibits (videotapes) insufficient to overcome presumption of
prejudice). See also Boxdale, 22 U.S.C.M.A. at 415, 47 C.M.R. at 352 (trial
counsel’s “reconstruction” of five defense alibi witnesses’ testimony was
insufficient to carry government’s burden to overcome presumption of prejudice that
arose from the substantial omission); Gray, 7 M.J. at 298 (defense counsel’s
affidavit setting forth substance of missing sidebar conversation insufficient to
overcome presumption of prejudice); Williams, 14 M.J. at 800-01 (trial counsel’s
“memorandum for record” attempting to describe missing exhibit’s contents is
insufficient to overcome presumption of prejudice; court notes government
memorandum “made no effort, whatsoever, to shoulder the burden” of overcoming
the presumption of prejudice).

        By any measure, we would find the government has not met its burden here.
The government’s “substitution memorandum” and appellant’s OMPF do not come
close to the type of “meticulous” recreation necessary to overcome the presumption
of prejudice due to a substantial omission. Several reasons support this conclusion.
First, the government does not even aver that its “substitution memorandum”
constitutes a recreation of Defense Exhibit A, meticulous or otherwise. Rather, their
contention is that it is, in essence, “good enough” to constitute an adequate
substitute. Second, the exhibit included information about appellant that was not
described or duplicated in the record or replicated in his OMPF or anywhere else,
including, obviously, in the government’s “substitution” attempt. See Seal, 38 M.J.
at 663 (“[A]ppellant’s testimony in extenuation and mitigation is [not] sufficiently
duplicative of the [defense sentencing exhibits] to minimize the omission of the
[evidence].”) For example, Defense Exhibit A contained detailed information about
appellant’s Army and Marine Corps service, his civilian education and college
transcripts, his award certificates and other certificates of appreciation, and


                                         24
GASKINS—ARMY 20080132

“numerous letters of support from family, friends, and members of the military,”
none of which the government even attempted to recreate, and none of which are
detailed in the government’s “substitution memorandum.” Third, the exhibit was not
indexed and no documentation exists as to the number of pages it contained.
Nothing in the record sufficiently identifies the full content of the three-inch thick
binder. Fourth, although appellant during his unsworn statement briefly described
some photographs included in Defense Exhibit A, “[i]nclusion of the substance of a
portion of the record of proceedings dealing with material matter” does not make the
record complete. See Sturdivant, 1 M.J. at 257. Fifth, we recognize that our court
has previously highlighted the particularly mitigating effect of the “‘special
distinction’ of combat service.” Seal, 38 M.J. at 662 (citing United States v.
Demerse, 37 M.J. 488, 492 (C.M.A. 1993)). Sixth, as defense counsel noted in their
response to the Addendum, the government’s attempt at a “substitution” included
“copies of documents not admitted during trial . . . namely [appellant’s] Official
Military Personnel File.” As with the defense’s general description of Defense
Exhibit A’s contents, the government did not then and does not now dispute the
defense’s contention. Accordingly, the government’s “substitution” effort is not in
any way an adequate substitute for Defense Exhibit A.

       Moreover, the directions of the majority to the Dubay judge to, for example,
find “reasonable substitutes” for Defense Exhibit A appear to ignore the many
apparent substitutes that these cases hold are insufficient. Nor would appellant’s
Enlisted Record Brief ever be a sufficient substitute. In another context, this court
has already stated that, even if accurate, a personnel record “is a poor substitute for
the actual citation/commendation accompanying any award . . . .” United States v.
Young, 50 M.J. 717, 728 (Army Ct. Crim. App. 1999).

       Our superior court noted in McCullah, “an omission is often entwined
inextricably with the entire trial and taints all the findings of guilt . . . .” 11 M.J. at
237. However, in this case, “it is clear beyond a reasonable doubt that the lack of
completeness relates” only to appellant’s sentence and not to the findings of guilt.
Id. Upon our review of the sentence, however, the government has failed to rebut
the presumption of prejudice. See Stoffer, 53 M.J. at 27.

                                C. Appropriate Remedy

      As we would find a substantial omission from the record of trial and the
government has failed to overcome the presumption of prejudice against appellant,
we would next examine the appropriate remedy.

