                          UNITED STATES, Appellee


                                        v.


                      Louis J. DURANT III, Sergeant
                          U. S. Army, Appellant


                                  No. 00-0664

                          Crim. App. No. 9801661


       United States Court of Appeals for the Armed Forces

                        Argued March 28, 2001

                        Decided August 1, 2001

CRAWFORD, C.J., delivered the opinion of the Court, in which
SULLIVAN, GIERKE, and BAKER, JJ., joined. SULLIVAN, J., filed a
concurring opinion. EFFRON, J., filed a dissenting opinion.

                                    Counsel

For Appellant: Colonel Adele H. Odegard (argued); Lieutenant
Colonel David A. Mayfield and Major Mary M. McCord (on brief).

For Appellee: Captain Paul T. Cygnarowicz (argued); Colonel
David L. Hayden, Lieutenant Colonel Edith M. Rob, and Major
Anthony P. Nicastro (on brief).

Military Judge:     Paul Johnston

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Durant, No. 00-0664/AR


Chief Judge CRAWFORD delivered the opinion of the Court.

       A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of dereliction of

duty and two specifications of larceny (totaling $8,800) for the

improper use of an international merchants purchase

authorization card (IMPAC), in violation of Articles 92 and 121,

Uniform Code of Military Justice, 10 USC §§ 892 and 921.

       The military judge sentenced appellant to a dishonorable

discharge, confinement for 30 months, and reduction to Private

E-1.    Pursuant to a pretrial agreement, the convening authority

approved only so much of the sentence as provided for a bad-

conduct discharge, confinement for 12 months, and reduction to

E-1.    In an act of clemency not required by the pretrial

agreement, the convening authority also waived automatic

forfeitures imposed pursuant to Article 58b, UCMJ, 10 USC

§ 858b, for 6 months.

       In his matters submitted to the convening authority under

RCM 1105, Manual for Courts-Martial, United States (2000 ed.),1

appellant requested that his sentence to confinement be reduced

to time served (about 5 months at the time of the convening

authority action) and that his bad-conduct discharge be

disapproved.    The basis for this request was that his coactor,



1
  All Manual provisions are cited to the current versions, which are identical
to the ones in effect at the time of appellant’s court-martial.


                                      2
United States v. Durant, No. 00-0664/AR


Staff Sergeant (SSG) Cochrane, received a sentence that did not

include either confinement or a discharge.

        Appellant again raised the issue of disproportionately

harsh sentencing before the Army Court of Criminal Appeals.

Prior to deciding the case, the Court of Criminal Appeals

granted appellant’s motion for attachment of an authenticated

copy of the record of trial in the general court-martial case of

United States v. Staff Sergeant Garland J. Cochrane, Army No.

9900228.      After review, the lower court affirmed the findings

and sentence in appellant’s case in an unpublished decision

memorandum.

        We hold that appellant has failed to show an abuse of

discretion or obvious miscarriage of justice.

                            I.   FACTUAL BACKGROUND

        This case presents the unique situation of determining

whether Article 66, UCMJ, 10 USC § 866, requires a Court of

Criminal Appeals to mitigate a sentence, which that court

otherwise determines to be appropriate, simply because an

appellant’s coactor receives substantially less punishment at

his or her court-martial.2




2
    The granted issue in this case is:

              WHETHER APPELLANT’S DISPROPORTIONATELY HARSH SENTENCE, COMPARED
              WITH THE SENTENCE RECEIVED BY HIS CO-ACTOR, WARRANTS APPELLATE
              RELIEF.


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United States v. Durant, No. 00-0664/AR


     Although charged differently by two separate commands,

appellant and SSG Cochrane were essentially coconspirators.     The

stipulations of fact, introduced at the courts-martial of

appellant and SSG Cochrane, show that both noncommissioned

officers (NCOs) were IMPAC program cardholders.   IMPAC cards are

issued in order to buy supplies for a particular military unit

efficiently; they are not to be used for personal purchases.

SSG Cochrane was the approving official for purchases made by

several cardholders, to include appellant, within his 63d

Ordnance Battalion.   SSG Cochrane was stationed at Fort Dix, New

Jersey; appellant was assigned to Fort Monmouth, New Jersey.

Each installation had its own general court-martial convening

authority.

     In January 1996, SSG Cochrane approached appellant, whom he

supervised, and initiated a scheme:   appellant would make

unauthorized purchases of personal items with his IMPAC card for

both himself and SSG Cochrane, and SSG Cochrane would approve

the purchase of these items and authorize payment with

government funds.   Over the next 2 years, appellant made over 90

unauthorized purchases totaling more than $30,000 for himself,

SSG Cochrane, and others.   During this period of time, appellant

progressively increased the amount of purchases that he

illegally made with his IMPAC credit card, knowing that SSG

Cochrane would approve the purchases and cover for him.   The


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United States v. Durant, No. 00-0664/AR


record shows that SSG Cochrane received just over $4,000 worth

of ill-gotten goods, purchased by appellant on his behalf.

