UNITED STATES ARMY COURT 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, Military Judge (arraignment) 

Andrew C. Efaw, Military Judge (trial) 

Colonel Francis P. King, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain 

Ian M. Guy, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, 

JA; Major Thomas E. Brzozowski, JA (on brief). 

9 April 2013 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

MARTIN, Judge: 

The military judge sitting as a special court-martial convicted appellant, 

pursuant to his pleas of being drunk and disorderly in violation of Article 134, 

Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. 

Contrary to his pleas, a panel composed of officer members convicted appellant of 

striking a superior commissioned officer in violation of Article 90, UCMJ. The 

panel sentenced appellant to the maximum punishment of a bad-conduct discharge, 

confinement for twelve months, forfeiture of $978.00 pay per month for twelve 

months, and reduction to the grade of E-1. The convening authority approved the 

adjudged sentence. 
VELASQUEZ—ARMY 20110296 

2 

Appellant raises three assignments 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 nonjudicial punishment imposed pursuant to Article 15, UCMJ 

(Article 15s). For the reasons set forth below, we find appellant waived this issue. 

BACKGROUND 

Appellant and his friend, Specialist (SPC) MW, attended an Oktoberfest 

celebration on the Fort Bliss, Texas, installation. After spending approximately 

twelve hours at the party, and drinking heavily throughout the day, they walked to 

their vehicle in the parking lot. The evidence was undisputed that appellant was 

highly intoxicated. Before arriving at the car, SPC MW left appellant in place while 

he returned to the festival 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 alcohol during the evening. The 

exact number of drinks they consumed throughout the course of the night was 

disputed, and both were clearly agitated by their encounter with appellant later in 

the evening. As they walked through the parking lot towards their car, CPT DW, 

who was wearing civilian clothes, came upon appellant speaking loudly and using 

expletives. Captain DW told appellant to “[p]olice himself up.” Appellant then 

directed obscenities and expletives at CPT DW. 

 By that time, SPC MW had returned from the restroom and found appellant 

shouting at CPT DW. Specialist MW attempted to step in front of appellant, just as 

appellant swung his fist at CPT DW. Appellant missed, and CPT DW immediately 

tried to back away from the situation, directing appellant to, “At ease.” At the same 

time, she yelled out her name and rank. Appellant responded with a false rank, 

yelling that he was a Sergeant First Class. Appellant lunged at her again, this time 

striking her in the face with his fist. A German Army officer, who was also 

attending the festival, attempted to step in front of appellant, and 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 behind his wife, heard her yell out her name 

and rank, and immediately ran over to her location. He arrived just as appellant was 

pushing his wife into the van. 

 Mr. RW and the German officer subsequently tackled appellant to the ground. 

A few moments later, the 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 with the police officers’ verbal commands, and they 
VELASQUEZ—ARMY 20110296 

3 

forcibly took him down to the ground, placing him in handcuffs. Appellant 

continued to yell expletives, obscenities, and racial slurs at the arresting officers. 

Appellant’s Presentencing Strategy 

On 19 April 2011, appellant was convicted at a special court-martial of being 

drunk and disorderly and striking a superior commissioned officer. During 

presentencing, the government introduced a Field Grade Article 15, dated 4 

December 2008, showing appellant was punished for drunken operation of a vehicle 

in violation of Article 111, UCMJ. The battalion commander administered the Field 

Grade Article 15 when appellant was a Private First Class (E-3), reducing him to the 

grade of E-1. The government also introduced a Summarized Article 15, dated 9 

June 2010, showing that appellant was punished for drunk and disorderly conduct in 

violation of Article 134, UCMJ. The defense counsel did not object to either 

Article 15, and the military judge allowed both exhibits into evidence. Appellant’s 

Enlisted Record Brief (ERB) was also offered and admitted into evidence. The ERB 

reflects appellant’s rank reduction, though it does not expressly indicate the reason 

for the reduction, i.e., imposition of the Field Grade Article 15. 

After the Article 15s were admitted into evidence, appellant’s defense counsel 

used the underlying misconduct as a crucial part of the matters he presented in 

extenuation. Throughout the presentencing case, appellant’s defense counsel 

attempted to show that appellant’s command knew he had a serious problem with 

alcohol dependency, but failed to adequately address the issue.

 First, defense 

counsel elicited evidence on direct examination from three different witnesses that 

appellant was an excellent duty performer that struggled with alcohol off-duty. The 

witnesses testified as to some of the details underlying both incidents for which 

appellant received Article 15s. One defense witness referred directly to the 

Summarized Article 15 itself during direct examination. All the defense sentencing 

witnesses testified they believed that with the appropriate counseling and treatment, 

appellant had high rehabilitative potential. Next, during appellant’s unsworn 

statement, he continually mentioned his drinking problems as well as the details 

regarding the previous alcohol related incidents underlying the Article 15s. Finally, 

during the defense counsel’s presentencing argument, he repeatedly referred to 

appellant’s past troubles with alcohol, discussed the specific occasions that were the 

subject of both Article 15s, and used the events to build a timeline in an attempt to 

show that appellant’s behavior reflected a downward spiral culminating in the 

charged offenses. Defense counsel then argued for 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 appellant used alcohol as a coping mechanism 

to deal with the assault, and the command was insensitive 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 military 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 offered by the trial counsel, the defense counsel expressly 

stated there were no objections. Furthermore, defense counsel incorporated the 

conduct which was the basis of the Article 15s into his presentencing strategy. 

