dissenting:
I cannot agree to such a drastic reduction of the amount of the fine herein imposed, on the theory that it is inappropriate, especially in light of the relatively insignificant impact other elements of the sentence have had or will have on the appellant in this case. From the appellant’s attitude as reflected throughout the record, it is obvious that he wanted nothing more than to be out of the Army and free of his obligation to the United States. The dismissal was a part of his plea bargain, and a means to the end which he sought, thus the dismissal becomes more appeasement than punishment. Total forfeiture of pay and allowances, normally considered a severe element of punishment, had no effect in this case, since the appellant’s request for excess leave (without pay) was granted prior to the time the forfeiture would have become *731effective,1 hence the forfeiture was never executed. The amount of confinement adjudged and approved was slightly more than one-third the total length of the unauthorized absences for which the appellant was convicted2 and was only one-twelfth the amount of confinement authorized in the Table of Maximum Punishments.3 The amount of confinement actually served was even less.4 Thus, the only significant element of the sentence in this case is the fine. To reduce that fine by over 93 percent is to render it no more than a token punishment, leaving it far outweighed by the benefit derived by the appellant in being relieved of his obligation to serve.
Conspicuously absent from the limitations placed by the President upon punishments5 is any limitation upon a fine imposed by a general court-martial. I believe this to be more than mere oversight, and assume that the reason for imposing no limitation upon the fine, was to allow that element of punishment to be suited to the amount of unjust enrichment, as in this case. The majority sees the imposition of the fine as an attempt to recoup a debt owed the government. I see it as a punishment for having derived, as a result of criminal conduct, a very substantial benefit at the cost of the taxpayer, whether that conclusion is mathematically arrived at by considering the cost of the education, as did the military judge, or by considering the benefit to the appellant in not having to serve his obligated tour of duty, or the lifelong benefit of having received the education, or both. While I agree that there is no legal authority for recoupment of costs such as this by fine, neither do I find any wrong in considering relevant costs to the government, or benefit to the appellant, in the assessment of a fine as punishment.
I would affirm a sentence which included at least a substantial portion of the approved $30,000 fine, if not all, in accordance with the terms agreed to by the appellant in his guilty plea bargain.
. The sentence was approved by the convening authority on 28 June 1978. Excess leave had been granted on 8 June 1978.
. The sentence, as approved, included confinement for two months. Appellant’s absences totalled 153 days.
. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 127c.
. Sentence was adjudged on 19 April 1978. Excess leave was granted 50 days later, on 8 June 1978.
. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 126h (3) and Section B, paragraph 127c.