(concurring in part/dissenting in part):
I concur with the majority’s action with respect to assignments I and II; however, I disagree with the treatment of assignments III & IV.
Article 1110, U. S. Navy Regulations, 1973 provides that:
Adverse matter shall not be placed in the record of a person in the naval service without his knowledge... . such matters shall be first referred to the person reported upon for such statement as he may choose to make. If the person reported upon does not desire to make a statement, he shall so state in writing.
The language of this regulation is clear and unambiguous. I do not accept what I see as an attempt by the Marine Corps to bypass its requirements by making the regulation applicable only to a certain “official personnel file at Headquarters, Marine Corps” and not applicable to an official service record book. In addition, I reject the limited definition of “adverse matter” adopted by the majority. The opinion of the Judge Advocate General of the Navy, as expressed in correspondence to the Commandant of the Marine Corps, to the contrary notwithstanding, I find no basis for changing the plain meaning of “adverse matter” as used in Article 1110, U. S. Navy Regulations, 1973 and limiting that Article to adverse “opinion” while making it inapplicable to adverse “facts.” For this reason, I also disagree with this Court’s decision in United States v. Brown, 10 M.J. 589 (N.C.M.R. 1980).
In the instant case two entries were placed in appellant’s service record book reflecting that he had been counseled. One entry related to counseling for unsatisfactory conduct and marginal performance; the other related to unsightly personal appearance and undependability. In my view such entries contain “adverse matter” which, under the terms of Article 1110, U. S. Navy Regulations, 1973, shall not be placed in the record of a person in the Naval service without his knowledge and without first referring the matter to that person for such statement as he may choose to make. Here, we know the first entry was made with appellant’s knowledge because he signed it but the second entry provides no indication that it was made with appellant’s knowledge. Moreover, with respect to both entries there is no showing that the matters contained therein were referred to appellant for such statement as he might choose to make and they do not reflect that appellant desired not to make a statement. Without such a showing appellant’s signature acknowledging the entry does not, in my view, fully satisfy the requirements of Article 1110, U. S. Navy Regulations, 1973. Accordingly, I would find that both of these entries were improperly admitted at trial because, upon objection by the defense, the prosecution failed to demonstrate that the entries were made in accordance with departmental regulations.
I would reassess the sentence, excluding these entries from consideration, and upon reassessment would reduce the confinement as urged in Assignment of Error IV.
*759APPENDIX A
*760APPENDIX B
1. Reference (a) generally requests the opinion of the Judge Advocate General as to whether the notice and comment requirement of article 1110, U. S. Navy Regulations, 1973, prohibits the filing of the following items, listed in paragraph 1000.8c(2) of reference (b), in enlisted personnel files maintained at Marine Corps Headquarters without notifying the individual concerned and affording him an opportunity to comment in writing on the entry:
a. court(s)-martial orders and memorandums reflecting finally approved convictions;
b. FBI fingerprint reports and related correspondence;
c. report of civilian arrests and related correspondence reflecting finally approved convictions;
d. reports of absentees and deserters and related correspondence;
e. waivers of fraudulent enlistments and related correspondence;
f. reports and correspondence relating to administrative discharge action where the Marine is an unauthorized absentee at the time of discharge or is otherwise unavailable for statement;
g. denial or termination of security clearance for cause.
2. By way of background, it is noted that article 1701.8 of U. S. Navy Regulations, 1948, required notice and opportunity for comment prior to the filing of adverse material in the personnel records of officers only. The Judge Advocate General, when commenting on the 1970 draft revision of U. S. Navy Regulations, 1948, recommended the following change to proposed article 1109 which, as originally drafted, substantively restated article 1701.8:
Proposed article 1109. Change the title of the article to read “ADVERSE MATTER IN THE RECORD OF A MEMBER OF THE NAVAL SERVICE”; substitute the words “the record of a member of the naval service” for the words “an officer’s record” in line one; substitute the word “member” for the word “officer” in lines four and five. [JAG:131.2:TKW:jgd Ser 665 of 22 Jan 1971 at p. 12 of end (1).]
