Opinion of the Court
In accordance with his negotiated pleas, appellant was convicted by a general court-martial of various drug offenses
Before the Court of Military Rеview, appellate defense counsel moved to file 25 documents for consideration by the court on the issue of sentence appropriateness. The documents consisted of letters recommending reduction of the period of confinement. All but two
I
In United States v. Castleman, supra, the Court of Military Review held that, in considering an issue of sentence appropriateness, the Court was restricted to matters contained in the “entire recоrd”— which “encompasse[d] the transcript, the documentary exhibits, and the allied papers,” as well as any appellate briefs, including those submitted by trial defense counsel pursuant to Article 38(c), Uniform Code of Military Justice, 10 USC § 838(c). The rule announced in Castleman was based on a long line of earlier cases decided by this Court. See, e.g., United States v. Fagnan, 12 U.S.C.M.A. 192,
Castleman and its predecessors relied on a distinction between review of sentence appropriateness and consideration of clemency. Sentence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves. Clemency involves bestowing mercy — treating an accused with less rigor than he deserves. Shаkespeare made this distinction when, in the “Merchant of Venice,” he wrote, “And earthly power doth then show likest God’s, When mercy seasons justice.” Act IV, Scene 1, line 184. See United States v. Lanford, supra at 378,
As interpreted by this Court, Article 66, UCMJ, 10 USC § 866, assigns to the Courts of Military Review only the task of determining sentence appropriateness: do
Undoubtedly, Congress intended to entrust clemency to the persons who it believed would be best qualifiеd and in the best position to obtain and evaluate information relevant to clemency — such as the accused’s conduct while in confinement, personal financial burdens confronting the accused or his family, and his prеsent mental and physical condition. We also presume that Congress did not want to duplicate responsibility for the same activity.
In some respects, though, the distinction between judicial review of sentence appropriateness and consideration of clemency is not complete. For example, neither a court-martial nor a Court of Military Review may suspend a sentence. See United States v. Clark,
Furthermore, the record of trial— which the Court of Military Review may consider in determining the appropriateness of the sentence adjudged by the court-martial and approved by the convening authority — will include any post-trial brief submitted by the accused under Article 38(c) of the Uniform Code or any objection by defense counsel to the recommendation of the staff judge advocate. See United States v. Goode,
Although the Code provides a means after trial for an accused to get clemency-oriented information into the “record” prior to action by the convening authority and thereby can bring this information to the attention of the Court of Military Review, the Code does not provide an opportunity for the accused and his counsel to supplement the “record” after the convening authority has acted. We infer from this omission that Congress never intended that a Court of Military Review would be under any duty to receive addi
We need not decide whether, after action by the cоnvening authority, an appellant may move that the Court of Military Review in its discretion remand the case for further consideration by the convening authority and then, upon remand, submit additional information to the convening authority in connection with the exercise of his “command prerogative.” In that event, the clemency information ultimately would reach the attention of the Court of Military Review. Likewise, we need not decide whether the Court of Military Review, if it chooses, may grant a motion to supplement the “record” by the filing of additional documents allegedly relevant to sentence appropriateness. The point is that the Court of Military Review has no duty to rеceive information or data that purports to be relevant only to clemency and that, after the convening authority has acted, the Code provides no way for bringing to the attention of the Court of Military Review information that purportedly bears even on sentence appropriateness.
II
Contrary to appellant’s contention, neither Grostefon nor any of the decisions that followed it requires a Court of Military Review to receive evidence or information concerning the аppropriateness of appellant’s sentence, if that evidence or information could not otherwise be received. Moreover, Grostefon did not expand the scope of review under Article 66 or require that аll the personal desires of the accused be accommodated. Cf. United States v. Mitchell,
Instead, the purpose of our holding in Grostefon was to assure that an accused had the opportunity to bring to the attention of the appellate court any issue he wished to have considered with respect to the findings and sentence, as finally approved by the convening authority. Thus, we require appellate defense counsel to invite the attention of the Court of Military Review or of this Court to issues specified by an accused. Thereby, we have sought to guarantee that no accused would be left with the belief that his lawyer had not raised an issue which he wished to have considered. Imposition of this requirement was viewed аs especially important in military justice, because the defense counsel at both the trial and appellate levels usually are military officers, and an accused whose issues have not been raised on appeal might conclude that the omission was the result of command influence.
In applying Grostefon, we have allowed appellate defense counsel simply to identify issues which the accused wished to have raised, rather than requiring counsel to brief those issues fully. In turn, if the issue has been identified as possibly meritorious, the Court may require briefs thereon. United States v. Knight, supra. However, Grostefon did not signal abolition of basic rules of appellate practice and procedure. Thus, in United States v. Sumpter,
Ill
The decision of the United States Air Force Court of Military Review is affirmed.
Notes
. The convictions were for conspiracy to distribute cocaine, in violation of Article 81 of the Uniform Code of Military Justice, 10 USC § 881; and two specifiсations each of possession, use, and distribution of cocaine and one specification each of possession, use, and distribution of marijuana — all in violation of Article 134, UCMJ, 10 USC § 934.
. The Court of Military Review dismissed all three рossession offenses.
. These two letters were signed by the Senior Protestant Chaplain and the Chief, Chapel Support Activities. Both letters, recommending early release from confinement, were dated before the сonvening authority took action on the case.
. Consistent with our interpretation of the allocation of responsibilities intended by Congress, we have held that a Court of Military Review may not itself suspend a sentence to a punitive discharge, even if it determines that an unsuspended discharge is inappropriate. United States v. Clark,
. The Court of Military Review is free to determine, however, that a sentence which contains an unsuspended punitive discharge is not appropriate and so should not be affirmed. United States v. Clark, supra.
. If there is evidence of insanity after the trial hаs been completed and the convening authority has acted, the Court of Military Review can receive psychiatric information relevant to mental competence to stand trial, to cooperatе with the appeal, or mental responsibility for the crime itself. See United States v. Lilly,