Opinion
PER CURIAM:On 24 March 1975, the appellants were tried separately by the same military judge, sitting alone, as a general court-martial on the following charges arising out of the same incident, viz: Charge I, conspiracy to rob; Charge II, robbery and Charge III, kidnapping, in violation of Articles 81, 122 and 134, 10 U.S.C. §§ 881, 922 and 934, UCMJ, respectively. Each appellant was sentenced to a dishonorable discharge, confinement at hard labor for 7 years, and total forfeitures. Pursuant to pretrial agreements, the convening authority approved the sentence, changed the nature of the punitive discharge to one of bad conduct, and suspended on probation the execution of the confinement and forfeitures in excess of 22 months in each case. The findings and sentences were affirmed by this Court. United States v. Hedlund, No. 75 1083 (N.C.M.R. 11 Aug. 1975); United States v. Reed, No. 75 1210 (N.C.M.R. 30 Sept. 1975).
On its review of each case, the United States Court of Military Appeals found jurisdiction in the courts-martial as to Charge I but no jurisdiction as to Charges II and III. The findings of guilty as to Charges II and III were set aside, and those charges were dismissed. That Court reversed our prior decisions and returned the cases to this Court for action on the sentences. United States v. Hedlund, 2 M.J. 11 (1976); United States v. Reed, 2 M.J. 16 (1976).
The appellants now contend that their pleas of guilty to the conspiracy charge were rendered improvident because of substantial misunderstanding of the maximum punishment which could be imposed.1 Appellants assert that we should set aside the findings and sentences and return the cases for rehearings, citing, inter alia, United States v. Harden, 1 M.J. 258 (1976). This Court, on its own motion, decided to consider these cases together, sitting as a whole.
Appellants’ convictions of conspiracy to rob have become final. This Court ordinarily has no jurisdiction to further consider whether those convictions are correct in law and in fact. The convictions are final by operation of law because the United States Court of Military Appeals did not overturn those convictions. The affirmations of guilt by this Court were obviously considered on review of the decisions. Those affirmations were not set aside. They therefore became final under applicable statutes, through the mandate of the United States Court of Military Appeals. Arts. *111667 and 76, UCMJ; United States v. Field, 5 U.S.C.M.A. 379, 18 C.M.R. 3 (1955); United States v. Yelverton, 26 C.M.R. 586 (A.B.R. 1958), pet. withdrawn, 9 U.S.C.M.A. 836, 26 C.M.R. 516 (1958); United States v. Fields, 26 C.M.R. 681 (A.B.R.1958), pet. den., 10 U.S.C.M.A. 663, 27 C.M.R. 512 (1958); see also United States v. Field, 3 U.S.C.M.A. 182, 11 C.M.R. 182 (1953); United States v. Yelverton, 8 U.S.C.M.A. 424, 24 C.M.R. 234 (1957); United States v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958). As a consequence, we consider it is unnecessary to discuss the providency issue.
Turning to consideration of the sentences in view of the remaining findings of guilty, we note that the Court of Military Appeals remanded these cases to the Court of Military Review for action on the sentences in accordance with its decisions. We interpret the mandates as allowing the exercise of discretion in determining whether the records of trial should be returned for rehearings as to sentence, or whether it would be appropriate to reassess the sentence ourselves.
The appellants argue that they are entitled to rehearings on the sentence at the trial level. They contend this is required because the principal findings of guilty upon which their sentences were based have been overturned. The Court of Military Appeals has, in certain cases not dissimilar to appellants’, indicated that the interests of justice would best be served by permitting a “primary” rather than a “secondary and derivative” redetermination of the sentence. See United States v. Voorhees, 4 U.S.C.M.A. 509, 531, 16 C.M.R. 83, 105 (1954); United States v. Timberlake, 22 U.S.C.M.A. 117, 120-121, 46 C.M.R. 117, 120-121 (1973); United States v. LeBlanc, 19 U.S.C.M.A. 381, 41 C.M.R. 381 (1970); United States v. Swanson, 9 U.S.C.M.A. 711, 717, 26 C.M.R. 491, 497 (1958); United States v. Johnson, 7 U.S.C.M.A. 488, 494, 22 C.M.R. 278, 284 (1957). The Court of Military Appeals has also recognized, however, that substantial discretion is allowed a reviewing authority or appellate court in determining whether a rehearing on the sentence by a court-martial should be ordered or whether it should reassess the sentence at its own level. See United States v. Zunino, 15 U.S.C.M.A. 179, 35 C.M.R. 151 (1964); United States v. Christopher, 13 U.S.C.M.A. 231, 32 C.M.R. 231 (1962); United States v. Timberlake, supra.
