
    UNITED STATES, Appellee, v. Thomas B. BEATY, Private First Class, U. S. Army, Appellant.
    No. 43,227. CM 441237.
    U. S. Court of Military Appeals.
    Oct. 12, 1982.
    For Appellee: Major John T. Edwards, Major Michael L. DeBusk, Captain Peter M. Donawick (on petition).
    For Appellant: Major Raymond C. Ruppert, Captain David M. England, Captain Edward J. Walinsky (on petition).
   Opinion of the Court

PER CURIAM:

A military judge sitting alone as a general court-martial in Nellingen, Germany, convicted appellant of wrongful possession, transfer, and sale of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Thereupon, the judge sentenced appellant to a dishonorable discharge, confinement at hard labor for 2 years, and total forfeitures. The convening authority approved these results and the United States Army Court of Military Review affirmed without opinion.

Appellant’s trial ultimately became a contest of credibility among witnesses. Several testified for the prosecution about events leading to the alleged sale of heroin by appellant to a member of the local Joint Drug Suppression Team in Stuttgart, while appellant denied the transaction and claimed, instead, that the three principal government witnesses had conspired to frame him of the offenses. In addition, witnesses testified for each side concerning appellant’s truthfulness. As evidenced by the verdict, the military judge resolved the contest against appellant.

After hearing additional evidence and argument by counsel regarding an appropriate sentence, the military judge asked appellant to rise. Thereupon, immediately before announcing his sentence, the military judge stated:

Private Beaty, you plead [sic] not guilty in this case and you protest your innocence still in an unsworn statement. Additionally, you took the stand on the merits and testified. And I found that you testified untruthfully, and I will sentence you accordingly.

In our recent decision in United States v. Warren, 13 M.J. 278 (C.M.A.1982), we held that

in sentencing, a military judge may properly consider that the accused’s false testimony in his own defense tends to refute claims of his repentance and readiness for rehabilitation.

Id. at 284. However, we admonished that

the sentence should not be increased as a punishment for perjury or a deterrent to others; if the perjury is to be punished as such, it should be in a separate prosecution for that offense.

Id. at 284-85.

In a case decided the same day as Warren United States v. Cabebe, 13 M.J. 303 (C.M.A.1982) — we examined the instructions which had been delivered by the military judge to the sentencing court. In pertinent part, the judge there had advised the members:

It may be that you have concluded in your deliberations that the accused’s testimony was in some respect, was untrue .... If you’re satisfied, convinced in your own mind that the accused has lied to you in his testimony, you may also consider that as a matter in determining your sentence.

Id. at 305 (emphasis omitted). We held that this

instruction presented the distinct possibility that, if the members concluded appellant had lied to them, they might “mete out additional punishment for the false testimony itself” — without any caution that appellant's lies, if deemed willful and material, could only be used in determining whether appellant was capable of being rehabilitated.

Id. at 306.

A similar flaw exists in this case. While the military judge made it clear that a basis of the sentence was appellant’s false testimony, he was not equally clear as to the manner in which he considered this factor or the extent to which it may have been the factor that determined the sentence. As we indicated in Warren, we are aware of the mischief which might be caused by a careless application of our holding there. Accordingly, we emphasized that we approved only “an appropriate consideration of this factor as an indication of an accused’s rehabilitative potential in arriving at an appropriate sentence for offenses of which he has just been convicted.” United States v. Warren, supra at 285. Unfortunately, the military judge’s remark here left open, rather than foreclosed, the possibility that appellant’s sentence reflected punishment for the false testimony itself; if that occurred, the sentence was tainted. Reassessment of the sentence is necessary to eliminate any such possibility. United States v. Cabebe, supra.

The decision of the United States Army Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army for submission to that court for reassessment of the sentence in light of this opinion.  