UNITED STATES, Appellee
v.
Lester R. HARRIS, Corporal
U.S. Marine Corps, Appellant
No. 01-0226
Crim. App. No. 2000-0354
United States Court of Appeals for the Armed Forces
Argued October 23, 2001
Decided June 19, 2002
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Lieutenant Glenn Gerding, JAGC, USNR (argued).
For Appellee: Lieutenant R. W. Weiland, JAGC, USNR (argued);
Commander P.A. Dutton, JAGC, USN (on brief); Colonel Marc W.
Fisher, Jr., USMC, and Lieutenant James E. Grimes, JAGC, USNR.
Military Judge: W. P. Hollerich
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States V. Harris, No. 01-0226/MC
Judge BAKER delivered the opinion of the Court.
A military judge sitting as a general court-martial tried
appellant. In accordance with his pleas, he was found guilty of
conspiracy to wrongfully dispose of M112 Demolition Charge (C-
4), dereliction of duty in failing to report to appropriate
authorities the known location of the stolen C-4, wrongful
disposition of these explosives, and a violation of 18 USC
§ 842(h), by unlawfully possessing, transporting, and/or storing
the C-4, in violation of Articles 81, 92, 108, and 134, Uniform
Code of Military Justice, 10 USC §§ 881, 892, 908, and 934,
respectively. Appellant was sentenced to a dishonorable
discharge, confinement for ten years, total forfeitures, and
reduction to pay grade E-1. The convening authority approved
the adjudged sentence and, except for the punitive discharge,
ordered it executed. However, in compliance with a pretrial
agreement, he suspended all confinement in excess of forty-nine
months for a period of twelve months from the date of his final
action.
The Court of Criminal Appeals affirmed the findings in an
unpublished opinion. However, in connection with appellant’s
conviction for violating 18 USC § 842(h), it excepted the word
“transporting” from the specification. The court also ruled
that appellant’s sentence was inappropriately severe and
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United States V. Harris, No. 01-0226/MC
reassessed. Upon reassessment, the court reduced appellant’s
confinement to forty-two months.
This Court granted review of the following issue:
WHETHER APPELLANT’S SUBSTANTIVE RIGHTS WERE MATERIALLY
PREJUDICED BY THE CONVENING AUTHORITY’S FAILURE TO
GIVE HIM NOTICE OF AND AN OPPORTUNITY TO REBUT ADVERSE
PREENLISTMENT JUVENILE MATTERS FROM OUTSIDE THE
RECORD, THAT THE CONVENING AUTHORITY CONSIDERED BEFORE
TAKING ACTION ON APPELLANT’S CASE.
Appellant complains on appeal that the convening authority
improperly considered certain matters contained in his service
record prior to taking action under RCM 1107, Manual for Courts-
Martial, United States (2000 ed.).1 We resolve this issue
against appellant and affirm.
Discussion
During post-trial review, the convening authority stated in
his final action, “I considered the Staff Judge Advocate’s
recommendation, record of trial, the Service Record Book [SRB]
of Corporal Lester R. Harris, and the matters submitted by the
defense pursuant to R.C.M. 1105, MCM, 1995.” As appellant’s
brief states, his “SRB contained three pages documenting
criminal offenses that he committed before he enlisted in the
Marine Corps, many of which he committed while a juvenile.”
Final Brief at 4. Specifically, the SRB contained a one-page
form titled “Request for Waiver of Enlistment Criteria,” from
1
All Manual provisions cited in this opinion are identical to the ones in
effect at the time of appellant’s court-martial.
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United States V. Harris, No. 01-0226/MC
the Commanding Officer, United States Marine Corps Recruiting
Station, Dallas, to the Commanding General, Marine Corps Recruit
Depot, San Diego. This document includes blocks for “Drug” use
and “Offenses,” including space to record the nature and
disposition of such offenses. Included with this form is a two-
page document with the following heading: “Subj: Request for
Waiver Case of Harris, Lester R.” This latter document provides
in narrative form, inter alia, background on appellant’s use of
marijuana, LSD, and cocaine prior to enlistment, some of which
occurred while appellant was a juvenile. Appellant’s
submissions pursuant to RCM 1105, Manual, supra, did not address
these SRB entries.2
Appellant first argues that the documents do not fall
within the matters delineated within the meaning of RCM 1107
that the convening authority may consider without giving
appellant an opportunity to respond. RCM 1107(b)(3) provides:
Matters considered.
(A) Required matters. Before taking action, the convening
authority shall consider:
(i) The result of trial;
* * *
(ii) The recommendation of the staff judge advocate
or legal officer under RCM 1106, if applicable;
and
2
These pages, along with other entries from appellant’s SRB, were submitted
by the Government to the Court of Criminal Appeals for inclusion in the
appellate record.
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United States V. Harris, No. 01-0226/MC
(iii) Any matters submitted by the accused under RCM
1105 or, if applicable, RCM 1106(f).
(B) Additional matters. Before taking action the convening
authority may consider:
(i) The record of trial;
(ii) The personnel records of the accused; and
(iii) Such other matters as the convening authority
deems appropriate. However, if the convening
authority considers matters adverse to the
accused from outside the record, with knowledge
of which the accused is not chargeable, the
accused shall be notified and given an
opportunity to rebut.
