United States v. Timberlake

OPINION OF THE COURT

DeFORD, Judge:

The appellant was convicted by a military judge sitting as a general court-martial of possession and distribution of heroin, possession of drug paraphernalia and possession of marijuana in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.

The appellant among several assignments of error contends that the military judge committed error in that Specification 1, possession of heroin and Specification 2, distribution of heroin were not considered multiplicious for sentence purposes. He further contends that error was committed during the sentencing portion of his trial in that *841DA Form 20B was introduced into evidence showing previous convictions which did not indicate such convictions had been subject to appellate review pursuant to regulation. We agree with the appellant’s allegations for the reasons hereinafter set forth.

I

The possession and distribution of heroin was the result of a single act and transaction in which the appellant for gain, purchased the heroin in question and distributed same to a Government informer.1 As such, the offenses were multiplicious for sentencing purposes.

In addition, we note that the factual circumstances concerning these two specifications raise the spectre of a lack of jurisdiction under the mandates of Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971) and O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). However, testing these factual circumstances against the well known Relford criteria and the required balancing thereof, we find there was sufficient on-post activity to warrant military jurisdiction in this case.2

II

Following findings, the prosecution introduced into evidence without objection, the appellant’s DA Form 20 with insert DA Form 20B which showed two previous convictions by summary and special courts-martial. In both instances, supervisory review was not indicated on the form.

Change 6, AR 27-10, dated 7 September 1971, which was in force at the time of appellant’s trial, required entries in Items 53 and 54, Form 20B indicating supervisory review. In the case before us, such entries were not made and as the form indicated that supervisory review had not been accomplished it was incomplete on its face. As an official record, the form must be presumed to set forth truly and accurately all the information required by regulation on the particular subject.3 Accordingly, the military judge erred in admitting DA Form 20B into evidence. Testing for prejudice, we believe the error was prejudicial to the substantial rights of the accused.

The remaining errors have been reviewed and are considered to be without merit or do not constitute any prejudice to the rights of the accused.

The findings of guilty are affirmed. Reassessing the sentence on the basis of the above-indicated errors and the entire record, the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement at hard labor for 12 months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l.

Judge DRIBBEN concurs.

. United States v. Kleinhans, 14 U.S.C.M.A. 496, 34 C.M.R. 276 (1964). See also United States v. Smith, 1 M.J. 260 (1976).

. See this Court’s previous opinions in United States v. Fornash, 2 M.J. 1045 (A.C.M.R. 1976); United States v. Sands (A.C.M.R. 26 Nov. 1976); United States v. Dunn (A.C.M.R. 26 Nov. 1976); United States v. Gelski (A.C.M.R. 17 Dec. 1976).

. United States v. Heflin, 23 U.S.C.M.A. 505, 50 C.M.R. 644, 1 M.J. 131 (1975) citing with approval United States v. Engle, 3 U.S.C.M.A. 41, 11 C.M.R. 41 (1953).