The following rationale was offered for the proposed change:
Reason. No justifiable reason is seen for limiting this article to officers. Enlisted men, especially those in pay grades E-7 through E-9, have the same stake as officers in their permanent records. (It is recognized that this suggested change may constitute an administrative burden and it is suggested that comment thereon be obtained from the Chief of Naval Personnel and Commandant of the Marine Corps). [Id]
The change proposed by this office was promulgated by the Secretary of the Navy in article 1110, U. S. Navy Regulations, 1973. That article provides as follows:
*761 Adverse Matter in the Record of a Person in the Naval Service.
Adverse matter shall not be placed in the record of a person in the naval service without his knowledge. Except for the medical and dental entries referred to in the following article, such matter shall be first referred to the person reported upon for such statement as he may choose to make. If the person reported upon does not desire to make a statement, he shall so state in writing.
It is clear from the language of article 1110 that no distinction can be drawn between the criteria for filing adverse matter in the records of officer and enlisted personnel. Compare BUPERSMAN 5030160.5 with BUPERSMAN 5030200.2. It is further evident from the genesis of article 1110 that the importance of enlisted records on career development prompted the modification of former article 1701.8.
3. It is noted that paragraph 1000.3.c(2) of reference (b) characterizes the above-listed record entries as “unfavorable matter” which may be filed in enlisted personnel files without compliance with the requirement of article 1110. As such, it is considered that reference (b) concludes that the listed items either contain “adverse matter” within the meaning of article 1110 but are excepted from the article’s coverage, or that the items, although containing “unfavorble matter,” do not contain “adverse matter” within the meaning of article 1110.
4. Assuming the items listed in paragraph 1 were considered to contain “adverse matter” within the meaning of article 1110, the question arises as to whether the provisions of that article may be waived to permit the filing of that matter in a member’s personnel record without first notifying and affording him an opportunity to comment. It is beyond contention that article 1110 provides a member of the naval service a procedural right to be notified of and given an opportunity to comment on “adverse matter” before it is filed in his naval record. Whether this procedural right may be waived unilaterally by the Department of the Navy depends on the extent to which the Department of the Navy is bound by U. S. Navy Regulations. U. S. Navy Regulations are promulgated by the Secretary of the Navy with the approval of the President. The Supreme Court has held in three important decisions that, as a general rule, the Government is bound by its own regulations to the same extent as are the individuals whom the regulations affect. Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363 (1957); Accardi v. Shaughnessy, 347 U.S. 260 (1954). Regardless of terminology, whenever a waiver of regulations has been upheld, the guiding principle enunciated has been avoidance of a prejudicial impact upon those subject to the regulation. See American Farm Lines v. Black Ball Freight Service, 397 U.S. 532 (1970); N. L. R. B. v. Monsanto Chemical Company, 205 F.2d 763 (8th Cir. 1953). In the instant ease, the regulations themselves contain no exception to the rule that “adverse matter” shall not be filed in the record of a member of the naval service without his knowledge and opportunity to comment. In addition, given the importance of personnel records, a waiver of the notice- and-eomment requirement of article 1110 would undoubtedly have a prejudicial impact in individual cases. Accordingly, it is the opinion of the Judge Advocate General that the notice-and-comment requirement of article 1110, U. S. Navy Regulations, 1973, may not be waived unilaterally.
5. Although the question of whether article 1110 may be modified by waiver has been answered in the negative, the issue remains as to whether the listed record entries contain “adverse matter” within the meaning of article 1110. The term “adverse matter” as it appears in U. S. Navy Regulations has never been defined. Absent a definition, the term should be interpreted in accordance with its historical use.
6. The prohibition of article 1110 initially appeared in article 237, U. S. Navy Regulations, 1893, which, in dealing with “unfavorable” matter reported in officer fitness reports only, provided that: *762“Tolerable”, or “Not Good”, and must be written by the officer signing the report. Should the answer to any query be “Not Good”, or otherwise of an unfavorable nature, the reasons for such answer must be clearly stated, and a copy of that portion of the report furnished to the officer concerned, who shall be granted a reasonable time to prepare such written statement in regard to it as he may desire to make, which statement shall be indorsed and forwarded with the report. Should the officer concerned not desire to make a statement, he will write a communication to that effect.
