(concurring in part/dissenting in part):
I concur in the affirmance of the findings as well as the sentence with the exception of the fine of §2,682.00 which I would set aside as inappropriate. Article 66(c), Uniform Code of Military Justice.
This Court may only approve sentences that are both legal and appropriate. The fine is legal but inappropriate in this case since there is no evidence of unjust enrichment or any other good reason for a fine. See Rule for Courts-Martial (R.C.M.) 1003(b)(3), Discussion, Manual for Courts-Martial (MCM), United States, 1984; United States v. Epineira, No. 88-1410 (NMCMR 7 September 1988); United States v. Gilbert, No. 88-1520 (NMCMR 30 August 1988); and United States v. Huseby, No. 87-4256 (NMCMR 30 June 1988).
The majority concludes that the fine is appropriate and should be affirmed, regardless of the long standing policy presently set forth in the Discussion of R.C.M. 1003(b), because of two factors: (a) a pretrial agreement exists permitting the convening authority to approve the fine and, (b) the military judge expressly questioned the accused and received assurances that the accused understands that a fine could be awarded and approved. As for factor (b), the military judge’s questioning of the accused with respect to his knowledge that a fine could be awarded took place prior to the acceptance of the guilty plea and relates solely to the issue of whether the accused’s plea was a knowing one. That is, did the accused know that if he is found guilty pursuant to his plea, the trial court could “legally” sentence him to a fine? This has no bearing on the appropriateness of a sentence to a fine since that issue is considered during the post-finding, presentencing stage of the trial and is based on the offenses committed and evidence in mitigation, extenuation, and aggravation. As for factor (a), the military judge’s questioning the accused and receiving assurance of his awareness that the convening authority may approve a fine took place during the post-sentencing stage of a trial and went solely to the issue of what portions of the sentence already adjudged may be “legally” approved by the convening authority in view of the pretrial agreement. Thus, at the point of adjudging a sentence to a fine, the military judge was unaware that the pretrial agreement provided for approval of a fine and had not received assurances from the accused that he understood that the convening authority could approve a fine based on the pretrial agreement. That being the case, these factors cannot weigh in the military judge’s decision (or ours) as to whether a fine is an appropriate sentence.
Finally, contrary to the view of the majority, neither a pretrial agreement providing for a fine nor the accused’s understanding that a fine is a “legal” punishment, can transform an otherwise inappropriate sentence into an appropriate sentence.
Both military judges and convening authorities are well aware (or at least should be) of the long standing policy that a fine is normally an appropriate punishment only in cases where the accused is unjustly enriched as a result of the offense he has committed. It therefore behooves a military judge to take this into account upon sentencing and the convening authority to do so when he enters into a pretrial agreement and when he takes action on the sentence. It is their failure to properly consider the directory policy on fines that leads this Court to take corrective action rather than any “cry of foul” from the lips of the accused.
In my view, the consequences of majority’s decision is to no longer require “another good reason” for imposing a fine in the absence of unjust enrichment. Their approval of the fine is not based on either the offenses or on the aggravating circumstances surrounding their commission, but rather on factors irrelevant to the issue of appropriateness.