The Coast Guard Court’s original opinion in United States v. Sanchez, No. 1320, cited and relied on a portion of R.C.M. 1106 that was repealed in 2008 (but that remains in the MCM we all use on a daily basis even now). Two of our readers pointed out the mistake (good show, TIm and RCM!) and the Coast Guard Court then withdrew its original Sanchez opinion.
The Coast Guard Court is now back with a new published Sanchez opinion, reaching the same result as the first. United States v. Sanchez, __ M.J. __, No. 1320 (C.G. Ct. Crim. App. Nov. 19, 2010). While the President removed R.C.M. 1106(d)(3)’s requirement that the SJAR “include length and character of service, awards and decorations received, and any records of non-judicial punishment and previous convictions,” the Coast Guard Court held that if the SJAR provides a summary of the accused’s service record, it must be balanced.
Despite the absence of an objection from the trial defense counsel, the Coast Guard Court held that the unbalanced SJAR was obvious error that prejudiced the accused, thus requring a new SJAR and action. The court reasoned that “an unbalanced selection from an accused’s service record, containing considerable negative information but none of the more recent positive information,” isn’t accurate. Sanchez, No. 1320, slip op. at 4-5. The court held:
If service record information is included in the SJAR, it must provide a fair portrayal, not a misleading one. . . . [T]he presentation of negative information accompanied by the omission of significant positive information, substantially misrepresenting the character of Appellant’s service, constituted error.
Id., slip op. at 5.
The Coast Guard Court also held, contrary to its previous decision in United States v. Thomas, 39 M.J. 1078 (C.G.C.M.R. 1994), that an omission of a non-combat decoration can rise to the level of plain error. Sanchez, No. 1320, slip op. at 6. The Coast Guard Court found such plain error in this case, where the omitted information included a Coast Guard Achievement Medal and a letter of commendation.