delay involved does not render the record inadmissible though the members of the court may consider such delay as a factor bearing on credibility. (Citing U. S. v. Burger, NCM 3-53-G-1061, decided 20 November 1953.) NCM 288, Mullis (1954) 14 CMR 503.

To establish inception of the alleged absence without leave, the prosecution introduced documentary evidence that the accused was transferred to the "AAF Overseas Replacement Depot, Kearns, Utah, for asgmt ," and a morning report extract of "Section O, 1050th AAF Base Unit, AAF Overseas Replacement Depot, Kearns, Utah." However, there was no showing that the accused was ever assigned to this organization. Held: Direct evidence upon this matter was unnecessary in view of the presumption of regularity in the conduct of public business and the preparation of official documents. (Citing ACM 1051, Wilburn (BR), 1 CMR(AF) 642; CM 320957, Boone, 70 BR 224. Distinguishing ACM 7004, Weiler, 12 CMR 845, wherein the evidence affirmatively established that the accused was assigned, at the time of the unauthorized absence, to an organization other than the reporting organization.) ACM 8430, Palmer (1954) 15 CMR 933.

Morning report entry as to accused absent without leave prior to assignment to reporting organizations, see ACM 7004, Weiler, AWOL § 37.5.

Competency of morning report entry showing change of absence without leave status, see ACM S-8551, Murray, ABSENCE WITHOUT LEAVE $51.1.

§ 275.7. Entry as to termination.

The accused was convicted under two specifications of desertion and one charge of escape from confinement. A prosecution exhibit recited the following facts: the accused was apprehended by civilian authorities at Laurens, South Carolina, 9 April 1952; at that time he was dressed in civilian clothes; on 11 April he was surrendered to military control at Donaldson Air Force Base, Greenville, South Carolina, and placed in the station hospital there under guard; later the same day, he escaped through a window; three days thereafter, on 14 April, he was apprehended again by civilian police and surrendered a second time to authorities at Donaldson Air Force Base; on 16 April he was delivered to the United States Navy Recruiting Substation, Greenville, South Carolina; from there he was transferred to the recruiting station at Columbia, South Carolina, and from there to the receiving station, Charleston, South Carolina; this last station was the station from which he was absent. The entries were prepared by the Assistant Officer in Charge, U. S. Navy Recruiting Station, Columbia, South Carolina.

Held that:

- the records in question were admissible. The entry directly attacked here, relating to the initial apprehension and subsequent escape by the accused was recorded in response to the requirement of Art C-7804, Bu Pers Manual, par 3, requiring the commanding officer of the ship or station to which an absentee surrenders, or is delivered, to provide entries on page 13 of the offender's service

record dealing with eight different items among which is "circumstances of return, whether surrendered or delivered." The manual requirement certainly asks for more complete information than would be contained in a simple statement that the accused surrendered, or that he was apprehended. It must be construed to demand a report of all events attendant upon the return of the naval absentee to naval custody which could reasonably have been regarded as "circumstances of return." Thus, the entries related in the prosecution exhibit were properly considered by the officer making them to have fallen within the phrase "circumstances of return" and accordingly the entry was made pursuant to a duty on the part of the official who made it, and as a part of the official duty of that officer, he was required to ascertain from reliable informational sources the correctness of the matters recorded. The requirements of the official record exception were therefore satisfied. Prior military decisions to the effect that morning report extract copies are not admissible in evidence to establish that an accused was apprehended (see ACM 3038, Spradlin, 3 CMR (AF) 692; ACM 3180, Nall, 3 CMR (AF) 736; CM 340598, Sulecki, 6 BR-JC 97) may be distinguished since this case is not concerned with an extract copy of a morning report entry, but rather deals with entries required by regulations to be made in the service record of absentees when they surrender, or are delivered, to a naval command other than that to which they are attached. The opinions in the cited cases are based on the fact that the officer preparing the morning report was not under a duty to ascertain and record whether the offender had been apprehended. Here however the reporting officer was, under applicable regulations, required to ascertain and record the circumstances of return.

- the fact that a naval officer recorded events which had transpired at an Air Force base cannot operate as a bar to the admissibility of the entries, if the naval officer, as in this case, had a duty to learn from reliable sources what had taken place there and to record it. Where the events took place is of little moment. That portion of the opinion in United States v. Masusock (No. 15) 1 USCMA 32, 1 CMR 32, holding that there is a presumption that records emanating from official unit sources are records required by regulation to be kept and that the person recording, even though not shown as the commanding officer, knew or had the duty to know or ascertain the truth of.the facts or events recorded, was not meant to say that the events recorded must have taken place within the unit of the officer making the report nor does it say that the information as to such events must have been obtained from sources within the command of the recording officer. The phrase "official unit sources" in that opinion was intended to furnish a descriptive designation for the customary and usual well of official records. United States v. Coates (No. 1637), 2 USCMA 625, 10 CMR 123.

The accused was convicted of desertion. Over defense objection, the prosecution introduced extract copies of morning reports showing that the accused was returned involuntarily by apprehension. No other evidence was presented concerning the manner of termination of the unauthorized absence. Held: The admission of the

entry pertaining to the accused's apprehension was error since Air Force Manual 171-6, as amended, imposes no duty upon the officer preparing the morning report to record the fact that the accused was apprehended. (Citing ACM 6074, Palmer, 8 CMR 633, 635; ACM 3038, Spradlin (BR), 3 CMR (AF) 692, 694; ACM 3180, Nall (BR), 3 CMR(AF) 736.) The provisions of par 23i, ch 3, sec V, Air Force Manual 171-6, do not require an entry recording that the absentee was apprehended, but merely whether he returned voluntarily or was returned to military control from being dropped from the rolls as absent without leave. It requires and authorizes only such information and no more. (Citing ACM 6074, Palmer, supra.) Section 401 (1), Military Justice Circular No. 8, 31 July 1953, is not applicable in this case since that provision applies only to the recording of an individual status in arrest or confinement by civilian authorities. If regulations do not require an entry be made in a morning report, the entry of such fact is not admissible in evidence as an exception to the hearsay rule. Therefore, the morning report entry in question was not admissible as an exception to the hearsay rule to show that the termination of the unauthorized absence of the accused was by apprehension. (See CM 357921, Keffer, 7 CMR 206; CM 358537, Guinn, 7 CMR 276; CM 358562, Tyson, 7 CMR 283; ACM 6032, Clark, 7 CMR 787, 792. Distinguishing U. S. v. Coates (No. 1637), 2 USCMA 625, 10 CMR 123.) ACM 7798, Pierce (1953) 13 CMR 911.

A Marine Corp service record entry and an entry in the Formal Report of Deserters and Absentees that the accused's desertion terminated by apprehension were not admissible to prove termination by apprehension, inasmuch as at the time of the accused's return to military control there was no official duty in the Marine Corps to record apprehension or surrender in such records. (Distinguishing U. S. v. Coates (No. 1637), 2 USCMA 625, 10 CMR 123.) The reference to "known attending circumstances," as contained in the provision of par 11217(2), Marine Corps Manual, that "in cases of desertion, known attending circumstances and rewards offered" be reflected in the service record, was directed to events known as of the time when an unauthorized absence commenced, or subsequently when the absentee was declared a deserter, and not to events known only at a later date when an entry was included in the service record book to reflect return to military control. Furthermore, the fact that an express duty exists to record apprehension or surrender in the unit diary of the reporting unit to which an absentee is attached upon his return to Marine control does not indicate the existence of a duty to record apprehension either in the service record book of the absentee or in the Formal Report pertaining to him. Additionally, the fact that subsequent to the period involved in the instant case the Marine Corps issued a directive requiring that entries as to apprehension or surrender be made in the service record book and in the Formal Report of Deserters or Absentees does not affect the above conclusion. [Latimer, J., in a dissenting opinion, reviewed various regulations of the Marine Corps and concluded that there was a duty to note the fact of apprehension in prescribed Marine

Corps records and that therefore an entry in the service record was appropriate.] United States v. Bennett (No. 2894), ↳ USCMA 309, 15 CMR 309.

§ 277. Authentication; Identification

§ 277.1. Generally.

After the accused was found guilty of an absence without leave from 23 February 1952 to 11 May 1953, a record of previous convictions was received in evidence over objection by the defense counsel. The form was not completely filled out. It omitted the typed name, grade, organization and signature of the certifying officer, but contained the following statement: "This is an extract of a 'Reconstructed Service Record' as received from TAG, and no signature block appears under the record of trial." The court sentenced the accused to the maximum permissible punishment, including dishonorable discharge, total forfeitures, and confinement at hard labor. However, the convening authority suspended execution of the dishonorable discharge, apparently for other reasons. Held: Evidence of the previous conviction was inadmissible, inasmuch as it did not appear that the custodial officer signed such entry as required (par 26e, SR 615-20–1, 31 Jul 1950; CM 363306, Porter and Morales, 10 CMR 460; ACM S-3108, Adams, 5 CMR 569; ACM S-3527, Roper, 5 CMR 654; ACM S-3800, Cathey, 6 CMR 824; United States v. Parlier (No. 347), 1 USCMA 433, 4 CMR 25; United States v. Collier (No. 367), 1 USCMA 439, 4 CMR 31; United States v. Engle (No. 1971), 3 USCMA 41, 11 CMR 41). However, in view of the prolonged absence (approximately fourteen and a half months) incident to the offense for which the accused was convicted, the improperly considered previous conviction could not have had great weight with the court, and, since the sentence imposed would have been appropriate regardless of the improperly considered previous conviction, the accused was not prejudiced by the error, and therefore no reduction in the sentence is required. CM 364503, Barker, 11 CMR 379.

On a trial for deserticn, an extract copy of a morning report entry was introduced to show date of inception of absence. The certification section of the morning report showed that the officer required to certify the correctness and completeness of the entry did not sign the entry but that it was signed for him by another officer. Par lb(2), ch 6, AFM 171-6, provides with respect to certification of morning reports that in no case will another person sign either his own name or the certifying officer's name in lieu of the certifying officer's personal signature. Held: Since the cited regulation requires the certifying officer to personally sign the entry, the method utilized herein was in direct conflict with the regulation and accordingly the original morning report did not meet the requirements of the official document exception to the hearsay rule and would have been inadmissible in evidence. Similarly, the extract copy thereof was inadmissible. (Citing ACM S-3800, Cathey, 6 CMR 824; distinguishing CM 351631, York, 4 CMR 293.) ACM 6770, Roland (1953) 10 CMR 887.

After findings, the court received in evidence a record of five previous convictions. A named officer certified that he was the official custodian of the accused's service record and that the form contained true copies of those entries therein pertaining to previous convictions. The individual certification portion of each entry contained the typed signature element of that officer in the "Typed Name, Grade, and Organization of Personnel Officer" box and the handwritten ink signature of that same officer in the signature box. Held: Exercising the presumption of regularity that the officer properly performed his duties it must be presumed that his signature did in fact appear in each of the entries in the original service record and it is not regarded that the handwritten signatures in the extract, constitute affirmative evidence that he did not in fact properly perform his duties as custodian of the service record in making those original entries. The usual practice is to show such signatures by typed reproduction. However, there is no requirement that a true copy of an official document must be reproduced by typewriter or any reason why the reproduction may not be handwritten or hand printed in whole or part, including the reproduction of all pertinent signatures. (Citing U. S. v. Engle (No. 1971), 3 USCMA 41, 11 CMR 41; ACM S-4862, Nelson, 9 CMR 653; ACM S-3527, Roper, 5 CMR 654; ACM 3108, Adams, 5 CMR 569; MCM, 1951, pars 138a, 144b.)

Held also: The record does not indicate that the custodian of the accused's service record did not make the entries in the original service record with immediacy after receiving notice of the approving action in each case on approximately the date each conviction was approved. However, assuming that all or the majority of the entries were made at one time, that fact would not deprive the original service record of probative value under the official record exception to the hearsay rule (MCM, 1951, par 144b). The presumption of regularity prevails regardless of the date the custodian of the service record actually prepares the individual entries. In accordance with the mandates of AFR 31-10, requiring the officer having custody of a service record to correct omissions or erroneous entries, the custodian of the accused's service record could have discovered the absence of proper entries concerning prior convictions. Presence of original documents in the accused's file or other trustworthy sources would disclose the omission from the service record. If such in fact was the case, it was the officer's duty to make the service record speak the truth by inserting the proper entries. In that sense a custodial officer's correction of the original service record to supply the omissions is no more unusual than the correction of morning reports by the officer charged with that duty. The same rationale applies to both documents. Both officers perform their respective functions in accordance with proper regulations and directives and the responsibility of each is to make the particular official record reflect events or changes with accuracy. ACM S-6535, Igoe (1953) 11 CMR 828.

After findings of guilty, there was received in evidence, without objection, a "Record of Previous Convictions", covering two previous convictions of one of the accused. The form setting forth the second