United States, Appellee

                                        v.

                      Robert L. MITCHELL, Sergeant
                          U.S. Army, Appellant


                                  No. 99-0307

                          Crim. App. No. 9601800

________________________________________________________________

       United States Court of Appeals for the Armed Forces

                           Argued March 11, 2003

                            Decided July 9, 2003

     BAKER, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a separate opinion concurring in the result.


                                    Counsel

For Appellant: Captain Fansu Ku (argued); Colonel Robert T.
Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and Captain
Mary C. Vergona (on brief); Colonel John T. Phelps, Lieutenant
Colonel Adele H. Odegard, Major Jeanette K. Stone, Captain
Kirsten Campbell-Brunson, and Captain Donald P. Chisholm.

For Appellee: Major Mark L. Johnson (argued); Lieutenant
Colonel Margaret B. Baines, and Lieutenant Colonel Lauren B.
Leeker (on brief).




Military Judge:     Robert Holland & L.K. Webster


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mitchell, No. 99-0307/AR


      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 Military 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-

1.   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-1.    The convening authority approved this second adjudged

sentence, and the Court of Criminal Appeals affirmed.       United

States v. Mitchell, ARMY No. 9601800 (A. Ct. Crim. App. 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


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United States v. Mitchell, No. 99-0307/AR


stigma did not objectively outweigh the severity of the

additional four years of confinement and the forfeitures

adjudged in the first sentence.   

  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.”

     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-1 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-1. 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



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United States v. Mitchell, No. 99-0307/AR


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.   

answered:   “We cannot imagine any reasonable soldier desiring to

spend four more years in confinement in order to avoid the


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United States v. Mitchell, No. 99-0307/AR


increased severity of a dishonorable discharge over a bad-

conduct discharge.”      

   While this statement 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, 

, 348 (C.A.A.F.

2000), and United States v. Josey, 

, 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.             

.     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.

1
  United States v. Rosendahl, 

(C.A.A.F. 2000) and United States v.
Josey, 

(C.A.A.F. 2003), involved appellants seeking credit for
prior punishment against new punishment received at retrials when the results
of their original trials were overturned. In Rosendahl, the appellant sought
elimination of a punitive discharge as credit for 120 days’ confinement
served after his original trial and conviction. In Josey, the appellant
sought elimination of his reduction in rank for similar reasons. In both,
this Court held the requested credit was not required.


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United States v. Mitchell, No. 99-0307/AR


      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-conduct

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-conduct discharge.


2
  See 38 U.S.C. § 5303 (2000)(making a discharge adjudged at a general court-
martial a bar to veteran’s benefits without regard to type of punitive
discharge).
3
  During hearings on revision of the Articles of War, the Judge Advocate
General of the Army characterized the offenses tried at a special court-
martial as “misdemeanor offenses” as opposed to “felony offenses” at a
general court-martial. Subcomm. Hearings on H.R. 2575, To Amend the Articles
of War to Improve the Administration of Military Justice, To Provide for More
Effective Appellate Review, To Insure the Equalization of Sentences, And for
Other Purposes, Before Subcomm. No. 11, Legal of the House Comm. on Armed
Services, 80th Congress, 1st Session 1930-31 (April 14, 1947).


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United States v. Mitchell, No. 99-0307/AR


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.”   

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.

Views as to the relative effects of a bad-conduct discharge and

a dishonorable discharge may have tempered over time, but the

fact remains, that in history, practice and law, a dishonorable

discharge is more severe than a bad-conduct discharge.

     While the term of confinement is finite, the effects of the

increased stigma of a dishonorable discharge may linger long

after one has been released from confinement.   It remains

unclear how an appellate court in such a case can apply an

objective standard.   In our view, it cannot be known what

effects a particular punitive discharge will have on a

particular accused.   These effects will no doubt differ between

individuals based on their personal circumstances.   Indeed, a

youthful offender might very well perceive he has benefited by


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United States v. Mitchell, No. 99-0307/AR


less confinement, but a more severe discharge, only to learn in

his more mature years of the potentially socially debilitating

effects of dishonorable separation from the service.

     In any event, we fail to see how we can give meaning to

Congress’ legislative words “in excess of or more severe than“

without applying those words to the distinctions between

punitive discharges.   Such a conclusion is consistent with the

plain language of the Rules for Courts-Martial, this Court’s

case law, and the longstanding historical and legal treatment of

punitive discharges.   Thus, we hold that for the purposes of

Article 63, a dishonorable discharge is more severe than a bad-

conduct discharge.

                               Conclusion

     The decision of the Army Court of Criminal Appeals is

reversed as to the sentence.   We affirm only so much of the

decision that extends to the findings and a sentence of a bad-

conduct discharge, confinement for six years and reduction to E-

1.




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United States v. Mitchell, No. 99-0307/AR


     CRAWFORD, Chief Judge (concurring in the result):

     The majority opinion sweeps a little too far, adopting

a “discharge is different” rule that says Article 63,

Uniform Code of Military Justice, 10 U.S.C. § 863 (2000),

is violated any time an original sentence includes a bad-

conduct discharge and a rehearing sentence includes a

dishonorable discharge, “regardless of the overall sentence

awarded at each sentence hearing.”    __ M.J. at (4).   Thus,

although not presented by the facts of this case, the

majority holds that a rehearing sentence of a dishonorable

discharge and 10 years’ confinement is “more severe” within

the meaning of Article 63 than an original sentence of a

bad-conduct discharge and 60 years’ confinement.

     I agree that United States v. Rosendahl, 

,

348 (C.A.A.F. 2000), United States v. Josey, 

,

108 (C.A.A.F. 2003), and Rule for Courts-Martial

1003(b)(8)(C) [hereinafter R.C.M.] compel a conclusion in

this case that appellant’s rehearing sentence was “more

severe” than his original sentence.    However, I would leave

for another day the question whether the same result is

warranted in a case like the one described above.    See

.

     As the Eleventh Circuit recently observed:

“[A]ppellate courts best serve the law in deciding ‘each
United States v. Mitchell, No. 99-0307/AR


case on the narrow ground that leads to a decision[.]’”

Clay v. Riverwood Int’l Corp., 

, 1264 (11th

Cir. 1998)(summarizing and quoting Blackston v. Shook &

Fletcher Insulation Co., 

, 1481 (11th Cir.

1985)).   This caveat is especially relevant here, because

Article 63 and R.C.M 810(d) speak in terms of rehearing

“sentences” that cannot be more severe than original

“sentences,” and the term “sentence” is generally

understood to mean the collective individual punishments

meted out at courts-martial.




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