In its recent unpublished opinion in U.S. v. Altier (available here), the N-MCCA set aside the sentence and authorized a sentence re-hearing because the court was not convinced that the members were aware of the maximum punishment for the offenses of which the accused was convicted. Edit: Altier was convicted at Special Court-Martial of sexual harassment and fraternization in violation of Art. 92, UCMJ.

The maximum punishment was the Special Court-Martial maximum, but the oral and written instructions from the military judge omitted mention of a punitive discharge, and the sentencing worksheet included punishments that were not authorized (such as confinement in excess of 1 year and a dishonorable discharge). Both counsel discussed a BCD in their sentencing argument (the trial counsel asked for it and the defense counsel acknowledged that it was available). The members sentenced the accused to a BCD.

The opinions doesn’t say, but I suspect that the court’s concern is that, in the absence of explicit clarification by the military judge, the members may have thought their sentence choice was somehow lenient when compared to the unauthorized options on the charge  sheet sentencing worksheet. What I find interesting in this case is that while the worksheet was wrong in a way that prejudiced the appellant, the military judge’s instructions were wrong in a way the benefited him, and the arguments of counsel were appropriate, the N-MCCA still set aside the sentence.

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