Appellant illegally purchased for himself, with SSG Cochrane’s

approval, goods totaling about $6,000.

     SSG Cochrane was arraigned at Fort Monmouth, New Jersey, on

November 24, 1998, the same day that appellant pled guilty to

his charges before a military judge sitting as a general court-

martial.   During SSG Cochrane’s arraignment, he requested and

was granted the option of deferring his decision on forum

selection.   SSG Cochrane’s next session of his general court-

martial was held on February 24, 1999, at Fort Dix, New Jersey.

In the interim, he negotiated a pretrial agreement with the Fort

Dix general court-martial convening authority that limited his

confinement to 15 months and any discharge adjudged to one no

more severe than a bad-conduct discharge, and required the

Government to dismiss four of the six charges against him.

     The presiding judge, Judge Johnston, was the same judge who

presided over appellant’s trial.       SSG Cochrane requested, as was

his right, officer and enlisted members to sentence him

following his guilty plea to one charge and specification of

conspiracy with appellant, and eight specifications of larceny

totaling over $4,000.   The members sentenced SSG Cochrane to be

reduced to E-3 and to pay a fine of $4,200.      SSG Cochrane was




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United States v. Durant, No. 00-0664/AR


discharged from the Army on March 26, 1999, with an honorable

discharge, at the expiration of his term of service.

                          II.   DISCUSSION

     Congress has vested responsibility for determining sentence

appropriateness in the Courts of Criminal Appeals.   “The power

to review a case for sentence appropriateness, which reflects

the unique history and attributes of the military justice

system, includes but is not limited to considerations of

uniformity and evenhandedness of sentencing decisions.”     United

States v. Sothen, 54 MJ 294, 296 (2001), citing United States v.

Lacy, 50 MJ 286, 287-88 (1999).

     The role of this Court in cases such as the one at bar is

to determine, as a matter of law, whether a Court of Criminal

Appeals abused its discretion or caused a miscarriage of justice

in carrying out its highly discretionary “sentence

appropriateness” role.   See id.; United States v. Fee, 50 MJ 290

(1999).   In so doing, we examine three questions of law:   “(1)

whether the cases are closely related ...; (2) whether the cases

resulted in ‘highly disparate’ sentences; and (3) ... whether

there is a rational basis for the differences between [these]

... cases.”   See Lacy, 50 MJ at 288.

     Sentence comparison does not require sentence equation.

See United States v. Ballard, 20 MJ 282 (CMA 1985); United

States v. Snelling, 14 MJ 267 (CMA 1982).


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United States v. Durant, No. 00-0664/AR


     Both sides agree that Lacy controls the disposition of this

case, and that the courts-martial of appellant and SSG Cochrane

are closely related.   Appellate defense counsel maintain that

the sentences are highly disparate on their face because one NCO

received no punitive discharge and no confinement while the

other received a punitive discharge and a year’s confinement

(after modification in accordance with the pretrial agreement).

Citing Lacy, the Government contends that the sentences are not

highly disparate: “The test in such a case is not limited to a

narrow comparison of the relevant numerical values of the

sentences at issue, but also may include consideration of the

disparity in relation to the potential maximum punishment.”

50 MJ at 289.

     In addition to Lacy, two other recent cases are

instructive.    In Fee, supra, the appellant received a sentence

that included a dishonorable discharge and 6 years’ confinement

(confinement in excess of 36 months was suspended).    Her husband

received a sentence that included a bad-conduct discharge and 15

months’ confinement.   The convictions of both Fee and her

husband stemmed from their illegal use and distribution of

various controlled substances.

     The Navy-Marine Corps Court of Criminal Appeals determined

that the cases were closely related but the sentences were not

highly disparate.   The lower court then found two factors which


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United States v. Durant, No. 00-0664/AR


provided a rational basis for differences in the sentences.   See

Fee, 50 MJ at 291.   This Court found it unnecessary to decide

whether the two sentences were highly disparate, thus leaving

the lower court’s finding that the two sentences were not highly

disparate.   We found that there was no abuse of discretion or

miscarriage of justice in the lower court’s judgment because the

factors which were used to justify the differences in sentences

were indeed logical and rational.

     In United States v. Noble, 50 MJ 293 (1999), a case that

involved differences in initial disposition of cases rather than

sentence uniformity, this Court found no abuse of discretion or

miscarriage of justice in the lower court’s holding.   Noble, a

Marine Corps Staff Sergeant, was convicted, among other things,

of adultery, obstruction of justice, and fraternization.   His

coactor in a sexual escapade with lower ranking women Marines

was allowed to leave the Marine Corps with an honorable

discharge, pursuant to an early-separation program, without ever

facing a court-martial.   Even though Noble was sentenced to a

bad-conduct discharge and 6 months’ confinement, both the Court

of Criminal Appeals and this Court found that appellant Noble’s

sentence was appropriate.