       A review of case law regarding remedies for incomplete records reveals a
variety of options, often depending on the type of omission involved. We may (1)




                                            25
GASKINS—ARMY 20080132

set aside the findings and sentence and order a rehearing; 23 (2) affirm findings and
order a sentencing rehearing; 24 (3) set aside the sentence and remand the case to the
convening authority to complete the record and if unable to do so, approve a
nonverbatim sentence; 25 (4) approve a nonverbatim record sentence; 26 or (5) approve
a sentence of no punishment. 27 It is within the court’s discretion to decide the
appropriate remedy, to include reassessing the sentence to a level not exceeding that
permissible in a trial reported by a nonverbatim transcript. Gray, 7 M.J. at 298;
Sturdivant, 1 M.J. at 257. See also Snethen, 62 M.J. at 581. We would exercise the
court’s discretion to approve a nonverbatim record sentence in this case; this
remedy, we believe, would be the appropriate one given the particular circumstances
of this case.

       As the omission of Defense Exhibit A does not affect the findings in this case,
the first remedial option is not appropriate. We could and would affirm the findings
here.

       The next option is for this court to return the case for a sentencing rehearing.
See Boxdale, 22 U.S.C.M.A. at 415, 47 C.M.R at 352 (authorizing a rehearing where
defense alibi witness testimony missing from the record). Although neither this
court or our superior court has exercised this option, particularly when faced with
missing defense sentencing exhibits, this is the remedy the government requests and
defense concedes could be appropriate in some circumstances. Courts have found
this remedy appropriate where the record is missing defense witness testimony and
the court orders a rehearing on findings and sentence. Id. See also Embry, 60 M.J.
at 984 (missing appellate exhibit); Snethen, 62 M.J. at 581.

       We carefully considered the propriety of this particular remedy—the only
other potential appropriate remedy, in our view—under the facts of this case and
would decline to order it. Appellant has approximately thirteen years service in two
separate branches of the military and has completed two overseas deployments in
support of Operation Iraqi Freedom. Using all of its available powers and resources,

23
  See Embry, 60 M.J. at 984; Boxdale, 22 U.S.C.M.A. at 415, 47 C.M.R. at 352.
This court could also set aside any affected findings and reassess the sentence for
the remaining findings or order a sentence rehearing. See McCullah, 11 M.J. at 238.
24
     See R.C.M. 1103.
25
  See Seal, 38 M.J. at 663. See also Williams; 14 M.J. at 801 (ordering DuBay
hearing to find missing exhibit); Abrams, 50 M.J. at 364 (order to government to
find missing exhibit).
26
     See Stoffer, 53 M.J. at 28.
27
     See Santoro, 46 M.J. at 345.


                                          26
GASKINS—ARMY 20080132

the government has been unable to adequately or substantially recreate Defense
Exhibit A, including even the basics of appellant’s Army service that were
apparently part of the exhibit. We note with particular concern and dismay the state
of appellant’s OMPF, which the government claims is “indicative of the awards and
honors for which [sic] [appellant] received and included in original Defense Exhibit
A.” The most glaring omission in the government’s substitution attempt—although
not the only one—is the OMPF’s failure to include nearly all of the twenty-six
awards and decorations listed on appellant’s ERB, including his award of the
Combat Action Badge.

      Many of the missing documents the defense described as included in Defense
Exhibit A, such as awards, decorations, and certificates, should have been in
appellant’s OMPF, and they are not. Even at this stage of appellate review, when
government counsel have had months of additional time to locate government-
produced and government-maintained documents, and seek to admit them for our
consideration, they have not done so.

       We recognize that under certain circumstances, a military judge could craft
remedial measures to ensure a full and fair sentencing hearing. Cf. United States v.
Douglas, 68 M.J. 349 (C.A.A.F. 2010) (crafting appropriate remedial measures when
faced with allegation of unlawful command influence); United States v. Murphy, No.
2007-03, slip op. at 16 (A.F. Ct. Crim. App. 22 December 2008) (unpub.) (holding
that where defense sentencing evidence in mitigation was unavailable due to
government’s conduct, the military judge did not abuse his discretion by limiting the
maximum sentence to no punishment). In this case, however, we would conclude
that due to the specific nature of the lost exhibit, remedial measures would not
guarantee appellant a full and fair rehearing on sentence and adequately protect his
critical, unique, and substantial right to present evidence in mitigation as set forth in
R.C.M. 1001(c).

