

   
   
   
   U.S. v. Gammons



UNITED STATES, Appellant
v.
Jason R. GAMMONS, Seaman Recruit
U.S. Coast Guard, Appellee
 
No. 98-5031
Crim. App. No. 1078
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued October 7, 1998
Decided July 30, 1999
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.
 


Counsel
For Appellant: Lieutenant
Susan Polizzotto (argued); Lieutenant William G. Rospars.
For Appellee: Lieutenant
Sandra K. Selman (argued).
Military Judge: Michael
J. Devine
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge Effron delivered the opinion of the Court.
A special court-martial composed of a military
judge sitting alone, convicted appellee, pursuant to his pleas, of using
marijuana (4 specifications) and using and distributing LSD, in violation
of Article 112a, Uniform Code of Military Justice, 10 USC § 912a.
He was sentenced to a bad-conduct discharge, confinement for 3 months,
and forfeiture of one-third of his pay per month for 3 months. The convening
authority approved the sentence, except that confinement in excess of 60
days was suspended for 12 months.
The Court of Criminal Appeals en banc
affirmed the findings, but ordered a rehearing on sentence, 47 MJ 766,
768 (1997). The court held that a record of nonjudicial punishment under
Article 15, UCMJ, 10 USC § 815, for the same conduct that was the
subject of trial on the merits had been considered improperly during sentencing,
citing United States v. Pierce, 27 MJ 367 (CMA 1989). Upon reconsideration
en banc, the Court of Criminal Appeals adhered to its decision and ordered
that the record of nonjudicial punishment "be expunged from Appellant's
record and all rights, privileges, and property of which Appellant has
been deprived by virtue of that nonjudicial punishment shall be restored
prior to the rehearing on sentence." 48 MJ 762, 766 (1998).
Pursuant to Article 67(a)(2), UCMJ, 10 USC
§ 867(a)(2)(1994), the General Counsel of the Department of Transportation
1/
certified the following issues for consideration by our Court:

I. WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED IN HOLDING, AS A MATTER OF LAW, THAT THE TRIAL COUNSEL'S
USE OF A RECORD OF THE ACCUSED'S NONJUDICIAL PUNISHMENT (NJP) AMOUNTED
TO PLAIN ERROR UNDER UNITED STATES V. PIERCE, EVEN THOUGH:
(A) THE NJP WAS USED AS AN AGGRAVATING CIRCUMSTANCE
OF A LATER SIMILAR CRIME FOR WHICH THE ACCUSED WAS CONVICTED;
(B) THE DEFENSE STATED THAT IT HAD NO OBJECTION
TO THE TRIAL COUNSEL'S USE OF THE NJP; AND
(C) UNDER THE CIRCUMSTANCES THE INTRODUCTION
OF THE RECORD OF NJP WAS THE EQUIVALENT OF AN INTRODUCTION BY THE DEFENSE.
II. WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED IN ORDERING EXPUNGEMENT OF A RECORD OF NONJUDICIAL PUNISHMENT
FROM GAMMONS' MILITARY RECORD AND RESTORATION OF ALL RIGHTS, PRIVILEGES,
AND PROPERTY PRIOR TO REHEARING ON THE SENTENCE.

We hold that consideration of appellant's nonjudicial
punishment (NJP) record at sentencing was not error where the defense consented
to its introduction and made the first substantive reference to the record
during sentencing. We further hold that the Court of Criminal Appeals erred
when it set aside the sentence and ordered the NJP record to be expunged.
Part I of this opinion outlines the relationship
between NJP and courts-martial for the same offense. Part II describes
the manner in which appellee's prior NJP was used during sentencing in
the present case. Part III analyzes applicable Double Jeopardy considerations,
the gatekeeper role of an accused, waiver, and the lower court's order
to expunge the NJP record. Part IV discusses the factors that affect consideration
of a prior NJP for the same act or omission at issue in a court-martial.

I. BACKGROUND: THE RELATIONSHIP BETWEEN NJP
AND COURTS-MARTIAL
One of the hallmarks of the military justice
system is the broad discretion vested in commanders to choose the appropriate
disposition of alleged offenses. The critical responsibility of commanders
for the morale, welfare, good order, discipline, and military effectiveness
of their units traditionally has been viewed as requiring the exercise
of such discretion.
The discretionary disposition authority of
commanders includes the power to take no action, dismiss charges, initiate
administrative actions under applicable regulations, institute NJP proceedings
under Article 15, refer the matter to a summary, special, or general court-martial,
or forward it to a superior commander. RCM 306, 401-405, 407, Manual for
Courts-Martial, United States (1998 edition). The restrictions against
unlawful command influence preclude a superior from influencing the exercise
of such discretion by a subordinate. RCM 306(a); see Art. 37(a),
UCMJ, 10 USC § 837(a). A superior commander, however, lawfully "may
withhold the authority [of a subordinate] to dispose of offenses in individual
cases, types of cases, or generally." RCM 306(a).
The general policy set forth in the Manual
states that "[a]llegations of offenses should be disposed of in a timely
manner at the lowest appropriate level of disposition. . . ." RCM 306(b).
If a superior commander disagrees with the decision of a subordinate to
proceed through administrative or non-judicial channels, the superior may
direct the subordinate to forward the case for disposition by the superior
or other appropriate commander, which may result in referral of the charges
to a court-martial.
Disposition by NJP is governed by Article 15
of the Code and Part V of the Manual for Courts-Martial. Under Article
15, which is entitled "Commanding officer's non-judicial punishment,"
military commanders may impose various "disciplinary punishments for minor
offenses." Art. 15(b). The disciplinary punishments rendered in an NJP
proceeding may be imposed without the essential attributes of a criminal
trial, such as confrontation of adverse witnesses, representation by counsel,
and reliance on formal rules of evidence. See para. 4, Part V, Manual,
supra.
As the Supreme Court has noted, NJP "is an
administrative method of dealing with the most minor offenses." Middendorf
v. Henry, 425 U.S. 25, 31-32 (1976). Our Court has stated that a proceeding
under Article 15 is not a criminal prosecution. See, e.g.,
United
States v. Marshall, 45 MJ 268, 271 (1996); accord United States
v. Johnson, 19 USCMA 464, 467, 42 CMR 66, 69 (1970). Other federal
courts have come to the same conclusion. See, e.g.,
Fairchild
v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); Cappella v. United
States, 624 F.2d 976, 980(Ct. Cl. 1980); but cf.
State
v. Ivie, 136 Wash. 2d 173, 961 P.2d 941 (1998) (treating NJP as a criminal
prosecution for purposes of state law).
The defense of former jeopardy in military
law, as established by Congress in Article 44, UCMJ, 10 USC § 844,
does not extend to cases in which there has been prior nonjudicial punishment
for the same act or omission. See United States v. Fretwell,
11 USCMA 377, 379, 29 CMR 193, 195 (1960). Congress has provided expressly
in Article 15(f) that a prior NJP does not necessarily bar a subsequent
criminal proceeding in a court-martial:



