CAAF will hear oral argument in the Army case of United States v. Jerkins, No. 17-0203/AR (CAAFlog case page), on Tuesday, November 28, 2017, at 9:30 a.m.

The appellant is an Army major (O-4) who was convicted of assault consumated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. The members sentenced him to confinement for six months and a dismissal.

The defense called multiple witnesses during the sentencing phase of the court-martial to testify about Jerkins prior good service, including three colonels and two retired major generals. In rebuttal the prosecution offered into evidence a General Officer Memorandum of Reprimand (GOMOR) that was issued approximately two weeks before trial.

A GOMOR is an administrative reprimand that is ostensibly non-punitive and may be issued summarily by certain officials (reprimands are also authorized punishments under the UCMJ, but that requires formal proceedings). See Army Regulation 600-37 (available here). A GOMOR may – but need not necessarily – be filed in a soldier’s Official Military Personnel File, which is the permanent record of the soldier’s service. Under R.C.M. 1001(b)(2) the prosecution may then “obtain and introduce from the personnel records of the accused evidence of the . . . past military efficiency, conduct, performance, and history of the accused.”

The GOMOR issued to Jerkins reprimanded him for alleged fraternization with an enlisted soldier; specifically, Jerkins’ wife (at the time of trial), who was an active duty specialist (E-4) when they met and married, and who was voluntarily discharged before she gave birth to their child 11 months after the marriage. The GOMOR concluded:

You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army . . .

App. Br. at 4.

The defense objected to admission of the GOMOR, the military judge overruled the objection, and the Army CCA issued an opinion that did not address the issue. CAAF then granted review to determine:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

Jerkins’ brief attacks the admission of the GOMOR in two ways. First, Jerkins argues that the GOMOR was not admissible as a personnel record under R.C.M. 1001(b)(2) because the issuing authority had not yet taken final action on the reprimand. Second, Jerkins argues that the probative value of the GOMOR was substantially outweighed by the danger of unfair prejudice.

Jerkins’ first argument focuses on the fact that Army Regulation (AR) 600-37 requires that the recipient of a GOMOR receive an opportunity to rebut the document before a final determination is made to file the letter in official records. Jerkins did not receive that opportunity before the letter was introduced during the sentencing phase of the court-martial. But the Army Government Appellate Division’s response asserts that it doesn’t matter, and that any such document – regardless of status – may be admitted at a court-martial as a personnel record of the accused:

R.C.M. 1001(b)(2), on the other hand, refers to “personnel records of the accused” and does not use the “official personnel file” language from AR 600-37. This omission, combined with the disjunctive “or maintained in accordance with departmental regulations” indicates the President did not intend for R.C.M. 1001(b)(2) to be read as narrowly as the Appellant suggests. Even if the Appellant’s GOMOR was later torn up and never filed, at the time of the court-martial, it was a record of the accused.

Gov’t Div. Br. at 10-11. This argument suggests an exception that CAAF might find would swallow the rule, because if personnel records of the accused includes things never actually filed in the official military personnel file, then it could also include records not known to the accused (such as a superior’s private notes). Furthermore, because official military personnel file is a statutory term (see 10 U.S.C. §§ 615, 14107) it’s reasonable to read R.C.M. 1001(b)(2) as referring to that file.

Assuming that the GOMOR was admissible under R.C.M. 1001(b)(2) as a personnel record, CAAF will then consider Jerkins’ second argument: that it nevertheless should have been excluded as unfairly prejudicial. Jerkins’ brief asserts that the GOMOR should not have been admitted because:

it was a direct statement made by the commanding general of MAJ Jerkins and [of] at least one panel member addressing an additional allegation of misconduct.

App. Br. at 13. He also argues that it “was both misleading and inaccurate,” App. Br. at 15, and that it implicated his wife in misconduct while she was “an important defense witness,” App. Br. at 17.

Insofar as these assertions are accurate, they seem to be the kind of factual questions that are properly addressed with contradictory evidence and (for the reporting relationship between the GOMOR’s author and a member) voir dire. If, for example, the GOMOR really was inaccurate, then the defense should have been able to demonstrate its inaccuracy and render it meaningless (or perhaps even use it to Jerkins’ benefit by showing that his commanding general is irrationally biased against him). Maybe this would have required a distracting trial-within-a-trial, but the briefs don’t address that.

The Government Division’s brief also highlights that the GOMOR was used in rebuttal:

[T]he probative value of the GOMOR as rebuttal was high because the Appellant chose to build his sentencing case on testimony of his positive duty performance, military character, and rehabilitative potential. (JA 60-70, 73-86). While the GOMOR standing alone was not highly probative, it became probative in the context of Appellant’s sentencing case. In particular, the Appellant chose to put testimonial evidence of Appellant’s rehabilitative potential before the panel.

