CAAF decided the Army case of United States v. Jerkins, 77 M.J. 225, No. 17-0203/AR (CAAFlog case page) (link to slip op.), on Thursday, February 8, 2018. Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.

Chief Judge Stucky writes for the court, joined by Judge Sparks and Senior Judge Effron. Judge Ohlson dissents, joined by Judge Ryan.

Major (O-4) Jerkins was convicted of assault consummated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. After the members made their findings, the defense called witnesses during the sentencing phase to testify about Jerkins prior good service. In rebuttal the prosecution offered into evidence a GOMOR that was issued approximately two weeks before trial.

A GOMOR is a nonpunitive (administrative) letter inserted into the recipient’s personnel record, and it usually has a significant negative impact on the recipient’s military career. Paragraph 3-4 of Army Regulation 600-37 establishes procedures for the issuance and filing of a GOMOR, including a process that ensures soldiers have an opportunity to respond to the underlying factual claims. In Jerkins case, that process was still underway when the GOMOR was admitted into evidence and Jerkins was sentenced to a dismissal.

The defense objected to admission of the GOMOR, but the military judge admitted it over the objection. The members then sentenced Jerkins to confinement for six months and a dismissal. Jerkins had 19 years of service when he was charged, and the adjudged dismissal denied him a military retirement. The Army CCA affirmed the findings and sentence after rejecting a claim of ineffective assistance of counsel raised against Jerkins’ civilian and military trial defense counsel. CAAF then granted review of a single issue:

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.

While CAAF splits on the impact of the GOMOR on the adjudged sentence, it unanimously concludes that the GOMOR was improperly admitted even under the deferential standard of abuse of discretion.

Chief Judge Stucky explains that CAAF “review[s] the military judge’s decision to admit or exclude evidence for an abuse of discretion.” Slip op. at 4 (citing United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)). “A military judge abuses [her] discretion if [her] findings of fact are clearly erroneous or [her] conclusions of law are incorrect.” Slip op. at 4 (quoting United States v. Mitchell, 76 M.J. 413, 417 (C.A.A.F. 2017) (alterations in original)).

Here the military judge abused her discretion because the GOMOR was inadmissible under the circumstances. Chief Judge Stucky explains:

In this case, Appellant was initially charged with wrongfully engaging in a sexual relationship with an Army enlisted woman. The convening authority withdrew that charge from trial three days before arraignment. Nevertheless, after arraignment, a different general officer decided to issue the GOMOR to Appellant for the same conduct, with an explicit suggestion that Appellant was not fit for continued service in the Army. Moreover, the GOMOR was admitted into evidence without the normal due process required by Army regulations, viz., Appellant’s exercise of his right to rebuttal. Under the circumstances of this case, we hold that the commander’s opinion that Appellant was unfit for continued military service—essentially, a recommendation that he be dismissed from the service—invaded the province of the members of the court-martial. Therefore, the military judge abused her discretion by admitting it into evidence.

Slip op. at 5. The dissenters agree. Diss. op. at 1.

Chief Judge Stucky couches the finding that the GOMOR was improperly admitted in the language of unlawful command influence, observing that “the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness.” Slip op. at 4-5 (quoting United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989)). This is because the GOMOR stated, in part:

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. I am profoundly disappointed that a commissioned officer would engage in this type of misconduct.

Slip op. at 3 (quoting GOMOR) (emphasis in slip op.). The underlying conduct was that Jerkins “engag[ed] in a sexual relationship with an Army enlisted woman, the victim’s mother, who had since become [Jerkins]’s wife.” Slip op. at 3.

The injection of the general’s doubts into the members’ deliberations on the sentence is what CAAF finds “invaded the province of the court-martial.” Slip op. at 1. But CAAF only faults the military judge for admitting the GOMOR, while the general and the trial counsel avoid criticism for this somewhat brazen attempt to use a nonpunitive process for punitive purposes (and also the overzealous effort to win a severe punishment for Jerkins).

Furthermore, while the non-finality of the GOMOR is clearly a factor in CAAF’s finding of error, it’s not clear that it’s a dispositive factor because the general’s opinion would still invade the province of the members if the process was final. The simplest takeaway from CAAF’s decision in this case is that a GOMOR that essentially recommends dismissal or discharge is inadmissible under any circumstances.