Considering the defense’s presentencing strategy, we find appellant expressly 

waived the right to challenge the admissibility of the Article 15s on appeal. 

Forfeiture and waiver are distinct concepts. “A forfeiture is basically an 

oversight; a waiver is a deliberate decision not to present a ground for relief that 

might be available 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 because 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 ‘waived’ 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 record to determine whether or not appellant affirmatively 

waived the admission of his prior Article 15s 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 relinquishment of a known right.” Harcrow, 66 

M.J. at 156 (citing United States v. Olano, 507 U.S. 725, 733–34 (1993)). “The 

clarity of the waiver . . . depend[s] on the facts and 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 constitutional right but rather the violation of a 

presentencing procedural rule promulgated by the President under his Article 36, 

UCMJ, authority. See R.C.M. 1001(b)(2). In Harcrow and Campos, our superior 

court discussed several different considerations 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, nonexhaustive factors relevant to deciding whether a waiver has been 

clearly established “and there is an intentional relinquishment or abandonment of a 

known right or privilege,” Harcrow, 66 M.J. at 157. First, 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 the defense had knowledge of the expected 
VELASQUEZ—ARMY 20110296 

5 

testimony or documentary evidence and had time and opportunity to review it. 

Campos, 67 M.J. at 333. Fourth, we must consider whether the appellant alleges 

ineffective assistance of counsel in regard to the waiver. Id. Finally, we must 

decide if the defense was given the opportunity to object to the admissibility of the 

evidence. Id. After reviewing the facts of this case in light of these five factors, we 

conclude appellant waived this issue. 

As to the first factor, we find appellant intentionally relinquished this right as 

part of his presentencing strategy. When the Article 15s were offered, the military 

judge inquired into whether appellant had any objections, and appellant’s defense 

counsel affirmatively stated, without comment, that he had none. In United States v. 

Campos, our superior court distinguished between situations where testimony is 

admitted without objection or comment, and those circumstances where the defense 

counsel displayed an intentional relinquishment of a known right. Campos, 67 M.J. 

at 332. Indeed, if the former were the case, we would simply review for plain error. 

Id. In this case, however, the defense counsel did not simply indicate that he had no 

objection to the Article 15s—instead, he infused his presentencing case with 

evidence of the prior misconduct that resulted in the non-judicial punishment. The 

defense counsel elicited testimony from three different witnesses on direct 

examination that directly referred to the prior misconduct. One witness even went 

so far as to mention the summarized 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 presentencing argument, he discussed the 

timing and circumstances of incidents that resulted in the Article 15s in order to 

argue that the command failed to take the appropriate steps to address appellant’s 

problems with alcohol. 

 

For the second factor, we conclude the right was known 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 introduce from the personnel 

records of the accused . . . 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. 

R.C.M. 1001(b)(2) (emphasis added). The Army requirements for maintaining 

records of non-judicial punishment are contained in Army Reg. 27-10, Legal 

Services: Military Justice [hereinafter AR 27-10] (3 Oct. 2011). Specifically, an 

Article 15 administered to a soldier in the rank of Specialist (E-4) or below can only 
VELASQUEZ—ARMY 20110296 

6 

be filed locally with the unit and must be “destroyed at the end of 2 years from the 

date of imposition of the punishment.” AR 27-10, para. 3-37b. Additionally, 

Summarized Article 15s are specifically excluded from the list of personnel 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 retention period. The Summarized 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 restrictions 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 States v. Weatherspoon, 39 M.J. 762, 767 (A.C.M.R. 1994) 

(highlighting the same provisions 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 challenge their admissibility yet chose 

not to do so. Both Article 15s were administered personally to appellant well in 

advance of trial. Appellant was arraigned on 4 January 2011, and the court-martial 

took place over two days from 18–19 April 2011. The business records affidavit for 

the field grade Article 15 document was dated 2 November 2010, while the affidavit 

for the Summarized Article 15 document was dated 12 April 2011. The ERB was 

dated 2 November 2010, and clearly reflected that appellant had been reduced in 

rank on 4 December 2008. Furthermore, appellant does not allege that the trial 

defense counsel was ineffective. Thus, appellant’s knowledge of the Article 15s, 

combined with the presumption 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 admissibility of the Article 15s. As to the fifth and final 

factor, the record clearly establishes that the military judge gave the trial defense 

counsel the opportunity to object to the documents, and the defense counsel 

expressly stated he had no objections without further comment. 

Based on the review of the record, we therefore conclude that the right to 

challenge the admissibility of the Article 15s was waived at trial which leaves us 

with no error to correct on appeal. 

CONCLUSION 

On consideration of the entire record, appellant’s assigned 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 findings of guilty and the approved sentence are AFFIRMED. 
VELASQUEZ—ARMY 20110296 

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Senior Judge KERN and Judge ALDYKIEWICZ concur. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: