UNITED STATES, Appellee

v.

Phines J. DOUGLAS III, Airman Basic

U.S. Air Force, Appellant

No. 01-0777

Crim. App. No. 33940

United States Court of Appeals for the Armed Forces

 Argued April 1, 2002

 Decided September 5, 2002

CRAWFORD, C.J., delivered the judgment of the Court, in

which GIERKE, J., joined. BAKER, J., and SULLIVAN, S.J., each

filed an opinion concurring in the result. EFFRON, J., filed a

dissenting opinion.

Counsel

For Appellant: Major Jefferson B. Brown (argued); Lieutenant

Colonel Beverly B. Knott, Lieutenant Colonel Timothy W. Murphy,

and Major Marc A. Jones (on brief); Captain Shelly W. Schools.

For Appellee: Major Mitchel Neurock (argued); Colonel

Anthony P. Dattilo and Major Jennifer R. Rider (on brief); Major

Lance B. Sigmon.

Military Judge: W. Thomas Cumbie

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Douglas, No. 01-0777/AF

2

Chief Judge CRAWFORD delivered the judgement of the Court.

Pursuant to his pleas, appellant was convicted at a general

court-martial for wrongfully appropriating a motor vehicle,

uttering a bad check, and violating a lawful general regulation

by misusing his government travel charge card, in violation of

Articles 121, 134, and 92 of the Uniform Code of Military

Justice (UCMJ), 10 USC §§ 921, 934, and 892. The convening

authority approved the sentence adjudged by officer members: a

bad-conduct discharge, confinement for one year, and total

forfeiture of pay and allowances. The Court of Criminal Appeals

affirmed the findings and sentence. 55 MJ 563 (2001). We

granted review of the following issues:1

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT

 PROSECUTION 3 – THE STIPULATION OF FACT FROM

 APPELLANT’S FIRST COURT-MARTIAL – WAS PROPERLY

 ADMITTED DURING SENTENCING AS “RELEVANT PERSONAL

 DATA AND CHARACTER OF PRIOR SERVICE UNDER RCM

 1001(B)(2).”

II. WHETHER APPELLANT WAS DENIED A FAIR SENTENCING

 HEARING WHEN PORTIONS OF PROSECUTION EXHIBITS 1

 AND 3, WHICH THE MILITARY JUDGE ORDERED REDACTED,

 WERE PRESENTED TO THE COURT MEMBERS WITHOUT

 REDACTION AND WITHOUT THE BENEFIT OF A CURATIVE

 INSTRUCTION.

We hold that while the trial judge erred in admitting the

evidence under RCM 1001(b)(3), Manual for Courts-Martial, United

 

1

 We heard oral argument in this case at the United States Air Force Academy

in Colorado Springs, Colorado, as part of the Court’s “Project Outreach.”

See United States v. Allen, 34 MJ 228, 229 n.1 (1992).
United States v. Douglas, No. 01-0777/AF

3

States (2000 ed.),2

 the court below did not err in holding the

evidence properly admissible as part of appellant’s personnel

records under RCM 1001(b)(2). We also hold that the prosecution

erred in failing to redact the materials as ordered by the

judge, but that such error was harmless.

At sessions held pursuant to Article 39(a), UCMJ, 10 USC

§ 839(a), trial counsel sought to admit Attachment 9 to

Prosecution Exhibit (Pros. Exh.) 1, a copy of the promulgating

order from appellant’s first court-martial, and Pros. Exh. 3, a

stipulation of fact from appellant’s prior court-martial. The

charges on which appellant was court-martialed on the prior

occasion were unrelated to those in the instant case. Defense

counsel objected to Pros. Exh. 3, arguing that it was

(a) cumulative; (b) not necessary to explain the offenses of

which appellant had been previously convicted (as shown on the

promulgating order); and (c) contained references to uncharged

misconduct. Defense counsel further contended that the sevenpage stipulation of fact should be barred after application of

the balancing test under Mil.R.Evid. 403, Manual, supra. Trial

counsel countered that Pros. Exh. 3 was admissible to show

appellant’s rehabilitative potential and to put the prior

conviction in context.

 

2

 RCM 1001(b)(3)(A) was amended on April 11, 2002, by Executive Order Number

13262 effective May 15, 2002. All other Manual provisions cited are

identical to the ones in effect at the time of appellant’s court-martial.
United States v. Douglas, No. 01-0777/AF

4

After conducting a Mil.R.Evid. 403 balancing test, the

military judge ruled that Pros. Exh. 3 was admissible, but

ordered the redaction of paragraph 123 and a portion of paragraph

44 of that exhibit. However, the judge announced that because

there was an overlap between the stipulation (Pros. Exh. 3) and

the promulgating order (Attachment 9 to Pros. Exh. 1):

I will inform the court members that the stipulation

and the order relate to the same court-martial

offenses and that the stipulation is offered only to

explain the facts underlying the court-martial

order. If the stipulation helps them to understand

the court-martial order, they may consider it. If

it does not, they are free to disregard it.

The military judge then granted the defense motion to redact the

sentence and action portions of the promulgating order.

