United States v. Johnson

Ferguson, Judge

(concurring in the result):

I concur in the result only, as I believe a rehearing on the sentence is required, not because of the effective date of the new rules laid down in the Manual for Courts-Martial, United States, 1969 (Revised edition), but because the use, per se, of records of nonjudicial punishment is inconsistent with the intent of Congress in enacting and enlarging a commader’s punitive jurisdiction under the Uniform Code of Military Justice, Article 15, 10 USC § 815. In short, I would hold the provisions of paragraph 75d of the Manual, insofar as they purport to permit use in aggravation of prior nonjudicial punishments, inconsistent with Code, supra, Article 15, and, hence, invalid. Inasmuch as my brothers reach an opposite conclusion, I disassociate myself from the views which they express.

Paragraph 75d of the Manual, supra, permits introduction during presen-tencing proceedings of “all those records made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” Acting under that authority, the Secretary of the Navy has authorized presentation to the court of records of prior nonjudicial punishments, relating to offenses committed during an accused’s current enlistment and within the two years next preceding the commission of any offense of which the accused was convicted at the present trial. Manual of the Judge Advocate General, Department of the Navy, section 0117. The issue presented is whether such use of records of nonjudicial punishment is consistent with Code, supra, Article 15.

The statute in question is entitled “Nonjudicial punishment” (emphasis supplied), and confers on commanding officers certain disciplinary powers over their subordinates without the intervention of a court-martial. Based on antecedent legislation and practices in the Army and Navy, it was originally passed as a part of the Uniform Code of Military Justice in 1950. In 1962, its amendment was sought to enlarge the punitive powers of commanders in order to eliminate resort to courts-martial for punishment of minor offenses and the consequent staining of a man’s record-with a prior conviction which would follow him throughout his career. This Court, the Department of Defense, and the Congress supported the suggested amendments on the basis that the enlarged punitive measures would permit a man to be disciplined without the measures taken against him forming a part of his permanent record.

In this connection, the following com ments were made regarding the proposed legislation in Report No. 1612 of the House Armed Services Committee on HR 11257, 87th Congress, Second Session:

“. . . This punishment is referred to as ‘nonjudicial’ punishment. It is important to note that since this punishment is nonjudicial, it is not considered in any manner as a conviction of a crime, and in this sense it has no connection with the military court-martial system. [Emphasis in original, pages 1-2.]
“Maj. Gen. Albert M. Kuhfeld, the Judge Advocate General of the Air Force, in his testimony before the committee, stated that he had discussed this matter with senior Air Force commanders throughout the world, and that almost without exception these commanders felt that *470increased authority Under article 15 would lead to a marked improvement upon discipline. They felt strongly that the commander who had responsibility for maintaining discipline should have authority to enforce it in a manner that would not result in a permanent blot on the record of the individual punished.” [Emphasis supplied, pages 3-4.]

And during the floor debates in the House, the following relevant comments are found:

“MR. LANE. ... We are not concerned here with the serious violations of military discipline that make the court-martial procedure mandatory. They are relatively few compared with the hundreds of thousands of minor offenses where a serviceman could have been punished within the service without blackening his character for the rest of his life.
“MR. THORNBERRY. ... It is important to note that since this punishment is nonjudicial, it is not considered in any manner as a conviction of a crime and in this sense it has no connection with the military court-martial system.
“MR. RIVERS. ... We are talking about nonjudicial punishment that may be imposed by a commanding officer. An individual who is punished under article 15 is not presumed to have been convicted in any way, shape or manner, in a legal sense. In other words, the record of punishment under article 15 may not be used as evidence of a prior conviction if an individual is later court-martialed.
. . Better discipline and also better ways to deter these boys and keep them headed away from this court of record which they cannot change.
“MR. OSMERS. . . . When a commanding officer punishes someone under article 15, this does not become a permanent part of his military record and does not constitute a conviction. As a result it can not be used as evidence of a prior conviction in a future court martial. This is of great importance to the individual since conviction by a court martial may adversely affect his military and civilian career and may well affect the type of discharge that he receives upon completing his military service.
'“Enactment of this proposed legislation should be of great benefit to the man in service who gets into minor troubles because it will permit the commanding officer to award a suitable punishment without subjecting him to a court-martial with a resulting black mark on his record.
“MR. BENNETT. ... The use of nonjudicial punishment has also proved to be a valuable procedure. From the standpoint of the military commander, it enables him to preserve and maintain discipline by dealing with minor infractions expeditiously. Most important, however, from the standpoint of the individual affected, is the fact that punishment imposed under article 15 does not leave the stigma of a criminal conviction on his record. It should be emphasized that this nonjudicial punishment, as its name implies, is not considered in any manner as a conviction or as a criminal proceeding, but is strictly an administrative disciplinary measure.” [Emphasis supplied.] [Congressional Record, May 15, 1962, pages 7794, 7783, 7786, 7788, 7789.]

