Article 63, UCMJ, states:
Upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…
Rule for Courts-Martial 810 states:
offenses on which a rehearing, new trial, or other trial 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 or hearing, unless the sentence prescribed for the offense is mandatory.
The purpose of these provisions is to enforce Congressional intent that “action by a board of review is always taken on behalf of an accused and in his interest. Literally he can never be prejudiced by this appellate review—for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. … the accused can never be the subject of final action which is more to his detriment than the original action of the court-martial which heard his case.” United States v. Zimmerman, 6 C.M.R. 12, 20 (C.M.A., 1952); see also United States v. Dean, 23 C.M.R. 185, 188 (C.M.A., 1957) (rejecting the Trono rule of federal practice “that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been”).
As an aside, military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.
Last year, the N-MCCA set-aside the sentence – consisting of only a bad-conduct discharge – in United States v. Altier, No. 201000361 (N-M Ct. Crim. App., May 26, 2011), because “improper oral and written instructions were given to the members, and the sentencing worksheet contained even further mistakes.” Slip op. at 8. A sentence rehearing was conducted, resulting in an approved sentence that did not include a bad-conduct discharge, but did include confinement for 30 days, reduction to pay grade E-5, restriction to base limits, hard labor without confinement for 45 days, and forfeiture of $1,500.00 pay per month for three months. The appellant then sought and was granted a Writ of Prohibition to prevent the imposition of the confinement pending the CCA’s review of the lawfulness of the sentence (see, Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989) (Article 66 review is based on the original sentence)).
Last month, in an unpublished opinion, an NMCCA panel split 2-1 and affirmed that approved sentence as “not in excess of, or more severe than, the appellant’s original approved court-martial sentence,” despite the fact that it includes punishments that were not included in the original sentence. United States v. Altier, No. 201000361, slip op. at 3 (N-M Ct. Crim. App., April 30, 2012). Noting that CAAF “has held that there is no exact answer as to how many day of confinement ‘equal’ a bad conduct discharge,” the majority found that, under the circumstances of this case, it could affirm the sentence. Slip op. at 4-5.
However, in a dissenting opinion Senior Judge Perlak found it “impossible to articulate any legal standard by which to reliably compare the social sanction of a punitive discharge against the very basic physical and social consequences accompanying a loss of liberty.” Slip op. at 6. Instead, he compared the sentences head-to-head, and found only the reduction to E-5 permissible, because the original sentence of a bad-conduct discharge implicated automatic reduction to E-1 under Article 58a.
This case isn’t over, and I suspect we’ll see further action either from the NMCCA (en banc) or from CAAF.