The imposition and enforcement of disciplinary
punishment under this article for any act or omission is not a bar to trial
by court-martial for a serious crime or offense growing out of the same
act or omission, and not properly punishable under this article. . . .



Under RCM 907(b)(2)(D)(iv), which implements
Article 15(f), a defense motion to dismiss a charge may be based
on "[p]rior punishment under . . . Article 15 for the same offense, if
that offense was minor." The motion is waived if not asserted by the accused
at trial. RCM 907(b)(2).
The Manual makes clear that the process of
determining whether an offense is "minor" involves the exercise of command
discretion rather than application of a precise formula:



Whether an offense is minor depends on several
factors: the nature of the offense and the circumstances surrounding its
commission; the offender's age, rank, duty assignment, record and experience;
and the maximum sentence imposable for the offense if tried by general
court-martial. Ordinarily, a minor offense is an offense which the maximum
sentence imposable would not include a dishonorable discharge or confinement
for longer than 1 year if tried by a general court-martial. The decision
whether an offense is "minor" is a matter of discretion for the commander
imposing nonjudicial punishment, but nonjudicial punishment for an offense
other than a minor offense (even though thought by the commander to be
minor) is not a bar to trial by court-martial for the same offense.



Para. 1e, Part V; see Drafters Analysis,
Manual, supra
at A24-1.
If an offense that resulted in NJP is the subject
of a subsequent trial by court-martial resulting in a conviction, Article
15(f) provides that


the fact that a disciplinary punishment has
been enforced may be shown by the accused upon trial, and when so shown
shall be considered in determining the measure of punishment to be adjudged
in the event of a finding of guilty.


During sentencing, the defense may present matters
in mitigation, including "the fact that nonjudicial punishment under Article
15 has been imposed for an offense growing out of the same act or omission
that constitutes the offense of which the accused has been found guilty."
RCM 1001(c)(1)(B). If such matter is presented, "this fact must be considered
in determining an appropriate sentence." Para. 1e, Part V.
In United States v. Pierce, 27 MJ 367
(1989), our Court considered the relationship between the two features
of Article 15(f) -- the limited scope of the former-punishment defense
and the impact of a prior NJP during sentencing. Pierce reaffirmed
the holding in Fretwell that prosecution for a serious offense is
not barred by prior nonjudicial punishment for the same offense. 27 MJ
at 368.
Pierce also addressed the requirement
in Article 15(f) to consider in mitigation of the sentence any prior NJP
for the same offense introduced into evidence by the accused. We observed
that such consideration was designed to ensure that the accused is not
punished twice for the same offense. Id. at 369. In light of that
purpose, Pierce ordered a remand for the court below to either determine
what the military judge's consideration of the prior NJP implied or to
adjust the sentence to ensure that Pierce "was not twice punished." Id.
at 370. The issues that are now before us address the continuing validity
of the holdings in Pierce, as well as the extent to which dicta
in Pierce should govern the present case.
With respect to these issues, we note that
our review in this appeal extends only to the impact of prior NJP proceedings
upon the present case. As we noted in United States v. Edwards,
46 MJ 41, 43 (1997), "[t]he jurisdiction of our Court does not extend to
direct review of nonjudicial punishment proceedings."

