(dissenting in part):
I believe the convening authority exceeded his authority in substituting two additional years of confinement and additional forfeitures of $400 per month for 35 months for the bad conduct discharge. Supporting my conclusion is the absence of any reported cases permitting a commutation of a bad conduct discharge to a period of confinement greater than one year. R.C.M. 1107(d)(1) states the convening authority may for any or no reason disapprove a legal sentence in whole or in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of the punishment is not increased. Regardless of whether this appellant, in the long run, may be better off financially as a result of the convening authority’s action, I must conclude that the convening authority increased the severity of his adjudged sentence by tripling the term of confinement from one to three years and by increasing total forfeitures from $400 to $14,000. Waller v. Swift, 30 M.J. 139, 143 (C.M.A.1990).
The sentence was adjudged in this case by a military judge. The military judge obviously concluded that a punitive discharge was appropriate given the nature of the offenses for which appellant was convicted. The military judge also adjudged forfeitures and sentenced appellant to a term of confinement. There is no reason to conclude the military judge assessed any less forfeitures or confinement than he believed appropriate in this case because his sentence included a punitive discharge.
In taking action on the sentence, the convening authority had to determine if the sentence as adjudged was appropriate. If he determined the adjudged sentence was not appropriate, he could change the nature of the punishment only if it did not make the punishment more severe. To ensure continued public confidence in our system of justice, there should be no doubt about the relative severity of the punishments whenever the nature of the punishment is changed by a convening authority. Whether or not an appellant would be more willing to accept some other punishment is not determinative of whether the substituted punishment is, in law and in fact, less severe.
Since the appellant was retirement eligible, the consequences of a punitive discharge were certainly severe. Nevertheless, it is by no means clear that a year’s confinement is always less severe than a punitive discharge. Many accused have authorized their counsel, with permission of the court, to argue for punitive discharges in lieu of any confinement. The majority notes that the appellant indicated he was willing to serve additional confinement if that would persuade the convening authority not to approve the punitive discharge. However, there is nothing to suggest he would have offered to serve as much as two additional years of confinement, or that he contemplated the commander had authority to extend the confinement for such a lengthy period, or that he at any time acquiesced in the convening authority’s decision.
The majority concludes the additional two years of confinement and the additional forfeitures are less severe than a punitive discharge because the action by the convening authority leaves the appellant “eligible to collect his military retirement.” I will not engage in such speculation. This sentence will prove to be less severe only if appellant actually retires at the end of his confinement and he draws enough retirement pay to recoup the additional $13,600 pay he will lose under the increased forfeitures. I am uncomfortable with any rationale which requires us to wait three or more years to determine if the sentence is actually less severe. I do not believe this is an appropri*749ate exercise of the convening authority’s powers. Moreover, I am concerned that this type of punishment manipulation by the convening authority under the guise of sentence commutation will reflect adversely on our military justice system.
I would hold that any substitution of the bad-conduct discharge that exceeds an additional year of confinement and forfeitures of $400 per month for 1 year to be excessive. Therefore, I would affirm only so much of appellant’s sentence that includes confinement for 24 months and forfeitures of $400 per month for 13 months.