Because the GOMOR was improperly admitted over a defense objection, the Government Division had the burden on appeal to show that the error is harmless. The majority finds that it failed to meet that burden under both the non-constitutional standard of mere harmlessness and the constitutional standard of harmlessness beyond a reasonable doubt. Slip op. at 6.

The dissenters, however, find that other documents in Jerkins service record “completely overwhelmed the negative sentiments expressed in the GOMOR about Appellant’s alleged fraternization.” Diss. op. at 2. They conclude that:

“[A]lthough it clearly was error for the military judge to admit the GOMOR pertaining to Appellant’s alleged fraternization, that error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Diss. op. at 3 (marks and citation omitted).

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

20 Responses to “Opinion Analysis: Admission of a non-final administrative reprimand during sentencing invaded the province of the court-martial, in United States v. Jerkins”

  1. Charles Gittins says:

    Well, I am sure glad my dad didn’t go to jail for spanking me with a hairbrush, or the belt he used a couple of times when I needed it as a child.  Did they really convict a father for spanking his kid with a belt?  Hello PC snowflakes. 
     

  2. Bill Cassara says:

    I don’t know Charlie. Look how you turned out. 

  3. stewie says:

    I want the right to beat my child and if you don’t agree you are a PC snowflake!!
     
    And while you are at it, GET OFF MY LAWN!

  4. (Former) ArmyTC says:

    Charlie, I’ll bet none of those beatings your dad gave you resulted in a trip to the ER (Dissent at 3).

  5. DCGoneGalt says:

    I was beaten with a wooden butter churn that has shapes but out of it to allow for less air resistance.  It left welts with the shape of the cutouts so I frequently had hearts and stars on my ass.  Come to think of it, my mom should have been a softball player because her swing was phenominal.

  6. Charlie Gittins says:

    I knew I’d hear from the “everyone gets a trophy” crowd. 

  7. Tony Pottinger says:

    Ah yes, it’s so wonderful to reminisce about being beaten with a weapon when we were a kid, and to label as “snowflakes” anyone who doesn’t concur in the nostalgia. I come at it from a different vantage point. I took some licks from an abusive father with an inability (small brain) and unwillingness to use the English language to discipline his children. And then one day, the boy gets big enough to fight back. So I put him in a headlock, knocked out one of his teeth, and threw him down the steps. He never touched me or my mom again. Am I snowflake Charlie Gittens?

  8. Nicole Cooper says:

    Tony P – you, Sir, are no snowflake.  Without respect to the abuse at issue, withdrawing charges just before trial then issuing a GOMOR for the same allegations feels like a pretty dirty way to fight.     

  9. Matt says:

    I don’t think that spanking is per se child abuse by any means.  But come on.  He beat a three year old child with a belt until the child’s body was nearly completely covered by welts abd bruises and required a visit to the ER.  A three year old child. I have zero problem with this conviction.

  10. stewie says:

    Clearly Matt, your three old gets a trophy! Need to beat him/her more! Like the old days!
    And GET OFF CHARLIE”s LAWN!

  11. Nathan Freeburg says:

    GOMORs are always a dirty way to fight.  Secret best weapon of MJ shops and GO/FOs.  No due process and serious punitive effects.  I’ve had a number of cases where I wished the government had actually brought my client to court martial as threatened (where we would have gotten an acquittal) and instead they play the reprimand/chapter/BOI/grade reduction game with the deck stacked.  (There is no real remedy for UCI in the administrative process.)
     

  12. k fischer says:

    My mom beat me with a dog leash that left marks on my back so visible that Ronnie Coppersmith slapped me during 7th grade gym and said, “Looks like someone got a beating last night!”  She was a single mother and at the end of her rope with a rambunctious teen, so I understand.  It was parental discipline, and thankfully it did not happen today because I’d have been in foster care.  But, I was a teenager who could handle a good beating from my mom who was a salty bartender.  I can’t imagine what a three year old could do to deserve a beating that resulted in him presenting at the ER with some pretty visible injuries, and I would defer to the factfinder’s decision regarding the conviction since they saw all the evidence.
     
    But, at least CAAF recognized the completely inappropriate admission of the GOMOR that outlined a GO’s effective recommendation that he be dismissed from the Service. So, why oh why did the Government fight to admit this GOMOR, when they had an admissible OER that was a career killer?  How much mileage did the Government get by showing that the victim’s mother was enlisted when she married the Appellant? And, what if the Government had agreed to redact the UCI part about his fitness for continued service?  Why was that necessary to be in there?  Seems like the Government could have gotten a clean dismissal without the GOMOR or perhaps a redacted GOMOR.  
     
