United States v. Jefferson

Latimer, Judge

(concurring):

I concur.

A majority of the Court has consistently held that a board of review may not change the form of a sentence, but that it may affirm any of its component parts on a reduced scale. United States v Freeman, 4 USCMA 76, 15 CMR 76; United States v Goodwin, 5 USCMA 647, 18 CMR 271. As suggested by the Chief Judge, a sentence to confinement for life is a term sentence, and under the rationale of the above cited cases, a board of review may lessen the length of confinement to a fixed period, provided the Code does not limit its power in those instances where Congress has prescribed mandatory sentences.

At first blush, Article 118 of the Code, 50 USC § 712, creates the impression that the board of review reviewing this record could not reduce the period of confinement, for that Article fixes the punishment which must be imposed following a conviction for premeditated murder. If that Article was the only provision of law with which we had to deal, it could be argued reasonably that Congress intended that the minimum sentence would be binding upon the trial court and all reviewing authorities. However, Article 66 of the Code, 50 USC § 653, cannot be disregarded and it forces a different conclusion. A general rule of statutory construction is that different parts of a law reflect light upon each other, and that when two separate provisions relate to the same subject matter, a court should, if reasonably possible, interpret them so as to give full force and effect to the language of both. Hence, where two constructions of separate provisions are possible, and one will render the law as a whole harmonious, while the other will create inconsistencies and conflicts between the severable parts, the former should be adopted.

Using that canon of construction as my aid, I turn to an analysis of the two relevant Articles of the Code. Article 66 authorizes a board of review to affirm only so much of a sentence as the members find correct in law and fact and determine on the basis of the entire record should be approved. In framing that provision, Congress was considering all divisible sentences which could be reduced in kind and it did not mention any exception for those sentences which it made the mandatory minimum for an offense. Article 118, by its terms, applies only to the imposition of sentences by courts-martial. Therefore, if the Court were to construe the mandatory provisions of Article 118 to be wider in scope and apply to reviewing authorities, and hold that a board of review could not reduce a mandatory life sentence, it would, by that construction, bring the two articles into conflict. In addition, such an interpretation would restrict the application of Article 66 in a very critical area. Rather than defeat what I believe to be the purpose of Congress as expressed in the Code, the Court can give full force and effect to the provisions of both Articles, by construing the limitations imposed by Article 118 as applying only to the court-martial. That penal Article provides that if convicted of premeditated or felony murder, an accused shall suffer death or imprisonment for life as the court-martial may direct. While it requires the imposition of either one of the two enumerated penalties, it does not remotely suggest any impingement on the powers granted to subsequent reviewing authorities to affirm a proper sentence. Thus construed, the two Articles are consistent and harmonious, *196and those authorities are left untrammeled in their determination of whether the sentence as imposed, or only a portion thereof, should be affirmed.