## UNITED STATES ARMY COUR T 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 In fantry Division Stefan A. Wolfe, M ilitary Judge (trial) Jeffrey Lippert, Military Judg e (rehearing) Major Christopher M. Fo rd, Acting Staff Judge Advocate (pretrial) Major Jeri S. Hanes, Acting St aff Judge Advocate (post-trial)
Lieutenant Colonel James W. Nelso n, Staff Judge Advocate (rehearing)

For Appellant: Lieutenant Colonel Jonath an 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

-------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REVIEW

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MULLIGAN, Senior Judge:

A panel composed of offi cer and enlisted members sitting as a general courtmartial convicted appellant, contrary to hi s pleas, of conspiracy to steal military property of a value of more than $500, failure to obey a lawful or der, false official statement, unauthorized sale of military prope rty of a value of more than $500, wrongful possession of a Sc hedule III controlled substance, larceny of military property of a value of more than $50 0, and housebreaking in violation of Articles 81, 92, 107, 108, 11 2a, 121, and 130, Unifor m 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. TheSOLT—ARMY 20130029

2 convening authority approved the adjudged sentence and cr edited appellant with 214 days against the sentence to confinement.

This court affirmed the fi ndings of guilty but set aside the sentence because the military judge abused hi s discretion when he allo wed 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 authori zed a sentence rehearing, bu t in so doing limited the maximum punishment that could be approv ed by the conveni ng authority to a punitive discharge, confinemen t for nine years and four mo nths, forfeiture of all pay and allowances, and a reducti on to the grade of E-1 in or der 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 enlist ed members sitting as a general court-martial sentenced appellant to a bad-conduct disc harge, confinement for seven years, and forfeiture of all pa y and allowances. Th e 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 Boar d Reports (D&A repo rts). The reports
reflected incidents of misc onduct and th e resulting sanction s imposed against appellant while serving his original sent ence to confinement at the Disciplinary Barracks at Fort Leavenworth, Kansas. Th e government offered th e reports pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(2 ) as “any reco rds made or
maintained in accordance with departmental regulations th at reflect the past military efficiency, conduct, performance, and history of the accused.” Defense counsel objected to the admission of the D&A reports under Militar y Rule of Evidence [hereinafter Mil. R. Evid.] 403, generally, and on the basis that th e reports were not admissible as a personnel re cord 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, th e notation of sexual
misconduct as the infracti on under review

.

1 Appellant personally asserts seven assignments of e rror pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), which, after due consideration, we find
lack merit.SOLT—ARMY 20130029

3 The military judge admitted the D&A reports, reasoning that the documents were maintained in appellan t’s correctional treatment file (CTF) in accordance with Army Reg. 190-47, Military Police: The Army Corrections System [hereinafter AR 190-47], paras. 10-5 a 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 reco rds was subject to several redactions in each record to mask information that might suggest appellant’s or iginal sentence, such as the appellant’s
minimum release date from confinement, the number of prior Disciplinary and Adjustment boards, some of the infractio ns noted on the D&A report, appellant’s pleas to the infractio ns, and appellant’s good time credit. The military judge ordered any reference to “sex ual misconduct” deleted from the records. The military judge left intact the dates of the incidents underlying the D&A re ports, with the first
incident occurrin g on 28 March 2013 and the final incident occurri ng on 24 February 2015. In so doing, the military judge re asoned 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 ar gument, neither the defe nse 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 gr eat restraint in reviewing a judge’s decision s under Rule
403.” Id. (citations and internal quotation marks omitted) . “A military judge
receives less deference if he fails to articulate his bala ncing analysis on the record
and receives no deference is he fails to condu ct 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 matt er, 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 pe rsonnel records “made or
maintained in accordance with departmental regulations th at reflect the past military efficiency, conduct, performance, and histor y 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 th is file, to includ e D&A reports. We also note Army Regulation 27-10, Legal Services : Military Justice, para. 5-19 a (11) lists as an example of a personn el record admissible under R.C.M. 1001(b)(2) “[r]ecordsSOLT—ARMY 20130029

4 relating to discipline and ad justment boards and other di sciplinary reco rds filed in
corrections files in accordance with AR 190- 47.” We know of no case that addresses the admission of D&A report s made and maintained und er 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 m ilitary judge failed to articulate his analysis u nder Mil. R. Evid. 403 before admitting the D&A reports into evidence. Accordingly, we will afford his decision to admi t these docum ents no deference.

In our view, the reports, as redacted and admitted, were mi sleading, confusing and did little to convey a true picture of appellant’s performa nce or condu ct while
confined other than to show , perhaps, he committed so me amorphous infractions. Without more substance, th ese D&A reports injected th e potential risk of undue prejudice into the sentencing proceedings. We find, therefor e, that the military judge abused his discretion in admitting these reports.

Notwithstanding the milita ry judge’s abuse of discretion, we hold that appellant was not materially prejudiced by the admission of th e D&A reports. In examining prejudice, we mu st determine whether the ad mission of the documents substantially influenced the adjudged sentence. United States v. Griggs , 61 M.J. 402, 410 (C.A.A.F. 2005). “I n 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 pa nel considered evidence that appellant engaged in various sorts of infractions during a period while he was confin ed, and was in confinement
from at least his or iginal trial until 24 February 2015.

On the other side, the government presented evid ence showing the nature, extent, and seriousness of appellant’s offens es for which he was being resentenced. The members, so as not to k now appellant’s original sent ence, were inst ructed that these offenses carried a significant maximu m sentence to confin ement of forty years
and six months. The members nonetheles s 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 mu ted by the fact that neither trial nor
defense counsel refere nced these exhibits during their sentencing arguments.

2 In United States v. Davis , our Superior Court was pres ented with the issue of the admissibility of a Discipline a nd Adjustment Bo ard Report as a “ser vice 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 th e issue and elected instead to appl y a waiver analys is since trial
defense counsel did no t object to the admission of th e document under this rule. Id.
at 22.SOLT—ARMY 20130029

5 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: