UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 NICHOLAS A. SOLT 

United States Army, Appellant 

ARMY 20130029 

Headquarters, 7th Infantry Division 

Stefan A. Wolfe, Military Judge (trial) 

Jeffrey Lippert, Military Judge (rehearing) 

Major Christopher M. Ford, Acting Staff Judge Advocate (pretrial) 

Major Jeri S. Hanes, Acting Staff Judge Advocate (post-trial) 

Lieutenant Colonel James W. Nelson, Staff Judge Advocate (rehearing) 

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L. 

Tregle, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain 

Nathan S. Mammen, JA (on brief). 

29 December 2016 

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SUMMARY DISPOSITION ON FURTHER REVIEW 

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MULLIGAN, Senior Judge: 

 A panel composed of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of conspiracy to steal military 

property of a value of more than $500, failure to obey a lawful order, false official 

statement, unauthorized sale of military property of a value of more than $500, 

wrongful possession of a Schedule III controlled substance, larceny of military 

property of a value of more than $500, and housebreaking in violation of Articles 

81, 92, 107, 108, 112a, 121, and 130, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. §§ 881, 892, 907, 908, 912a, 921, 930 (2006). The panel 

sentenced appellant to a dishonorable discharge, confinement for ten years, 

forfeiture of all pay and allowances, and reduction to the grade of E-1. The 
SOLT—ARMY 20130029 

2

convening authority approved the adjudged sentence and credited appellant with 214 

days against the sentence to confinement. 

This court affirmed the findings of guilty but set aside the sentence because 

the military judge abused his discretion when he allowed testimony regarding the 

sentence of appellant’s co-conspirator to be presented to the panel. United States v. 

Solt, ARMY 20130029, 2015 CCA LEXIS 229, *16 (Army Ct. Crim. App. 28 May 

2015) (mem. op.). We authorized a sentence rehearing, but in so doing limited the 

maximum punishment that could be approved by the convening authority to a 

punitive discharge, confinement for nine years and four months, forfeiture of all pay 

and allowances, and a reduction to the grade of E-1 in order to remedy a due process 

violation occasioned by the government’s dilatory post-trial processing. Id. at *22. 

 On 23-24 November 2016, a panel of officer and enlisted members sitting as a 

general court-martial sentenced appellant to a bad-conduct discharge, confinement 

for seven years, and forfeiture of all pay and allowances. The convening authority 

approved the sentence as adjudged. 

 In this Article 66, UCMJ, appeal, defense appellate counsel asserts the 

military judge abused his discretion by admitting during the sentence rehearing 

Discipline and Adjustment Board reports (D&A reports) accumulated by appellant 

while serving his original sentence to confinement.1

 Finding no error, we affirm the 

sentence. 

BACKGROUND 

 At appellant’s sentence rehearing, the government introduced seven JRCF 

Forms 4-4, Discipline and Adjustment Board Reports (D&A reports). The reports 

reflected incidents of misconduct and the resulting sanctions imposed against 

appellant while serving his original sentence to confinement at the Disciplinary 

Barracks at Fort Leavenworth, Kansas. The government offered the reports pursuant 

to Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(2) as “any records made or 

maintained in accordance with departmental regulations that reflect the past military 

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

objected to the admission of the D&A reports under Military Rule of Evidence 

[hereinafter Mil. R. Evid.] 403, generally, and on the basis that the reports were not 

admissible as a personnel record under R.C.M. 1001(b)(2). Defense counsel also 

made several particularized objections under Mil. R. Evid. 403 to references of prior 

boards, appellant’s pleas, and, in some of the D&A reports, the notation of sexual 

misconduct as the infraction under review. 

 

1

 Appellant personally asserts seven assignments of error pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which, after due consideration, we find 

lack merit. 
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3

 The military judge admitted the D&A reports, reasoning that the documents 

were maintained in appellant’s correctional treatment file (CTF) in accordance with 

Army Reg. 190-47, Military Police: The Army Corrections System [hereinafter AR 

190-47], paras. 10-5a and b (15 Jun. 2006), and therefore were, as a matter of law, 

“personnel records of the accused” within the meaning of R.C.M. 1001(b)(2). The 

admission of the records was subject to several redactions in each record to mask 

information that might suggest appellant’s original sentence, such as the appellant’s 

minimum release date from confinement, the number of prior Disciplinary and 

Adjustment boards, some of the infractions noted on the D&A report, appellant’s 

pleas to the infractions, and appellant’s good time credit. The military judge 

ordered any reference to “sexual misconduct” deleted from the records. The military 

judge left intact the dates of the incidents underlying the D&A reports, with the first 

incident occurring on 28 March 2013 and the final incident occurring on 24 February 

2015. In so doing, the military judge reasoned that while these dates showed 

appellant was incarcerated for some period of time, they did not indicate the actual 

sentence adjudged at the original trial. The military judge did not set forth his 

rationale under Mil. R. Evid. 403 for admitting the D&A reports with these 

redactions. 

