## Facts

- A servicemember was tried by general court-martial for rape and forcible sodomy.
- The members acquitted him of the greater charged offenses but convicted him of lesser-included offenses: lewd and lascivious acts and consensual sodomy.
- Each offense carried a maximum of five years’ confinement; the military judge treated them as separately punishable and advised a combined maximum of ten years.
- The members adjudged six months’ confinement (and additional punitive elements); the convening authority approved the findings and sentence.
- On Article 66 review, the Court of Military Review held the lewd-and-lascivious-acts conviction was multiplicitous as a lesser-included offense of consensual sodomy on the facts, set aside that finding, and affirmed the sodomy conviction.
- The Court of Military Review reassessed the sentence and affirmed the same sentence despite setting aside one conviction.
- The case was reviewed to determine the propriety and limits of appellate sentence reassessment after setting aside findings.

## Issues

1. Whether a service Court of Military Review may reassess and affirm a sentence after setting aside one of multiple findings of guilty (including for multiplicity).
2. What standard must govern reassessment to protect the accused’s right to have the sentence adjudged by the court-martial members.

## Decision

- The court held that a service Court of Military Review has authority under Article 66 to reassess a sentence after correcting error in the findings.
- Reassessment is permissible only if the appellate court is confident it can determine that, absent the error, the sentence would have been at least of the severity approved, and the approved sentence is not greater than what would have been adjudged without the error.
- Applying that standard, the court upheld the reassessed sentence affirming six months’ confinement.

## Legal Principles

- Service appellate courts may affirm only such part of the sentence as is correct in law and fact and, based on the entire record, should be approved; this includes limited authority to reassess after setting aside findings.
- Sentence reassessment must be anchored in a reliable determination of what the members would have adjudged on the error-free findings, not the appellate court’s independent view of an appropriate sentence.
- A reassessed sentence may not exceed the sentence the appellate court concludes would have been imposed absent the error; otherwise, a sentence rehearing is required.
- Reassessment is generally inappropriate when the error materially alters maximum punishment exposure or removes the most serious offense, or when the appellate court cannot confidently gauge the sentence absent the error.

## Conclusion

The court approved sentence reassessment as an Article 66 appellate remedy but limited it to cases where the reviewing court can reliably determine the sentence that would have been adjudged without the error and can ensure the approved sentence is no greater than that amount; otherwise, the proper remedy is a sentence rehearing.


United States v. Sales, 22 M.J. 305 (C.M.A. 1986)