Appellant asserts that RCM 1107 does not define the term
“personnel record,” but that the term is defined in RCM
1001(b)(2). According to appellant, since the documents in
issue fail to meet the definition in RCM 1001(b)(2),3 they cannot
be considered personnel records for the purposes of RCM 1107.
Appellant also argues that while these documents were, as a
matter of fact, in his SRB, they are not personnel records kept
in accordance with service regulations and, thus, were
improperly contained in his service record. Therefore, he
should not be charged with knowledge of the documents’ presence
in his SRB. In either case, he contends, since the documents
were not personnel records properly considered by the convening
3
This provision states: “`Personnel records of the accused’ includes any
records made or maintained in accordance with departmental regulations that
reflect the past military efficiency, conduct, performance, and history of
the accused.” (Emphasis added.)
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United States V. Harris, No. 01-0226/MC
authority, they were “other matters” for which the convening
authority was obligated to give him notice under RCM
1107(b)(3)(B)(iii). Finally, appellant argues that once a
servicemember qualifies for enlistment, his past misdeeds should
not be held against him. He should start with a clean slate,
especially when those misdeeds were committed as a juvenile.
The problem with appellant’s argument regarding RCM
1001(b)(2) and RCM 1107 is that the Waiver of Enlistment
Criteria, as appellant notes, was part of his SRB, which is a
repository of appellant’s personnel records and was something to
which appellant had access. Further, Rule 1001(b)(2) is a rule
of admissibility intended to regulate the type of evidence
submitted by counsel as part of the adversarial process during
the presentencing hearing, not as part of the post-trial action
by the convening authority.4 Rule 1107(b)(3) provides the
convening authority with broad discretion as to which matters to
consider prior to acting on a case. Rule 1107(b)(3) also
provides the accused with constructive notice of the matters
that must and may be considered by the convening authority, such
as “personnel records of the accused.” RCM 1107(b)(3)(B)(iii)
requires actual notice only “if the convening authority
considers matters adverse to the accused from outside the
4
Even if the second paragraph of RCM 1001(b)(2) were viewed as a definition
of “personnel record” applicable to RCM 1107, the plain text of the paragraph
is inclusive rather than exhaustive as to the meaning of “personnel record.”
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United States V. Harris, No. 01-0226/MC
record, with knowledge of which the accused is not chargeable .
. . .”
Both parties agree that the relevant regulation is Marine
Corps Order P1070.12, Individual Records Administration Manual
(known to Marines by its short title “IRAM”), of which we take
judicial notice in this circumstance. See United States v.
Mead, 16 MJ 270, 273 (CMA 1983). “The IRAM publishes policies,
procedures, and technical instructions for the administration of
personnel records.” IRAM at para. 0001 (emphasis added). The
IRAM “is issued for the guidance and compliance of all
individuals concerned in any aspect of Marine Corps personnel
records administration.” Marine Corps Order P1070.12J (May 16,
1998) (emphasis added). Chapter 4 of the IRAM is titled
“Service Record Book (SRB).” Based on the foregoing, it is
beyond peradventure that the SRB is a repository of “personnel
records.”
Appellant anticipates this conclusion in arguing that the
presence of the enlistment waiver in his SRB is not controlling
because the waiver was maintained in appellant’s SRB contrary to
service regulations. Therefore, it was not itself a “personnel
record.” Chapter 4 of the IRAM arguably suggests otherwise.
Paragraph 4000 anticipates the inclusion of preenlistment
information, stating: “The SRB is designed for recording
specified information about a Marine at the time of enlistment.”
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United States V. Harris, No. 01-0226/MC
(Emphasis added.) Paragraph 4001(c)(2)(48) of the regulation
states that the following documents are to be inserted in the
SRB, if applicable: “Any special authority for
enlistment/reenlistment or extension.” However, we need not
ultimately determine the scope of these provisions. Appellant
has not carried his burden of demonstrating before this Court
that the enlistment waiver documents maintained in his service
record do not constitute “special authority” within the meaning
of subparagraph (48). Therefore, we need not decide today
whether a document improperly maintained in an accused’s SRB may
be considered.5
Conclusion
The documents were part of appellant’s SRB, a repository
of an enlisted Marine’s personnel records. Appellant had a
right to review his SRB and address any potentially adverse
information contained in the SRB as part of his clemency
petition. See IRAM at para. 4001.3 (“When Marines desire to
examine their SRB, they may do so. . . .”). Therefore,
appellant was “chargeable” with knowledge of the contents of his
SRB and was on notice, pursuant to RCM 1107(b)(3)(B), that the
enlistment waiver documents could be considered by the convening
5
Appellant’s argument that preenlistment and juvenile conduct should not be
held against him is a prudential argument founded on policy considerations
rather than legal dictates. It is also an argument that can appropriately be
made as part of an RCM 1105 submission.
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United States V. Harris, No. 01-0226/MC
authority. Under these circumstances, the convening authority
properly considered the enlistment waiver documents in the SRB
prior to his action and was not obligated to further notify
appellant that he would do so.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
9