United States v. Her

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS UNITED STATES ) No. ACM 40747 (f rev) Appellee ) ) v. ) ) ORDER David H. HER ) Technical Sergeant (E-6) ) U.S. Air Force ) Appellant ) Panel 2 On 17 March 2026, this court remanded Appellant’s case to the Chief Trial Judge, Air Force Trial Judiciary, to (1) insert Special Order A-5, dated 22 Jan- uary 2024, (2) insert missing audio from the closed court session (covering pages 17–22 of the transcript), and (3) correct any other portion of the record of trial that is determined to be missing or defective hereafter, after consulta- tion with the parties. On 8 April 2026, the Government provided a timely sta- tus update indicating “the legal office identified that the record of trial was missing other audio that was not identified by this [c]ourt. The legal office has obtained that audio from the court reporter and is working to correct the defi- ciency in the record.”

The record of trial was returned and re-docketed with this court on 14 April 2026, with a certificate of correction signed by the military judge, dated 24 March 2026, accompanied by two attachments: (1) “Inserting Special Order A- 5, dated 22 January 2024;” and (2) “Inserting audio files from the closed court session (i.e., pages 17–22 of the trial transcript) into the record.”

On 12 May 2026, the Government moved this court to attach a second cer- tificate of correction, dated 15 April 2026, reflecting three attachments.1 The first two attachments were the same as from the 24 March 2026 certificate of correction: (1) Special Order A-5, and (2) audio files from the closed court ses- sion. These attachments were not physically included with this second certifi- cate of correction. However, the third attachment did accompany the 15 April 2026 certificate of correction: (3) “Inserting audio files from arraignment into

Rule for Courts-Martial 1112(b), Contents of record of trial, specifically states that the record of trial in every special and general court-martial shall include, inter alia, “a substantially verbatim recording of the court-martial pro- ceedings except sessions closed for deliberations and voting.” R.C.M.

1112(b)(1). Rule for Courts-Martial 1112(f), Attachments for appellate review, lists matters that can be attached to the record, but are not contents within the record. Audio recordings of open and closed sessions, such as arraignments, must therefore, be included in the record of trial, and shall not be attached to the record of trial. “[I]f a record is incomplete or defective, a court reporter or any party may raise the matter to the military judge for appropriate corrective action.” R.C.M.

1112(d)(2). “A superior competent authority [such as Courts of Criminal Ap- peals] may also return the record of trial to the military judge for correction under this rule. Id. Upon notice of the matter, “[t]he military judge shall give notice of the proposed correction to all parties [of the court-martial] and permit them to examine and respond to the proposed correction.” Id. At the time of the military judge’s 15 April 2026 certificate of correction, the record of trial was already re-docketed with the court. As the remand was complete, the 15 April 2026 certificate of correction and attachment (3), the audio files from arraignment, are not part of the record of trial.3 The court has considered the Government’s motions, Appellant’s response, case law, and this court’s Rules of Practice and Procedure.

Accordingly, it is by the court on this 27th day of May, 2026, ORDERED: Government’s Motion to Attach dated 12 May 2026 is DENIED.

United States v. Her, No. ACM 40747 (f rev)

The record of trial in Appellant’s case is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, for proper insertion of attachment (3) into the record of trial. R.C.M. 1112 (b)(1), (d)(2).

It is further ordered: The record of trial will be returned to the court not later than 10 June 2026. If the record cannot be returned to the court by that date, the Govern- ment will inform the court in writing not later than 8 June 2026 of the status of the Government’s compliance with this order.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court