          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                Airman JAMES O. DAVIDSON III
                                     United States Air Force

                                              ACM S32241

                                             4 August 2015

         Sentence adjudged 31 March 2014 by SPCM convened at Joint Base San
         Antonio-Lackland, Texas.    Military Judge:  Wendy L. Sherman
         (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 14 days, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Captain Melissa Biedermann.

         Appellate Counsel for the United States: Lieutenant Colonel John E. Owen;
         and Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, TELLER, and BENNETT
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



BENNETT, Judge:

       At a special court-martial composed of a military judge sitting alone, the appellant
providently pled guilty pursuant to a pretrial agreement to wrongful use of marijuana on
divers occasions, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The appellant
was sentenced to a bad-conduct discharge, confinement for 14 days, and a reduction in
grade to E-1. The convening authority approved the sentence as adjudged.
       On appeal, the appellant contends that the military judge abused her discretion by
admitting into evidence a memorandum informing the accused that his promotion to E-5
was being withheld. We disagree and affirm the findings and the sentence as adjudged.

                                       Background

        Prosecution Exhibit 6 is a certified true copy of a one page “Notification of
Withhold” memorandum. The memorandum was provided to the appellant by his
commander to make him aware that, in accordance with Air Force Instruction (AFI)
36-2502, Airman Promotion Program, ¶ 4.2.1.1 (31 December 2009), his promotion to
the grade of E-5 was being withheld pending an investigation. The memorandum is
dated 29 August 2013, but it contains no information concerning the nature or outcome of
the investigation. The appellant acknowledged receipt of the memorandum by signing a
first indorsement at the bottom of the page.

      Trial defense counsel objected to the exhibit as not being appropriate for
consideration during presentencing under Rule for Courts-Martial (R.C.M) 1001(b)(2).

       Additional facts necessary to resolve the assigned error are included below.

                                         Analysis

       A military judge’s ruling admitting evidence is reviewed for an abuse of
discretion. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). Evidentiary
rulings are frequently based on mixed questions of fact and law. United States v. Ohrt,
28 M.J. 301, 303 (C.M.A. 1989). “We will reverse for an abuse of discretion if the
military judge’s findings of fact are clearly erroneous or if his decision is influenced by
an erroneous view of the law.” Sullivan, 42 M.J. at 363. A military judge’s exercise of
discretion is reviewed on the basis of the facts before the judge at the time of the ruling.
United States v. Grant, 49 M.J. 295, 297 (C.A.A.F. 1998).

       Commanders must withhold an airman’s promotion if he or she is under
investigation by military or civilian authorities. AFI 36-2502, Table 1.2, Item 5. When
an Airman’s promotion is withheld, the Airman must be notified in writing. Id. at
¶ 4.2.1.1. A commander must obtain a written acknowledgment of the notification, and
the notification must be filed in the Airman’s personnel records. Id. at ¶¶ 4.2.1.2 and
4.2.1.3.

      R.C.M 1001(b)(2) permits the prosecution to introduce, during the presentencing
phase of a court-martial, personal data and evidence that characterize the prior service of
an accused. This evidence may be obtained from the personnel records of an accused and
may include “any records made or maintained in accordance with departmental



                                             2                                  ACM S32241
regulations that reflect the past military efficiency, conduct, performance and history of
the accused.” R.C.M. 1001(b)(2).

        On appeal, the appellant avers that Prosecution Exhibit 6 is not a record that
reflects his “past military efficiency, conduct, performance, and history.” We disagree.
A memorandum notifying the accused that his promotion is being withheld pending an
ongoing investigation reflects all of these things. Moreover, Prosecution Exhibit 6 is a
personnel record that was maintained in the appellant’s personnel records in accordance
with Air Force departmental regulations.

        R.C.M. 1001(b)(2) does not give the prosecution “blanket authority to introduce
all information that happens to be maintained in the personnel records of an accused.”
United States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998). However, evidence that the
appellant’s promotion is being delayed pending the outcome of an investigation fits
squarely within the ambit of the rule. No other issue concerning the admissibility of
Prosecution Exhibit 6 was raised at trial, and we find that the military judge did not abuse
her discretion by admitting it.

                                        Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




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