II. CONSIDERATION OF GAMMONS PRIOR NJP DURING
SENTENCING
Pursuant to his pleas, the military judge found
the appellee guilty of six offenses involving use or distribution of marijuana
and LSD. At the outset of the sentencing proceeding, in accordance with
RCM 1001(a)(1)(A)(i) &(ii) and standard practice, the military judge
asked trial counsel to inform the court of the "pay and service" of the
accused.
Trial counsel provided the military judge with
exhibits containing both positive and negative information, including evidence
of appellee's marital status, awards and decorations, evaluations, other
personal data, occupational certification, and various disciplinary matters,
including records of nonjudicial punishment. See RCM 1001(b)(2)
(service records include "evidence of any disciplinary actions including
punishments under Article 15"). The military judge then sought to ensure
that defense counsel was aware of the content of the documents, particularly
in view of the apparent relationship of the NJP records to the present
proceedings. The record of trial reflects that defense counsel had been
provided with copies of the exhibits prior to trial and that the defense
intended to make affirmative use of the NJP in its presentation of evidence
in mitigation:



MJ: [Receives document from Bailiff.]
Defense Counsel have [sic] any objections to these exhibits?
DC: Sir, the defense has no objection.
MJ: And you've seen each of these previously?
DC: I have, sir.
MJ: [Reviews the documents.] Defense
counsel, I'm looking at Prosecution Exhibit 3 that appears to be coinciding
with at least one of the charges, if not several. Are you aware of that?
DC: Yes, sir.
MJ: Do you intend to address that in your case
in E[xtenuation] and M[itigation]?
DC: Yes, sir.



(Italics in original.) During the presentation
of the prosecution's evidence on sentencing, trial counsel did not emphasize
or otherwise discuss the content or nature of the NJP records.
During the defense sentencing case, appellee
made an unsworn statement which outlined his military career, his father's
chronic alcoholism, and his own involvement with drugs and alcohol. See
RCM 1001(c)(2)(C). With respect to the NJP record, appellee said:



When confronted with using--with the using
drugs, I admitted everything and received punishment at Captain's Mast.



After the defense concluded its sentencing case,
trial counsel presented the Governments sentencing argument, which included
the following observations with respect to the NJP record:



[T]he accused, after being taken to Captain's
Mast for marijuana use on numerous occasions, including while underway
on board the Coast Guard Cutter MORGANTHAU, continued to disregard the
law. Only about four days after being taken to Captain's Mast, he decided
to thumb his nose on the law and the Coast Guard by using and distributing
LSD.



Defense counsel did not object to trial counsel's
argument. In his sentencing argument, defense counsel emphasized the alcoholism
of appellant's father, the relationship between appellant's drinking problems
and his use of drugs, and noted:



The Captain of the MORGENTHAU punished Seaman
Recruit Gammons at Captain's Mast for that marijuana use, and Seaman Recruit
Gammons was reduced and was fined $200.00 for that use.[2/]



Defense counsel did not ask the military judge
to limit the consideration given to the NJP record.

III. ANALYSIS
A. DOUBLE JEOPARDY
The Constitution's Fifth Amendment Double Jeopardy
Clause states: "nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb[.]" The court below cited the
Supreme Court's decision in Hudson v. United States, 118 S.Ct. 488
(1997), for the proposition that trial by court-martial should be barred
by a prior NJP proceeding. The court invited us to overrule the line of
cases extending from Fretwell to Pierce, see Part
I, supra, and hold that Congress acted unconstitutionally in Article
15(f) when it authorized trial for a serious offense previously considered
in an NJP proceeding. 48 MJ at 764.
Hudson provides a very weak reed for
the proposition that a proceeding denominated by Congress as "nonjudicial,"
which provides only for rather modest penalties, and which does not constitute
a criminal conviction, nonetheless constitutes a criminal proceeding under
the Fifth Amendment.
At the very outset of Hudson, the Supreme
Court emphasized that imposition of penalties, even the harsh penalty of
occupational debarment, would not transform an administrative procedure
into a criminal proceeding under the Fifth Amendment:



The Government administratively imposed monetary
penalties and occupational debarment on petitioners for violation of federal
banking statutes, and later criminally indicted them for essentially the
same conduct. We hold that the Double Jeopardy Clause of the Fifth Amendment
is not a bar to the later criminal proceedings because the administrative
proceedings were civil, not criminal.



118 S.Ct. at 491.
With respect to successive proceedings resulting
in punishment, the Court emphasized that



the Double Jeopardy Clause does not prohibit
the imposition of any additional sanction that could, in common parlance,
be described as punishment. The Clause protects only against the imposition
of multiple criminal punishments for the same offense.