Believing that the ordered redaction had taken place, the

military judge instructed the members not to speculate about

what information had been redacted, as well as the use to which

they could put Pros. Exhs. 1 and 3. While it is unclear from

the record whether the material was redacted, appellant argues

that it was not. Thus, appellant alleges trial counsel erred in

giving the unredacted exhibits to the members without the

benefit of a curative instruction.

 

3

 Paragraph 12 of Pros. Exh. 3 reads:

During a lawful consent search of Amn Douglas’ dormitory room, numerous

insufficient fund checks and past due notices were seized. Some of the

items were in the trashcan, unopened and ripped in half.

4

 The military judge ordered that the words “In order to determine whether or

not the stolen credit card was activated” be removed.
United States v. Douglas, No. 01-0777/AF

5

The Court of Criminal Appeals (CCA) found that the exhibits

in the record of trial had not been redacted in accordance with

the military judge’s instructions. Contrary to appellant’s

assertions, the CCA held that the entire promulgating order, to

include its recitation of the sentence and convening authority

action which the military judge ordered to be redacted, was

relevant and admissible. 55 MJ at 566 (citing United States v.

Maracle, 26 MJ 431, 432-33 (CMA 1988)).

With regard to Pros. Exh. 3, the stipulation of fact, the

lower court rejected the rationale of United States v.

Bellanger, No. 32373, 1977 WL833874 (A.F.Ct.Crim.App. Oct. 29,

1997)(unpub. op.), and held that “the underlying details of a

prior conviction are not admissible as ‘evidence of civilian or

military convictions’ under RCM 1001(b)(3)[.]” 55 MJ at 566.

Nonetheless, the lower court found that Air Force regulations

required records of trial to be kept through the appellate

process;5

 appellant’s first court-martial was still under appeal;

and Pros. Exh. 3 was relevant data pursuant to RCM 1001(b)(2).

Id. at 567.

 

5

 Paragraph 8.5.1, Air Force Instruction 51-201, Administration of Military

Justice (2 Nov. 1999), provides:

“Personnel records of the accused,” as referenced in RCM 1001(b) and

(d), includes all those records made or maintained in accordance with

Air Force directives that reflect the past military efficiency,

conduct, performance, and history of the accused, as well as any

evidence of disciplinary actions, including punishment under Article

15, UCMJ. The DD Form 493, Extract of Military Records of Previous

Convictions, may be used to introduce evidence of an accused’s previous

conviction.
United States v. Douglas, No. 01-0777/AF

6

Before this Court, appellant argues that the stipulation of

fact (Pros. Exh. 3) concerning the prior convictions was not

admissible under RCM 1001(b)(2) or RCM 1001(b)(3). With respect

to Issue II, the defense maintains that trial counsel’s failure

to redact portions of Pros. Exhs. 1 and 3, especially after the

military judge told the members that information from Attachment

9 to Pros. Exh. 1 had been redacted, denied appellant a fair

trial on sentencing.

DISCUSSION

The 1984 Manual expanded the information presented to the

sentencing authority. The Manual was intended to permit

the presentation of much of the same information

to the court-martial as would be contained in a

presentence report, but it does so within the

protections of an adversarial proceeding, to which

rules of evidence apply..., although they may be

relaxed for some purposes.

Drafters’ Analysis of RCM 1001, Manual, supra at A21-69. This

expansion of admissible sentencing evidence was reaffirmed in

the 2002 amendment to RCM 1001(b)(3)(A). See note 2, supra.

The new rule clarifies the term “conviction” and admits relevant

evidence of a civilian conviction without necessarily being

bound by the action, procedure, nomenclature, of the civilian

jurisdictions. Id. at Analysis to RCM 1001(b)(3)(A).

RCM 1001(a)(1) provides: “After findings of guilty have

been announced, the prosecution and defense may present matter
United States v. Douglas, No. 01-0777/AF

7

pursuant to this rule to aid the court-martial in determining an

appropriate sentence.” The rule then lists a number of items

that may be submitted, including service data, personnel

records,6 and prior convictions.

In United States v. Ariail, 48 MJ 285, 287 (1998), this

Court held that while evidence may not be admissible under one

rule (i.e., RCM 1001(b)(3) as a prior conviction), that does not

preclude its admission under a different rule (i.e., RCM

1001(b)(2) as a personnel record) if the evidence is relevant

and reliable. See United States v. Abel, 469 U.S. 45, 56

(1984).

We agree with the court below that a stipulation of fact

contained in the record of trial of a previous court-martial

(such as Pros. Exh. 3 in the case at hand) does not qualify as

“evidence of a conviction” under RCM 1001(b)(3). As the dissent

notes, there is a split among the service courts concerning

information that may be introduced under RCM 1001(b)(3) as

evidence of a prior conviction. __ MJ at (8); see United States

v. Brogan, 33 MJ 588, 593 (NMCMR 1991), aff’d on other grounds,

40 MJ 270 (CMA 1994); United States v. Nellum, 24 MJ 693 (ACMR

1987). These cases deal with stipulations of fact created for

 

6

 RCM 1001(b)(2) states that “trial counsel may ... introduce from the

personnel records of the accused evidence of the accused’s ... character of

prior service.... ‘Personnel records of the accused’ includes any records

made or maintained in accordance with departmental regulations that reflect

the past military efficiency, conduct, performance, and history of the

accused.”
United States v. Douglas, No. 01-0777/AF

8

use during current, ongoing courts-martial in order to explain

the facts, circumstances, and sentence of a prior court-martial.

