Opinion
COX, Judge:
The accused was tried by a general court-martial convened at Blytheville Air Force Base, Arkansas, on May 16-17, 1983. Pursuant to his pleas, he was convicted of sodomy, taking indecent liberties with a child (two specifications), and committing lascivious acts with a child, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934, respectively. The adjudged sentence was a dishonorable discharge, confinement at hard labor for 25 years, forfeiture of all pay and allowances, and reduction to airman basic. In accordance with a pretrial agreement, the convening authority reduced the confinement to 5 years, but otherwise approved the sentence. The Court of Military Review affirmed the findings, but, finding error in the presentencing proceedings, reassessed the sentence but found it nonetheless appropriate. 17 M.J. 899 (1983).
During the providence inquiry of the accused, after completion of the queries into the charges and specifications, trial counsel offered a stipulation of fact and a handwritten statement that the accused had given to agents of the Office of Special Investigations (OSI). Both documents describe, in graphic detail, the accused’s actions with his step-daughter, his daughter, and another child during the periods alleged in the specifications (July 1 to August 30, and October 1, 1982, to January 24, 1983). However, the confession contains this preliminary information:
In Jan 74, Angela [the accused’s stepdaughter] was taken away from us for suspected child abuse and at that time her [the accused’s wife’s] family resented me and never let me say anything but tried to break up our marriage. It took us five years to get Angela back in our home. During these five years we had two more children and she had a tubal pregnancy.
Defense counsel objected to the confession “primarily because of the references ... to matters that occurred back in the 1973 to 1978 time frame.” He argued that this constituted
conduct that is not charged that would be before the jury under [Mil.R.Evid.] 404b,[1] but also, under [Mil.R.Evid.] 403, it’s the defense’s contention that it is so remote in time, and it is such a different type of offense totally unrelated to the offenses for which Sergeant Martin is facing trial today, that it should be excluded ...
Trial counsel responded that the cited material explained the accused’s motive for the sexual assault and hence was admissible under Mil.R.Evid. 404(b). The military judge agreed with the Government and admitted both exhibits.2 After going over the pretrial agreement with the accused, the military judge found the accused guilty in accordance with his pleas.
Confronted with the issue on appeal, the court below held:
[W]e are convinced that the only purpose uncharged misconduct, ordinarily admissible in a contested case under Mil.R. Evid. 404(b), can serve in an uncontested case is to convince the court that the accused is a bad man. The uncharged misconduct admitted here, being inadmissible under Mil.R.Evid. 404(a), was also inadmissible under Mil.R.Evid. 404(b) because of the effect of Mil.R.Evid. 403. The military judge’s error being prejudicial, reassessment of sentence is required.
17 M.J. at 901.
The Judge Advocate General of the Air Force certified the ease to this Court for review on the following issue:
[229]*229WAS THE AIR FORCE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT EVIDENCE OF UNCHARGED MISCONDUCT, NORMALLY ADMISSIBLE UNDER MRE [MIL. R.EVID.] 404(b) IN A CONTESTED CASE, IS INADMISSIBLE BECAUSE OF THE EFFECT OF MRE 403, WHEN THE ACCUSED PLEADS GUILTY?
To the extent that the Court of Military Review held Mil.R.Evid. 403 always renders uncharged misconduct on findings, normally admissible under Mil.R.Evid. 404(b), to be inadmissible on sentencing, they were in error. The same balancing test required under Mil.R.Evid. 403 applies equally to evidence received during findings and sentencing.
It is noted at the outset that the court below correctly held that the evidence was not admissible under Mil.R.Evid. 404(a) because the accused did not — and probably could not — place his character into evidence during the providence inquiry. The military judge also correctly held that the evidence — qua evidence — would have been admissible under Mil.R.Evid. 404(b) had the accused chosen to contest the case.3 This leaves for decision that part of the certified issue that asks whether the Court of Military Review was correct in making a distinction between contested and uncontested cases as the basis for admissibility of this evidence for sentencing consideration.
Paragraph 75b (4) of the Manual for Courts-Martial, United States, 1969 (Revised edition), which was in effect at the time of the accused’s trial provides:
If a finding of guilty of an offense is based on a plea of guilty and available evidence as to any aggravating circumstances relating to the offenses of which the accused has been found guilty was not introduced before findings, the prosecution may introduce such evidence after the findings are announced.
While the confession was actually introduced before findings, it is clear that its purpose was not to convince the military judge to accept accused’s pleas, but rather to provide a basis for sentence considerations by the court members during the presentencing portion of the trial.
