Opinion of the Court
On March 1, 1991, appellant was tried by special court-martial before a military judge alone. Contrary to his plea, he was convicted of one specification of unauthorized absence from February 21, 1972, to April 19, 1990, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. Pursuant to his pleas, he was convicted of two additional specifications of unauthorized absence: one from May 10 to 20, 1990, and the other from May 22, 1990, until January 11, 1991, which was terminated by apprehension. Appellant was sentenced to a bad-conduct discharge, confinement for 140 days, and forfeiture of $300 pay per month for 4 months. The convening authority approved the sentence. The Court of Military Review set aside the finding of guilty to the 18-year unauthorized absence, affirmed the findings as to the other two specifications of unauthorized absence, then reassessed and affirmed the sentence in an unpublished opinion dated January 31, 1992. We granted review of the following issue:
WHETHER THE COURT OF MILITARY REVIEW’S REASSESSMENT OF THE SENTENCE VIOLATED THIS COURT’S MANDATE IN UNITED STATES v. PEOPLES,29 MJ 426 (CMA 1990).
Before the Court of Military Review, appellant raised the issue of ineffective assistance of counsel based on trial defense counsel’s failure to introduce any evidence on the contested offense alleging unauthorized absence from February 21, 1972, until April 19, 1990. The piece of evidence appellant asserts should have been presented was a copy of a message from the Navy Recruiting District in Columbus, Ohio, dated July 16, 1972, indicating someone identified as appellant was apprehended by civilian authorities and released to military authorities on July 6, 1972, and that the person in custody denied being in any branch of the military. There was conflicting evidence as to whether the message was available to trial defense counsel before trial. Rather than ordering a hearing pursuant to United States v. DuBay,
Appellant contends that the Court of Military Review abused its discretion in not altering his sentence after disapproving the finding of guilty to by far the most serious specification against him. He asks this Court to remand his case to the Court of Military Review with a mandate to approve a sentence not including a bad-conduct discharge or to order a rehearing on sentence.
Traditionally, this Court has avoided making sentence-appropriateness determinations. United States v. Olinger,
When there has been error at the court-martial, the Court of Military Review must try to determine what the sentence would have been absent the error. United States v. Sales,
If the Court of Military Review can determine that “the accused’s sentence would have been at least of a certain magnitude,” the court may reassess the sentence, and a sentence of the severity which would have been adjudged or less will be free of prejudicial error. United States v. Sales,
In reassessing the sentence within the above parameters, the Court of Military Review must ensure sentence appropriateness. Art. 66(c), UCMJ, 10 USC § 866(c). See United States v. Peoples,
We will only disturb the Court of Military Review’s reassessment in order to “prevent obvious miscarriages of justice or abuses of discretion.” United States v. Dukes,
We have great confidence in the ability of the Court of Military Review to reassess sentences in order to purge the effects of prejudicial error at trial. Furthermore, we are well aware that it is more expeditious and less expensive for the Court of Military Review to reassess the sentence than to order a rehearing on sentence at the trial level.
United States v. Peoples,
In Peoples, we held the Court of Military Review abused its discretion in sentence reassessment. Peoples was convicted of wrongfully using cocaine and one specification of uttering eight worthless checks. He was sentenced to a bad-conduct discharge, confinement for 10 months, and reduction to airman basic. On appeal, the Court of Military Review dismissed the finding of guilty to the drug charge and reassessed Peoples’ sentence, reducing the confinement to 6 months but approving the bad-conduct discharge and the reduction to airman basic.
Unlike Peoples, the Court of Military Review in the present case specifically stated that it had “reassess[ed] the sentence in accordance with the principles of United States v. Sales,
Based on a message from a recruiting office which might show appellant’s alleged unauthorized absence for 18 years to be less than 5 months, the Court of Military Review gave appellant the benefit of the- doubt and eliminated the 18-year offense altogether. We note that appellant’s sentence was well within the maximum for the remaining offenses, and appellant expressed no remorse and no interest in returning to duty but spoke only of his desire to return to his family and job. Given the state of the record, we are satisfied that a bad-conduct discharge would have been inevitable on rehearing. The Court of Military Review followed the proper analysis of United States v. Sales, supra, and we cannot say that it abused its discretion in affirming appellant’s sentence on reassessment.
The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.
Notes
We also agreed to review:
WHETHER THE JUDGE ADVOCATE GENERAL'S APPOINTMENT OF THE MILITARY JUDGE VIOLATED THE UNITED STATES CONSTITUTION'S APPOINTMENTS CLAUSE.
This issue has been resolved in favor of the Government in Weiss v. United States, —• U.S. -,