United States v. Brown

Appellant was convicted, upon his pleas of guilty, of two periods of unauthorized absence totalling approximately three (3) months. On the commencement date of the first absence period, appellant had served all but six (6) days of a four (4) year enlistment. But for two minor delicts, resolved through nonjudicial punishment proceedings, the character of service was honorable. The record reflects that appellant served in the U.S. Army from 1969 to 1971. Portions of that enlistment were served in Vietnam as a combat soldier. Appellant received numerous decorations, including *1122the Purple Heart. Appellant is now 34 years old. Under the distinguishing facts of this case, we believe an unsuspended punitive discharge to be inappropriate. Accordingly, the findings are affirmed. Only so much of the sentence as provides for confinement at hard labor for two months, forfeiture of $350.00 pay per month for two months, and reduction to pay grade E-l is affirmed.

(concurring):

It is regrettable that this 34 year old war veteran should have permitted his excellence and commitment to diminish to the extent manifested by the instant offenses and his prior record.

I am aware that in many AWOL cases sentences of similar or lesser severity are approved under facts much more aggravated than this one. I am also aware of the appellate court’s obligation to generally leaven the sentences imposed in its jurisdiction. There comes a time, however, when the relative spread of sentences on widely varying factual bases becomes too small for meaningful leavening, considering the duty to approve sentences believed to be appropriate within the meaning of the law. Consequently, I concur in the principal opinion.