We have held, in a somewhat different factual situation, that trial counsel may present evidence that is directly related to the offense for which an accused is to be sentenced, regardless of the nature of the accused’s pleas. In United States v. Vickers, 13 M.J. 403, 406 (C.M.A.1982), we held:
To interpret the Manual to allow such evidence — irrelevant on the merits but highly relevant on sentencing — after findings in a guilty-plea case, but to prohibit it in a contested case, would present the anomaly that the admissibility of relevant sentencing evidence would be determined by an accused’s plea. In some instances, an accused might plead not guilty merely to exclude evidence that would be damaging as to sentence. Moreover, the decision of the trial counsel to offer certain evidence prior to findings in a contested case — or of the trial judge to receive it — might be influenced by the effect such action would have on the opportunity for the sentencing authority later to consider such evidence if the accused is convicted.
Neither the Code, the Manual, nor the caselaw of this Court mandates the result reached by the Court of Military Review. Both paragraph 75c (3) and Mil.R.Evid. 1101(c), Manual, supra, provide for relaxing the rules of evidence in presentencing procedures. The obvious import of para[230]*230graph 75 is to allow introduction of evidence with a view towards providing the best evaluation of the accused for the sentencing authorities in order to permit the imposition of a truly appropriate sentence.4
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Opinion
COX, Judge:
The accused was tried by a general court-martial convened at Blytheville Air Force Base, Arkansas, on May 16-17, 1983. Pursuant to his pleas, he was convicted of sodomy, taking indecent liberties with a child (two specifications), and committing lascivious acts with a child, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934, respectively. The adjudged sentence was a dishonorable discharge, confinement at hard labor for 25 years, forfeiture of all pay and allowances, and reduction to airman basic. In accordance with a pretrial agreement, the convening authority reduced the confinement to 5 years, but otherwise approved the sentence. The Court of Military Review affirmed the findings, but, finding error in the presentencing proceedings, reassessed the sentence but found it nonetheless appropriate. 17 M.J. 899 (1983).
During the providence inquiry of the accused, after completion of the queries into the charges and specifications, trial counsel offered a stipulation of fact and a handwritten statement that the accused had given to agents of the Office of Special Investigations (OSI). Both documents describe, in graphic detail, the accused’s actions with his step-daughter, his daughter, and another child during the periods alleged in the specifications (July 1 to August 30, and October 1, 1982, to January 24, 1983). However, the confession contains this preliminary information:
In Jan 74, Angela [the accused’s stepdaughter] was taken away from us for suspected child abuse and at that time her [the accused’s wife’s] family resented me and never let me say anything but tried to break up our marriage. It took us five years to get Angela back in our home. During these five years we had two more children and she had a tubal pregnancy.
Defense counsel objected to the confession “primarily because of the references ... to matters that occurred back in the 1973 to 1978 time frame.” He argued that this constituted
conduct that is not charged that would be before the jury under [Mil.R.Evid.] 404b,[1] but also, under [Mil.R.Evid.] 403, it’s the defense’s contention that it is so remote in time, and it is such a different type of offense totally unrelated to the offenses for which Sergeant Martin is facing trial today, that it should be excluded ...
Trial counsel responded that the cited material explained the accused’s motive for the sexual assault and hence was admissible under Mil.R.Evid. 404(b). The military judge agreed with the Government and admitted both exhibits.2 After going over the pretrial agreement with the accused, the military judge found the accused guilty in accordance with his pleas.
Confronted with the issue on appeal, the court below held:
[W]e are convinced that the only purpose uncharged misconduct, ordinarily admissible in a contested case under Mil.R. Evid. 404(b), can serve in an uncontested case is to convince the court that the accused is a bad man. The uncharged misconduct admitted here, being inadmissible under Mil.R.Evid. 404(a), was also inadmissible under Mil.R.Evid. 404(b) because of the effect of Mil.R.Evid. 403. The military judge’s error being prejudicial, reassessment of sentence is required.
17 M.J. at 901.
The Judge Advocate General of the Air Force certified the ease to this Court for review on the following issue:
[229]*229WAS THE AIR FORCE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT EVIDENCE OF UNCHARGED MISCONDUCT, NORMALLY ADMISSIBLE UNDER MRE [MIL. R.EVID.] 404(b) IN A CONTESTED CASE, IS INADMISSIBLE BECAUSE OF THE EFFECT OF MRE 403, WHEN THE ACCUSED PLEADS GUILTY?
To the extent that the Court of Military Review held Mil.R.Evid. 403 always renders uncharged misconduct on findings, normally admissible under Mil.R.Evid. 404(b), to be inadmissible on sentencing, they were in error. The same balancing test required under Mil.R.Evid. 403 applies equally to evidence received during findings and sentencing.
