12 C.M.A. 61 | United States Court of Military Appeals | 1960
Opinion of the Court
The question before us is whether a board of review has power to suspend execution of the sentence approved by the convening authority.
On his plea of guilty, the accused was convicted of fifteen specifications of theft of money from the United States, arising out of a claim for family allowances, and one specification of presenting a false claim for travel by a dependent daughter, in violation of Articles 121 and 132, respectively, Uniform Code of Military Justice, 10 USC §§ 921 and 932. The accused repaid all amounts improperly received. He was sentenced to a bad-conduct discharge, forfeiture of all pay and allowances, reduction to the grade of Recruit, and confinement at hard labor for six months. The convening authority approved the findings of guilty, but modified the sentence by eliminating the confinement.
“Was the board of review correct in holding that it has the power to suspend the execution of a punitive discharge?”
The board of review made a searching examination of its powers, in the light of the provisions of the Uniform Code and our cases. It recognized that a number of our opinions held against the possession of authority by the board of review to suspend execution of a sentence as part of its review powers. See United States v Simmons, 2 USCMA 105, 6 CMR 105; United States v Cavallaro, 3 USCMA 653, 14 CMR 71; United States v Estill, 9 USCMA 458, 26 CMR 238. Nevertheless, it determined that it possessed the power. It believed it discerned in our recent opinion in United States v Russo, 11 USCMA 352, 29 CMR 168, an intimation that the earlier cases were based upon an erroneous construction of the Uniform Code.
In the Russo case we held that the convening authority and the board of review possessed the power to reduce a sentence of death to one of confinement for life. We pointed out that whether it be called mitigation, commutation, or alteration, each reviewing authority, under the terms of its statutory power to “affirm . . . such part or amount of the sentence” as it determines to be correct, can approve a sentence which does not exceed in severity that adjudged by a court-martial. Underlying this principle is the idea that a court “must assume that every rational person desires to live as long as he may.” Rooney v North Dakota, 196 US 319, 325, 49 L ed 494, 25 S Ct 264 (1905). On that assumption, we had no difficulty in concluding that changing a sentence from death to life imprisonment merely mitigates its severity.
Suspension of execution of the sentence does not affect any part or amount of the sentence. It merely holds in abeyance the ultimate decision whether the adjudged penalty should be exacted from the accused. In the Simmons case, supra, we observed that, it was anomalous for a board of review to possess the power to disapprove a sentence but, at the same time, lack the authority to suspend execution. The latter power, however, is “unfortunately” not given to it by the Uniform Code. Our natural inclination to accord the power of suspension to the board of review led us to review the inherent powers of a Federal court over the sentence; but we discovered that the right to suspend execution rests upon express statutory grant. Ex parte United States, 242 US 27, 61 L ed 129, 37 S Ct 72 (1916). We also examined the “historical development of the power of suspension in the military sphere,” and found that said power was closely related to the power to order a sentence into execution. Since the board of review never possessed the power to execute, we were constrained to conclude that history, too, weighed against the power of suspension by a board of review.
Indeed, a board of review has broad
The decision of the board of review is reversed. The record of trial is returned to the board of review for reconsideration of the sentence in the light of this opinion.
