Gonzalez & Waddington – Attorneys at Law

Admitting nonrelated (other past misconduct) formal Article 15s during the presentencing proceeding.

Admissible at trial by court-martial during presentencing as a record from personnel records. R.C.M. 1001(b)(2).

The record needs to be properly completed and properly maintained. Possible objections to the admissibility of records of nonjudicial punishment include:

Record of nonjudicial punishment is incomplete.

United States v.Rimmer , 39 M.J. 1083 (A.C.M.R. 1994) (holding that record inadmissible because the form had no indication whether soldier appealed). See also United States v. Godden , 44 M.J. 716 (A.F. Ct. Crim. App. 1996) (holding that administrative errors on record did not affect any procedural due process rights of appellant and record admissible).

Record not maintained in accordance with regulation.

United Statesv. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994) (finding that record maintained in Investigative Records Repository was not a personnel record maintained in accordance with regulation because regulation specifically stated that records of courts-martial or nonjudicial punishment would not be maintained under its authority). Nonjudicial Punishment (NJP)

Record does not indicate that the accused had the opportunity to consult with counsel and the accused waived his/her right to demand trial by court-martial. U.S. v. Booker, 5 M.J. 238 (C.M.A. 1978); U.S. v. Kelley, 45 M.J. 259 (1996).

Record does not have discernible signatures. United States. v. Dyke , 16 M.J. 426 (C.M.A. 1983).

Appeal incomplete. United States v. Yarbough, 33 M.J. 122 (C.M.A. 1991).

Irregular procedure. United States v. Haynes , 10 M.J. 694 (A.C.M.R. 1981).

May be considered in administrative proceedings.

Real Costs of a COURT MARTIAL Conviction and Discharge

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