Opinion Analysis: Admission of a non-final administrative reprimand during sentencing invaded the province of the court-martial, in United States v. Jerkins
CAAF decided the Army case of United States v. Jerkins, __ M.J. __, 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.