That issue is not before this Court. Here, we are examining the

admissibility of a stipulation of fact, previously created for a

prior court-martial, that was maintained in appellant’s

personnel file.

While Pros. Exh. 3 was not admissible under RCM 1001(b)(3),

it was properly maintained in appellant’s personnel file in

accordance with Air Force departmental regulations, reflected

appellant’s conduct, and was the type of personnel record

envisioned by RCM 1001(b)(2). Accordingly, the lower court did

not err in finding that Pros. Exh. 3 was an admissible personnel

record at the time that it was admitted into evidence in this

case.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.
United States v. Douglas, No. 01-0777/AF

BAKER, Judge (concurring in the result):

Issue I presents two questions. First, is a

stipulation of fact from a previous court-martial

admissible on sentencing as evidence of a prior conviction

under RCM 1001(b)(3), Manual for Courts-Martial, United

States (2000 ed.)? Alternatively, or in addition, is a

stipulation of fact from a previous court-martial

admissible on sentencing as a personnel record under RCM

1001(b)(2) if offered as evidence of a prior conviction? I

agree with Senior Judge Sullivan’s response to these

questions and offer the following supplementary comment.

I

RCM 1001(b) establishes guidelines for the

prosecution’s presentation of presentencing evidence. The

rule contemplates the admission of five distinct types of

evidence, including evidence of prior convictions of the

accused.1

 The non-binding Discussion following RCM

1001(b)(3)(C) allows that such information “may be proved

by use of the personnel records of the accused, by the

record of the conviction, or by the order promulgating the

result of trial.” As the lower court identified, the plain

language of the rule appears to contemplate, literally,

 

1 “The trial counsel may introduce evidence of military or civilian

convictions of the accused.” RCM 1001(b)(3)(A).
United States v. Douglas, No. 01-0777/AF

2

evidence of conviction – the fact of conviction – and not

an accounting of the underlying acts leading to conviction.

However, the Court of Criminal Appeals went too far in

holding that the underlying details of a prior conviction

are not admissible under RCM 1001(b)(3), even when

necessary to explain the nature of the offense. 55 MJ 563,

566 (A.F.Ct.Crim.App. 2001).

Notwithstanding the differences regarding the result

in this case, the majority’s view of the law should now be

clear. A stipulation of fact from a prior conviction may

be admissible under RCM 1001(b)(3) where the military judge

determines the stipulation is necessary to explain the

nature of the prior conviction.2 However, this should only

occur on those rare occasions when the promulgating order

or Form 493 does not clearly state the prior offense.

Further, it may not be used as a vehicle to develop the

facts behind the prior conviction. Finally, even when

 

2 This may be illustrated with reference to offenses under Articles 133

or 134, Uniform Code of Military Justice, 10 USC §§ 933 and 934, where

citation to the article and formulaic citation to the elements would

not necessarily afford a member any understanding of the underlying

prior offense, from which to draw judgments regarding rehabilitation.

See, too, the Army Court’s statement in United States v. Nellum that

sometimes promulgating orders “are often so abbreviated that they

provide virtually no details regarding the offenses to which they make

reference.” 24 MJ 693, 695 (ACMR 1987)(footnote omitted). In the

instant case, the Court of Criminal Appeals similarly observed, “We

understand that evidence of a civilian conviction often contains little

more than a citation to the statute the appellant was convicted of

violating and notice of the sentence imposed.” 55 MJ at 566.
United States v. Douglas, No. 01-0777/AF

3

reasonably necessary to understand the nature of the prior

conviction, the military judge must still determine

whether, in such a context, the stipulation’s probative

value outweighs any unfair prejudice to the defendant. See

Mil.R.Evid. 403, Manual, supra.

In the present case, the military judge identified the

correct framework3 and admitted the stipulation as

“necessary to explain the facts and circumstances

surrounding the offenses.”4

 I disagree with this

conclusion, which is diminished by the judge’s subsequent

 

3

 The Military Judge ruled:

. . . dealing with . . . the stipulation of facts from the

prior court-martial, what the Army Court of Criminal

Appeals in US v. Nellum[,] at 24 MJ 693 and the Air Force

Court of Criminal Appeals in the unpublished case of United

States [v.] Bellanger, specifically authorized the

prosecution to present underlying details of a previous

conviction when necessary to explain the nature of the

offenses and when the probative value is not outweighed by

the danger of unfair prejudice. I find that the

stipulation of fact offered by the prosecution is necessary

to explain the facts and circumstances surrounding the

offenses.