Id. at 493 (citations and internal quotation
marks omitted; emphasis in original). The Court expressed serious concern
about "novel double jeopardy claims" generated by its prior double jeopardy
decisions and sought to confine the scope of such claims by establishing
a two-part framework for analyzing double jeopardy issues.
The first part of the Hudson test requires
the reviewing court to determine "whether the legislature, in establishing
the penalizing mechanism, indicated . . . expressly or impliedly a preference
for" a civil or a criminal label. 118 S.Ct. at 493 (quoting United
States v. Ward, 448 U.S. 242, 248 (1980)).
The second part of the Hudson test requires
the reviewing court to determine "whether the statutory scheme" is "so
punitive either in purpose or effect" as to negate the legislative intention
to create a civil remedy. Id. (quoting Ward, supra
at 248-49). The Court suggested a number of factors that could "provide
useful guideposts" in making this determination.3/
The Court emphasized that such "factors must be considered in" the context
of "the statute on its face" and that "only the clearest proof will .
. . transform what has been denominated a civil remedy into a criminal
penalty." Id. (quoting Ward, supra at 249).
Under Hudson's two-part analysis, Article
15(f) does not violate the Double Jeopardy Clause. With respect to the
first step, the title of the legislation - "Commanding officer's non-judicial
punishment" -- underscores the legislative intent to separate NJP from
the judicial procedures of the military's criminal law forum, the court-martial.
As noted in the report of the Senate Armed Services Committee accompanying
the comprehensive amendments to Article 15 in 1962: "Since the punishment
is nonjudicial, it is not considered as a conviction of a crime and in
this sense has no connection with the military court-martial system." S.
Rep. No. 1911, 87th Cong., 2d Sess.(1962), reprinted in 1962 U.S.Code
Congressional and Administrative News at 2380 (hereafter cited as 1962
Senate Report); accord H.R. Rep. No. 1612, 87th Cong., 2d Sess.
1-2 (1962).
With respect to the second part of the Hudson
test, the structure and purpose of NJP demonstrate that Congress has not
created a set of penalties "so punitive" that it has transformed NJPinto
a criminal penalty. Most of the punishments that may be imposed in an NJP
proceeding affect the non-criminal field of military personnel administration.
These penalties include reduction in rank and forfeiture of pay -- the
punishments at issue in the present case -- as well as admonitions, reprimands,
and detention of pay. Art. 15(b). These punishments do not include anything
equivalent to the serious penalty of occupational debarment, yet the Supreme
Court in Hudson viewed that as not so punitive as to implicate the
Double Jeopardy Clause. Likewise, the punishments under Article 15 do not
include the monetary penalty traditionally associated with the criminal
law -- a fine. Cf., e.g., Hudson,
supra at
492 (penalties ranging from $12,500.00 to $16,500.00 did not preclude a
subsequent criminal trial). There is no authority under Article 15 to impose
the quintessential criminal law penalty -- confinement at hard labor. Although
a number of limitations on freedom of movement may be imposed under NJP,
these are strictly limited in time.4/
Particularly in the context of military life -- where a servicemember who
has committed no disciplinary infraction can be deployed involuntarily
to a distant location, separated from family and friends, restricted from
leaving his or her vessel or post, required to live for months at a time
in extremely confined quarters on board a ship at sea or in a tent in the
field, and ordered to perform duties that may lead to the ultimate sacrifice
-- the limitations on movement under Article 15 are far less onerous than
the restriction approved in Kansas v. Hendricks, 521 U.S. 346, 354,
369-70, 117 S.Ct. 2072, 2078, 2086 (1997) (involuntary civil commitment
of a convicted person designated as a "sexually violent predator" under
the state statute following a criminal conviction covering the same conduct
held not to violate the Double Jeopardy Clause).
The limitations on the degree of permissible
punishment under Article 15 are consistent with the clear congressional
intent to separate NJP from the criminal law consequences of a court-martial.
As noted in the Senate Report on the legislation establishing the authority
for "correctional custody":



"[C]orrectional custody" . . . is defined
as physical restraint during duty or nonduty hours and may include extra
duties, fatigue duties, or hard labor.
The purpose of correctional custody is to exercise
close supervision over an individual to the end that the cause of his behavior
that resulted in the commission of an offense may be corrected, without
stigmatizing him with a sentence to "confinement."



1962 Senate Report, supra at 2384.
Because NJP is used to address offenses arising
under the UCMJ that can be punished in the criminal law forum of a court-martial,
Article 15 clearly implicates a number of the "guidepost" factors suggested
by the second part of the Hudson test. The Supreme Court has emphasized,
however, that these factors are "neither exhaustive nor dispositive." Ward,
supra
at 249. Moreover, the guidepost factors require us to look not only at
the similarities to criminal law procedures, but also to determine whether
there is a non-criminal law purpose that can rationally be assigned to
NJP, and whether the punishments that can be imposed are excessive to the
needs of that non-criminal purpose. See 118 S.Ct. at 493.
With respect to NJP, there is a clear congressional
purpose to serve the disciplinary needs of the armed forces. Discipline,
which entails the control of armed forces through prompt obedience of superior
orders, is an integral component of successful military operations. Discipline
is not achieved exclusively or even primarily through use or threat of
the military criminal law process, the court-martial. Commanders use a
combination of tools to maintain discipline including leadership by example,
training, corrective measures, administrative actions authorized by applicable
regulations, and NJP -- as well as courts-martial. As noted in a
standard volume on military leadership:



The relationship between a commander's leadership
responsibility, the standard of discipline maintained within the unit,
and the commanders use of the authority to punish under Art. 15, are subjects
so closely tied together as to constitute in some respects a single function
of command.



Lawrence P. Crocker, Army Officer's Guide
283 (45th ed. 1990).
In providing for nonjudicial punishment, Congress
sought to enhance discipline in a manner that would reduce the adverse
impact on the servicemember and the service that can arise from resort
to the criminal law forum of a court-martial. In support of the comprehensive
amendments to Article 15 in 1962, the Senate Armed Services Committee expressly
emphasized the role of nonjudicial punishment in minimizing the adverse
impact of a court-martial conviction on individual servicemembers:



In most cases, a court-martial results in
a serious impairment of the services of an officer or enlisted man. Such
a conviction stigmatizes a person with a criminal conviction on his record,
which not only remains throughout his military career, but follows him
into civilian life. It may well interfere with his civilian job opportunities,
as for example, when he is required to show on a questionnaire whether
he has ever been convicted, and it may adversely reflect on him if he is
involved in difficulty with civilian law-enforcement agencies. The bill,
by providing increased authority for nonjudicial punishment, will enable
commanders to deal promptly and efficiently with problems of discipline.
At the same time, the increased nonjudicial authority should permit the
services to reduce substantially the number of court-martials for minor
offenses, which result in stigmatizing and impairing the efficiency and
morale of the person concerned.