    And, why did they withdraw the charge of fraternization?  I guess she would have pleaded the 5th, as would he have pleaded the 5th.  Did they have any evidence showing a previous relationship that violated their status while they were both on active duty status prior to the marriage?  That could have been the easiest way to get the evidence in that he was a fraternizer.
     
    And, if the ACCA orders a rehearing on the sentence, can the Government introduce the filed GOMOR with the redacted UCI statement?  So many questions from a simple one paged piece of evidence that didn’t really need to be introduced.

  13. Nathan Freeburg says:

    Spousal privilege too.  But yeah, I would surmise they had no way to prove it up…(and if I’m the retained defense counsel I’m filing in advance of trial to get the charge dismissed arguing that the government has no evidence of frat and the mere existence of the charge on the sheet is designed to prejudice the panel…a lot of MJs would make the government proffer something…)

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

    I’m sure the GOMOR covered the entire relationship, including during the marriage, and apparently there was also an issue that one of them was not on active duty at the beginning of their relationship.  Therefore, not exactly a clear-cut basis for the charge to begin with, which made it appropriate for withdrawal of the charge, but then the government chooses to play dirty and go for the jugular.
     
    I’m curious at this point as to what happened to the GOMOR.

  15. Epilogue says:

    Tami:  Epilogue–It was filed permanently.  (This was not part of the appellate matters/argument)

  16. Alfonso Decimo says:

    The blog comments do not focus on the key issue, the glaring error. I view this a chiefly an error by the prosecutor, especially given the admission of the highly negative OER, upon which he/she relied in the sentencing argument. Although the dissenters point to the OER as evidence of harmless error, in fact it evidences the wrongful purpose for introducing the GOMOR. The MJ could have been more vigilant and there’s something to be learned in that area, but the system should focus on training prosecutors to avoid creating reversible errors in an excess of zeal.

  17. k fischer says:

    Wise one, 
     
    I found it interesting that Judge Ryan’s dissent in Acevedo states that a system perceived as suffering from external pressures should not expand a charge to fit the facts, or words to that effect.  I commented that Acevedo sounds like a pretty bad dude, but I have come to appreciate her focus on a fair system. 
     
    Yet, she filed a dissent in this case, in which the memo certainly had components of UCI.  Of course, Jerkins is not an Article 120 case, but there is an issue of uncharged sexual misconduct.  Also, considering the panel stacking Coast Guard case, there is a pattern in which Judge Ryan appears to be the champion of the “appearance of a fair trial” and, in my view, takes great strides in ensuring this.  So, her joining the dissent in Jerkins is perplexing to me, although, I can see how the dissent found the error to be harmless considering the OER and the lack of reference to the GOMOR in closing argument.
     
    So, now that the GOMOR has been filed permanently, I suppose that there will be no issue regarding the admission of the GOMOR, except for the timing of it, which strongly appears to be designed to get in uncharged misconduct in front of the panel for sentencing purposes.

  18. Alfonso Decimo says:

    Yes, the prosecutor’s timing strongly appears designed to introduce inadmissible evidence in order to wrongfully prejudice the panel.

  19. k fischer says:

    No, el Astrólogo,  I am referring to the timing of the imposition of the GOMOR (not timing of introducing it at sentencing) based on:
     

    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.

    The action of the commanding officer as represented by trial counsel was clearly intended to be punitive, not corrective, in nature. The stated purpose was to aggravate the punishment that the upcoming court-martial would award the appellant. This is not a purpose consistent with the letter and spirit of the administrative reprimand regulation.

    U. S. v. Boles, 11 M.J. 195, 198–99 (C.M.A. 1981)
     
     
    I used Boles in the past to keep out a GOMOR based on the timing just before Court-martial.  It’s a good case for situations where, just before trial, the Government decides to withdraw a charge that cannot be proven and replace it with a GOMOR in order to provide for sentencing, or, perhaps a “did you know he had a GOMOR imposed against him” cross question for TC if DC puts up a Good Soldier witness.

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

    There is an issue of fair dealing.  This was charged misconduct which had a questionable legal basis, they realized it, so now trying to get something in the back door that they couldn’t get through the front door.  And in doing so, created a needless appellate problem.  But makes for great reading.