Gov’t Div. Br. at 11. Evidence of rehabilitative potential is a special kind of sentencing evidence governed by its own rule: R.C.M. 1001(b)(5). It’s debatable whether the GOMOR meets the requirements of that rule. But I think it’s undeniable that the GOMOR is the opinion of the general who wrote it, and I also suspect CAAF will question whether Jerkins’ defense opened the door to that opinion when they presented the favorable opinions of so many other witnesses.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
Blog post: Argument preview

31 Responses to “Argument Preview: Rebutting evidence of good service with an unfavorable memorandum written two weeks before trial, in United States v. Jerkins”

  1. Defense Wizard says:

    That seems like a hell of a sentence for something that in a different time would have availed him protection under a parental-discipline defense. Also, what a cheap shot by the Government. They charged it, then dismissed it, then issued a GOMOR? I skimmed the brief, so I did not notice whether or not Mrs. Jerkins was a Soldier at the time of their marriage. If she’s a Soldier at the time of the marriage, why not charge fraternization and keep it on the charge sheet?

  2. Philip D. Cave says:

    1. Were any of the testifying witnesses asked about the misconduct to test their opinion?  Could they have been asked based on the prosecution’s good faith belief there was fraternization?  If so, does that reduce the potential harm?
     
    2. Did the defense request and the military judge give a limiting instruction on the CG’s comments about retention and such?  Apparently not according to the reply.  Was there a request to redact that part under 403, once the MJ decided to admit?  Did the gubmint offer to redact that part and do the right thing and perhaps save themselves some appellate work?  I wonder if this is why CAAF granted and what will be the focus of oral argument?  To me this seems the strongest part of the defense argument–the members would know about GOMOR’s, they would know about the retention language, and they could interpret this as the CG saying he’s not got to be retained–euphemisms and all.
     
    3. Did the defense submit the marriage certificate and birth certificate in rebuttal to the GOMOR, if that was erroneous in the GOMOR?

  3. stewie says:

    Baffling. It was on the charge sheet. Then pulled off. That makes me wonder, was there a timing issue? Was she off active duty prior to the marriage and thus with no other evidence of a relationship, they didn’t feel like they could prove BRD? Because that’s the only reason I can see. Marriage license is a public record. They’d know when she ETS’d. Would seem like the easiest charge in the world to prove otherwise.
     
    The argument that a GOMOR where the CG still has the option to, you know, rescind it, is not remotely in any stretch of the imagination part of the “personnel records of the accused.” If it is, as Zach correctly notes, then anything just about is. And the fact of the matter is, they could have accomplished the same thing with “did you know questions.” Did you know the accused fraternized and then married an E4? They wanted the language in there to get the effect of what they couldn’t do, for whatever reason, via a charged offense.
     
    That’s pretty shady for a pretty minor offense, and indicative to me of a crim law/SJA shop that has a win by any means necessary attitude.

  4. Defense Wizard says:

    Stewie – But then why take it off the charge sheet? Did they discovery fatal flaw in the charge after referral? They got married about nine months before her pregnancy discharge from what I could tell. Did she enlist right after they got married? I might be missing something, but unless that’s the case, they were fraternizing no later than the date they got the marriage license.

  5. k fischer says:

    I had a TC try this in a Court-martial a while back.  I think we made a verbal motion in limine based on this 1981 case:
     

    The record of trial does not state the particular purpose for which this commanding officer issued the reprimand of August 15, 1979, to the appellant. It does contain the frank admission of trial counsel that this reprimand was placed in the appellant’s UIF “to aggravate the case” against him. We observe that the commander notified the appellant of this intended action on the same day he issued the administrative reprimand to the appellant. In addition, the administrative reprimand was issued a mere five days after the alleged incident occurred and well before the matter was finally resolved by civilian authorities. See para. 5b(2). Moreover, both these administrative actions were taken less than a week before the appellant’s court-martial for the larceny offense. Finally, an administrative reprimand for arson by firebombing hardly seems a judicious or effective use of this management tool. In view of the above and in the absence of contravening evidence from the Government, we conclude the defense has shown that this reprimand was issued by the commanding officer and *199 placed in his UIF for the purpose of influencing the appellant’s present court-martial. The question before this court is whether such action comports with the regulation concerning administrative reprimands. See para. 75d, Manual, supra. We conclude that it does not. See also Article 37, UCMJ, 10 U.S.C. s 837.

    U. S. v. Boles, 11 M.J. 195, 198–99 (C.M.A. 1981)

  6. k fischer says:

    I also suspect CAAF will question whether Jerkins’ defense opened the door to that opinion when they presented the favorable opinions of so many other witnesses.
     

