Today on November 28, 2017, the Court of Appeals for the Armed Forces (CAAF) is set to review this very issue in United States v. Jerkins. In this case, Army Major Jerkins was convicted of assault consummated by a battery upon a child after hitting his three-year-old step-son with a belt. Following his conviction, MAJ Jerkins entered the sentencing phase of his court-martial. During this phase, MAJ Jerkins presented evidence of mitigation and extenuation, including testimony from numerous other Army officers describing his commendable service in the military. When the defense was done presenting this evidence regarding MAJ Jerkins’ service, the government then admitted a two-week old General Officer Memorandum of Reprimand (GOMOR) as rebuttal evidence. The government admitted the GOMOR as a “personnel record of the accused.” These records may reflect past “military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under Article 15.” (Rule for Court-Martial (R.C.M.) 1001(b)(2)). While the admission of a GOMOR might typically be permissible under R.C.M. 1001(b)(2), this particular GOMOR is questionable. The GOMOR was based on suspected inappropriate relationship with an enlisted soldier. It was written and presented to MAJ Jerkins two weeks prior to his court-martial. By the time the government presented it during his sentencing phase as rebuttal evidence, MAJ Jerkins had not had an opportunity to respond to the accusations made in the GOMOR. Further, the GOMOR had not been officially filed in MAJ Jerkins permanent file. The government in this appellate case argues that this filing is not required to qualify as a personnel record under R.C.M. 1001(b)(2). If CAAF agrees with this argument, it will lead to a concern that any negative notes made by a superior officer, not filed in a permanent official file, may be used against an accused in his court-martial. The defense in MAJ Jerkins’ appellate case will argue that the GOMOR was not a personnel record of the accused at the time of the court-martial because the issuing authority had not taken final action on it. If CAAF determines the incomplete GOMOR was a personnel record at the time of the court-martial, MAJ Jerkins then will argue that its “probative value” is outweighed by its prejudice or possible confusion by the panel. It will be interesting to see what CAAF decides in this case. I stay apprised of these decisions so that I can serve my clients in the best way possible. If you are facing a court-martial or want to appeal your court-martial, you need experience by your side and someone who understands the most current law. Call me now, I can help you or your loved one with an upcoming court-martial or court-martial appeal. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
