United States v. Nicholson

Opinion of the Court

Robert E. Quinn, Chief Judge:

This is an appeal from a conviction by special court-martial. Two issues are raised by the accused. The first requires us to determine whether the evidence in regard to Charge II shows a false “official” statement within the meaning of Article 107, Uniform Code of Military Justice, 10 USC § 907.

Captain C. C. Taylor, U. S. Navy, was transferred from Okinawa to Bain-bridge, Maryland. After his departure, several “action” dispatches came into the office of the Third Dental Company requesting information about a footlocker belonging to Captain Taylor which had purportedly been left with the accused for shipment. On these occasions, Dental Technician G. L. Waller “would start to take” the dispatches to Chief Warrant Officer J. Parrish, the unit’s Administrative Officer, but the accused would take the dispatch from Waller with a remark to the effect that he would “take care of it.”

The accused was enlisted Senior Chief in the office. Part of his duties included the care of the records of “all transfers in the company.” When Parrish entered the office on April 24, 1957, the accused was at the telephone. He approached and in the accused’s hand he saw a dispatch. He read it. It was a message dated April 9, from the Naval Training Center at Bainbridge addressed to the Commanding Officer of Headquarters Battalion requesting shipment data on Captain Taylor’s footlocker. The message had apparently been forwarded from the Adjutant Routing Section and was certified to be a true copy by R. K. Ackerman. Parrish recognized the certifying signature as that of the Adjutant. He thereupon asked the accused “what action he had taken about Captain TAYLOR’S personal effects.” The accused replied that he had taken them to “shipping and receiving” on November 6, 1956, and he exhibited a pencil notation to that effect in his own handwriting on the file copy of the Captain’s transfer order. However, the footlocker was later discovered in the accused’s quarters. As a result, he was charged with knowingly making a false official statement to Warrant Officer Parrish in violation of Article 107, supra.

In a number of recent cases we have discussed the requirement of officiality under Article 107.1 We need not retrace our steps at this time. Suffice it to say that upon a permanent change of duty station, the Government is responsible for shipping the transferee’s personal effects. See Joint Travel Regulations for the Uniformed Services, April 1, 1951. On its face, therefore, the dispatch regarding Captain Taylor’s footlocker related to a proper military matter. As the unit’s Admin*189istrative Officer, Parrish had an interest in, and responsibility for, matters referred to his office for action. In carrying out his responsibility, he could call upon his subordinate for information on the matter. The accused’s reply, therefore, constituted a statement relating to an official matter within the meaning of Article 107.

The second issue raised by the accused, who has over sixteen years of service, concerns the validity of the sentence. At trial, the president announced the sentence adjudged by the court-martial as follows: “to be discharged from the service with a bad conduct discharge, to forfeit fifty dollars per month for six months, and to be confined at hard labor for six months and to be reduced to the grade of dental assistant.” (Emphasis supplied.) Some weeks later, the findings of guilty and the sentence were approved by the convening authority. More than a month after the convening authority’s action, a “Certificate of Correction” signed by the president of the court and a member, in lieu of trial counsel, was appended to the record. The document recites that the record of trial is corrected to show that part of the sentence is actually reduction to “the grade of dental apprentice.” The reason for the correction is set out as follows:

“This error was due to the fact that it was the intent of this court to sentence the accused to a grade in his field equal to that of Private first class in the United States Marine Corps. The president of the court called the Division Legal Officer and was informed that the correct rank indicated by the court was that of dental assistant.”

The purported Certificate of Correction raises disturbing questions regarding the time and circumstances under which the communication between the president and the division legal officer was made known to other court members. See United States v Linder, 6 USCMA 669, 20 CMR 385; United States v Allbee, 5 USCMA 448, 18 CMR 72. The view which we take of the “correction,” however, makes it unnecessary to discuss these questions.

A certificate of correction should be used only to show that something which actually transpired at the trial is not properly reflect-ed in the record, or that something is erroneously included in the record which did not occur at the trial. See United States v Galloway, 2 USCMA 433, 9 CMR 63; United States v Lowry, 4 USCMA 448, 16 CMR 22. In other words, it should be used only “to relate the true facts” that took place at the trial. Manual for Courts-Martial, United States, 1951, paragraph 86e. The certificate cannot be used to change the legal significance of an event that occurred at the trial. Here, the sentence announced by the president in open court included reduction to the grade of “dental assistant.” It is not disputed that the words used expressed the actual vote by the court-martial. There is, therefore, nothing to correct by a certificate of correction. Cf. United States v Robinson, 4 USCMA 12, 15 CMR 12.

Apparently, the reduction to be effected by the sentence is to a nonexistent grade. Consequently, it is illegal. It is, however, a separable part of the sentence and it can be, and it hereby is, set aside. In all other respects, the decision of the board of review is affirmed.

Judge Ferguson concurs.

United States v Atkinson, 10 USCMA 60, 27 CMR 134; United States v Reams, 9 USCMA 696, 26 CMR 476; United States v Osborne, 9 USCMA 455, 26 CMR 235.