U.S. v. Mitchell, 58 M.J. 446

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a 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 in violation of Article 63, UCMJ; discharges are qualitatively different from other punishments, and a bad-conduct discharge is "less severe" than a dishonorable discharge
2. Article 63 requires a comparison between discharges imposed in original and rehearing sentences regardless of the overall sentence awarded at each sentence hearing
3. 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
4. this Court holds that for the purposes of Article 63, a dishonorable discharge is more severe than a bad-conduct discharge