United States v. Provance

CLAUSEN, Chief Judge,

concurring in the result:

I concur in the result.

However, I do not believe that it was error for the trial judge to receive the two records of punishment imposed under Article 15, Uniform Code of Military Justice, as evidence.

The holding in the Booker case cited by Senior Judge Carne in his opinion related solely to the admissibility of a record of a conviction by a summary court-martial, particularly when an effort is made to use such conviction to enhance the imposable sentence under paragraph 127c, Section B, Manual for Courts-Martial, United States, 1969 (Revised edition).

Chief Judge Fletcher’s remarks in the Booker opinion concerning Article 15, although not necessary to the disposition of the issue in that case, do reinforce what I consider always to have been the rule concerning the admissibility of a record of pun*821ishment under Article 15, which can only be used as evidence of character of prior service. To be admissible, a record of punishment under Article 15 must reflect that the individual was advised of his right to consult with counsel and that the individual voluntarily waived his statutory right to demand trial by court-martial.

The two exhibits admitted in this case both reflect that appellant was advised of his right to consult with counsel and each time was advised in writing where he might consult with counsel. Thereafter, in each instance, after being given a generous period of time to consult with counsel if he wished and to make up his mind, appellant himself completed the appropriate section of the form indicating he elected to accept punishment under Article 15 and he personally signed each of the forms to record his decision. In my view, all that was necessary to be done for these two documents to be admitted for the limited purpose for which they were used was done.