United States v. Larner

COOK, Judge

(dissenting):

I disagree with the principal opinion for two reasons. First, It is conceded that the sentence approved by the Court of Military Review is legal, and what is at issue is a future administrative calculation that will depend entirely upon the accused’s own con*377duct during the next 7 or 8 years. In my opinion, that is a collateral consequence that has no place in the present court-martial proceedings. United States v. Quesinberry, 12 U.S.C.M.A. 609, 31 C.M.R. 195 (1962). Secondly, as the majority’s discussion of Lee v. United States, 400 F.2d 185 (9th Cir. 1968), indicates, the remedy of a person in the position of the accused is an application for habeas corpus. The accused’s right to be released from confinement, however, will not arise until he has accumulated sufficient good time to entitle him to release. He may never reach that point, but if he does, it will be time enough then to consider his application for release; and at that time, he may even be in a Federal civilian confinement facility, which means that the application would be brought in the United States District Court for the district in which the facility is located. See United States v. Ragan, 14 U.S.C. M.A. 119, 121, 33 C.M.R. 331, 333 (1963).

I would affirm the decision of the United States Navy Court of Military Review.