United States v. Olinger

12 M.J. 458, 1982 CMA LEXIS 18682

• Court: United States Court of Military Appeals
• Decided: April 19, 1982
• Docket: No. 39,872; CM 439358
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

At a general court-martial¹ appellant pleaded guilty ² to two specifications of larceny of lead of a total value of about $700. His sentence, as approved by the convening authority, included a bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 7 months. This was affirmed by the United States Army Court of Military Review. Now the appellant urges ³ that the affirmance of his case was in error inasmuch as eight other individuals at Fort Eustis, tried by court-martial, did not receive a punitive discharge and were awarded significantly less confinement. While we cannot endorse the handling of this case below, we do not perceive an error of law which requires reversal.

I

A review of the factual background of this case manifests unauthorized removal of lead scrap both from the Harrisson Road Cargo Yard and from the 155th Transportation Company Motor Pool. Apparently, various soldiers took portions of the scrap for their own benefit. On two occasions appellant and two companions, members of appellant’s squad, transported lead to Spooner’s Salvage Co. in Newport News, Virginia, and equally shared the profits thus acquired. Eight other members of the 155th Transportation Company were tried, convicted, and punished for theft of varying amounts of scrap metal belonging to the United States.⁴ Olinger, however, was the only serviceman to receive a bad-conduct discharge and, also, a lengthy period of confinement. The Staff Judge Advocate’s review addressed the matter of comparative sentences thusly:

The apparent disparity between the various sentences should be considered by you in arriving at an appropriate action in this case. You are not required by law to reduce the accused’s sentence because others have received lesser sentences if you believe the greater sentence is just. On the other hand, consistency of treatment is a valid and appropriate consideration.

Appellant’s defense counsel in his Goode⁵ response requested the convening authority to consider, in comparison, the sentences adjudged in the other courts-martial cited in the review. Subsequently, before the Army Court of Military Review, the appellant drew attention to the sentences adjudged in the other courts-martial, and, in the section of his brief entitled “Sentence Appropriateness,” he requested the lower “[cjourt to reassess . . . [appellant’s] sentence by reducing the amount of confinement at hard labor to time served and by setting aside the bad-conduct discharge.” The lower court, however, affirmed the approved findings and sentence.

II

This Court has expressly refused to evaluate the appropriateness of individual court-martial sentences, particularly in those cases where the court below exercised its unique fact-finding powers under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, and determined the sentence was correct in law and fact. United States v. Dukes, 5 M.J. 71, 72-73 (C.M.A.1978). We recently reaffirmed this principle by stating:

When reassessment of sentence by the Court of Military Review — or a refusal to reassess — is premised upon an error of law, then that error may be brought before this Court by petition or by certificate. In such an instance, we are simply freeing the Court below to exercise its sentence review powers without the restraints resulting from a misapprehension on a point of law.

United States v. Doran, 9 M.J. 385, 386 (C.M.A.1980) (emphasis added).

In enacting the Uniform Code of Military Justice, Congress gave the Boards of Review the power to “set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate.” S.Rep.No. 486, 81st Cong. 1st Sess. 28 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1949-50). This power was granted to the Courts of Military Review in order to establish uniformity of sentences.

Generally, the appropriateness of an accused’s sentence is to be determined without reference or comparison to sentences in other cases. United States v. Mamaluy, 10 U.S.C.M.A. 102, 106, 27 C.M.R. 176, 180 (1959). The intermediate courts have recognized an exception to this general rule, however, when there are highly disparate sentences in closely related cases. See, e.g., United States v. Kent, 9 M.J. 836 (A.F.C.M.R.1980); United States v. Evans, 6 M.J. 577, 581 (A.C.M.R.1978), pet. denied, 6 M.J. 239 (1979); United States v. Capps, 1 M.J. 1184, 1187 (A.F.C.M.R.1976), citing United States v. Perkins, 40 C.M.R. 885 (A.C.M.R.1969), pet. denied, 19 U.S.C.M.A. 596 (1969); United States v. Browne, 37 C.M.R. 784 (CGBR 1967); United States v. McNeece, 30 C.M.R. 453, 454 (A.B.R.1960), pet. denied, 12 U.S.C.M.A. 733, 30 C.M.R. 417 (1960); and United States v. Morris, 27 C.M.R. 965 (A.F.B.R.1959).

Both the convening authority and the court below determined that appellant’s approved sentence was appropriate. There is some evidence that attention was directed not just to appellant’s adjudged sentence, but also to those allegedly disparate sentences adjudged in other courts-martial proceedings. The facts establish that all of these members of the company were stealing scrap metal in the attempt to make a profit on resale. A conspiracy was not charged nor do the facts show this to be a concerted effort.

