(dissenting in part and concurring in the result):
Truth in sentencing promotes justice in a particular case and confidence in the military justice system as a whole. See United States v. Martin, 39 MJ 481, 482-83 (CMA 1994) (Sullivan, J., dissenting) (“Judge not the play before the play is done.”). Quite frankly, the majority opinion violates the principle of truth in sentencing. Ignorant or misinformed juries cannot be expected to do their duty and decide the case before them without a proper understanding and appreciation of the facts in a particular case. Here, it was a statutory (10 USC § 2005) and proven (Comptroller memorandum) fact that, if appellant was dismissed from the service for his offenses, then he could be required to pay the United States Government $80,000 for his education at the Naval Academy.*
The defense in this case proposed the following instruction:
A dismissal may cause Ensign Perry to be liable to reimburse the U.S. Government for all or a portion of the costs associated with his education at the U.S. Naval Academy. As computed by the U.S. Naval Academy, the total cost of education for the past four years is approximately $80,000.
(Emphasis added.) The majority holds that “there was no evidentiary predicate for the requested instruction.” 48 MJ at 199. Such a holding ignores the language of 10 USC § 2005 and the Naval Academy Memorandum on educational reimbursement. Since the defense did not argue, as the majority suggests, that this recoupment was mandatory, no evidence had to be introduced establishing that fact.
The defense did offer evidence concerning the recoupment practice, as well as citing the judge to 10 USC § 2005. A Naval Academy memorandum states:
7100
1 March 1994
MEMORANDUM
From: Comptroller
To: Midshipmen Personnel
Via: (1) Commandant
(2) Deputy for Management
Subj: REIMBURSEMENT OF EDUCATION ASSISTANCE COSTS, PUBLIC LAW 96-357
*202Enel: (1) FY 1993 Cost of Education report
1. Up to and including the Class of 1995, a graduate of the U.S. Naval Academy incurs a five year military commitment. Effective with the Class of 1996, a six year military commitment is incurred. In accordance with PL 96-357, and effective with the class of 1985, if any individual fails to fulfill their commitment, they may be hable to reimburse the U.S. Government for ah or a portion of the costs associated with their education at the Academy. As computed by USNA, the cost of education for each of the past four years is as follows:
FY 1990 $18,272
FT 1991 19,404
FY 1992 20,895
FY 1993 21,573
2. The FY 1994 Cost of Education is projected to be $22,220. This equates to the FY 1993 cost inflated by 3%. Recommend using this projection for determining required reimbursement for midshipmen released during FY 1994.
3. When the actual FY 1994 Cost of Education is calculated at the end of the fiscal year, a projected FY 1995 cost will be provided.
4. Enclosed is a copy of USNA’s FY 1993 Cost of Education report.
G.D. EBERLING
The requested instruction was not couched in language suggesting recoupment was mandatory. The pertinent question, thus, was whether the fact of possible recoupment upon dismissal of the midshipmen was a matter the members should have been aware of in arriving at an appropriate punishment. See generally RCM 1001(c)(1)(B), Manual for Courts-Martial, United States, 1984 (1994 ed.); United States v. Greaves, 46 MJ 133, 139 (1997). In my view, the realities of military life cannot be ignored at a court-martial, and the members should have been instructed on this matter in appellant’s case. See United States v. Becker, 46 MJ 141, 144 (1997) (evidence of unique impact of punitive discharge on a servicemember may be single most important consideration in the case). Accordingly, I would find error here.
I am not persuaded, however, that appellant was substantially prejudiced by the judge’s decision not to instruct on this matter. Art. 59(a), UCMJ, 10 USC § 859(a). He did offer the defense the opportunity to raise this matter in appellant’s unsworn statement, which it chose not to do. Moreover, the defense argued that an appropriate punishment in this case would include a punitive discharge and total forfeitures. Finally, appellant was found guilty of numerous offenses of a serious nature involving sexual abuse of two minor boys. Thus, it can be expected that the punishment might not have been substantially affected by the statutory possibility of educational expense recoupment. Accordingly, I also vote to affirm the sentence in this case.
See Department of Defense Directive 1332.23 (Feb. 19, 1988), Section F.2., which states:
2. Active Duty Commitment and Reimbursement Agreement for Service Academy Students. Active duty service is the primary means of reimbursement for education. Cadets or midshipmen who are not ordered to active duty due to their misconduct or because they petition to be relieved of active duty obligations may be required to reimburse the Government for the cost of their advanced education,
a. As a condition for providing education at a Service academy, the Secretary of the Military Department concerned shall require that each cadet or midshipman enter into a written agreement in which he or she agrees to do the following:
(1) To complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement if called to active duty or, at the option of the Secretary of the Military Department concerned, to reimburse the United States, as prescribed in subparagraph F.2.a.(3) below.
(2) That if such cadet or midshipman fails to complete the education requirements specified in the agreement, such person if so ordered by the Secretary of the Military Department concerned, shall serve on active duty for a period specified in the agreement.
(3) That if such person, with the approval of the Secretary concerned or because of misconduct, voluntarily fails to complete the period of active duty specified in the agreement, he or she shall reimburse the United States in an amount that bears the same ratio to the total cost of advanced education received as the unserved portion of active duty bears to the total period of active duty such person agreed to serve.
(4) To such other terms and conditions as the Secretary concerned may prescribe to protect U.S. interest.
(Emphasis added.)