    Hearsay.  Crawford.

  7. Zachary D Spilman says:

    Hearsay. Crawford.

    Defense relaxed the rules. Sentencing. 

  8. Zachary D Spilman says:

    More specifically:

    After “[t]he rules of evidence [were] relaxed for the proceedings[,]” Appellant offered exhibits and testified about his military service. (JA 96, 97-111).

    Gov’t Div. Br. at 4. Looks like relaxation of the hearsay rule to me.

  9. k fischer says:

    Stupid relaxation of the rules.  Okay then: Lack of foundation.  I doubt very seriously a GO can have knowledge about an Officer’s ability to be rehabilitated for society because of ONE incident that the GO was aware where the accused had intercourse with an enlisted woman whom he later married.
     
     

  10. stewie says:

    I’ll go with what the appellant is actually arguing. It’s not a part of his personnel record because the process is not completed. The CG could have, post court-martial, still decided to tear up the GOMOR based on rebuttal material submitted by the accused. Until he makes that decision, it’s Schrodinger’s GOMOR, it’s both alive and dead at the same time.

  11. Nathan Freeburg says:

    What stewie said.

  12. Nathan Freeburg says:

    And what k fischer said.  I’m not convinced that the defense needs to relax the rules anywhere near as often as it does (just request the production of the foundational witnesses for the stuff you want to put in)…and/or don’t relax ALL the rules.  And yeah, the GO is speculating  (or rather the junior CPT in the justice shop who actually wrote the GOMOR).

  13. K fischer says:

    Stevie,
     
    Well, of course what the Appellant’s arguing should suffice particularly in that the GOMOR was not actually filed and is not a record.  I was just addressing a couple other reasons why the GOs opinion was not proper evidence to rebut other Officers opinions about his rehab potential.  I don’t think these character witnesses opened the door for the Government to get the unfiled document in to rebut their opinion.  However, they might could ask did you know questions to these witnesses about him being issued the GOMOR or even the facts within the GOMOR, did you know that he had sex with an enlisted woman thereby committing fraternization?  Does that change your opinion?  Did you know that he was read a GOMOR for that fraternization?  Does that change your opinion.

  14. Zachary D Spilman says:

    did you know that he had sex with an enlisted woman thereby committing fraternization?  Does that change your opinion? 

    Except that if the answer to the first question is no, then the objection to the second question is: assumes facts not in evidence.

  15. stewie says:

    If it’s no, it’s no, but the jury knows the DC ain’t objecting to it as untrue, and the TC isn’t just tossing out random, untrue allegations. It’s the normal way of doing things. They wanted extra oomph, so they rushed through an incomplete GOMOR.

  16. Charlie Gittins says:

    ^^^^^ This.  They created a document to enable rebuttal for purposes of the trial after being notified of the sentencing witnesses.  It’s not a service record.  It was error to admit it.  You’d think the MJ would know better.

  17. stewie says:

    At this point, I think I want more credit for my Schrodinger’s Cat analogy. I mean how often can you credibly link quantum mechanics and rules of evidence??

  18. Tami a/k/a Princess Leia says:

    It’s basic that a GOMOR doesn’t become a “personnel record” until a filing decision is made, and only after rebuttal is submitted.  It is also basic that you can’t discipline fraternization that occurs after the marriage.  This is a BS reprimand that I think was issued in bad faith, and the JAGs involved and the CG all deserve to be disciplined over this.

  19. stewie says:

    No, but you can discipline fraternization that happened up to the marriage. I don’t have an issue with disciplining the fraternization. I’m confused as to why they would take off the charge sheet. Or not do a GOMOR sooner. It’s the procedural shenanigans I don’t like.

  20. Defense Wizard says:

    AR 600-20 para. 4-14 telegraphs the Army’s intent pretty clearly. Unlike many punitive regs, it explicitly tells Commanders that they have a broad range of options for disciplining fraternization, because not all fraternization is the same. An Army E5 marrying a Navy E4 who never worked together shouldn’t get punished (if at all) like HHC Commander bedding his supply NCO. I suspect Jerkins was somewhere in the middle of those two examples, but nevertheless, it’s the timing that is really concerning.

  21. TC says:

    Tami,
    Why can’t you discipline frat that occurs after the marriage?  I get that a pre-existing marriage (before entry into the military) means it’s not illegal, but why does making an illegal relationship permanent(ish) also make it legal?

  22. Tami a/k/a Princess Leia says:

    TC,
     
    You can’t discipline someone for being in a constitutionally protected relationship.  You can punish the relationship before the marriage, but once they are married, the relationship is no longer “fraternization.”
     