*761Answers to queries from 1 to 6 inclusive shall be either “Excellent”, “Good”,
*762A review of subsequent editions of U. S. Navy Regulations indicates that not until 1948 was the language of article 237 modified to use the term “adverse matter” and to require affirmatively that an officer have knowledge of and be given an opportunity to comment on such matter prior to its filing in his “official record” vice its inclusion in his fitness report. Article 1701, U. S. Navy Regulations, 1948, specified, however, what material could be recorded in an officer's official record and, by implication, limited “adverse matter” to unfavorable information contained in certain record entries. Paragraphs seven and eight of article 1701 provided that:
7. The record of an officer maintained by the Chief of Naval Personnel (Commandant of the Marine Corps) shall include the following material pertaining to his qualifications and performance of duty:
(a) Reports of fitness.
(b) Extracts from the findings and recommendations of courts and boards concerning the officer.
(c) Copies of citations and letters of commendation or censure.
(d) Statement of the officer in reply to any adverse matter in his record.
8. (a) Adverse matter shall not be placed in an officer’s record without his knowledge. It shall be first referred to the officer reported upon for such official statement as he may choose to make in reply. If the officer reported upon desires to make no statement, he shall so state officially in writing.
(b) When a report of fitness containing adverse matter, or any correspondence relating thereto, is sent to an officer, it shall be sent direct, addressed in his name. The officer concerned shall return any communication so received, together with his statement in reply to the Chief of Naval Personnel (Commandant of the Marine Corps) via the officer by whom the original report was completed and via the officer or officers through whom such report was forwarded.
It is noted that subparagraph 7.(d) of former article 1701 does not create an affirmative duty to solicit a response to “adverse matter” filed in an officer’s record, but rather, requires that any response so made shall be filed in the officer’s record. Sub-paragraph 8.(a), however, does create an affirmative duty to refer “adverse matter” to the officer for his comment prior to its recording in his record. Although subparagraph 8.(a) does not specifically limit the source of the “adverse matter,” subparagraph 8.(b), the technical instruction for implementing subparagraph 8.(a), refers only to “adverse matter” contained in “reports of fitness” or “correspondence relating thereto.” Notwithstanding the fact that subparagraph 8.(a) employs the term “adverse matter” in a broad sense, when read in conjunction with subparagraph 8.(b), the clear implication is that the “adverse matter” referred to is that contained only in “reports of fitness” or “correspondence relating thereto.”
7. Although the language of U. S. Navy Regulations, 1898, and U. S. Navy Regulations, 1948, imply that a definition of the term “adverse matter” should be limited to unfavorable information contained in “reports of fitness” or “correspondence relating thereto,” in practice the prohibition against filing unfavorable information in a service record without the knowledge or comment of the individual concerned has been expanded to preclude the filing of any document containing such information which reflects opinion rather than fact. *763See JAGMAN 0102e(4). In this regard, it is noted that each of the record entries listed in paragraph 1 reflect factual determinations, and that none contains matters of opinion. Consequently, unfavorable information contained in any of the record entries listed would not constitute “adverse matter” within the expanded meaning of that term.
8. In view of the foregoing analysis of the evolution of the prohibition of article 1110, U. S. Navy Regulations, 1973, and the development of the term “adverse matter,” and in view of the fact that there is no indication that the drafters of U. S. Navy Regulations, 1973, intended to depart from the historical genesis of the term “adverse matter,” but rather, intended merely to have the same rule apply to enlisted personnel that had applied to officers under article 1701, U. S. Navy Regulations, 1948, it is the opinion of the Judge Advocate General that unfavorable information contained in any of the record entries listed in paragraph 1 is not “adverse matter” within the meaning of article 1110. Accordingly, that article does not require such information to be referred to the individual concerned, enlisted or officer, for his information and comment prior to its being filed in his personnel record. However, the Privacy Act (5 U.S.C. § 552a) requires that each Federal agency maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President and that records maintained for use by an agency in making any determination about any individual must be maintained with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness to the individual in the determination. In addition, subsections 552a(d)(2)-{4) of the Act provide an independent means by which an individual may contest the accuracy of any information recorded in his service record; and, if, upon request, such information is not expunged from his record, his statement challenging the information must accompany any disclosure of the information.
(s) c. e. McDowell
Acting Judge Advocate General