Opinion of the Court
HomeR Ferguson, Judge:
The single issue in this case, which comes here by way of certification from The Judge Advocate General of the Navy, is whether the board of review has "as a matter of law, the authority to reduce the period of suspension of execution of part of a sentence which period has been prescribed by the convening authority in his action."
The accused pleaded guilty before a special court-martial to three specifications alleging disrespectful language toward superior petty officers, in contravention of Article 91, Uniform Code of Military Justice, 10 USC § 891. A sentence which included a bad-conduct discharge, confinement for three months and forfeiture of $55.00 per month for a like period was adjudged. The eon- veiling authority, in his action, approved the sentence but suspended the punitive discharge during the period of confinement and for a probationary period of twelve months thereafter with provisions for eventual automatic remission. The reasons stated by the convening authority in his action for extending the probationary period beyond the customary six months was "because of the seriousness of the offenses of which the accused stands convicted, and because of the short period of confinement." The supervisory authority thereafter approved the sentence as approved, suspended and ordered executed by the convening authority. The board of review which considered the case was of the view "that the long probationary period of twelve months is excessively severe" and accordingly reduced the period of probationary suspension to six months and otherwise approved the sentence.
The establishment of service boards of review is provided for in Article 66 of the Code, supra, 10 USC § 866. In subsection (c) of that Article, Congress enunciated the authority to be exercised by boards of review by providing as follows:
"(c) In a case referred to it, the board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings 'of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses."
Our determination is simply whether or not the action taken by the board in the case at bar comes within this statutory grant of authority. We believe that it does.
In one of the early eases to reach this Court we held that a board of review lacked the power to suspend a punitive discharge. United States v Simmons, 2 USCMA 105, 6 CMR 105. Although our first impression in that case was that service boards "should have the power" to suspend punitive discharges for policy reasons, we nevertheless concluded that there did not exist an inherent power in courts to suspend. Ex parte United States, 242 US 27, 37 S Ct 72, 61 L ed 129. A board of review, being a purely statutory creature, is limited to affirming "such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." Article 66 (c), supra. The power to suspend has been vested by the Congress in the President, the Secretary of the Department and the convening authority. Article 71 of the Code, supra, 10 USC § 871.
It is axiomatic that suspension on the one hand and remission on the other are separate and distinct legal acts involving different considerations and consequences. United States v Butts, 7 USCMA 472, 22 CMR 262. The former postpones; the latter annuls. United States v Phillips, 1 USCMA 349, 3 CMR 83. In United States v Lanford, 6 USCMA 371, 20 CMR 87, we recognized that the name by which the board's power is denominated is unimportant. What is important, however, is that within the limitations of its own authority "the board of review can, in the interests of justice, substantially lessen the rigor of a legal sentence." This is all that the board of review has accomplished here. The suspension constitutes an integral part of the sentence which may be considered by the board either as a legal issue or as a matter relating exclusively to appropriateness. It was the convening authority who suspended the punitive discharge for a fixed period. The board of review merely reduced that period. The suspension, however, remained undisturbed; only its duration was altered. In this respect it is unquestionably true that the board of review may appropriately mitigate the quantum of punishment "as it is specif- ieally suited to the accused's case." United States v Atkins, 8 USCMA 77, 23 CMR 301. To hold otherwise would, in effect, preclude the board's consideration of the question of appropriateness to any portion of the sentence which a convening authority has acted to suspend. By exercising his suspen-sory powers the convening authority cannot thereby restrict the board's exercise of its mitigating powers.
Here the board reduced the probationary period with full knowledge of the reason offered by the convening authority for exceeding the "customary" period of suspension. One of the purposes contemplated by Congress in giving the boards broad mitigating powers was "to establish uniformity of sentences throughout the armed forces." Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1187; Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, page 18. It may be that the board, in reducing the period of probationary suspension, had in mind the objective of bringing it in line with the "customary" period given in similar eases throughout the armed forces. We conclude, therefore, that the certified issue must be answered in the affirmative and the decision of the board of review is affirmed.
Chief Judge Quinn concurs.