4

 The judge determined:

 Specifically, as to Charge I, the stipulation explains

that the assault occurred on duty but with an unloaded

weapon, facts that are not contained in the court-martial

order. In Additional Charge I, the stip shows how the

accused attempted to steal. In Additional Charge II, the

stipulation shows how the accused facilitated the larceny

by his relationship with the store clerk, again, matters

not contained in the court-martial promulgating order. As

to Additional Charges V and VI, the stipulation shows that

the accused is guilty as an aider and abettor rather than

the actual perpetrator of the offense. In Additional

Charge VII, the stipulation shows to whom the checks were

written, again, matters not contained in the promulgating

order.
United States v. Douglas, No. 01-0777/AF

4

admonishment to the members that, ”[i]f [the stipulation]

helps you in understanding the offenses for which the

accused was convicted in his first court-martial, then you

may use it for that purpose. If it does not assist you,

you are free to disregard it.”

The strongest argument for the need for additional

details rests with appellant’s prior conviction under

Article 128, Uniform Code of Military Justice, 10 USC § 928,

for committing an assault on one Airman Padron by pointing

an M-16 rifle at him. The stipulation alerted the members

that this offense occurred while appellant was on duty and

with an unloaded weapon. But these are details of

potential mitigation and aggravation that should have been

considered at appellant’s first trial. They are not

necessary as evidence of conviction or to explain what the

conviction was for at appellant’s second trial. Moreover,

the introduction of the more detailed stipulation that

overlapped the promulgating order ran the risk of directing

the members’ energy to the prior conviction, rather than

guiding them to an appropriate consideration of the present

sentence.

Nonetheless, for the reasons cited by Senior Judge

Sullivan, I find that the error was harmless. Since the

stipulation overlapped the promulgating order, any
United States v. Douglas, No. 01-0777/AF

5

additional detail that was provided was not of the sort

that might prejudice appellant. Some of these additional

details may even have been helpful to appellant, e.g., the

weapon used during the assault was unloaded; he was

convicted as an aider and abettor rather than a principal.

II.

While the Air Force Court of Criminal Appeals

concluded that stipulations of fact are not admissible as

records of conviction, the court determined that in this

case, the stipulation of fact was admissible as a personnel

record of the accused under RCM 1001(b)(2). 55 MJ at 567.

Leaving further regulation and interpretation to the branch

Secretaries, the President has authorized the prosecution

to introduce “from the personnel records of the accused

evidence of... character of prior service.” RCM 1001(b)(2).

Interpreting the term as it appears in all provisions of

RCM 1001(b), the Secretary of the Air Force has defined

“personnel records of the accused” as “includ[ing] all

those records made or maintained in accordance with Air

Force directives that reflect the past military efficiency,

conduct, performance, and history of the accused, as well

as any evidence of disciplinary actions, including

punishment under Article 15, UCMJ.” Para. 8.5.1, Air Force
United States v. Douglas, No. 01-0777/AF

6

Instruction (AFI) 51-201, Administration of Military

Justice (2 Nov. 1999).

Ordinarily, the views of the service courts

interpreting their own service regulations are due

deference. How much deference is due, and at what point

this deference dissipates, is subject to interpretation

under our case law. In Moultak and Manuel, this Court

suggested that “some deference” was due where the lower

court’s interpretation was persuasive. United States v.

Moultak, 24 MJ 316, 318 (CMA 1987); United States v.

Manuel, 43 MJ 282, 287 (1995). However, in United States

v. Shavrnoch, 49 MJ 334, 338 n.2 (citing Moultak and

Manuel), this Court did “not find the court’s discussion of

the regulation so lacking in merit that we should depart

from our traditional approach of giving significant

deference to the Courts of Criminal Appeals in the

interpretation of the regulations issued by their own

departments.” Regardless of the standard of review, I do

not find the Air Force Court’s reasoning persuasive.

The Secretary of the Air Force has promulgated a

thorough Instruction on the operation of the personnel

records system within the Air Force, including where

pertinent information is kept. See AFI 36-2608, Military

Personnel Records (1 July 1996). The Instruction includes
United States v. Douglas, No. 01-0777/AF

7

a table of more than sixty pages listing the forms and

other material to be filed in a servicemember’s personnel

record. This table describes the disposition of only two

pieces of information pertaining to courts-martial: the

Charge Sheet (DD Form 458) and “[c]ourt-martial orders

containing or reflecting approved findings of guilt . . .

.” Id. at A2.1.78 and A2.1.347. There is no indication

that the Secretary intended the entire record of a previous

court-martial, or elements of such a record, to be included

as a part of an Air Force personnel record. The record is,

itself, an independent legal document from which

information is taken to supplement the personnel record.

Moreover, this question of law ultimately hinges on

the meaning of the Rules for Courts-Martial and not Air

Force regulations. The President’s decision to provide

separate rules addressing “character of service” and

“evidence of prior convictions” would be meaningless if

evidence of prior convictions could come in as personnel

records for the purpose of proving prior convictions.

Otherwise, RCM 1001(b)(2) would swallow all that is

referenced in 1001(b)(3), and there would be no need for a

more specific rule addressing prior convictions. Applying

the same logic, as Senior Judge Sullivan argues, there

would be no limitation on what might come into sentencing
United States v. Douglas, No. 01-0777/AF

8

evidence through the “personnel record” trap door. Among

other things, personnel regulations could permit not only

evidence of conviction, but the relitigation of marginally

relevant facts and, potentially, even relitigation of

acquittals.

