United States v. Silvernail

*955DISSENTING OPINION

I dissent. The opinion of the majority sets forth the arguments against the power of a Board of Review to suspend a bad conduct discharge. I shall not belabor the issue further. Suffice it to say that in my opinion the affirmative of the propositions stated in the majority opinion are beyond cavil.

My attention has been called to the case of Zeigler v. District of Columbia (DC Mun App, 71A2d 618) decided February 16, 1950. Appellant was convicted of violation of a traffic regulation and was sentenced to ten days in jail but the execution of the sentence was suspended on the appellant’s promise under oath not to repeat the offense. Appealed from, the government contended that no valid sentence had been inposed from which an appeal may be taken. It was conceded that for many years there had existed in the trial court (the police court) the practice of suspension of execution of sentence on the personal bond or recognizance of the defendant. Such suspension was permanent in effect. The government admitted that this practice is of long standing and asserts that it has in many instances served a salutary purpose, and it now contends that the practice is without authority in law. In holding that the unauthorized suspension of execution of sentence did not deprive the appellant of his right of appeal the court stated:

“Since the decision of the Supreme Court in Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A. 1917 E, 1178, Ann Cas 1917 B, 355, it has been established that in the absence of statutory authority, there is no inherent right in any court of the federal judicial system to suspend execution of sentence in a criminal case (citing cases). Power today in the federal courts to suspend imposition or execution of a sentence is derived from the Federal Probation Act, Frad v. Kelley, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282; Roberts v. U. S., 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41.” (underscoring supplied)

The majority looks to the effect of its action (assuming it to be legal) when it declares that a bad conduct discharge suspended is a less severe sentence than a bad conduct discharge executed. I agree that the incidents of the suspension are indeed less severe, but only for so long as the discharge remains unexecuted. A bad conduct discharge suspended is still a bad conduct discharge. A bad conduct discharge is the sentence and the Board of Review may approve only so much of a sentence as it finds correct in law. The trial court is powerless to sentence an accused to a suspended bad conduct discharge for the simple reason that suspension of a sentence is not authorized by the statute. It follows, therefore, that a Board of Review in making its finding as to the legality or appropriateness of a sentence imposéd by a court-martial must make its finding on the sentence. If the sentence is not divisible the Board cannot divide. It can only approve or disapprove.

As a very practical matter the multitudinous and complex administrative incidents which necessarily attach to a suspended sentence could hamper and duplicate those effective and excellent agencies already created to rehabilitate the accused.

I do not doubt the sincerity or conviction of my colleagues of the majority, but I must resist the assumed excursion into the field of pure clemency.

/sZ__

J. FIELDING JONES