The foregoing comments as to Congressional intent are further borne out by the testimony of Major General Kuhfeld at the Hearing before the Committee on Armed Services, United States Senate, 87th Congress, Second Session, on HR 11257, July 17, 1962, passim.

In like manner, the Senate Committee Report repeats the injunction that, “Since the punishment is nonjudicial, it is not considered as a con*471Viction of a crime and in this sense has no connection with the military court-martial system.” Senate Report No. 1911, 87th Congress, Second Session, page 2.

The same report notes that the limited authority of a commander to impose punishment under then-existing law caused him to refer charges to trial by courts-martial, which “stigmatizes a person with a criminal conviction on his record, which not only remains throughout his military career, but follows him into civilian life.” Senate Report, supra, page 3. This stigma was to be substantially reduced or eliminated by increasing the power of the commander to administer nonjudicial punishment in lieu of trial for minor offenses. Id., page 4. It especially pointed out that “The proposed amendments do not affect the present law that punishment under this article is nonjudicial and hence is not considered to be a conviction of a crime.” Id., page 8.

The Senate debates follow the same theme:

“MR. MANSFIELD. In effect, that is correct. But, as I understand the purpose of the bill, it would avoid the necessity of a court martial, and thereby would tend to keep the record of a man in the service more clear.
“MR. RUSSELL. ... The bill is intended to permit smaller penalties to be imposed for offenses that cannot be overlooked, but would protect the record of the young man in the service.” [Congressional Record, August 25, 1962, pages 16491, 16492.]

The foregoing makes crystal clear that Congress enacted the present Article 15, conferring wide disciplinary powers on commanders, with the understanding and intent that such punishments would not form a part of the man’s records; would not follow him throughout his service career; and would not be treated in future courts-martial as previous convictions. In short, once administered as a corrective measure, they would be recorded in the “company punishment book,” as the Army used to call it, and not produced at some later court-martial as evidence of his prior bad behavior.

Yet, that is precisely what paragraph 75d of the Manual, supra, in conjunction with the Navy Regulation now before us, purports to do. As my brothers note, these directives permit the accused’s prior nonjudicial punishments to be made a permanent part of his record and, if they meet other conditions laid down for admissibility, to be presented to the court in order to enhance his punishment. In light of the foregoing extracts from the statute’s legislative history, I consider such action wholly opposed to the Congressional intent and, as such, inconsistent with the codal mandates. The Manual provision, so considered, therefore, must fall. United States v. Villasenor, 6 USCMA 3, 19 CMR 129 (1955).

Turning to the rationale of the principal opinion, it attempts to distinguish the situation now presented by declaring that an Article 15 punishment is not a previous conviction which permits a court to adjudge one of the permissible additional punishments under the Table of Maximum Punishments, paragraph 127c, Manual, supra. Such begs the question.

Of course, an Article 15 punishment is not a prior conviction. That is precisely why Congress intended it not become a matter of record against the accused, but something which “can not be used as evidence of a prior conviction in a future court martial.” House Debate, Congressional Record, May 15, 1962, supra, page 7788. As it is not a prior conviction, it should not be treated as one. Yet, that is exactly its effect when presented to the court-martial. Court members are going to treat it in fact as an instance in which an accused has committed a criminal offense, has been “tried” by his commander, and had punishment imposed on him. In short, use of these records operates to paint the accused *472as a recidivist in the eyes of those charged with fixing his punishment, and it simply ignores reality to say that it will not substantially aífect' his sentence.

Moreover, it is not, as my brothers indicate, a question of whether Congress intended to allow the accused to conceal his prior record. Congress rec-ognised nonjudicial punishment for what it is, namely, an administrative measure for the enforcement of discipline, in which there is no trial, no production of evidence, no representation by counsel, and nothing in fact which could characterize it as a judicial proceeding. It was willing to concede the necessity for this arbitrary tool, but it wanted to insure that the measure did not later serve to characterize the accused’s service — “without blackening his character for the rest of his life.” Congressional Record, supra, page 7794. In short, the Congress struck a balance between the needs of military discipline and the needs of an accused, by permitting use of nonjudicial procedures at an enhanced level of punishment on the condition that such would not form a part of his permanent military record.

In sum, then, I would hold the provisions of paragraph 75d, as applied to Article 15 punishment records, inconsistent with the provisions of Article 15 of the Code, and, as such, that they must fall. I regret that my brothers do not see fit so to construe the enactment and Manual in light of its Congressional background — the very basis on which this Court recommended the statute’s enactment — but their action leaves me no alternative but respectfully to disassociate myself from the rationale of the principal opinion. Accused will do well to note that, in the future, there will be no substantial difference in the imposition on them of nonjudicial punishment and their trial by summary or special courts-martial. At least in the last-mentioned category, they will be entitled to representation by counsel and judgment by impartial and informed court members.

I join in ordering a rehearing on the sentence for the reasons stated herein.