1962 Senate Report, supra at 2381-82. Given
those concerns, we conclude under the Hudson guideposts that the
complementary goals of enhancing military discipline while reducing the
adverse impact of convictions on servicemembers provide a rational non-criminal
justification for NJP and that the relatively modest penalties available
under NJP are not so excessive as to transform NJP into a criminal proceeding
under the Double Jeopardy Clause.
In summary, we disagree with the suggestion
of the court below that a court-martial following NJP for the same act
or omission violates the Double Jeopardy Clause of the Fifth Amendment,
particularly in view of the specific congressional designation of NJP as
"nonjudicial," the express language in Article 15(f) providing that a prior
NJP does not bar a subsequent trial, the non-criminal law purposes of NJP,
the relatively modest punishments imposable, and the Supreme Court's admonition
in Hudson that "'only the clearest proof' will . . . transform what
has been denominated a civil remedy into a criminal penalty," 118 S.Ct.
at 493.
It is also noteworthy in the present case that
appellee's NJP consisted of a one-step reduction in grade and a modest
forfeiture of pay for 1 month, penalties that are clearly administrative
in nature. If this case had arisen in a civilian context, it is unlikely
that such minor employment-related sanctions would be viewed as establishing
a criminal law punishment under the stringent test established in Hudson.
Moreover, even if Hudson did not establish such a high hurdle, the
deference due to congressional judgments about the rights of servicemembers
would require us to apply a similarly high standard before declaring that
an act of Congress had unconstitutionally transformed a nonjudicial military
personnel action into a criminal proceeding under the Fifth Amendment.
See,
e.g.,
Parker
v. Levy, 417 U.S. 733, 756 (1974) ("Congress is permitted to legislate
both with greater breadth and with greater flexibility" with respect to
matters involving military discipline);
Middendorf v. Henry,
425 U.S. 25 (1976) (declining to apply the Sixth Amendment right to counsel
to summary courts-martial).

B. THE ACCUSED AS GATEKEEPER
Article 15(f) provides that "the fact that
a disciplinary punishment has been enforced may be shown by the accused
upon trial, and when so shown shall be considered in determining the measure
of punishment. . . ." When Congress enacted Article 15 to replace its predecessor,
Article of War 104, as well as at the time of the 1962 amendments, the
Manual for Courts-Martial permitted the defense to introduce a prior NJP
in extenuation or mitigation, but did not authorize the prosecution to
introduce prior NJP records in aggravation, regardless whether the NJP
involved the same or a different offense. See para. 79e,
Manual for Courts-Martial, U.S. Army, 1949; para. 75c(4), Manual
for Courts-Martial, United States, 1951; United States v. Johnson,
19 USCMA 464, 468, 42 CMR 66, 70 (1970)(upholding use of Article 15 by
prosecution after August 1, 1969). The Manual subsequently was revised
to permit a wide variety of personnel matters, including prior NJP records,
to be considered during sentencing, consistent with the broad scope of
sentencing information presented during federal civilian criminal proceedings.
Para. 75d, Manual for Courts-Martial, United States, 1969 (Revised
edition); see Johnson, supra at 465-66, 42 CMR at
67-68. The 1969 revision, however, did not focus on the circumstances where
the NJP and the court-martial involved the same act or omission, or address
the relationship between the statutory requirements of Article 15(f) and
the regulatory changes made in the Manual.
The relationship between Article 15(f) and
use of NJP records during sentencing was addressed by this Court in United
States v. Pierce, 27 MJ 367 (1989). Pierce concluded that where
the NJP and the court-martial involved the same offense, Article 15(f)
required that the defense, not the prosecution, determine whether the NJP
should be presented. 27 MJ at 369 ("Article 15(f) leaves it to the discretion
of the accused whether the prior punishment will be revealed to
the court-martial for consideration on sentencing." (Emphasis in original)).
In the context in which Article 15(f) was enacted and amended, and in view
of the fact that Congress has made no changes in Article 15(f) in the decade
since the opinion in Pierce was issued, we adhere to the conclusion
in Pierce that Article 15(f) establishes the accused as the gatekeeper
with respect to consideration of an NJP record during a court-martial involving
the same act or omission.
In the circumstances of the present case, the
military judge took appropriate action to ensure that the prior NJP was
introduced in a manner consistent with the gatekeeper role of the defense.
When trial counsel, at the outset of the sentencing proceeding, presented
various positive and negative items from appellee's service record, including
the NJP, the military judge brought the NJP to the attention of defense
counsel. The military judge ascertained that the defense was aware of its
contents and intended to make affirmative use of the NJP in its sentencing
case. See ___ MJ at (10-11). The first substantive use of
the NJP was made by the defense when the accused referred to the NJP in
his unsworn statement to show that he "admitted everything and received
punishment." We see no material prejudice to the gatekeeper rights of appellee
in this sequence in a judge-alone trial, even though it would have been
preferable to delay introduction of the NJP until the defense made substantive
use of it. See Art. 59(a), UCMJ, 10 USC § 859(a).
At the next stage in the sequence, trial counsel
commented negatively on the NJP during the Governments sentencing argument
by noting that appellee committed further misconduct shortly after being
punished under Article 15. The defense offered no objection and, during
its sentencing argument, referred to the specific punishments that appellee
had already received under NJP.
The issue before us is a statutory question.
In order to fulfill the purposes of Article 15(f), is it necessary to apply
the broad language of the dicta in Pierce, 27 MJ at 369 (stating
that "the nonjudicial punishment may not be used for any purpose
at trial" (emphasis in original)) to prevent any prosecution reference
to an NJP after the NJP has been brought into play by the defense?
The purpose of Article 15(f) is to prevent
the accused from being punished twice for the same offense as a matter
of statutory law even though such successive punishment is otherwise permissible
as a matter of constitutional law. Article 15(f) provides an accused with
two means of enforcing this statutory purpose: (1) a motion to dismiss
the charge on the grounds of former punishment for a minor offense; and
(2) as the gatekeeper on the question as to whether an NJP for a serious
offense will be brought to the attention of the sentencing authority.
The broad language of Pierce supports
the gatekeeper role in most circumstances. However, where the accused --
as gatekeeper -- has allowed the NJP to become an issue in the sentencing
proceeding, the Pierce dicta could be used to transform the shield
of Article 15(f) into a sword that misinforms or misleads the court-martial.
If the accused, as gatekeeper, chooses not
to introduce evidence of a prior NJP, the prosecution normally will be
precluded from introducing or commenting on such a record. The situation
is different, however, where the accused makes a statement that clearly
implies the absence of a prior NJP in a manner that clearly is material
to the sentencing proceeding. For example, if a servicemember punished
under Article 15 for violating a general order subsequently violates a
second order, and both matters are referred to trial by court-martial,
the accused should not be permitted to assert with impunity that at the
time he violated the second order, he had no prior disciplinary infractions.
If the accused, as gatekeeper, chooses to introduce
evidence of a prior NJP, the prosecution may introduce evidence, consistent
with the rules of evidence, that is necessary to ensure that the information
is accurate. The designation of the accused as the gatekeeper under Article
15(f) does not require us to permit an accused to provide inaccurate or
misleading information to the court-martial or to preclude the prosecution
from making a fair comment on matters reasonably raised or implied by the
defense references to the NJP.5/

