## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CARLOS I. VELASQUEZ United States Army, Appellant

ARMY 20110296

Headquarters, Fort Bliss David H. Robertson, Milit ary Judge (arraignment) Andrew C. Efaw, Mi litary Judge (trial) Colonel Francis P. King, Staff Judge Advocate

For Appellant: Colonel Patric ia A. Ham, JA; Major Jaco b D. Bashore, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA; Major Thomas E. Brzo zowski, JA (on brief).

9 April 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

MARTIN, Judge:

The military judge sitting as a special court-mar tial convicted appellant, pursuant to hi s pleas of being drunk and disorderly in violation of Article 134, Uniform Code of Military Ju stice, 10 U.S.C. § 934 ( 2006) [hereinafter UCMJ]. Contrary to his plea s, a panel composed of officer members convicted appellant of striking a superior commissioned officer in violation of Ar ticle 90, UCMJ. The panel sentenced appellant to the maximum punishment of a bad- conduct discharge, confinement for twelve months, forfeitu re of $978.00 pay pe r month for twelve months, and reduction to the grade of E- 1. The convening auth ority approved the adjudged sentence.VELASQUEZ—ARMY 20110296

2 Appellant raises three assi gnments of error for our review under Article 66, UCMJ, of which one merits discussion but no relief. Appellant asserts that the military judge committed plain error in allowing the panel to consider the records of appellant’s prior nonjudici al punishment imposed purs uant to Article 15, UCMJ (Article 15s). For the reasons set forth below, we find appe llant waived this issue.

BACKGROUND

Appellant and his friend, Specialist (SPC) MW, a ttended an Oktoberfest celebration on the Fort Bliss, Texas, inst allation. After spe nding approximately
twelve hours at the party, and drinking he avily throughout the da y, they walked to their vehicle in the parking lot. The ev idence was undisputed that appellant was highly intoxicated. Before ar riving at the car, SPC MW left appellant in place while
he returned to the fest ival area in order to use the restroom.

Captain (CPT) DW and her husband, Mr. RW, also attended the Oktoberfest
celebration. The evidence showed they also drank alc ohol during the evening. The
exact number of drinks th ey consumed thr oughout the course of the night was disputed, and both were clea rly agitated by their encounter with appellant later in the evening. As they walked through th e parking lot towards their car, CPT DW, who was wearing civilian clothes, came up on appellant speaking loudly and using expletives. Captain DW told appellant to “[p]olice hims elf up.” Appellant then
directed obscenities and ex pletives at CPT DW.

By that time, SPC MW had returned from the restroom and found appellant shouting at CPT DW. Specialis t MW attempted to step in fr ont of appellan t, just as appellant swung his fist at CPT DW. Appellant misse d, and CPT DW immediately tried to back away from the situation, direct ing appellant to, “At ease.” At the same time, she yelled out her name and rank. Appellant resp onded with a false rank, yelling that he was a Sergeant First Class. Appellant lunged at her ag ain, this time striking her in the face with his fist. A German Army offi cer, who was also attending the festival, attempted to step in front of appellant, an d tried to calm him down. Appellant still managed to grab CPT DW by the lapel of her shirt, and pushed her in the chest and into a nearby van. Her husband, who was talking to someone and walking about fifty feet behi nd his wife, heard her yell out her name and rank, and immediately ran over to her lo cation. He arrived ju st as appellant was pushing his wife in to the van.

Mr. RW and the German o fficer subsequently tackled appellan t to the ground. A few moments later, th e Fort Bliss police responded to the incident. They directed all the parties to separate. Mr. RW was still very agitated, and CPT DW tried to calm her husband and at the same time, identify herself to law enforcement. Specialist MW stood by, and the German officer stepped back as well. Appellant however, did not cooperate wi th the police officers’ verbal commands, and theyVELASQUEZ—ARMY 20110296

3 forcibly took him down to the ground, placing him in handcuffs. Appellant continued to yell expletives, obscenities, a nd racial slurs at the arresting officers.

Appellant’s Presen tencing Strategy

On 19 April 2011, ap pellant was convicted at a special court-martial of being
drunk and disord erly and striking a superior commissioned officer. During presentencing, the governm ent introduced a Field Gr ade Article 15, dated 4 December 2008, showing appell ant was punished for drunke n operation of a vehicle in violation of Article 111, UCMJ. The battali on commander admini stered the Field
Grade Article 15 when appellant was a Private First Cl ass (E-3), reducing him to the grade of E-1. The government also intr oduced a Summarized Article 15, dated 9 June 2010, showing that appe llant was punished for drunk and disorderly conduct in violation of Article 134, UC MJ. The defense counsel di d not object to either Article 15, and the mi litary judge allowed both exhibits into evidence. Appellant’s Enlisted Record Brief (ERB) wa s also offered and admitted into evidence. The ERB reflects appellant’s rank re duction, though it does not ex pressly indicate the reason for the reduction, i.e. , imposition of the Fi eld Grade Article 15.