    Stewie, there was a marriage license application 3 days before the marriage.  If the GOMOR had only referenced those 3 days, then there may have been “fraternization,” but then we still have the problem of the government withdrawing the charge and the GOMOR process not being complete.  It’s a due process violation to admit a GOMOR into evidence when the rebuttal isn’t due until after the court-martial.
     
    Apparently there is also a question about whether appellant was on active duty when he met his wife.  There are different rules for National Guard and Reserve members.

  23. stewie says:

    Tami, I’ve totally agreed with the argument that the GOMOR shouldn’t have come in because it wasn’t an official record yet. But I don’t think there’s a problem with the GOMOR itself. And if they’d started the process sooner and gotten it finalized, I’d have no problem with it coming in then either.

  24. TC says:

    Tami,
    I’m not trying to be difficult, and I understand that the conventional wisdom says that a marriage protects the relationship from additional frat punishment.  But my question whenever I’ve heard that has always been “according to what?”  The response is always “public policy” or “the constitution,” but how would the constitution prohibit such a prosecution?  The UCMJ limits our first amendment rights, why couldn’t it limit our marriage rights, which are far less explicit in the constitution than freedom of speech?  I’m not even saying such conduct should be prosecuted, I’ve just never understood the argument that it can’t be.

  25. stewie says:

    Because TC, you can order two people not to date…you cannot order two people to get a divorce. So what are you left with? It’s also the reason why I can marry Jane Doe today, and if she enlists a year from now, I don’t have to divorce her and I won’t get into trouble for “fraternizing” with her.
     

  26. TC says:

    Stewie,
    I understand the argument.  You didn’t answer my question, you just re-stated the argument that says marriage precludes additional punishment for frat.  I follow that this view is widely-held.  I’m just asking for the basis.  The UCMJ and other frat regs prohibit unduly familiar relationships.  I don’t see anything that says a subsequent marriage is a defense, or precludes further punishment, or anything of the sort.  It’s always seemed kind of crazy to me that two people are breaking the law by dating, but then getting married fixes the issue.  It certainly doesn’t end the harm that frat regs are intended to prevent.  And again, I’m not saying we should prosecute these cases.  I’m just curious why we can’t.  And saying “because we can’t” isn’t a satisfying answer to me.

  27. stewie says:

    Getting married does not “fix the issue.” That’s why you can punish the pre-marriage fraternization. Explain to me how you punish post-marriage fraternization? Do you order a married couple to separate? Divorce? Do you punish them on a daily basis until they do?
    Do you not see the practical and constitutional problem inherent here?

  28. TC says:

    As I’ve said repeatedly, I see the inherent problems.  But I think the issues you raise are no different if they’re married or not.  You don’t order them to divorce or stop dating, you hold them accountable for violating the frat statute/reg.  Just like you don’t order someone to start showing up for work, you hold them accountable for violating Art. 86.  And the issue of punishment on a daily basis is no different if it’s a dating relationship or a marriage.  They’re guilty of frat on Tuesday, and if they’re still dating on Wednesday they’re still guilty of frat.  And your argument is that marriage “fixes the issue.”  It may not excuse the prior misconduct, but your argument is that it precludes future misconduct.  Your argument is essentially that a marriage license is a license to have an unduly familiar relationship.  I know that is a widely-held viewpoint.  I’m just not sure where it comes from.  We know the military can infringe on constitutional rights.  Why doesn’t that include the right to marry?  If we can prosecute people for insulting the president, which is clearly constitutionally-protected speech, why can’t we prosecute them for being in an unlawful marriage?

  29. stewie says:

    What? You absolutely DO order someone to stop dating. You issue a no contact order. What are you talking about??
    You cannot tell a happily married couple to stop being married. You can’t, absence claims of abuse, issue a no contact order between a husband and wife.
     
    It’s not a widely held viewpoint, it’s the only viewpoint I’ve ever seen because it’s obvious and self-evident. You appear to be on an island, alone, surrounded by a fiery moat, filled with fireproof dragons.
     
    That might be a sign of something.
     
    Your idea that because the military can sometimes infringe on constitutional rights, it must always be able to infringe on constitutional rights is…novel.

  30. TC says:

    I’m pretty sure all dragons are fireproof, but maybe I’m wrong about that too…
    I really wasn’t looking to get into a debate about this, I was just asking a question.  I agree with essentially every position you take on this blog on just about every single issue, so I’ll go with my usual approach and assume you’re right.  But not based on your argument, which is that of course we can’t do something because everyone knows it.

  31. stewie says:

    I’ve given you multiple reasons, you reject them. Not sure what else to do.
    Dragons probably are intrinsically fireproof though, I’ll give you that.