As this Court has clearly stated:

We hasten to emphasize that we should not be considered as arrogating to ourselves, under the guise of a legal label, the power to determine or pass on factual questions of sentence appropriateness. Such is not our intention. Quite clearly, and not inadvisedly, Congress denied this Court such authority under the Uniform Code of Military Justice. We entertain no thought of embarking on a wholesale review of sentences. To the contrary, we here expressly recognize only that prerogative we conclude has been vested in this Court from the inception of the Uniform Code — to examine both the legality of an accused’s punishment and, as a matter of law only, its appropriateness.

United States v. Christopher, 13 U.S.C.M.A. 231, 236, 32 C.M.R. 231, 236 (1962).

We have stated, nevertheless, that we may properly review a lower court’s “reassessment of sentence ... to prevent obvious miscarriages of justice or abuses of discretion.” United States v. Dukes, supra at 73. The instant case, however, does not fall in either category. Cf. United States v. Voorhees, 4 U.S.C.M.A. 509, 531, 16 C.M.R. 83, 105 (1954) (“a sentence to dismissal and total forfeitures for . . . a ‘technical’ violation of a regulation is exceedingly severe”).

Appellant’s assertion of error here does not rise to the level of an obvious miscarriage of justice or an abuse of discretion. We conclude that a comparison of the sentences does not exceed, as Judge Ferguson expressed it, a “relative uniformity.” His observation was:

Moreover, the apparent conflict in the desire for uniformity and individual treatment can be reconciled within the terms of .. . [Article 66(c)] of the Code, .... I am certain that mathematical calculation is not the type of uniformity which Congress deemed desirable. It seems more likely to me that it was envisioned that members would utilize the experience distilled from years of practice in military law to determine whether, in light of the facts surrounding accused’s delict, his sentence was appropriate. In short, it was hoped to attain relative uniformity rather than an arithmetically averaged sentence. Thus, I would conclude it to be improper for a board of review to refer solely to statistical data in determining the sentence to be approved.

United States v. Judd, 11 U.S.C.M.A. 164, 170, 28 C.M.R. 388, 394 (1960) (Ferguson, J., concurring in the result). While lesser sentences were given here to certain malfeasants, the facts do not demonstrate that appellant’s sentence exceeded “relative uniformity.”

The decision of the United States Army Court of Military Review is affirmed.

1 . Appellant was found guilty of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, and sentenced to a bad-conduct discharge, a fine of $1000, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to the grade of private E-l. The convening authority approved only so much of the sentence as provided for a bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 7 months. The United States Army Court of Military Review affirmed the findings and sentence.

2 . Appellant’s pretrial agreement provided that in return for his offer to plead guilty to the offenses charged and restitution in the amount of $1000, the convening authority would approve no sentence in excess of a dishonorable discharge, confinement for 7 months, total forfeitures, fine, and reduction to the lowest enlisted grade. It was further agreed that the convening authority would “[d]ismiss and prohibit the prosecution of all other charges in which a plea of guilty is not entered in accordance with the Pretrial Offer, whether pending at present or not, involving the theft of U. S. Government, lead during the period July through August 1979.”

3 . Issue II (10 M.J. 251):

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED IN AFFIRMING APPELLANT’S APPROVED SENTENCE, WHICH INCLUDED A BAD-CONDUCT DISCHARGE, WHEN EIGHT OTHER PERSONS AT FORT EUSTIS WHO WERE TRIED BY COURT-MARTIAL FOR THE SAME OFFENSE AS APPELLANT DID NOT RECEIVE A PUNITIVE DISCHARGE.

4 . The following is a summary of the trials of the other members of the 155th Transportation Company:

Accused_C-M_Specs $ Amt Plea Forum Sentence

SP4 Kurzhal GCM $4,329 NG Members Reprimand, Red to E-3, Forf $50 per month for 36 months

PFC Melino GCM $2,198 NG Judge CHL for 4 months, Forf $200 per month for 4 months (auto red to E-l)

PFC Cody GCM $441 NG Members CHL for 5 months, Forf $200 per month for 5 months

PFC Litton SPCM $200 G Judge Red to E-l, Forf $200 per month for 5 months

SP4 Noble SPCM $200 G Members Red to E-3, Forf $65 per month for 6 months, Ex Dty for 30 days

SP5 Henry SPCM $200 G Judge Red to E-3, Forf to $175 per month for 6 months, Rest for 30 days

SGT Banks SPCM $150 G Members Red to E-3, Forf of 14 days

SP4 Betts SPCM $200 G Judge Red to E-l, HL w/o Conf for 3 months, Forf $100 per month for 3 months

5 . United States v. Goode, 1 M.J. 3 (C.M.A.1975).