Lead Opinion
Opinion of the Court
Appellant’s case was reviewed previously by this Court; and at that time we concluded that he merited “meaningful relief with respect to the remainder of his sentence.” See
We need not reiterate all the facts of the case, which were adequately detailed in our prior opinion. For present purposes, the essential facts are that, at trial, the military judge ordered a three-day-for-one credit for illegal pretrial confinement. Thereafter, the staff judge advocate, in his review, advised the convening authority that the “three-for-one credit” was “inap
At the time of our earlier decision, Suzuki had already been released from confinement; and, as we acknowledged, “[t]he number of days of credit” that had not been “awarded ... might be, under other circumstances, considered de minimis.” Even so, because of what we termed “the egregious facts of the instant case,” we directed “meaningful relief with respect to the remainder of his sentence” and directed “reassessment of the sentence.” Id. at 493.
In its original action on the case, the Court of Military Review had granted a reduction in sentence — a reduction which was in addition to a substantial reduction previously granted by the convening authority pursuant to a pretrial agreement. See
We start from the premise that, when a Court of Military Review reassesses a sentence because of prejudicial error, its task differs from that which it performs in the ordinary review of a case. Under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, the Court of Military Review must assure that the sentence adjudged is appropriate for the offenses of which the accused has been convicted; and, if the sentence is excessive, it must reduce the sentence to make it appropriate. However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively.
In its original opinion, the Court of Military Review specifically stated that the reduction of confinement which it had granted to appellant was “unrelated to the reduction in confinement afforded the accused by the convening authority as credit for illegal pretrial confinement.” We found this “statement ambiguous and inadequate to assure us that the erroneous actions of the convening authority have already been cured.”
At the time of our earlier decision in this case, we recognized that, since appellant had already served his full confinement, the only means of giving him relief would be by modification of some other portion of the sentence. Since the Court of Military Review has special expertise in the realm
It now appears that affording “meaningful relief” to appellant is even more complicated than we might originally have supposed. According to appellate defense counsel, Suzuki was assigned to the Retraining Group at Lowry Air Force Base; and after successful completion of retraining and further military service, he returned to civilian life under honorable conditions. Moreover, there is some question as to whether the adjudged forfeitures of pay to which he was subject were ever collected. Therefore, defense counsel now urge that the charges against appellant be dismissed or that a sentence of “no punishment” be ordered.
We conclude that to direct such action would be a disproportionate response to the errors that have been committed. On the other hand, we believe that this protracted case should be terminated without the further delay that would be involved in another remand to the Court of Military Review. Under the present circumstances, the most equitable action is to invalidate all the forfeitures and affirm the remainder of the sentence. If forfeitures have, in fact, been collected, then our decision will provide Suzuki with a basis for obtaining restoration of the forfeited pay. If, on the other hand, forfeitures have not been collected, then the windfall which he has already received from this omission compensates him adequately for any harm he has suffered because of the errors that have been committed in this case.
The decision of the United States Air Force Court of Military Review as to forfeitures is reversed. That portion of the sentence which includes forfeitures is set aside. Any forfeitures which have been collected from appellant as a result of his conviction in this case will be restored. In all other respects, the decision below is affirmed.
Concurrence Opinion
(concurring):
Since I did not participate in the first decision of this Court [United States v. Suzuki,
Notes
It is noted that this is a guilty-plea case where the accused was sentenced to 4 years’ confinement at hard labor; a fine of $5,000.00; reduction to E-l; and a dishonorable discharge. The convening authority reduced the sentence to 13 months’ confinement at hard labor; a fine of $5,000.00; reduction to E-l; and a dishonorable discharge. The Court of Military Review further reduced the sentence to 11 months and 20 days of confinement at hard labor; forfeiture of $250.00 per month for 12 months; reduction to E-l; and a bad-conduct discharge. According to my calculations, he has received credit for all of the time required by the military judge, plus his dishonorable discharge was reduced to a bad-conduct discharge. I consider that very meaningful relief. The accused then went to Lowry Air Force Base where he was rehabilitated and his bad-conduct discharge was remitted. Thereafter, he reenlisted and has successfully completed that enlistment.