(concurring):
I concur fully in the opinion of the Court, but I should like to add a brief caveat. In United States v. Keith (No. 226), 4 CMR 34, decided July 3, 1952, we held that we were without statutory authority to make a determination of sentence appropriateness as a matter of fact. However, we left “for future consideration the question of whether appropriateness — or its opposite — may be determined by us in a proper case as a matter of law.”
I think it important to note that in the present case we have not determined appropriateness — that is, adequacy— either as a matter of fact or as a matter of law, although the sentence as affirmed is, of course, within legal limits. We have simply sought to avoid the performance of a vain and nugatory act— the making of an empty gesture. To me the more elaborate course would simply not make sense.