Under the circumstances of these cases, we consider it entirely acceptable to reassess the appropriateness of appellants’ sentences at this level. The records of trial reveal that both appellants have been released from confinement and the approved forfeitures applied to their pay. Separate inquiry discloses that Private Reed was released from confinement on 3 November 1975, when he commenced a parole status. His sentence to confinement and forfeitures continued to run, although he was no longer physically confined. See SECNAV Instruction 1640.8A of 4 June 1974. The record of trial indicates Private Hedlund was not granted parole, but separate inquiry discloses he was released from confinement on 28 July 1976. Therefore, as a practical matter, the only real question for consideration is whether the remaining offense of conspiracy to commit robbery warrants the remaining unexecuted portion of the sentence in each case, the bad conduct discharge. This is a proper matter for decision by this Court. See United States v. Zunino, supra.
The appellants request that the bad conduct discharges in their cases be either suspended or disapproved. They note that a panel of this Court previously held that the Courts of Military Review possess the power to suspend a sentence. United States v. Silvernail, 1 M.J. 945 (N.C. M.R.1976), certification dismissed as moot, No. 32,530 (U.S.C.M.A. 26 Aug. 1976). Whether or not this opinion was correct need not detain us, because such action would clearly not be appropriate in these cases.
The appellants stand convicted of conspiracy to commit robbery, an offense which must be considered extremely serious. The records of trial disclose that the co-conspirators planned to carry out their robberies by *1117assaulting hitchhikers. To that end they armed themselves with steel pipes to use as weapons [Hedlund, R. 24-26; Reed, R. 17-18]. Such conduct clearly warrants separation with a bad conduct discharge in the case of each appellant.
Accordingly, as to each appellant, the findings of guilty as to Charge I, and the specification thereunder, have become final. Upon reassessment and with a view toward equalization of the sentence as to each appellant, only so much of the sentences as approved on review below, as provides for a bad conduct discharge, confinement at hard labor for 16 months, and forfeiture of all pay and allowances, during the period of confinement, in each case, is affirmed.
Chief Judge CEDARBURG, Senior Judge NEWTON, Judges MALLERY, GLASGOW and GLADIS concur.. See United States v. Lynch, 2 M.J. 214, Memorandum Opinion and Order (C.M.A.1977), in which, in a companion case with identical charges, the decision of this Court affirming the findings and sentence was reversed by a majority of the Court of Military Appeals but, unlike the instant cases, all findings and the sentence were set aside and a rehearing authorized as to the conspiracy charge. In Lynch, after conceding lack of jurisdiction as to the robbery and kidnapping offenses, the government had . . conceded that a substantial misunderstanding existed on the part of the appellant as to the maximum sentence in [that] case and that such a misunderstanding rendered] the appellant’s plea of guilty to the conspiracy charge improvident.” The disposition in Lynch, directed by the majority, was made, “[i]n light of the government’s concessions. ...”
Government counsel, in the Hedlund brief currently before this Court, likewise conceded the improvidency of the plea to the conspiracy charge and in Reed, failed to respond to the improvidency issue raised as a supplemental assignment of error. After this Court’s order referring these cases for joint consideration sitting as a whole, the government moved to file a late response to the supplemental error assignment in Reed and concurrently asked to withdraw its concession in Hedlund, substituting the late pleading sought to be filed in Reed. The government’s motions were denied as untimely.