U.S. v. Harris, 56 M.J. 480

Trial Stages: Sentence and Punishment: Evidence

1. regarding RCM 1001(b)(2) and RCM 1107, a "Waiver of Enlistment Criteria" record was part of appellant’s Service Record Book, which is a repository of appellant’s personnel records and was something to which appellant had access
2. RCM 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; it does not regulate the type of material submitted by counsel as part of the post-trial action by the convening authority

Trial Stages: Initial Review: Action

1. regarding RCM 1001(b)(2) and RCM 1107, a “Waiver of Enlistment Criteria” record was part of appellant’s Service Record Book, which is a repository of appellant’s personnel records and was something to which appellant had access
2. RCM 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; it does not regulate the type of material submitted by counsel as part of the post-trial action by the convening authority
3. RCM 1107(b)(3) provides the convening authority with broad discretion as to which matters to consider prior to acting on a case
4. RCM 1107(b)(3) 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 record, with knowledge of which the accused is not chargeable
5. Marine Corps Order P1070.12, Individual Records Administration Manual (known to Marines by its short title “IRAM”), makes it clear that the Service Record Book is a repository of “personnel records” within the meaning of RCM 1107(b)(3)
6. appellant did not carry his burden of demonstrating that the enlistment waiver documents maintained in his Service Record Book did not constitute “special authority for enlistment/reenlistment or extension” within the meaning of paragraph 4001(c)(2)(48) of Marine Corps Order P1070.12, Individual Records Administration Manual (known to Marines by its short title “IRAM”), and were therefore improperly maintained in his Service Record Book at the time they were considered by the convening authority
7. appellant was “chargeable” with knowledge of the contents of his Service Record Book and was on notice, pursuant to RCM 1107(b)(3)(B), that the enlistment waiver documents could be considered by the convening authority; the convening authority properly considered the enlistment waiver documents in the Service Record Book prior to his action and was not obligated to further notify appellant that he would do so