       The other two cases with factual situations most similar to appellant’s are
Seal and Stoffer. Both involved missing defense sentencing exhibits, both found the
omission substantial and that the government did not overcome the presumption of
prejudice. Neither opinion’s majority even considered the propriety of ordering a
sentencing rehearing, or even listed it as a viable option. Seal returned the case to
the convening authority to either complete the record or affirm a nonverbatim record
sentence. 38 M.J. at 663. Stoffer affirmed a nonverbatim record sentence on its
own, rather than return the case to the service court for sentence reassessment. 53
M.J. at 28. These remedies are in contrast to that where defense witness testimony
on the merits is missing, and the court ordered a rehearing on findings and sentence.
Boxdale, 22 U.S.C.M.A. at 415, 47 C.M.R. at 352.

      We see the difficulties inherent in ordering a rehearing when faced with
missing defense exhibits, rather than testimony. Witnesses can be recalled at a



                                           27
GASKINS—ARMY 20080132

rehearing to testify anew. In the appropriate case, the defense might also overcome
a missing defense exhibit at a rehearing. For example, during a sentence rehearing,
appellant might be able to recreate portions of what his counsel represented Defense
Exhibit A contained. Appellant might also be able to find copies of the same or
substantially similar photos he originally submitted and once again receive
substantially similar letters of support to submit to the sentencing authority;
likewise, appellant may also be able to locate his civilian education transcripts. If
unable to locate these, he may make appropriate motions for relief to the military
judge, or the judge, sua sponte, may take appropriate action to protect appellant’s
substantial right to present evidence in mitigation. Those actions could potentially
include limiting the maximum adjudged sentence to “no punishment,” if, in the
sound exercise of his discretion, the military judge concluded that was the necessary
remedy if appellant is unable to effectively present his sentencing case in mitigation
due to the government’s lack of care.

        Although we would decline to speculate what we might decide in a different
case with different facts, that kind of “do-over” is not the problem here. The
problem and our conclusion that a “do-over” is an inappropriate remedy in this case
is this simple fact: it is fundamentally unfair and unjust to task appellant to locate,
recreate, or otherwise find adequate substitutes for all of the lost government
documents, awards, and certificates when the government itself was unable after
trial—and apparently still remains unable—to do so. Unlike the majority, we
conclude that the government has already had its chance to find these documents or
provide an acceptable substitute for the missing exhibit. Under these facts, it is of
little comfort to appellant that his maximum approved sentence at a rehearing would
be limited to his sentence as initially approved by the convening authority, when
appellant’s ability to mount a comprehensive sentencing case in mitigation is
stymied by the government. UCMJ art. 63; R.C.M. 810(d). We would refuse to
“shift the burden” of the government’s carelessness to appellant by ordering a
rehearing on the record before us, and would decline to exercise our discretion in
that manner in this case.

       Similarly, the third potential option and that chosen by the majority, returning
the case to the convening authority to complete the record, is also an inadequate and
especially inappropriate remedy in this case. In cases where there is some
likelihood the missing evidence can be retrieved or reconstructed, courts have
returned the cases for completion of the record. Abrams, 50 M.J. at 364 (remanding
case to lower court ordering government to produce missing exhibit); Seal, 38 M.J.
at 663 (returning case to convening authority to either complete the record or
approve a nonverbatim sentence where record of trial was missing a defense exhibit
videotape of appellant flying during Desert Storm/Shield admitted during
sentencing); Williams, 14 M.J. at 801 (returning the case for a DuBay hearing to
reconstruct the missing exhibit and rebut the presumption of prejudice arising from
its omission).



                                          28
GASKINS—ARMY 20080132

       In this case, the convening authority and his legal advisor have already had
the chance, and presumably made their best attempt to complete the record. In fact,
the acting SJA advised the convening authority, “It is unclear what happened to this
exhibit and many efforts by both parties to track down this exhibit have not been met
with success.” Further, we would find the government’s attempts to substitute
instead a memorandum and appellant’s OMPF prior to action to be completely and
woefully insufficient. Unlike the majority, we disagree with the useless exercise of
giving the government another opportunity to retrieve or recreate now—more than
two years after trial—what it was unable to retrieve or recreate in the trial’s
immediate aftermath, and what the government has been unable to retrieve or
recreate during the pendency of appellant’s case before this court. Cf. Snethen, 62
M.J. at 581 (stating as one reason that government did not overcome presumption of
prejudice “the length of time between trial and reconstruction efforts”). While there
may exist some circumstances where the convening authority or a Dubay hearing
could, at this late stage, retrieve or meticulously recreate missing evidence, it is
apparent that those circumstances do not exist here. We see nothing to be gained by
returning this record to the convening authority for another attempt to complete it.
Based on the record before us, we would conclude Defense Exhibit A is irretrievably
lost and the convening authority is unable to meticulously recreate it.

