R.C.M. 1001(b)(2) permits Government counsel to introduce documents from an accused’s service record during the sentencing phase of a court-martial to prove “the accused’s marital status; number of dependents, if any; and character of prior service.”

But in United States v. Ponce, 75 M.J. 630, No. 20140556 (A. Ct. Crim. App. Mar. 11, 2016) (link to slip op.), the Government was allowed to introduce (over defense objection) the appellant’s entire official military personnel file (OMPF), including:

appellant’s United States Office of Personnel Management Standard Form 86, Questionnaire for National Security Positions (revised September 1995) . . . In response to questions on the SF 86, appellant listed offenses he had been arrested for, charged with, or convicted of, and described his experimental use and possession of illegal drugs. All incidents and activities appellant entered on the SF 86 predated his military service, and several entries involved juvenile misconduct.

Slip op. at 2. The CCA finds error:

We hold the military judge erred by admitting the SF 86 included in PE 2 under the facts of this case. Information that is properly maintained in a military personnel record is not automatically admissible under R.C.M. 1001(b)(2).

Slip op. at 5. In particular, the CCA notes that the military judge focused his analysis of the SF 86 on whether it qualified as a business record rather than on whether it was probative of the appellant’s character of prior service as required by the R.C.M.:

In this case, the military judge lost sight of the service connection parameters of R.C.M. 1001(b)(2). In response to defense counsel’s hearsay objection, the military judge erred by exclusively focusing on whether the SF 86 in PE 2 was a business record under Mil. R. Evid. 803(6) that was properly authenticated in compliance with Mil. R. Evid. 902. While R.C.M. 1001(b)(2) provides an opportunity for the government to introduce evidence from appellant’s personnel records regarding his character of prior service, an SF 86 security clearance questionnaire filled with information that predates appellant’s enlistment is not admissible under this rule. The relevance of the SF 86 does not expand to reflect appellant’s military history merely because the document is in his OMPF.

Slip op. at 6.

5 Responses to “A document in an accused’s service record isn’t necessarily admissible in sentencing”

  1. Bill Cassara says:

    The ACCA website is still down.  Been months. How did you manage to get the decision?  Is there a work around?

  2. stewie says:

    It’s not down, it’s just on jagcnet, which you can’t access from a non-governmental computer.  If this is the new normal, they need to disassociate the Court from jagcnet and give it its own website that anyone can access.

  3. Lieber says:

    One of the issues exposed in the OPM hack is that government networks were often running public facing websites and internal networks on the same server.  (It’s a bit more complicated than that but that’s the gist…) That’s a security no-no.  The temporary solution has been to turn off the public-facing website part.  I assume that’s what happened with jagcnet.

  4. Bill Cassara says:

    Thanks. I thought maybe Zach had a private server in his home. Ha. I kill me.

  5. Zachary D Spilman says:

    Just toiletries in my bathroom closet, Bill. 
    z