C. WAIVER
In the present case, the defense did not object
to consideration of the NJP when the military judge brought it to defense
counsel's attention at the outset of the sentencing proceeding or to trial
counsel's reference to the NJP during the sentencing argument. Even if
the Governments reference to the NJP constituted error, the failure to
object constituted waiver under the applicable rules. RCM 1001(b)(2) ("[o]bjections
not asserted are waived" with respect to sentencing matters concerning
personnel records of an accused); cf. RCM 1001(g) (failure to object
to improper argument constitutes waiver).
The court below declined to affirm on the basis
of waiver, noting three grounds for reversal. First, the court concluded
that because the error was of constitutional dimension, waiver would not
apply unless the record contained an explanation to the accused by the
military judge of the rights being waived and a statement by the accused
confirming an intentional relinquishment of those rights. 48 MJ at 764;
47 MJ at 767-68. Although Pierce referred in dicta to due process
concerns, 27 MJ at 369 and n.4, our holding in that case was based on statutory
interpretation, not constitutional analysis. See Part IIIA, supra.
Use of a prior NJP at sentencing, while raising
important issues, is not so critical as to require a detailed inquiry by
the military judge and affirmative responses by the accused concerning
waiver. Because the accused is the gatekeeper under Article 15(f), it is
the responsibility of defense counsel to advise the accused of the significance
of that role. The decision as to whether a prior NJP should be introduced
depends on circumstances highly particular to the offenses at issue and
the full range of issues involved in the sentencing proceeding. Should
the advice of counsel be so defective that it affects the fairness of the
proceedings, it can be tested under the standards applicable to ineffective
assistance of counsel. See Strickland v. Washington, 466
U.S. 668, 687 (1984); United States v. Scott, 24 MJ 186, 187 (CMA
1987).
The court below cited the doctrine of "plain
error" as a basis for not relying on waiver. 48 MJ at 765. At a minimum,
the doctrine of plain error is reserved for cases in which an error materially
prejudices the substantial rights of an accused. See Art. 59(a);
United
States v. Powell, 49 MJ 460 (1998); see alsoid. at 466
(Sullivan, J., concurring in the result)(applying an even more stringent
plain-error test).
The court below also stated that it would not
find waiver in light of the comment in United States v. Claxton,
32 MJ 159, 162 (CMA 1991) that the Courts of Criminal Appeals possess plenary
review authority "to do justice." 48 MJ at 765. Claxton, however,
did not relieve the Courts of Criminal Appeals of the responsibility to
follow Article 59(a), which provides that a "sentence of a court-martial
may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused." See Powell,
49 MJ at 464. In the present case -- where the military judge ascertained
the defense plan to make use of the NJP, the first substantive use of the
NJP was made by the defense, and the comments by trial counsel simply highlighted
information about the sequence of events that was already before the military
judge -- we do not find that the circumstances require invocation of plain
error.