        We also would decline to approve a sentence of no punishment in this case,
our fourth option. Though fault for the lost exhibit lays solely at the government’s
feet, this is not a case where our affirming a sentence of “no punishment” is the
correct appellate remedy. While the loss of Defense Exhibit A deprives us of our
ability to complete our statutory duty to examine the approved sentence for
appropriateness, we are confident that this is not a case where this court would
conclude a sentence of “no punishment” is appropriate. Unlike the Santoro court,
faced with a record in extensive and pervasive disarray, it is not necessary to
“negat[e] all punitive aspects of the sentence” to remove any possible prejudice to
appellant at our level of review. 46 M.J. at 346.

       Given the particular landscape of this case, we believe the facts and law leave
us with but one remedy—affirm a nonverbatim record sentence. The government
bears responsibility for the record, and the government is liable for the consequences
when it does not shoulder its responsibility. 28 The consequences of poor


28
  This court has previously warned trial counsel and court reporters about their
responsibilities with regard to administration of the trial record. United States v.
Carroll, 40 M.J. 554, 557 n.8 (A.C.M.R. 1994) (“Failure to comply with regulatory
mandates with respect to a verbatim record of trial will preclude affirmance of a
punitive discharge.”); United States v. Yarbrough, 36 M.J. 1071, 1075 (A.C.M.R.
1993) (Crean, J. concurring). We have seen an alarming number of records of trial

                                                                      (continued . . .)


                                         29
GASKINS—ARMY 20080132

administration and sloppy record preparation—on full display here—ultimately
“deny society a full measure of justice because [we are left] with little choice but to
perform radical surgery . . . on the sentence” in this case. Id. at 348.

       For all these reasons, I would not give the government another opportunity to
either show Defense Exhibit A’s omission is insubstantial, or to carry its burden of
overcoming the presumption of prejudice I would conclude exists in this case, which
is both inappropriate and a waste of time. I would affirm a sentence in accordance
with the law as promulgated by Congress and as further implemented by the
President. Accordingly, I dissent.

         Judge GIFFORD concurs.

TOZZI, Chief Judge, dissenting:

       I join with the legal conclusions and proposed remedy set out in the dissenting
opinion of Judge Ham. I write separately to highlight my differing characterization
of the remedy ordered by the majority in this case.

        I do not agree with the majority that a Dubay 29 hearing is appropriate in this
case. The government has had more than ample time and possesses adequate
resources to have remedied the substantial omission in this record of trial by now,
all to the prejudice of the Appellant. I agree with Judge Ham that the appropriate
remedy in this case is to approve a nonverbatim record sentence in accordance with
R.C.M. 1103 (f)(1). I differ, however, with Judge Ham’s characterization of the
majority’s effort in this case as an “appellate rescue mission” and appellate “CPR.”
This case presents a close issue upon which reasonable minds can differ. It is my
sincere hope that the Dubay hearing ordered by the majority will provide additional


(. . . continued)
that reach us for decision that are either missing exhibits or testimony or the
attached exhibits are not what they purport to be. United States v. Hudgins, ___
M.J. ___ (Army Ct. Crim. App. 25 Mar. 2010); United States v. Miller, ARMY
20090286 (Army Ct. Crim. App. 20 May 2010) (unpub.); United States v. Zepeda,
ARMY 20080129 (Army Ct. Crim. App. 28 Apr. 2009) (unpub.); United States v.
White, ARMY 20061313 (Army Ct. Crim. App. 19 Apr. 2010) (order) (unpub.);
United States v. Loggins, ARMY 20080866 (Army Ct. Crim. App. 7 Jan. 2010)
(order) (unpub.); United States v. Anderson, ARMY 20080669 (Army Ct. Crim. App.
5 Jan. 2010) (order) (unpub.). As we said in Carroll, “There is no excuse for an
exhibit to be omitted from a record of trial. Incidents of poor administration reflect
adversely on the United States Army and the military justice system.” 40 M.J. at
557.
29
     United States v. Dubay, 17 U.S.C.M.A. 146, 37 C.M.R. (1967).


