Opinion of the Court
ROBERT E. Quinn, Chief Judge:On reviewing the record of trial, the board of review affirmed the .court-martial’s findings of guilty. However, it disapproved all punishment. Pursuant to the provisions of Article 67 (b) (2) of the Uniform Code, 10 USC § 867, The Judge Advocate General of the Navy asked this Court to determine whether the board of review erred in disapproving all punishment, without ordering a rehearing of the sentence.
The present case is a rehearing. The accused was convicted by a special court-martial for failing to obey an order to report to his ship. He was sentenced to a bad-conduct discharge. Both the convening and the supervisory authority affirmed the conviction. The board of review determined that the sentence was “inappropriately severe.” In part, its decision was based on the fact that the accused had served forty-four days’ confinement of the original three-month sentence. As a result, the board, in effect, affirmed no punishment as the approved “sentence.” Similar action has been taken in other cases by a Coast Guard and Air Force board of review. United States v Mitchell [CGCMS 20314], 21 CMR 605; United States v Peck [ACMS-11780], 20 CMR 810.
A board of review can “act only within the direct or reasonably implied scope of the powers given to it by the Uniform Code.” United States v Lanford, 6 USCMA 371, 376, 20 CMR 87. The basic grant of power is contained in Article 66 of the Uniform Code, 10 USC § 866. It is there provided that the board of review can “affirm . . . the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.”
Manifestly, a board of review can approve only so much of a sentence as is legal. United States v Brasher, 2 USCMA 50, 6 CMR 50. But legality is-not the only frame of reference. The board of review must also consider whether the sentence is a “fair and just punishment for every accused.” United States v Lanford, supra, page 378. As a matter of fact, the desire of Congress to have the board of review determine the appropriateness of a sentence is so strongly stated we concluded that a board of review can even ameliorate a sentence which the Uniform Code makes mandatory for the court-martial. United States v Jefferson, 7 USCMA 193, 21 CMR 319. In short, the criterion for the exercise of the board of review’s power over the sentence is not legality alone, but legality limited by appropriateness. United States v Stene, 7 US CMA 277, 22 CMR 67.
Thus, the maximum limit of the board of review’s authority over the sentence is fairly well marked out. What about the lower limit? The operative standard in this area is a simple one. The board of review can treat “an accused with less rigor than their authority permits.” United States v Cavallaro, 3 USCMA 653, 655, 14 CMR 71. Although it cannot substitute a punishment different in kind from that adjudged by the court-martial, United States v Goodwin, 5 USCMA 647, 18 CMR 271, the board of review can affirm “such part or amount of the sentence” as it determines should be approved in the light of the “entire record.” In short, the board of review has the power to fix the quantum of punishment as it is specially suited to the accused’s case.
Once the appropriateness of the sentence has been determined by the board of review, its decision is not subject to review by this Court. United States *80v Stene, supra. Although the author of this opinion differs with his brothers on the power of this Court to review the sentence affirmed by the board of review, it logically follows from the Stene case that the Government cannot call into question a decision by the board of review which affirms a too-lenient sentence. Thus, had the sentence imposed at the present hearing been the same as that adjudged at the original trial, namely, a bad-conduct discharge, confinement at hard labor for - three months, reduction in grade to seaman recruit, and forfeiture of ■ $71.72 per month for three months, and had the board of review reduced the sentence to the forfeiture of one dollar, or even one cent, the ' Government would have no standing to complain. See United States v Goodwin, supra. Does it, however, acquire such standing merely because the board of review determines that a dollar or a penny is too insignificant a punishment to merit consideration, and that, therefore, it is inappropriate to affirm any part of the sentence? In our opinion, the two situations are virtually the same, and in both the Government has no ground to complain.
With certain exceptions, the Uniform Code does not prescribe a minimum sentence for any particular offense. Moreover, in determining an appropriate minimum, the board of review has even wider discretion than a court-martial. United States v Jefferson, supra. In exercising a choice between approving a part of the punishment or no punishment, the board of review must be guided by practicalities; and it need not concern itself with triflings. We ourselves have faced, in many forms, the choice of practical alternatives. So, for example, we set aside the findings of guilty and the sentence and ordered a rehearing, although the error we found in the record related only to the post-trial proceedings. United States v Crunk, 4 USCMA 290, 15 CMR 290. In another case, because the surrounding circumstances showed that it was just to do so, we even set aside the findings of guilty of offenses to which the accused pleaded guilty. United States v McMahan, 6 USCMA 709, 21 CMR 31. Frequently, in returning a case to a board of review for corrective action, we give it the right to choose between two courses of action. It can dismiss findings of guilty which we have set aside and reassess the sentence on the basis of the remaining valid findings, or it can order a rehearing of those findings and the sentence. United States v Johnson, 7 USCMA 488, 22 CMR 278; United States v Connell, 7 USCMA 228, 22 CMR 18; United States v Carver, 6 USCMA 258, 19 CMR 384.
The Government concedes that the board of review could order a rehearing of the sentence. United States v Voorhees, 4 USCMA 509, 16 CMR 83. A decision of that kind necessarily includes consideration of whether the ends of justice would be better served by some other action. Here, the board of review determined that the accused had already suffered substantial punishment because of the confinement he served under the first sentence. This prior confinement was a legitimate circumstance for the board of review’s consideration.
In reaching our conclusion we have not overlooked the provision in Article 66(d), 10 USC § 866, that if the board of review sets aside the findings and the sentence and does not order a rehearing, it shall order that the charges be dismissed. By its express terms the provision is applicable only when both the findings and the sentence are disapproved. Since the board of review affirmed the findings, it was not bound to dismiss the charges.
The certified question is answered in the negative. The decision of the board of review is affirmed.
Judge FeRguson concurs.