United States v. Miller , 1997 CAAF LEXIS 96 ( 1997 )

SULLIVAN, Judge

(concurring in part and in the result):

Resolution of the confinement-credit issue by the majority is premature in light of the ordering of a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), in this case. Moreover, I am not prepared to join that portion of the opinion because, in my view, it may conflict with the decision of this Court in Moore v. Akins, 30 MJ 249, 253 (CMA 1990) (“decisions of these ‘courts’ [of military review (now-courts of criminal appeals) ] must be taken into account for purposes of post-trial confinement even before they have become ‘final’ ”). Finally, in United States v. Combs, 47 MJ 330 (1997), a majority of this Court ordered sentence relief for the punitive action of reduction taken towards a servicemember after his sentence was set aside by a Court of Military Review but before this Court affirmed that decision. That accused had immediately been released from confinement and had been directed by military authorities to resume his prior rank. The majority makes no attempt to reconcile Combs with its dicta in this case.