After the Article 15s were admitted into evidence, appellan t’s defense counsel used the underlying miscondu ct as a crucial part of th e matters he presented in extenuation. Throug hout the presentencing case, appellant’s defense counsel attempted to show that ap pellant’s command knew he ha d a serious problem with alcohol dependency , but failed to adequa tely address the issue.  First, defense
counsel elicited evidence on direct examin ation from three diffe rent witnes ses that appellant was an excellent duty performer th at struggled with al cohol off-duty. The
witnesses testified as to some of the de tails underlying both incidents for which appellant received Article 15s. One defense witness referred directly to the
Summarized Article 15 itsel f during direct examination. All the defe nse sentencing witnesses testified they believed that with the appropri ate counseling and treatment, appellant had high rehabilitative potentia l. Next, during appellant’s unsworn statement, he continually mentioned his dr inking problems as well as the details regarding the previous alcohol related incidents underlyi ng the Article 15s. Finally, during the defense couns el’s presentencing argument, he repeatedly referred to appellant’s past troubles with alcohol, disc ussed the specific occasions that were the subject of both Article 15s, and used the events to bu ild a timeline in an attempt to show that appellant’s beha vior reflected a downward sp iral culminating in the charged offenses. Defense co unsel then argued fo r a minimal period of confinement

 Appellant was a victim of a sexual assault when he arrived to the unit in February
2008. Defense counsel asserted that appell ant used alcohol as a coping mechanism
to deal with the assa ult, and the command was insensit ive to the incident and failed to ensure appellant had access to all the victim services he needed after the incident.VELASQUEZ—ARMY 20110296

4 and for retention in the Army because appellant desperately needed substance abuse counseling.

LAW AND DISCUSSION

On appeal, appellant argues that the mi litary judge abused his discretion by admitting appellant’s prior Article 15s because they do not meet the requirements
contained in Rule for Courts -Martial [hereinafter R.C. M.] 1001(b)(2). However,
when the documents were offe red by the trial counsel, th e defense counsel expressly stated there were no objections. Furthe rmore, defense counse l incorporated the
conduct which was the basis of the Article 15s into hi s presentenci ng strategy. Considering the defense’s presentencing strategy, we find appellant expressly waived the right to cha llenge the admissibility of the Article 15s on appeal.

Forfeiture and waiver are distinct conc epts. “A forfeiture is basically an oversight; a waiver is a deliberate decisi on not to present a ground for relief that might be availabl e in the law.” United States v. Campos , 67 M.J. 330, 331 (C.A.A.F. 2009) (quoting United States v. Cook , 406 F.3d 485, 487 (7th Cir. 2005)).
This distinction is critical be cause forfeited issues will be reviewed for plain error,
while a valid waiver leaves no error to assess on appeal. United States v. Harcrow

, 66 M.J. 154, 156 (C.A .A.F. 2008) (citing United States v. Pappas , 409 F.3d 828, 830 (7th Cir. 2005)) . “It is therefore clear that whether an issue is ‘waive d’ by a party is
a threshold issue that must be addressed before a court can consider the substantive issue being appealed.” United States v. Clifton , 71 M.J. 489, 493 (C.A.A.F. 2013).

We look to the re cord to determine whether or not appellant affirmatively waived the admission of his prior Article 15 s into evidence. An issue can not only be waived expressly, but also by inaction, as long as the failure to raise an objection
at trial “constituted an intentional relinquishme nt of a known right.” Harcrow , 66 M.J. at 156 (citing United States v. Olano , 507 U.S. 725, 733–3 4 (1993)). “The clarity of the waiver . . . depend[s] on the facts a nd circumstances surrounding the right and alleged waiver.” United States v. Rera , ARMY 20090071, 2011 WL 1345064, at *2 (Army Ct. Crim . App. 7 Apr. 2011) (mem. op.). Of note, the alleged error here does not implicate a constitution al right but rather the violation of a presentencing procedural ru le promulgated by the Pres ident under hi s Article 36, UCMJ, authority. See R.C.M. 1001(b )(2). In Harcrow and Campos , our superior
court discussed several different considerat ions bearing on the issue of waiver.
Harcrow , 66 M.J. at 157; Campos , 67 M.J. at 333. When taken together , these cases reveal five, nonexhau stive factors relevant to deciding whether a waiver has been clearly established “and there is an intent ional relinquishment or abandonm ent of a known right or privilege,” Harcrow , 66 M.J. at 157. Firs t, we must determine whether the waiver was part of the defense strategy. Id. at 158. Second, we must
ascertain whether the right was known or knowable at the time of the alleged waiver.
Id . Third, we must determine whether th e defense had knowledg e of the expectedVELASQUEZ—ARMY 20110296

5 testimony or documentary ev idence and had ti me and opportunity to review it. Campos , 67 M.J. at 333. Fourth , we must consider whet her the appellant alleges
ineffective assistance of counse l in regard to the waiver. Id. Finally, we must
decide if the defense was given the opportun ity to object to th e admissibility of the
evidence. Id. After reviewing the facts of this case in light of these five factors, we conclude appellant wa ived this issue.