D. THE ORDER TO EXPUNGE THE NJP FROM APPELLEES
MILITARY PERSONNEL RECORD


The court below held that any prior punishment
under Article 15 must be treated "as void." The court noted that Article
15(f) refers to "serious" offenses as being "not properly punishable" under
Article 15. Because only "serious" offenses may be tried after NJP is imposed
for the same offense, the court concluded that designation of an offense
as "serious" necessarily implied that any earlier designation of the offense
as minor was erroneous and that the offense was not properly punishable
under NJP. The court further declared that evidence of the NJP must be
"expunged from Appellant's record and all lost rights, privileges, and
property restored before a sentence rehearing is held." The court added
that such actions would render "unnecessary" any "crediting of prior punishment"
"except for those aspects of imposed punishment that cannot be restored."
Under the lower courts ruling, any court-martial involving a prior NJP
for the same act or omission presumably would be halted upon return of
a conviction so that personnel officials could void the NJP and restore
lost rights, privileges, and property. Under this ruling, even after the
Article 15 had been voided, the accused would still retain the right to
introduce evidence of the prior NJP on the grounds that voiding and restoration
had not adequately addressed the effect of the prior punishment. See
48 MJ at 765.
The lower court's interpretation of Article
15 reflects an assumption that when a commander determines that an offense
is sufficiently "serious" to warrant trial by court-martial, that determination
renders illegal any prior determination that the offense should be disposed
of under Article 15 as a "minor" offense. The lower courts opinion assumes
that there is an identifiable line between "minor" and "serious" offenses.
There is no precise formula, however, for determining whether an offense
is "minor" or "serious." See para. 1e, Part V; United States
v. Harding, 11 USCMA 674, 29 CMR 490 (1960). The Manual makes it clear
that "[t]he decision whether an offense is 'minor' is a matter of discretion
for the commander imposing nonjudicial punishment. . . ." Para. 1e
(emphasis added). The vesting of discretion, as opposed to establishment
of a formula, permits commanders to treat nominally serious offenses as
minor, and promotes the policy of disposing of allegations at the lowest
possible level based upon individual circumstances. See RCM 306(b)
and Discussion; RCM 306(a), Discussion.
When a decision involves exercise of discretion
rather than application of a formula, the person exercising discretion
is empowered by law to select among a range of legally permissible alternatives.
See
Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604,
613, 614 (1950). It is reasonable and proper for one commander to view
an offense as appropriate for disposition under NJP and for another commander
(or the same commander upon further consideration) to view it as requiring
trial by court-martial. The fact that the second commander views the offense
differently from the first does not mean that the action of the first commander
in imposing NJP was void, absent an abuse of discretion.
Compare Cappella,
624 F.2d at 978-79, with Hagarty v. United States, 449 F.2d
352 (Ct. Cl. 1971); see Pierce, 27 MJ at 368-69 (suggesting
that a trial after NJP for the same offense would be impermissible if discretion
was abused on the basis of factors such as "sinister design, evil motive,
[or] bad faith"). The differing dispositions simply mean that the second
commander made a different choice within the range of permissible alternatives
for disposing of the charges. So long as both commanders acted within their
permissible range of discretion, there is no basis for treating the first
action as void.
In the present case, appellee did not appeal
his NJP as impermissible on the grounds that it was not "minor," or raise
such a challenge at trial. We decline to hold that a mere difference between
commanders in the exercise of discretion transforms a lawful NJP disposition
decision into a void act.

IV. FACTORS AFFECTING CONSIDERATION OF A PRIOR
NJP FOR THE SAME ACT OR OMISSION AT ISSUE
IN
A COURT-MARTIAL
A. PRESENTATION OF EVIDENCE
The role of the accused as gatekeeper under
Article 15(f), as discussed in Part IIIB of this opinion, provides a number
of options for the accused. The accused must consider whether, and under
what circumstances, a prior NJP record should be brought to the attention
of a court-martial involving the same act or omission punished under Article
15.
The accused, as gatekeeper, may choose whether
to introduce the record of a prior NJP for the same act or omission covered
by a court-martial finding and may also choose the forum for making such
a presentation. The accused may: (1) introduce the record of
the prior NJP for consideration by the court-martial during sentencing;
(2) introduce the record of the prior NJP during an Article 39(a), UCMJ,
10 USC § 839(a), session for purposes of adjudicating credit to be
applied against the adjudged sentence; (3) defer introduction of the record
of the prior NJP during trial and present it to the convening authority
prior to action on the sentence; or (4) choose not to bring the record
of the prior NJP to the attention of any sentencing authority. In that
regard, we note that an accused may have sound reasons for not presenting
the record of the prior NJP to any sentencing authority. Absent
a collateral issue, such as ineffective assistance of counsel, failure
to raise the issue of mitigation based upon the record of a previous NJP
for the same offense prior to action by the convening authority waives
an allegation that the court-martial or convening authority erred by failing
to consider the record of the prior NJP.
Each of the choices available to the accused
has differing consequences with respect to the manner in which the prosecution
may use the record of a prior NJP. If the accused does not present evidence
or argument concerning a prior NJP during sentencing or presents such evidence
only during an Article 39(a) session called for the purpose of adjudicating
credit, the accused has not opened the gate. As we noted in Pierce,
the prosecution may not introduce such evidence (e.g., in an effort
to show that the accused is a recidivist) or comment on its absence during
the merits of the sentencing case. Likewise, the prosecution may not use
such evidence in rebuttal of general evidence concerning the military character
of the accused. If, however, the accused during the sentencing case offers
evidence or argument which would attempt to establish as a material fact
in issue the absence of a prior NJP for the same offense, the prosecution
may introduce information about the prior NJP to the extent necessary to
ensure that the sentencing authority is not misled. For example, in a case
involving multiple offenses, if the accused asserts that no one brought
to his attention that his first act was improper, the prosecution could
introduce an NJP record covering the first offense.
If the accused presents evidence of the prior
NJP on the merits during sentencing in a manner that merely refers to the
NJP and requests appropriate credit under Article 15(f), the same considerations
normally preclude the prosecution from presenting evidence or argument
that would use the NJP against the member. If, however, the defense information
is inaccurate or misleading, the prosecution may provide such information
and argument as may be necessary to ensure that the sentencing authority
is not misled. Moreover, once the accused has brought the NJP to the attention
of the court-martial, the prosecution may offer fair comment on the NJP
in the context of matters already apparent from the record (e.g.,
if other charges involve events occurring after the NJP, it would be appropriate
to make fair comment upon that fact).
If the accused on the merits during sentencing
refers to the NJP for purposes beyond a mere request for Article 15(f)
credit (e.g., to discuss the circumstances of the NJP, to show contrition,
or to demonstrate acceptance of guilt), the prosecution may provide appropriate
rebuttal evidence and may make fair comment on the defense presentation.

