Opinion of the Court
ROBERT E. Quinn, Chief Judge:
At a rehearing on the sentence a general court-martial sentenced the accused to a bad-conduct discharge, forfeiture of all pay and allowances, reduction to the rate of fireman recruit, and confinement at hard labor for nine months. On review of the record of trial, a board of review determined that the law officer erred in certain instructions. Taking “corrective action,” it disapproved the punitive discharge. Proceeding under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Navy asked this Court to review the board of review’s decision on the basis of the following questions:
“a. At the rehearing, did the law officer err when he instructed' ‘the court is advised that it may not adjudge a sentence including forfeiture of more than two-thirds pay per month without also awarding a punitive discharge’?
[278]*278“b. If the answer to the first issue is in the affirmative, as a matter of law did the error materially prejudice the substantial rights of the accused ?”
The law officer instructed the court-martial on the matters it could consider in deliberating on the sentence. In part, he said:
“Before the court closes to vote on its sentence, the court is advised that it may not adjudge a sentence including forfeiture of more than two-thirds pay per month without also awarding a punitive discharge.
“The court is advised . . . the maximum permissible punishment ... is limited to the original sentence imposed. The court, however, is not bound in any manner to adhere to the sentence which was adjudged by the previous court nor should you be influenced thereby. There is no minimum sentence. The court should adjudge a. sentence which it considers appropriate for this man, based upon the law and the evidence in this case.” [Emphasis supplied.]
The instruction on the permissible amount of forfeiture is based upon paragraph 12Tb, Manual for Courts-Martial, United States, 1951. That paragraph provides as follows:
“A court shall not, by a single sentence which does not include dishonorable or bad conduct discharge, adjudge against an accused:
Forfeiture of pay at a rate greater than two-thirds of his pay per month.
Forfeiture of pay at a rate greater than two-thirds of his pay for six months.
Confinement at hard labor for a period greater than six months— however, this limitation shall not apply in the case of a prisoner whose punitive discharge has been executed, a civilian, or a prisoner of war.”
In United States v Varnadore, 9 USCMA 471, 26 CMR 251, we determined that the Uniform Code authorizes a general court-martial to adjudge confinement of one year without including a punitive discharge in the sentence. As a result, we held it was error to instruct a court-martial in apparent reliance upon the confinement subdivision of paragraph 127, that it was illegal to adjudge a sentence to confinement in excess of six months without including a punitive discharge. We did not have before us, and we did not consider, the effect of an instruction based upon the forfeiture subdivisions of paragraph 127. Consequently, the Government contends that the invalidity of one part of the paragraph does not automatically invalidate different and separable parts. See 50 Am Jur, Statutes, § 174. However, our discussion in United States v Varnadore, supra, of the principal arguments against the restrictions of paragraph 127 has provided a number of boards of review with the starting point for a determination that an instruction along the lines of the forfeiture provisions is error. United States v Perry, NCM 58-02078, December 2, 1958; United States v Isani, CM 399943, August 19, 1958; United States v Darnell, CM 400149, August 13, 1958.
Despite apparent applicability to all courts-martial, the forfeiture provisions are manifestly lim-ited to a general court. Only a general court has statutory power to impose forfeitures at a rate greater than two-thirds and for a period in excess of six months. Compare Article 18 with Articles 19 and 20, Uniform Code of Military Justice, 10 USC §§ 818, 819, 820.
Imposition of total forfeitures by' a general court-martial without a punitive discharge is not ex-pressly forbidden by the Uniform Code. Consequently, if the accused is convicted of an offense and the maximum sentence “for that offense” (see Article 56, Uniform Code, supra, § 856) includes total forfeitures, the court can adjudge forfeiture of ail pay and allowances, without a punitive discharge. The forfeiture provisions are thus subject to attack for the same reasons advanced against the confinement section, i.e., that they merely set out policy, and [279]*279they can be construed as providing a mandatory minimum rather than a permissible maximum.
Support for the policy argument is found in Colonel Winthrop’s statement that a sentence to total forfeitures without separation from the service “has been commented upon as in general contrary to public policy and .detrimental to the interests of the service, and is now most rarely resorted to.” Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 429. A similar indication that the provision is a policy matter appears in section 446 of Naval Courts and Boards, 1937. If the provision is only a policy matter, the argument continues, it is error to inject it into the ease to influence the' court-martial. See United States v Estrada, 7 USCMA 635, 23 CMR 99; United States v Fowle, 7 USCMA 349, 22 CMR 139. There is, however, another fact which must be considered.
A court-martial cannot impose “cruel or unusual punishment.” Article 55, Uniform Code of Military Justice, 10 USC § 855. To impose forfeiture of all pay and allowances upon an accused who is required to continue in the service for a substantial period of time might possibly violate this provision. Cf. Trop v Dulles, 356 US 86, 2 L ed 2d 630, 78 S Ct 590. As a matter of fact, the Manual provision seems intended as a safeguard against depriving the accused of all means of support for himself and his family during active duty. Naval Justice, October 1945, page 376; Winthrop, op cit supra, page 429. Thus, some cautionary instruction on the imposition of total forfeitures might be legally desirable and practically beneficial to the accused. See United States v Villa, 10 USCMA 226, 27 CMR 300. The instruction in the instant case, however, does not reach this matter. Rather, it may be interpreted as a direction to the effect that a punitive discharge had to be included in the sentence if the court desired to adjudged forfeiture of all pay and allowances. We agree with the board of review that so construed the instruction is misleading and erroneous. Accordingly, we answer the first certified question in the affirmative.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
At a rehearing on the sentence a general court-martial sentenced the accused to a bad-conduct discharge, forfeiture of all pay and allowances, reduction to the rate of fireman recruit, and confinement at hard labor for nine months. On review of the record of trial, a board of review determined that the law officer erred in certain instructions. Taking “corrective action,” it disapproved the punitive discharge. Proceeding under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Navy asked this Court to review the board of review’s decision on the basis of the following questions:
“a. At the rehearing, did the law officer err when he instructed' ‘the court is advised that it may not adjudge a sentence including forfeiture of more than two-thirds pay per month without also awarding a punitive discharge’?
[278]*278“b. If the answer to the first issue is in the affirmative, as a matter of law did the error materially prejudice the substantial rights of the accused ?”
The law officer instructed the court-martial on the matters it could consider in deliberating on the sentence. In part, he said:
“Before the court closes to vote on its sentence, the court is advised that it may not adjudge a sentence including forfeiture of more than two-thirds pay per month without also awarding a punitive discharge.
“The court is advised . . . the maximum permissible punishment ... is limited to the original sentence imposed. The court, however, is not bound in any manner to adhere to the sentence which was adjudged by the previous court nor should you be influenced thereby. There is no minimum sentence. The court should adjudge a. sentence which it considers appropriate for this man, based upon the law and the evidence in this case.” [Emphasis supplied.]
The instruction on the permissible amount of forfeiture is based upon paragraph 12Tb, Manual for Courts-Martial, United States, 1951. That paragraph provides as follows:
“A court shall not, by a single sentence which does not include dishonorable or bad conduct discharge, adjudge against an accused:
Forfeiture of pay at a rate greater than two-thirds of his pay per month.
Forfeiture of pay at a rate greater than two-thirds of his pay for six months.
Confinement at hard labor for a period greater than six months— however, this limitation shall not apply in the case of a prisoner whose punitive discharge has been executed, a civilian, or a prisoner of war.”
In United States v Varnadore, 9 USCMA 471, 26 CMR 251, we determined that the Uniform Code authorizes a general court-martial to adjudge confinement of one year without including a punitive discharge in the sentence. As a result, we held it was error to instruct a court-martial in apparent reliance upon the confinement subdivision of paragraph 127, that it was illegal to adjudge a sentence to confinement in excess of six months without including a punitive discharge. We did not have before us, and we did not consider, the effect of an instruction based upon the forfeiture subdivisions of paragraph 127. Consequently, the Government contends that the invalidity of one part of the paragraph does not automatically invalidate different and separable parts. See 50 Am Jur, Statutes, § 174. However, our discussion in United States v Varnadore, supra, of the principal arguments against the restrictions of paragraph 127 has provided a number of boards of review with the starting point for a determination that an instruction along the lines of the forfeiture provisions is error. United States v Perry, NCM 58-02078, December 2, 1958; United States v Isani, CM 399943, August 19, 1958; United States v Darnell, CM 400149, August 13, 1958.
Despite apparent applicability to all courts-martial, the forfeiture provisions are manifestly lim-ited to a general court. Only a general court has statutory power to impose forfeitures at a rate greater than two-thirds and for a period in excess of six months. Compare Article 18 with Articles 19 and 20, Uniform Code of Military Justice, 10 USC §§ 818, 819, 820.
Imposition of total forfeitures by' a general court-martial without a punitive discharge is not ex-pressly forbidden by the Uniform Code. Consequently, if the accused is convicted of an offense and the maximum sentence “for that offense” (see Article 56, Uniform Code, supra, § 856) includes total forfeitures, the court can adjudge forfeiture of ail pay and allowances, without a punitive discharge. The forfeiture provisions are thus subject to attack for the same reasons advanced against the confinement section, i.e., that they merely set out policy, and [279]*279they can be construed as providing a mandatory minimum rather than a permissible maximum.