Further, the Air Force Court's analysis depends on the

fortuitous fact that appellant's appeal was pending.

Reliance on this argument would lead to the anomaly that

not only would prior convictions receive different

treatment between services, but even within the Air Force

the nature of prior evidence of conviction would depend on

the timing of appeal. In the case of pending appeals, the

Government could extend the logic of the Court of Criminal

Appeals and seek admission of extensive and irrelevant

details to evidence a prior court-martial conviction,

whereas, in the case of a finally adjudicated conviction,

sentencing evidence would be limited to proof of the

conviction alone under RCM 1001(b)(3).

As this Court stated in United States v. Ariail, 48 MJ

285, 287 (1998), “RCM 1001(b)(2) does not provide blanket

authority to introduce all information that happens to be

maintained in the personnel records of an accused.” It

still must be relevant, reliable, and credible for the

purpose for which it is offered. If that purpose is
United States v. Douglas, No. 01-0777/AF

9

evidence of prior conviction, then RCM 1001(b)(3) is the

applicable rule.
United States v. Douglas, No. 01-0777/AF

SULLIVAN, Senior Judge (concurring in the result):

Unlike the lead opinion, I conclude that the stipulation of

fact from appellant's prior court-martial was not admissible as

sentencing evidence at his second court-martial. The President

has given appropriate guidance as to the types of records

(subject to their relevance) that the parties may introduce at

this stage of the trial. He has clearly delineated between

"[e]vidence of prior convictions of the accused" (RCM 1001(b)(3))

and "[p]ersonal data and character of prior service of the

accused." RCM 1001(b)(2). I agree with the lead opinion that the

challenged stipulation was not admissible under RCM 1001(b)(3).

However, I disagree with the lead opinion that the challenged

evidence was admissible under RCM 1001(b)(2).

RCM 1001(b)(2) permits the admission of

evidence of the accused's marital status;

number of dependents, if any; and character

of prior service. Such evidence includes

copies of reports reflecting the past

military efficiency, conduct, performance,

and history of the accused and evidence of

any disciplinary actions including

punishments under Article 15 [UCMJ].

This evidence must be taken from “the personnel records of the

accused.” The plain language of this rule shows that the

President did not envision it permitting the introduction of

evidence of a prior criminal trial. The obvious intent was to

limit it to disciplinary documents traditionally maintained in a

servicemember's personnel file.
United States v. Douglas, No. 01-0777/AF

2

Moreover, the simple fact that service regulations require

that records of trial be kept through the appellate process did

not, somehow, magically transform the stipulation of fact from

the prior trial into a "personnel record." A record of trial is

not a record “made or maintained in accordance with Air Force

Directives . . .." See para. 8.5.1, Air Force Instruction 51-201,

Administration of Military Justice (2 Nov. 1999). Rather, a

record of trial has its own independent legal significance and

record-keeping requirement. See Article 54, Uniform Code of

Military Justice (UCMJ), 10 USC § 854.

At trial, the Government made no argument that this document

was a personnel record. Moreover, I see nothing in any of the

materials presented in connection with this case that required

the maintenance of the proceedings of a court-martial in

appellant's personnel file (the traditional repository of such

records).

Finally, I am left to wonder as to the limits of the lead

opinion’s approach to this question. Will records of an

investigation under Article 32, UCMJ, 10 USC § 832, or other

pretrial proceedings (i.e., the staff judge advocate's pretrial

advice) be admitted? Should the Government be permitted to call

witnesses from the prior trial or introduce the entire

transcript, including exhibits excluded by the military judge?*

 

*

 In response to a question I posed during oral argument, the Government

contended that a record of an acquittal would be admissible. This was

somewhat tantamount to a hoary and now discredited tradition that a record of

an acquittal should be included in a personnel record as a "favorable" matter.
United States v. Douglas, No. 01-0777/AF

3

Notwithstanding the above, I do not believe that appellant

suffered substantial harm from either this error or the failure

of the Government to redact portions of this exhibit and the

promulgating order as directed by the military judge. This was

appellant's second conviction for the same type of offenses

within a five-month period. The record shows that he had the

temerity to drive one of the fruits of his crimes, a used Lexus

car for which he had uttered a worthless check, to his prior

court-martial, thus demonstrating his contempt for the military

justice system. (Pros. Ex. 1) The very serious nature of the

present offenses, coupled with the admissible evidence of his

prior misconduct, rendered the errors noted above harmless under

any standard of review. See Art. 59(a), UCMJ, 10 USC § 859(a).
United States v. Douglas, No. 01-0777/AF

EFFRON, Judge (dissenting):

In the present case, trial counsel sought to introduce

evidence of a prior conviction in support of the prosecution’s

sentencing case. The military judge admitted the evidence,

subject to the condition that the trial counsel redact

information that the military judge determined to be

inadmissible as either irrelevant or potentially confusing. The

trial counsel neglected to redact the information before

submitting it to the members of the court-martial. Contrary to

the ruling of the military judge, the unredacted information was

considered during the sentencing deliberation by the members.