B. CREDIT FOR PRIOR PUNISHMENT
Under Pierce, "an accused must be given
complete
credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar,
stripe-for-stripe." 27 MJ at 369 (emphasis in orginal). Pierce also
observed that "[b]ecause the types of punishment administered nonjudicially
and those adjudged by courts-martial are not always identical, there may
be some difficulties in reconciliation" and suggested utilization of a
table of equivalent punishments to facilitate the process of granting such
credit. Id. To date, the Executive Branch has chosen not to promulgate
such a table. While certain matters under NJP, such as admonitions and
reprimands, may require a degree of flexibility in providing an appropriate
credit, matters involving pay, extra duties, and restrictions on liberty
should be susceptible to standard credits. In the absence of such credits,
however, it is the responsibility of the military judge, the convening
authority, or the Court of Criminal Appeals, as appropriate, to make such
assessment.
In that regard, we offer the following guidance
to assist reviewing authorities in determining whether appropriate credit
has been provided. If the accused offers the record of a prior NJP during
sentencing by members for the purposes of evidence in mitigation,
the military judge must instruct the members on the specific credit to
be given for the prior punishment under NJP. In the alternative, the accused
may request that the instruction simply ask that the panel give consideration
to the punishment imposed in a prior NJP in adjudging the sentence. Because
Article 15(f) states that the panel shall consider the punishment imposed
in a prior NJP when introduced by the accused, the military judge is obligated
to give an appropriate instruction. See RCM 1005, Manual, supra.
In a judge-alone trial, if the accused offers the record of a prior NJP
for the purposes of evidence in mitigation during sentencing, the military
judge will state on the record the specific credit awarded for the prior
punishment.
If the accused chooses to raise the issue of
credit for prior punishment during an Article 39(a) session rather than
on the merits during sentencing, the military judge will adjudicate the
specific credit to be applied by the convening authority against the adjudged
sentence in a manner similar to adjudication of credit for illegal pretrial
confinement. If the accused chooses to raise the issue of credit for prior
punishment before the convening authority, the convening authority will
identify any credit against the sentence provided on the basis of the prior
NJP punishment. Likewise, if the issue is raised before the Court of Criminal
Appeals, that court will identify any such credit.
In the present case, the lower court was unable
to discern whether either the military judge or the convening authority
appropriately credited the prior NJP in the sentencing process, so it
ordered a rehearing on sentence. 48 MJ at 765. In Pierce, we held
that in such circumstances, it is "appropriate" for the lower court "to
either (1) ascertain from the judge an explanation of what his consideration
of the nonjudicial punishment implied; or (2) adjust appellant's sentence
to assure that he was not twice punished." 27 MJ at 370. If the court below
determines upon remand that the record does not indicate that the military
judge gave any consideration to the prior NJP, then it may either reassess
the sentence or order that the case be returned to the convening authority
for further action. See Pierce, supra at 369 ("Presumably,
the best place to repose the responsibility to ensure that credit is given
is the convening authority.") The convening authority may either provide
appropriate credit or order a sentence rehearing.

V. DECISION
The certified issues are answered in the affirmative.
The 1998 decision of the United States Coast
Guard Court of Criminal Appeals is affirmed as to findings and set aside
as to sentence. The record of trial is returned to the General Counsel
of the Department of Transportation for remand to that court for further
proceedings.
FOOTNOTES:
1/ See 32 MJ at
160 n.*.
2/ Defense
counsel apparently referred colloquially to the forfeiture as a "fine."
The NJP record reflects reduction to E-1 and forfeiture, not a fine, of
$200.00.
3/ (1)
"[w]hether the sanction involves an affirmative disability or restraint";
(2) "whether it has historically been regarded as a punishment"; (3) whether
it comes into play only upon a finding of scienter"; "(4) whether
its operation will promote the traditional aims of punishment -- retribution
and deterrence"; (5) "whether the behavior to which it applies is already
a crime"; (6) "whether an alternative purpose to which it may rationally
be connected is assignable for it"; and (7) "whether it appears excessive
in relation to the alternative purpose assigned."
118 S.Ct. at 493 (quoting
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).
4/ Depending
on the rank of the officer imposing the punishment and status of the servicemember,
the following may be imposed under Article 15(b): restriction to specified
limits for up to 60 days, correctional custody or arrest in quarters for
up to 30 days, and extra duties for up to 45 days. If attached to or embarked
in a vessel, up to 3 days' confinement on bread and water or reduced rations
is authorized, but this is a rarely used punishment. Art. 15(b).
5/ Because
the prior NJP involves the same acts or omissions for which the accused
stands convicted at the court-martial, the gatekeeper role of the accused
under Article 15(f) does not preclude the prosecution from referring to
those acts or omissions during sentencing proceedings. The gatekeeper role
extends only to the question whether punishment under NJP proceedings may
be introduced during a subsequent court-martial involving the same acts
or omissions.

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