This case was remanded to the United States Air Force Court of Military Review for further consideration of sentence appropriateness. 28 MJ 121. That court then reaffirmed the original sentence.
In its per curiam opinion, the court below noted:
Appellate defense counsel argue that a sentence that includes a punitive discharge is excessive given the appellant’s excellent military record and the mitigating circumstances, i.e., marital problems surrounding the offense. They suggest that the “great sums” expended in developing the appellant as a qualified load-master justify giving him an opportunity for drug rehabilitation.
The argument that appellate counsel make is directed toward the exercise of clemency and not a review of sentence appropriateness which is our function.
Unpub. op. at 2.
In United States v. Healy, 26 MJ 394 (CMA 1988), we recently differentiated between “sentence appropriateness” and “clemency.” However, we also observed that in some instances the same information — for example, with respect to “potential for rehabilitation” — will be “relevant both to clemency and to sentence appropriateness.” 26 MJ at 396. From our reading of the opinion of the court below and the assignment of error submitted there by appellant, it appears that the Court of Military Review may have overlooked the possibility that some of the circumstances to which appellant called attention could properly be taken into account for sentence appropriateness and were not limited to consideration for clemency purposes. In that event, the court below unduly limited itself in performing its review of sentence appropriateness. With this in mind — and in an abundance of caution — we believe the Court of Military Review should, once again, determine whether, after further review of sentence appropriateness, the original sentence should be affirmed or instead should be reduced in some respect.