 During sentencing argument, neither the defense nor the government 

referenced or commented upon the D&A reports. 

LAW AND DISCUSSION 

 

We review a military judge’s decision to admit sentencing evidence for an 

abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). “A 

military judge enjoys wide discretion in applying M.R.E. 403,” and “[o]rdinarily, 

appellate courts exercise great restraint in reviewing a judge’s decisions under Rule 

403.” Id. (citations and internal quotation marks omitted). “A military judge 

receives less deference if he fails to articulate his balancing analysis on the record 

and receives no deference is he fails to conduct the Mil. R. Evid. 403 balancing test 

at all.” United States v. Ponce, 75 M.J. 630, 634 (Army Ct. Crim. App. 2016) 

(citing Manns, 54 M.J. at 166). 

 As an initial matter, we agree with the military judge that D&A reports, 

properly maintained, may be admissible under R.C.M. 1002(b)(2). That rule 

provides for the admission during presentencing of personnel records “made or 

maintained in accordance with departmental regulations that reflect the past military 

efficiency, conduct, performance, and history of the accused.” AR 190-47 is such a 

Department of the Army Regulation. Paragraph 10-5a,b sets forth the requirements 

for establishing and maintaining a CTF for each inmate in the Army Corrections 

System and the contents of this file, to include D&A reports. We also note Army 

Regulation 27-10, Legal Services: Military Justice, para. 5-19a(11) lists as an 

example of a personnel record admissible under R.C.M. 1001(b)(2) “[r]ecords 
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relating to discipline and adjustment boards and other disciplinary records filed in 

corrections files in accordance with AR 190-47.” We know of no case that addresses 

the admission of D&A reports made and maintained under AR 190-47 that were 

admitted under R.C.M. 1002(b)(2) over an objection by trial defense counsel.2

 

 That, of course, doesn’t end our inquiry. The military judge failed to 

articulate his analysis under Mil. R. Evid. 403 before admitting the D&A reports 

into evidence. Accordingly, we will afford his decision to admit these documents no 

deference. 

 In our view, the reports, as redacted and admitted, were misleading, confusing 

and did little to convey a true picture of appellant’s performance or conduct while 

confined other than to show, perhaps, he committed some amorphous infractions. 

Without more substance, these D&A reports injected the potential risk of undue 

prejudice into the sentencing proceedings. We find, therefore, that the military 

judge abused his discretion in admitting these reports. 

 Notwithstanding the military judge’s abuse of discretion, we hold that 

appellant was not materially prejudiced by the admission of the D&A reports. In 

examining prejudice, we must determine whether the admission of the documents 

substantially influenced the adjudged sentence. United States v. Griggs, 61 M.J. 

402, 410 (C.A.A.F. 2005). “In this evaluation, we ‘weigh factors on both sides.’” 

United States v. Hayward, 73 M.J. 904, 908 (Army Ct. Crim. App. 2014) (quoting 

United States v. Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011)). 

 On one side, the panel considered evidence that appellant engaged in various 

sorts of infractions during a period while he was confined, and was in confinement 

from at least his original trial until 24 February 2015. 

 On the other side, the government presented evidence showing the nature, 

extent, and seriousness of appellant’s offenses for which he was being resentenced. 

The members, so as not to know appellant’s original sentence, were instructed that 

these offenses carried a significant maximum sentence to confinement of forty years 

and six months. The members nonetheless adjudged a sentence of seven years 

confinement, three years less than originally adjudicated. And finally, any impact of 

the admission of the D&A reports was muted by the fact that neither trial nor 

defense counsel referenced these exhibits during their sentencing arguments. 

 

2

 In United States v. Davis, our Superior Court was presented with the issue of the 

admissibility of a Discipline and Adjustment Board Report as a “service record as a 

prisoner” under R.C.M. 1001(b)(2). 44 M.J. 13, 18 (C.A.A.F. 1996). The court 

declined to decide the issue and elected instead to apply a waiver analysis since trial 

defense counsel did not object to the admission of the document under this rule. Id. 

at 22. 
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 Considering the record as a whole, we are confident the panel was not 

substantially influenced by the admission of the D&A reports in arriving at the 

adjudged sentence in the case. 

CONCLUSION

 The findings of guilty and sentence are AFFIRMED. 

 Judge FEBBO and Judge BURTON concur. 

FOR THE COURT: 

JOHN P. TAITT 

Acting Clerk of Court 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: