U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
UNITED STATES ) No. ACM S32719
Appellee )
)
v. )
) ORDER
Damien K. WELSH )
Staff Sergeant (E-5) )
U.S. Air Force )
Appellant ) Panel 1
On 24 August 2021, a military judge sitting as a special court-martial con-
victed Appellant, consistent with his pleas in accordance with a plea agree-
ment, of three specifications to the Charge of assault consummated by battery
upon a spouse and one specification to the Additional Charge, also of assault
consummated by battery upon a spouse, all in violation of Article 128, Uniform
Code of Military Justice (UCMJ),
10 U.S.C. § 928.1 The military judge sen-
tenced Appellant to a bad conduct discharge, confinement for 95 days, reduc-
tion to the grade of E-1, forfeiture of $400.00 pay per month for three months,
and a reprimand.
On 8 September 2022, Appellant filed his brief with this court setting forth
assignments of error. In his brief, Appellant’s first assignment of error asks
whether the record of trial (ROT) is incomplete and raises a presumption of
prejudice because it is missing all eight attachments to Prosecution Exhibit 1,
the stipulation of fact. A review of the ROT confirms the eight attachments are
missing.
The Government acknowledges the ROT does not include the eight attach-
ments to Prosecution Exhibit 1. The Government argues that Appellant’s re-
quested remedy for correction pursuant to Rules for Courts Martial (R.C.M.)
1112(d)(2) is unwarranted as the Government has provided the missing attach-
ments through a motion to attach with an accompanying declaration from the
Assistant Trial Counsel at Appellant’s court-martial attesting to the authen-
ticity of the attachments as the same as were attached to Prosecution Exhibit
1 at trial. We acknowledge the motion to attach was granted, but we do not
1 All references in this order to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
United States v. Welsh, No. ACM S32719
agree that this cures the defect without the exhibit actually being incorporated
into the ROT.
“A substantial omission renders a record of trial incomplete and raises a
presumption of prejudice that the Government must rebut.” United States v.
Henry,
53 M.J. 108, 111 (C.A.A.F. 2000) (citations omitted). “Insubstantial
omissions from a record of trial do not raise a presumption of prejudice or affect
that record’s characterization as a complete one.”
Id. “Whether an omission
from a record of trial is ‘substantial’ is a question of law which [appellate
courts] review de novo.” United States v. Stoffer,
53 M.J. 26, 27 (C.A.A.F. 2000).
Each case is analyzed individually to decide whether an omission is substan-
tial. United States v. Abrams,
50 M.J. 361, 363 (C.A.A.F. 1999).
Having reviewed the record, we find the omission of the eight attachments
to Prosecution Exhibit 1, the stipulation of fact, is substantial.
R.C.M. 1112(d) provides for correction of a record of trial found to be incom-
plete or defective after authentication. R.C.M. 1112(d)(2)–(3) describes the pro-
cedure for return of the record of trial to the military judge for correction. The
court notes that R.C.M. 1112(d)(2) requires notice and opportunity for the par-
ties to examine and respond to the proposed correction.
Accordingly, it is by the court on this 26th day of October, 2022,
ORDERED:
The record of trial is returned to the Chief Trial Judge, Air Force Trial Ju-
diciary, to correct the record under R.C.M. 1112(d) to resolve a substantial is-
sue with the post-trial processing, insofar as the eight attachments to Prose-
cution Exhibit 1, stipulation of fact, are missing from the ROT.2
Thereafter, the record of trial will be returned to the court not later than
16 November 2022 for completion of its appellate review under Article 66(d),
UCMJ,
10 U.S.C. § 866(d).
2 We also note that while the charge sheet and the Statement of Trial Results correctly
annotate the Charge as a violation of Article 128, UCMJ, the entry of judgment incor-
rectly annotates the Charge as a violation of Article 128a, UCMJ, Maiming.
2
United States v. Welsh, No. ACM S32719
If the record cannot be returned to the court by that date, the Government
will inform the court in writing not later than 14 November 2022 of the status
of the Government’s compliance with this order.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3
