United States v. Mitchell

58 M.J. 446, 2003 CAAF LEXIS 691, 2003 WL 21543535
CourtCourt of Appeals for the Armed Forces
DecidedJuly 9, 2003
Docket99-0307/AR
StatusPublished
Cited by15 cases

This text of 58 M.J. 446 (United States v. Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mitchell, 58 M.J. 446, 2003 CAAF LEXIS 691, 2003 WL 21543535 (Ark. 2003).

Opinions

Judge BAKER

delivered the opinion of the Court.

At his original general court-martial, Appellant was convicted, contrary to his pleas, of wrongful distribution of a controlled substance (five specifications), wrongful introduction of a controlled substance with intent to distribute, larceny, adultery, and obtaining services under false pretenses in violation of Articles 112a, 121, and 134, Uniform Code of [447]*447Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a, 921, 934, respectively. A panel of officer and enlisted members sentenced appellant to a bad-conduct discharge, confinement for ten years, total forfeitures and reduction to E-l. Upon review, the Court of Criminal Appeals set aside as factually insufficient the findings of guilty of two of the five specifications alleging distribution of a controlled substance. That court affirmed the remaining findings of guilty, set aside the sentence, and authorized a rehearing on the sentence.

At the rehearing, a new panel of members adjudged a dishonorable discharge, confinement for six years and reduction to E-l. The convening authority approved this second adjudged sentence, and the Court of Criminal Appeals affirmed. United States v. Mitchell, ARMY No. 9601800 (A.Ct.CrimApp. Dec. 28, 1998). While recognizing the increased stigma attached to a dishonorable discharge as compared to a bad-conduct discharge, the Court of Criminal Appeals concluded that this increased stigma did not objectively outweigh the severity of the additional four years of confinement and the forfeitures adjudged in the first sentence. Id. at 9. In reaching this conclusion, the Court of Criminal Appeals held “that neither Article 63, UCMJ, [10 U.S.C. § 863 (2000) ] nor Rule for Courts-Martial 810(d) [hereinafter R.C.M.] constrain a convening authority from approving elements of a rehearing sentence, including a more severe punitive discharge, that were not previously adjudged or approved, so long as the overall sentence is not more severe than that which was previously approved.” Id. at 6.

We granted review on the following issue: WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A MORE SEVERE SENTENCE WHERE THE REHEARING SENTENCE INCLUDED A DISHONORABLE DISCHARGE, CONFINEMENT FOR SIX YEARS AND REDUCTION TO PAYGRADE E-l WHEN THE APPELLANT’S ORIGINAL SENTENCE INCLUDED A BAD-CONDUCT DISCHARGE, CONFINEMENT FOR TEN YEARS FORFEITURE OF ALL PAY AND ALLOWANCES, AND REDUCTION TO PAYGRADE E-l. SEE ARTICLE 63.

The question in this case is whether the sentence imposed on rehearing, which included a dishonorable discharge rather than a bad-conduct discharge, but otherwise included less confinement and fewer forfeitures than the first sentence, was “in excess of or more severe” than the sentence originally approved. Because discharges are qualitatively different from other punishments and because a bad-conduct discharge is “less severe” than a dishonorable discharge, we answer the question in the affirmative and reverse.

Discussion

Article 63 provides that “[u]pon a rehearing ... no sentence in excess of or more severe than the original sentence may be approved[.]” R.C.M. 810(d)(1) implements this statutory provision by requiring that “offenses on which a rehearing ... has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial[.]” The Court of Criminal Appeals reasoned that this case hinges on whether Article 63 should be applied to the sentence as a whole or with reference to the individual punishments comprising the sentence. Mitchell, ARMY No. 9601800, slip op. at 6-7. However, for the purposes of this case, we need only decide whether Article 63 requires a comparison between discharges regardless of the overall sentence awarded at each sentence hearing.

In applying Article 63 to Appellant’s sentence the Court of Criminal Appeals adopted an “objective test” and asked whether a reasonable person would conclude that the sentence was “in excess of or more severe” than its predecessor. Id. The court answered: “We cannot imagine any reasonable soldier desiring to spend four more years in confinement in order to avoid the increased severity of a dishonorable discharge over a bad-conduct discharge.” Id. at 8. While this state[448]*448ment might well be factually correct, it misses the legal point. One might logically choose the lesser amount of confinement between two options, but that does not necessarily mean, as a matter of military law, that the “increased severity of a dishonorable discharge” does not make the latter sentence “in excess of or more severe” than the former sentence.

In United States v. Rosendahl, 53 M.J. 344, 348 (C.A.A.F.2000), and United States v. Josey, 58 M.J. 105, 108 (C.A.A.F.2003), this Court determined that punitive separations are “qualitatively different” from confinement and “other punishments” such as forfeitures.1 We also concluded that because punitive separations and confinement are “so different,” there is “no readily measurable equivalence” available to make meaningful conversions of one to the other possible. Rosendahl, 53 M.J. at 348. As a result, it is not possible in this case to make a meaningful comparison, objectively or otherwise, between the increased severity of Appellant’s discharge and the decreased severity of his confinement and forfeitures.

While it might be argued that the distinctions between a bad-conduct discharge and a dishonorable discharge are minimal,2 the Rules for Courts-Martial expressly treat dishonorable discharges as more severe than bad-conduct discharges. See R.C.M. 1003(b)(8)(C)(“A bad-conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civilian or military nature.”). Moreover, the distinction between dishonorable discharges and bad-eon-duct discharges is longstanding in military legal history. Prior to the authorization of bad-conduct discharges, dishonorable discharges were the only type of discharge available and could only be adjudged at the general court-martial level. See William Winthrop, Military Law and Precedents 487 (2d ed.1920). By contrast, bad-conduct discharges were authorized much later and were reserved for less serious offenses.3 As early as 1855, Congress had established the summary court-martial for the Navy and authorized such courts to adjudge a bad-con-duet discharge. Act of March 2, 1855, ch. 136, 10 Stat. 627-629. This act authorized commanders to try enlisted members by summary court-martial “for the trial of offenses which he may deem deserving of greater punishment than the commander of a vessel himself is by law authorized to inflict of his own authority, but not sufficient to require trial by general court-martial.” Id. Prior to 1948, the bad-conduct discharge was not an authorized punishment under the Articles of War governing the Army at all. When the Articles of War were amended in 1948, special courts-martial were authorized to adjudge a bad-conduct discharge. Act of June 24, 1948, ch. 625, tit. II, § 210, 62 Stat. 604, 630.

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Cite This Page — Counsel Stack

Bluebook (online)
58 M.J. 446, 2003 CAAF LEXIS 691, 2003 WL 21543535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mitchell-armfor-2003.