As to the first factor, we find appellant intentionally re linquished this right as part of his pres entencing strategy. Wh en the Article 15s were offered, the military judge inquired into whether appellant ha d any objections, and appellant’s defense counsel affirmatively stated, without comment, that he had none. In United States v. Campos , our superior court dis tinguished between situat ions where testimony is admitted without objection or comment, and those circumstances where the defense counsel displayed an in tentional relinquishment of a known right. Campos , 67 M.J. at 332. Indeed, if the former were the case, we woul d simply review for plain error.
Id. In this case, however, the defense counsel did not simply indicate that he had no objection to the Arti cle 15s—instead, he infused his presentencing case with evidence of the prior misconduct that resu lted in the non-judic ial punishment. The
defense counsel elicited te stimony from three different witnesses on direct examination that directly referred to the prior misconduct. On e witness even went
so far as to mention the su mmarized Article 15 itself. In his unsworn statement, appellant discussed both incidents that were the subject of the Article 15s at length. Finally, during the defense counsel’s presentenci ng argument, he discussed the timing and circumstances of in cidents that resulted in th e Article 15s in order to argue that the command failed to take th e appropriate steps to address appellant’s problems with alcohol.

For the second factor, we conclude the right was kno wn or knowable at the
time of trial. Rule for Courts-Martial 1001(b)(2) provides, in pertinent part:

Under regulations of the Secretary concerned, trial counsel may obtain and in troduce from the personnel
records of the accuse d . . . evidence of any disciplinary
actions includi ng punishments under Article 15.

“Personnel records of the ac cused” includes any records
made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused.

R.C.M. 1001(b)(2) (emphasi s added). The Army requ irements for maintaining records of non-judic ial punishment are contained in Army Reg. 27-10, Legal Services: Military Jus tice [hereinafter AR 27-10] (3 Oct. 2011). Specifically, an
Article 15 administered to a soldier in th e rank of Specialist (E -4) or below can onlyVELASQUEZ—ARMY 20110296

6 be filed locally with the unit and must be “destr oyed at the end of 2 years from the date of imposition of the punishment.” AR 27-10, pa ra. 3-37b. Additionally, Summarized Article 15s are sp ecifically excluded from th e list of pers onnel records
that a trial counsel can submit pursuant to R.C.M. 1001(b)(2 ), (d). AR 27-10, paras. 3-44b., 5-29(a)(4).

At the time of appellant’s court-martial, his prior Field Grade Article 15 was beyond the two-year retentio n period. The Summ arized Article 15, while still within the two-year retention period and properly maintained in appellant’s local file, was
inadmissible under R. C.M. 1001(b)(2). The restrict ions provided in R.C.M. 1001 (b)(2) and AR 27-10, are well established and have remained static for several years. See, e.g. United St ates v. Weatherspoon , 39 M.J. 762, 76 7 (A.C.M.R. 1994) (highlighting the same prov isions and reaching the same conclusion as to their admissibility).

For the third and fourth factors, we conclude appellant knew of the
Article15s’ existence and knew of his right to challe nge their admissi bility yet chose
not to do so. Both Article 15s were administered persona lly to appell ant well in advance of trial. Appellant was arraig ned on 4 January 2011, a nd the court-martial took place over two days fro m 18–19 April 2011. The busine ss records affidavit for the field grade Article 15 do cument was dated 2 November 2010, while the affidavit
for the Summarized Article 15 document was dated 12 April 2 011. The ERB was dated 2 November 2010, and clearly reflecte d that appellant ha d been reduced in
rank on 4 December 2008. Furt hermore, appellant does no t allege that the trial
defense counsel was in effective. Thus, appellant’s knowledge of th e Article 15s, combined with the pres umption of his defense counsel’s competence, see United
States v. Cronic , 466 U.S. 648, 658 (1984), lead us to conclude that appellant knew of his right to challenge admi ssibility of the Artic le 15s. As to the fifth and final factor, the record clearly establishes that the military judge ga ve the trial defense counsel the opportun ity to object to the documents, and the defense counsel expressly stated he ha d no objections with out further comment.

Based on the review of the record, we therefore conc lude that th e right to challenge the admissibility of the Article 15s was waived at trial which leaves us
with no error to co rrect on appeal.

CONCLUSION

On consideration of the entire recor d, appellant’s assign ed errors, and the matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we hold the findings of guilty are correct in law and fact. Accordingly, the findi ngs of guilty and the approved sentence are AFFIRMED.VELASQUEZ—ARMY 20110296

7 Senior Judge KE RN and Judge AL DYKIEWICZ concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: