U.S. v. Altier, 71 M.J. 427

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. Article 63, UCMJ, provides that upon a rehearing, no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory; however, the application of the Article 63 limitation in any case cannot be reduced to a specific formula
2. a sentence imposed on rehearing, which included confinement for 30 days, restriction for 45 days, hard labor without confinement for 45 days, reduction to pay grade E-5, and forfeiture of $1,500.00 pay per month for 3 months, was not in violation of Article 63, UCMJ, by being in excess of or more severe than the original sentence of a bad-conduct discharge; appellant did not receive a punitive discharge at the rehearing, a punishment that adds to the stigma of a federal conviction and severely limits the opportunity of a former servicemember to receive important federal benefits, such as those administered by the Department of Veterans Affairs; instead, he received a sentence containing terms similar in effect, although not identical to, the types of punishment that could be imposed in a non-judicial setting under Article 15, UCMJ; under these circumstances, the CCA did not err under Article 63 in affirming the sentence adjudged by the court-martial and approved by the convening authority