It is noted at the outset that the court below correctly held that the evidence was not admissible under Mil.R.Evid. 404(a) because the accused did not — and probably could not — place his character into evidence during the providence inquiry. The military judge also correctly held that the evidence — qua evidence — would have been admissible under Mil.R.Evid. 404(b) had the accused chosen to contest the case.3 This leaves for decision that part of the certified issue that asks whether the Court of Military Review was correct in making a distinction between contested and uncontested cases as the basis for admissibility of this evidence for sentencing consideration.
Paragraph 75b (4) of the Manual for Courts-Martial, United States, 1969 (Revised edition), which was in effect at the time of the accused’s trial provides:
If a finding of guilty of an offense is based on a plea of guilty and available evidence as to any aggravating circumstances relating to the offenses of which the accused has been found guilty was not introduced before findings, the prosecution may introduce such evidence after the findings are announced.
While the confession was actually introduced before findings, it is clear that its purpose was not to convince the military judge to accept accused’s pleas, but rather to provide a basis for sentence considerations by the court members during the presentencing portion of the trial.
We have held, in a somewhat different factual situation, that trial counsel may present evidence that is directly related to the offense for which an accused is to be sentenced, regardless of the nature of the accused’s pleas. In United States v. Vickers, 13 M.J. 403, 406 (C.M.A.1982), we held:
To interpret the Manual to allow such evidence — irrelevant on the merits but highly relevant on sentencing — after findings in a guilty-plea case, but to prohibit it in a contested case, would present the anomaly that the admissibility of relevant sentencing evidence would be determined by an accused’s plea. In some instances, an accused might plead not guilty merely to exclude evidence that would be damaging as to sentence. Moreover, the decision of the trial counsel to offer certain evidence prior to findings in a contested case — or of the trial judge to receive it — might be influenced by the effect such action would have on the opportunity for the sentencing authority later to consider such evidence if the accused is convicted.
Neither the Code, the Manual, nor the caselaw of this Court mandates the result reached by the Court of Military Review. Both paragraph 75c (3) and Mil.R.Evid. 1101(c), Manual, supra, provide for relaxing the rules of evidence in presentencing procedures. The obvious import of para[230]*230graph 75 is to allow introduction of evidence with a view towards providing the best evaluation of the accused for the sentencing authorities in order to permit the imposition of a truly appropriate sentence.4
Therefore, to the extent that the Court of Military Review held that Mil.R. Evid. 403 automatically bars introduction of aggravating evidence relating to offenses of which an accused has been found guilty after he has pleaded guilty, it was in error. Receipt of sentencing evidence which otherwise meets the admissibility tests of the rules and the Manual is not dependent upon the character of the accused’s pleas.5
One other matter deserves our consideration. At trial, during an out-of-court hearing to discuss sentencing instructions, the military judge appeared to have “second thoughts about” his earlier ruling concerning the confession. He said:
Now, yesterday, when we discussed the admissibility of Prosecution Exhibit Two, I indicated to the accused and counsel for the accused that I would give an instruction. I knew at the time that I told you that, that it wasn’t absolutely necessary. As a matter of fact, the law does not require, except under unusual circumstances, that an instruction be given with regards to the use of certain uncharged misconduct during the course of sentencing, if it comes in for another purpose during the course of the trial on the merits of guilt or innocence.
I’ve had some second thoughts about that, first of all, because I’m not so sure that the language that we were discussing then necessarily amounted to uncharged misconduct, and if I characterize it as that, I might be giving more weight to that rather ambiguous statement ... [than] it really deserves ...
Obviously, I’m suggesting that if I characterize it as being uncharged misconduct, then the court is going to assume, I would think, from my characterization, that it must have been this accused who abused that child, and I don’t think there is any suggestion of that nature throughout the rather ambiguous statement.
It appears that, consciously or not, the military judge was performing the balancing test required by Mil.R.Evid. 403. If I correctly interpret the implications of his remarks, it seems he concluded that accused’s statement was so ambiguous as to have very little weight. If this assessment is correct, then he should have redacted the language from the confession since the potential for “[u]nfair prejudice ... or misleading the members” would appear to unfairly overweigh any residual “probative value” of the language. S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual 176-77 (1981). Although it is not precisely clear, it may be that the Court of Military Review concluded that the military judge abused his discretion under Mil.R.Evid. 403. Certainly, it is within their power to make such a determination as well as to use their mixed-law/fact-finding powers to substitute their [231]*231own judgment for that of the military-judge in this situation. My response to the certified issue should not be construed, in any way, as placing any limitations on the authority of Courts of Military Review to arrive at such a conclusion.
Because the court below affirmed the approved findings and sentence, no further action on the certified issue is required by this Court.
Judge FLETCHER did not participate.