The members adjudged a sentence that included a punitive

discharge, confinement for one year, and total forfeitures.

I agree with Judge Baker and Senior Judge Sullivan to the

extent they conclude that the document at issue was not

admissible in this case either as a personnel record under RCM

1001(b)(2), Manual for Courts-Martial, United States (2000 ed.),

or as a record of a prior conviction under RCM 1001(b)(3).

Assuming that the records in question fell within the category

of sentencing information potentially admissible under RCM

1001(b), the critical responsibility for determining whether the

records were admissible in this case rested with the military

judge. The military judge determined that the records were
United States v. Douglas, No. 01-0777/AF

2

admissible only if redacted. The Court affirms appellant’s

sentence on the ground that the failure to redact was harmless.

I respectfully dissent in view of the unique aspects of

sentencing by members in the military justice system, the

critical role of the military judge in ensuring fairness during

the adversarial sentencing process, and the adverse sentencing

impact of the information the military judge ordered redacted in

this case.

I. CONSIDERATION OF PRIOR CONVICTIONS AND

PERSONNEL RECORDS DURING SENTENCING

In U.S. district courts, the sentence in noncapital

criminal cases is imposed by the trial judge. The primary

source of sentencing information is a report prepared by a

probation officer rather than an adversarial evidentiary

proceeding. See Fed. R. Crim. P. 32. Sentencing in courtsmartial is quite different, relying on an adversarial process.

See United States v. Cleveland, 29 MJ 361 (CMA 1990). The

military judge plays a critical role in ruling on the

admissibility of evidence. Unless the accused has elected a

bench trial, the sentence is adjudicated by the members of the

court-martial. See RCM 1001. As the Drafters’ Analysis

accompanying RCM 1001 notes:

Sentencing procedures in Federal

civilian courts can be followed in courts-
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3

martial only to a limited degree.

Sentencing in courts-martial may be by the

military judge or members. See Article 16

and 52(b), [Uniform Code of Military Justice

(UCMJ), 10 USC §§ 816 and 852(b)]. The

military does not have -- and it is not

feasible to create -- an independent,

judicially supervised probation service to

prepare presentence reports. See Fed. R.

Crim. P. 32(c).

Manual, supra at A21-69. In terms of the type of information

that may be considered during sentencing, the Analysis states:

This rule allows the presentation of much of

the same information to the court-martial as

would be contained in a presentence report,

but it does so within the protections of an

adversarial proceeding, to which rules of

evidence apply . . ., although they may be

relaxed for some purposes.

Id. (citation omitted).

A. HISTORICAL DEVELOPMENT

The current adversarial process reflects the historical

evolution of restrictions on the types of evidence admissible

during sentencing proceedings. Consideration of personnel

records during sentencing is a relatively recent development in

American military law. Until the late nineteenth century,

courts-martial did not receive evidence of prior convictions,

much less adverse administrative information, during the

sentencing process. See William Winthrop, Military Law and

Precedents 387 (2d ed. 1920 reprint). Regulations adopted in
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4

1886 authorized consideration of recent convictions during the

member’s current enlistment for purposes of “inducing or

increasing punishment.” Id.

Prior to enactment of the UCMJ in 1950, consideration of

prior convictions during sentencing generally was limited to

offenses committed within an enlisted member’s current period of

service, or a previous period not terminated under honorable

conditions, with the Army imposing a further limitation to

convictions occurring within the previous year for enlisted

members and within the previous three-year period for others.

See paras. 306 and 307, Manual for Courts-Martial, U.S. Army,

1917 and 1921; para. 79c, Manual for Courts-Martial, U.S. Army,

1928 and 1949; paras. 436-41, Naval Courts and Boards, 1937.

The Manual did not authorize provision of information for

sentencing purposes from personnel records, except for records

of conviction, until 1928. Even then, the evidence was

restricted to the modest information provided on the first page

of the charge sheet regarding “age, pay, and service,” as well

as prior discharges and former nonjudicial punishment for the

same act or omission. Para. 79a and App. 3, 1928 and 1949

Manual.

The 1951 Manual, which implemented the newly enacted UCMJ,

imposed similar restrictions on sentencing information,

including a three-year limitation on consideration of prior
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5

convictions. Para. 75b and App. 5, Manual for Courts-Martial,

United States, 1951.

Following enactment of the Military Justice Act of 1968,

the President issued a comprehensive revision entitled Manual

for Courts-Martial, United States, 1969 (Rev. ed.). The 1969

Manual continued the authority for introduction of data from

page one of the charge sheet and use of prior convictions, while

increasing the time period for prior convictions from three to

six years, removing the current enlistment limitation, and

making it clear that convictions were not admissible until

appellate review was completed. Para. 75b, 1969 Manual.