Support for the policy argument is found in Colonel Winthrop’s statement that a sentence to total forfeitures without separation from the service “has been commented upon as in general contrary to public policy and .detrimental to the interests of the service, and is now most rarely resorted to.” Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 429. A similar indication that the provision is a policy matter appears in section 446 of Naval Courts and Boards, 1937. If the provision is only a policy matter, the argument continues, it is error to inject it into the ease to influence the' court-martial. See United States v Estrada, 7 USCMA 635, 23 CMR 99; United States v Fowle, 7 USCMA 349, 22 CMR 139. There is, however, another fact which must be considered.
A court-martial cannot impose “cruel or unusual punishment.” Article 55, Uniform Code of Military Justice, 10 USC § 855. To impose forfeiture of all pay and allowances upon an accused who is required to continue in the service for a substantial period of time might possibly violate this provision. Cf. Trop v Dulles, 356 US 86, 2 L ed 2d 630, 78 S Ct 590. As a matter of fact, the Manual provision seems intended as a safeguard against depriving the accused of all means of support for himself and his family during active duty. Naval Justice, October 1945, page 376; Winthrop, op cit supra, page 429. Thus, some cautionary instruction on the imposition of total forfeitures might be legally desirable and practically beneficial to the accused. See United States v Villa, 10 USCMA 226, 27 CMR 300. The instruction in the instant case, however, does not reach this matter. Rather, it may be interpreted as a direction to the effect that a punitive discharge had to be included in the sentence if the court desired to adjudged forfeiture of all pay and allowances. We agree with the board of review that so construed the instruction is misleading and erroneous. Accordingly, we answer the first certified question in the affirmative.
The second certified question asks whether, as a matter of law, the accused was materially prejudiced by the instructional error. The board of review approved the whole of the sentence except the bad-conduct discharge. If the board of review reached its decision by exercising its discretion, instead of correcting an error of law, a determination by us of the strictly legal effect of the trial error could not change the result. We would then be “merely monitoring ... a decision which is immaterial to the present controversy.” United States v Fisher, 7 USCMA 270, 273, 22 CMR 60. The opinion of the board of review is not clear on the point; it seems to base its action partly on the instructional error and partly on circumstances appealing to its discretion.1 In such a situation it is appropriate to return the case to the board of review for clarification of its opinion. United States v Moreno, 5 USCMA 500, 18 CMR 124. However, the nature of the error justifies consideration of the certified question.
If we determine that the instructional error presents no possibility of prejudice to the accused, we can return the case to the board of review certain that the action it takes will end further proceedings on the certificate. Thus, if the board of review predicated its action on a misunderstanding of the legal effect of the error it can assess [280]*280the appropriateness of the sentence; or, if in fact it has exercised its discretion, it can reaffirm its action without regard to the strictly legal issue.
Proceeding to the effect of the error, we hold that it did not prejudice the accused. As previously noted, the proceeding was a rehearing on the sentence. Originally, the accused was sentenced to a bad-conduct discharge, total forfeitures, reduction in rate, and confinement at hard labor for one year. At the rehearing, the defense based its entire case on the proposition that the accused knew he had made a “pretty bad” mistake for which he was “deeply sorry.” The accused pleaded for restoration to duty. He said that marital difficulties, which culminated in a divorce against his wife, had so emotionally disturbed him that for a time he “didn’t care whether . . . [he] lived or died.” He pleaded with the court for a chance to “make right the mistake . . . [he made by] return [ing him] to duty.” He pointed out that he had been “locked up” since he had voluntarily returned to military control. During confinement, he was well-behaved and had been made a trusty. After the original sentence, he spent two months at the Norfolk Retraining Command where he had a “good record.” Additionally, three noncommissioned officers on duty at the station brig testified for the accused. In their respective opinions the accused was “squared-away” and was a “model” prisoner. They believed he was “fit” to return to duty and that he would make “a good sailor.”
It is apparent that the only real question which faced the court-martial in regard to the sentence was whether the sentence should extend to a bad-conduct discharge. In our opinion, the court-martial determined that question entirely apart from any consideration of the forfeitures. We, therefore, answer the second certified question in the negative. However, we emphasize that we express no opinion on the appropriateness of the sentence.
The second certified question is answered in the negative. The decision of the board of review as to the sentence is reversed. The record of trial is returned to The Judge Advocate General of the Navy for submission to a board of review for reconsideration of the sentence.