concurring:
I concur but would address in greater detail one or two matters touched upon in the well-reasoned opinion of Senior Judge Fulton. Notwithstanding the absence of statutory or regulatory authority sanctioning the recoupment under these circumstances of the cost of Government-financed undergraduate education, the record of trial clearly reflects an extraordinary, and in my view inappropriate, preoccupation on the part of certain parties to the trial with the imposition of a fine to serve this purpose.1 During the sentencing phase of the trial, for instance, the military judge specifically *730invited counsel to stipulate “concerning the approximate cost per year of United States Military Academy students during the period ’72 through ’76.” The trial judge further indicated that such a stipulation would preclude the necessity of the bench finding its own witnesses to testify on this subject. Not surprisingly, the requested stipulation was quickly obtained and placed before the judge.2 During argument on sentence, the trial defense counsel contended that in the sense of the Manual for Courts-Martial the AWOL charges did not involve unjust enrichment and, for that reason, the imposition of a fine was not appropriate. The argument of the trial counsel was somewhat less temperate in this regard and called for, in addition, to dismissal, a substantial fine. Repeatedly, it was argued that this was “a clear case of unjust enrichment” and that such a fine was appropriate to satisfy the “debt” owed “to society” and “to the American taxpayer” for “four years of the finest education available in the United States.” In this context, there can be little doubt that at least the monetary portion of the sentence was substantially influenced by the judge-adduced stipulation, and resulting argument of counsel, concerning the cost of appellant’s federally-funded undergraduate education. This Court’s action in reducing the amount of the fine from $30,000 to $2,000 adequately speaks to the appropriateness, in relation to the offenses of which appellant was convicted, of the figure originally arrived at by the trial judge.3 Regarding proper argument by counsel under such circumstances, attention is invited to that portion of paragraph 6.1(b), American Bar Association Project on Standards for Criminal Justice: Standards Relating to The Prosecution Function and The Defense Function (Approved Draft, 1971) which provides that “[w]here sentence is fixed by the judge without jury participation, the prosecutor ordinarily should not make any specific recommendation as to the appropriate sentence, . . . .” Because this provision is not clearly inconsistent with the Uniform Code of Military Justice, the Manual for Courts-Martial, or applicable departmental regulations, it is, by the terms of paragraph 2-32, Army Regulation 27 — 10 (26 November 1968, as changed), applicable to counsel in Army courts-martial proceedings.
. In United States v. Standard Oil Company, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), a civil case tried before the enactment of the Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653, the Supreme Court of the United States was asked, in the absence of legislation by Congress on the subject, to make new law regarding the right of the Government to recover for the loss of a soldier’s services. In refusing to do so, Justice Rutledge, speaking for all but one member of the Court, clarified any misconceptions concerning which branch of the Government had responsibility for remedial action, if any: “Whatever the merits of the policy, its conversion into law is a proper subject for congressional action, not for any creative power of ours. Congress, not this Court or the other federal courts, is the custodian of the national purse.” He reiterated the point in the concluding sentence of the opinion: “Until [Congress] acts to establish the liability, this Court and others should withhold creative touch.” Recognizing fully the distinction between a civil remedy and a criminal sanction, the quoted language would nonetheless appear to be apropos here.
. The court-martial, military judge alone, recessed for this purpose at 1520 hours, 19 April 1978. At 1550 hours, 19 April 1978, the court reconvened to consider what was termed a stipulation of expected testimony of a major assigned to the Office of The Adjutant General at the United States Military Academy. In its entirety, the stipulated testimony was as follows: “The approximate cost to educate a member of the Class of 1976 for the 4 year period was $110,000.00. This amount is computed by dividing the total expenditures on the class for the four year period by the number of cadets actually graduating with the class. The Class of 1976 started with 1375 cadets, 832 graduated in 1976.”
. Aside from the residual fine in the amount of $2,000, and as indicated in the decretal paragraph of Senior Judge Fulton’s opinion, left unaffected by this decision are the provisions of the adjudged sentence providing for dismissal from the service, confinement at hard labor for two months, and forfeiture of all pay and allowances. The record of trial also discloses that appellant was in pretrial confinement for slightly over a month.