Reflecting the establishment of the military judiciary by

the Military Justice Act of 1968, the 1969 Manual added a new

authority in paragraph 75d, entitled “Optional matter presented

when court-martial constituted with military judge.” Subject to

military departmental regulations, this provision authorized the

trial counsel to present to the military judge “any personnel

records of the accused,” a term defined to “include all those

records made or maintained in accordance with departmental

regulations which reflect the past conduct and performance of

the accused.” Id. The military judge was required to rule on

any objections by the accused, and the accused was permitted to

submit matter in rebuttal. In cases tried before members, the

military judge was authorized to “admit for their consideration
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6

any information from these records which reflects the past

conduct and performance of the accused.” Id. The Drafters’

Analysis noted that this “new paragraph . . . broadens the

information to be considered by the sentencing agency in a

court-martial,” giving the military judge “broad discretion in

determining relevance and in ruling on objections to items

presented.” Dep’t. of the Army Pamphlet 27-2, Analysis of

Contents, Manual for Courts-Martial, United States, 1969,

Revised Edition, at 13-6 (July 1970). The Analysis added that

“[t]he procedure contemplated by this change is similar to that

under Federal Rule of Criminal Procedure 32, dealing with

presentencing reports, but it limits items which may be

considered to items contained in official records and

accordingly puts the accused on notice of what may be considered

against him.” Id.

The next comprehensive revision of the Manual, issued in

1984, retained the basic provisions of the 1969 Manual’s

presentencing procedure, while removing both the six-year

limitation on prior convictions and the restriction against

considering convictions that had not been subject to complete

appellate review. See RCM 1001 and A21-61, Manual for CourtsMartial, United States, 1984. With minor changes, the current

provisions are similar to the 1969 rules, as modified in 1984.

See RCM 1001 and A21-69, Manual (2000 ed.). In the present
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7

Manual, RCM 1001(b)(1) directs the trial counsel to “inform the

court-martial of the data on the charge sheet relating to the

pay and service of the accused and the duration and nature of

any pre-trial restraint.” RCM 1001(b)(2) provides:

 Under regulations of the Secretary

concerned, trial counsel may obtain and

introduce from the personnel records of the

accused evidence of the accused’s marital

status; number of dependents, if any; and

character of prior service. Such evidence

includes copies of reports reflecting the

past military efficiency, conduct,

performance, and history of the accused and

evidence of any disciplinary actions

including punishments under Article 15.

 “Personnel records of the accused”

includes any records made or maintained in

accordance with departmental regulations

that reflect the past military efficiency,

conduct, performance, and history of the

accused. If the accused objects to a

particular document as inaccurate or

incomplete in a specified respect, or as

containing matter that is not admissible

under the Military Rules of Evidence, the

matter shall be determined by the military

judge. Objections not asserted are waived.

With respect to prior convictions, RCM 1001(b)(3)(A) states:

The trial counsel may introduce

evidence of military or civilian convictions

of the accused. For purposes of this rule,

there is a “conviction” in a court-martial

case when a sentence has been adjudged.

Prior convictions and information from personnel records

also may be admissible as evidence of “any aggravating

circumstances directly relating to or resulting from the
United States v. Douglas, No. 01-0777/AF

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offenses of which the accused has been found guilty,” RCM

1001(b)(4), evidence concerning the accused’s rehabilitative

potential, RCM 1001(b)(5), or evidence in rebuttal of sentencing

information provided by the defense, RCM 1001(d). RCM 1001(b)

also expressly authorizes defense objections to evidence of

prior convictions and other service records on the grounds of

inaccuracy, incompleteness, or inadmissibility under the

Military Rules of Evidence.

B. ADMISSIBILITY OF PRIOR CONVICTIONS UNDER RCM 1001(b)(3)

According to the nonbinding Discussion accompanying RCM

1003(b)(3)(C), “[n]ormally, previous convictions may be proved

by use of the personnel records of the accused, by the record of

the conviction, or by the order promulgating the result of

trial. See DD Form 493 (Extract of Military Records of Previous

Convictions).” The current version of DD Form 493, which has

been in effect since 1984, includes information regarding the

type of court-martial, a synopsis of the specifications, and the

sentence adjudged, as well as a “script” to be used for

introducing the form in courts-martial.

There is a split among the lower courts as to the extent of

information that may be introduced under RCM 1001(b)(3) as

evidence of a prior conviction. The Army court has held that a

stipulation of fact may be introduced to explain the
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9

circumstances of a prior conviction, United States v. Nellum, 24

MJ 693 (ACMR 1987), while the Navy-Marine Corps court has held

that “evidence to explain the detailed facts underlying a prior

conviction is inadmissible in the prosecution’s case-in-chief

during sentencing.” United States v. Brogan, 33 MJ 588, 593

(NMCMR 1991), aff’d on other grounds, 40 MJ 270 (CMA 1994)

(summary disposition).

C. INTRODUCTION OF INFORMATION CONCERNING A PRIOR CONVICTION

 AS A PERSONNEL RECORD UNDER RCM 1001(b)(2)

To be admissible under RCM 1001(b)(2), the record must be:

(1) a “personnel record [] of the accused” or a summary or copy

thereof; (2) within the category of records authorized by the

Secretary concerned to be considered for sentencing purposes;

(3) “made or maintained in accordance with departmental

regulations”; and (4) reflective of “the past military

efficiency, conduct, performance, and history of the accused.”