                                           30
GASKINS—ARMY 20080132

information this court can rely upon to fulfill its statutory obligations under Article
66, UCMJ.

      Judge SIMS concurs.

                                         FOR THE COURT:




                                         MALCOLM H. SQUIRES, JR.
                                         Clerk of Court




                                           31
GASKINS—ARMY 20080132

                                     APPENDIX

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                            Before the Court Sitting En Banc

                           UNITED STATES, Appellee
                                        v.
                        Staff Sergeant DANIEL GASKINS
                          United States Army, Appellant

                                  ARMY 20080132
                                     ---------------
                                        ORDER
                                     ---------------

      WHEREAS:

       A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of carnal knowledge, indecent acts with a
child, and indecent assault, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for twelve years, forfeiture of all pay and allowances, and reduction to the grade of
Private E1.

      Appellant has alleged to this court, inter alia, a substantial omission from the
record of trial rendering it incomplete under Article 54, UCMJ, as his “Good Soldier
Book,” admitted as Defense Exhibit A during the defense sentencing case, was not
included in appellant’s record of trial.

      NOW, THEREFORE, IT IS ORDERED:

       1. That the record of trial is returned to The Judge Advocate General for such
action as is required to conduct a limited hearing pursuant to DuBay;

      2. That the DuBay military judge will determine the following:
       
             a. What appellant, trial defense counsel, trial counsel, the court
      reporter, and the military judge recall were the specific contents of Defense
      Exhibit A;

             b. What were the contents of Defense Exhibit A;




                                          32
GASKINS—ARMY 20080132

             c. Whether the clemency letters submitted with appellant's Rule for
      Courts-Martial 1105 petition were the same, or substantially the same, as the
      extenuation/mitigation letters included in Defense Exhibit A as submitted at
      the time of trial, and if not substantially the same, what the differences were.

             d. Whether Defense Exhibit A can be fully or substantially
      reconstructed. The military judge and the parties will cooperate at the DuBay
      hearing to reconstruct Defense Exhibit A and attach it to the Record of Trial.
      Reasonable substitutes for missing portions of the exhibit may include live
      extenuation/mitigation witness testimony, stipulations of expected testimony,
      or stipulations of fact.

             e. If Defense Exhibit A has been substantially rather than fully
      reconstructed the military judge will make findings of fact detailing how
      much of the exhibit has been reconstructed and specific findings detailing
      what items have not been reconstructed. Additionally, the military judge will
      state in the findings of fact and conclusions of law whether the reconstructed
      Defense Exhibit A amounts to a substantial omission from appellant's Record
      of Trial, rendering it incomplete under Article 54, UCMJ.

       3. That the government shall obtain copies of all of appellant’s awards,
certificates, and letters of commendation both from his service in the Army and in
the Marine Corps. The government shall serve copies of these documents on the
defense no later than seven (7) days before commencement of the hearing and shall
announce any willingness to stipulate to documents it is unable to obtain at that
time. If the government is unable to obtain these documents, they are directed to
explain to the military judge in writing, and in detail, what efforts were taken to
obtain the documents and why they were unable to do so.

      4. That the DuBay military judge will permit and/or order the presentation of
witnesses and evidence, and make rulings as appropriate.

       5. That the hearing will be concluded no later than sixty (60) days from the
date of this Order.

       6. That, at the conclusion of the proceedings, the record, with an
authenticated verbatim transcript of the hearing, will be expeditiously returned to
this court for further review.

HAM, Judge, with whom TOZZI, Chief Judge, SIMS, Judge and GIFFORD, Judge
join (dissenting):

      I dissent from this order for the reasons set forth in United States v. Gaskins
__ M.J. __ (Army Ct. Crim. App. 27 Aug. 2010) (Ham, J., dissenting).



                                          33
GASKINS—ARMY 20080132

DATE: 27 August 2010
                                      FORTHE
                                     FOR  THECOURT:
                                              COURT:




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



CF:   Chief-DAD
      Chief-GAD
      JALS-CCR
      JALS-CCZ
      JALS-All Panels

William E. Cassara, Esquire/Counsel for Appellant
Captain Nicole L. Fish, JA/GAD




                                       34