In United States v. Ariail, 48 MJ 285, 287 (1998), we held that

“[t]he fact that [the prosecution’s sentencing evidence] may not

meet the criteria for admission under RCM 1001(b)(3) as a prior

conviction . . . does not prevent its admission under RCM

1001(b)(2) if relevant and reliable.” Our ruling permitted

introduction of a civilian conviction listed by the accused on a

security clearance form that was maintained as a personnel
United States v. Douglas, No. 01-0777/AF

10

record in accordance with departmental regulations, the validity

of which was not challenged by the defense. We cautioned,

however, that

RCM 1001(b)(2) does not provide blanket

authority to introduce all information that

happens to be maintained in the personnel

records of an accused. Personnel records

may contain entries of questionable

accuracy, relevance, or completeness.

Id.; cf. United States v. Harris, 56 MJ 480 (2002) (noting the

role of RCM 1001(b)(2) in regulating the admissibility of

personnel records during sentencing); see also United States v.

Vasquez, 54 MJ 303 (2001) (a personnel record containing an

admission of guilt in an unrelated request for discharge in lieu

of court-martial could not be considered during sentencing in

light of the prohibition in Mil.R.Evid. 410 against use of plea

discussions). The fact that a record might meet the criteria in

RCM 1001(b)(2) as a personnel record of the accused does not

relieve the military judge of the responsibility for determining

whether it is otherwise admissible under the Military Rules of

Evidence.

II. FACTUAL BACKGROUND

During the sentencing proceedings in the present case,

trial counsel sought to introduce evidence of appellant’s prior

conviction for unrelated offenses under RCM 1001(b)(3)
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11

("Evidence of prior convictions of the accused"). Trial counsel

did not offer a DD Form 493 or similar record of the

convictions, but instead offered the promulgating order and a

stipulation of fact from the prior court-martial.

Defense counsel opposed admission of the stipulation and

moved to redact portions of the promulgating order, contending

that the material at issue was irrelevant or, in the

alternative, that it presented a danger of unfair prejudice

substantially outweighing any probative value. See Mil.R.Evid.

402 and 403, Manual (2000 ed.).

The military judge, who granted the defense motion in part,

concluded that portions of the promulgating order should be

redacted as irrelevant. Specifically, the military judge

concluded that the information regarding the sentence and the

convening authority’s action should be redacted under the

particular circumstances of this case, citing the potential for

unnecessary speculation by the members as to reasons for the

convening authority's reduction of the sentence. See

Mil.R.Evid. 403. Without defense objection, the remainder of

the promulgating order was admitted as evidence of the prior

conviction. With respect to the stipulation of fact, the

military judge ruled that although it contained information

"necessary to explain the facts and circumstances surrounding
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12

the offenses," it could be admitted only after redacting

material related to uncharged misconduct.

For reasons not explained in the record, trial counsel

failed to redact the material as ordered by the military judge.

The unredacted promulgating order and stipulation were both

provided to the members for consideration during sentencing.

The members sentenced appellant to a bad-conduct discharge,

confinement for one year, and total forfeitures.

III. DISCUSSION

The lead opinion would affirm this case on the ground that

the evidence, even if not admissible as a prior conviction under

RCM 1001(b)(3), was admissible as a personnel record under RCM

100(b)(2), and that any error in the failure to redact was

harmless. __ MJ at (2-3). Assuming the evidence came from a

properly maintained personnel record that was subject to

introduction for sentencing under Secretarial regulations, that

would answer only the question of whether the evidence could

have been introduced if it was otherwise admissible. It would

not answer the question that is at the heart of the case --

whether the unredacted records should have been used as a basis

for sentencing appellant. The latter question -- whether the

unredacted records should have been introduced -- was a matter

committed to the discretion of the military judge. As discussed
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in Part I, supra, the rulings of the military judge on

sentencing evidence are particularly critical in view of the

military justice system’s reliance on lay members to adjudicate

the sentence in an adversarial setting. In this case, the

military judge ruled that the items of evidence at issue should

not be admitted without redactions because of the potential

prejudicial effect on appellant. Neither the lead opinion nor

the opinion of the lower court demonstrates that the military

judge abused his considerable discretion in reaching this

conclusion.

Despite the ruling of the military judge, the potentially

prejudicial information was introduced during the sentencing

proceeding with no corrective action at the trial level. There

were three distinct elements of appellant’s sentence -- a

punitive discharge, a year’s confinement, and total forfeitures.

Neither the lead opinion nor the opinion of the lower court

provides a substantial basis for concluding the uncharged

misconduct was so insignificant that the failure to redact had

no effect on any part of the sentence.

Appellant convinced the presiding judge at the trial of the

potential for prejudice, and the judge attempted to protect his

legitimate interests. We should ensure compliance with the

order of the military judge, which was designed to ensure the

basic fairness of the sentencing proceeding, by remanding this
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case for a rehearing on sentence. If the prosecution elected to

offer the redacted records at such a rehearing, the military

judge could make findings of fact and conclusions of law as to

whether the redacted records fall within the category of records

potentially admissible under RCM 1001(b)(2), whether the records

should be admitted into evidence, and whether any further

redactions should be made in such records.