     Unfortunately, we are forced to examine the issues of

sentence disparity and appropriateness in this case without a

considered, written opinion from the experienced judges of the


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United States v. Durant, No. 00-0664/AR


Court of Criminal Appeals.       See id. at 295; United States v.

Hawes, 51 MJ 258, 260 (1999); United States v. Cook, 46 MJ 37,

39 (1997).    In cases such as the one at hand, involving a unique

sentencing issue of first impression, analysis of the facts and

the law applicable to those facts by the Courts of Criminal

Appeals, with their special expertise, is extremely beneficial.

Sound articulation of their rationale by the Courts of Criminal

Appeals avoids speculation and promotes judicial economy.

      The military justice system promotes sentence uniformity

through Article 66 and the requirement that the Courts of

Criminal Appeals engage in a sentence appropriateness analysis.

While the United States Federal District Courts attempt to

control disparate treatment of similarly situated defendants

through sentencing guidelines, analogies to the other federal

system of criminal justice are helpful.3

      “[P]rosecutorial charging, plea, and motion practices are

... a well-spring of sentencing disparity....           [P]rosecutors

have always enjoyed great discretion in deciding what cases to

pursue and what charges to bring.”         United States v. Rodriguez,

162 F.3d 135, 151 (1st Cir. 1998), quoting Kate Stith & Jose´ A.

Cabranes, Fear of Judging: Sentencing Guidelines in the Federal

Courts 140-41 (1998).      As this case reflects, charging decisions



3
  See, e.g., the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1987
(1984), codified at 18 USC § 3551 et seq. and 28 USC §§ 991-98.


                                      9
United States v. Durant, No. 00-0664/AR


by commanders in consultation with their trial counsel, as well

as referral decisions by convening authorities after advice from

their Staff Judge Advocates, can certainly lead to differences

in sentencing.

     Here, appellant was charged with two specifications of

larceny covering two distinct periods of time (one for the 18

months prior to appellant’s deployment to Bosnia and the other

for the 6 months after his return from Bosnia).    SSG Cochrane,

on the other hand, was charged with 8 specifications of larceny.

Accordingly, appellant was facing a maximum sentence that

included 20 years’ confinement for his larcenous activity,

whereas SSG Cochrane was facing a potential confinement of 80

years for the larceny offenses.    See para. 46e(1)(c), Part IV,

Manual, supra.    Yet appellant’s thefts netted him a higher value

of stolen goods.

     Neither charging decision was unreasonable, nor the result

of some type of invidious, constitutionally impermissible

discrimination.    Just as “disparity in sentencing among

codefendants is not, by itself, a sufficient ground for

attacking an otherwise proper sentence under the [federal

sentencing] guidelines,” the military system must be prepared to

accept some disparity in the sentencing of codefendants,

provided each military accused is sentenced as an individual.

See United States v. Taylor, 991 F.2d 533, 536 (9th Cir. 1993),


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United States v. Durant, No. 00-0664/AR


quoting United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.

1991); see also United States v. Bonnet-Grullon, 212 F.3d 692

(2d Cir. 2000); United States v. Torres, 81 F.3d 900 (9th Cir.

1996); United States v. Alahmad, 211 F.3d 538 (10th Cir. 2000).

     Similarly, federal courts have held that since the

guidelines were enacted to promote uniformity in sentencing

among the federal courts trying federal crimes, federal district

courts may not depart from sentencing guidelines in order to

equalize acknowledged disparities between state and federal

sentences for coactors.   See United States v. Snyder, 136 F.3d

65, 69-70 (1st Cir. 1998); United States v. Vilchez, 967 F.2d

1351 (9th Cir. 1992).

     Without analysis from the court below as to whether the

sentences are highly disparate, we will assume, without

deciding, that appellant has met his burden of demonstrating the

sentences are highly disparate.    See United States v. Sothen,

supra.   Accordingly, we must determine whether or not the

Government has presented a rational basis for the assumed high

degree of disparity.    Since the lower court failed to articulate

its rationale for affirmance, we will affirm only where the

respective records of trial clearly manifest differences in

these two soldiers’ cases that explain the respective sentences.




                                  11
United States v. Durant, No. 00-0664/AR


        This is not a case where we must decide whether the

proverbial scheming Fagin is more culpable than the boy

pickpocket Oliver.4        Appellant presented his sentencing authority

with 10 years of credible service, to include tours in both the

Gulf War and Bosnia.        However, the three witnesses who testified

on his behalf, to include the Company First Sergeant and

Commander, were lukewarm in their assessment of appellant’s

future potential.        Their testimony was to the effect that

“appellant was above average for a supply sergeant”; “I would

probably hire him again knowing about the crime”; “His duty

performance was pretty good”; “I have known two supply

sergeants, appellant was better than the first one.”        Appellant

testified, expressed remorse for his crimes, explained that he

committed the thefts because he did not think he would get

caught, and admitted that he could “never regain that trust”

which he had violated.         He did not ask to remain on active duty.

        The extenuation and mitigation presented at SSG Cochrane’s

trial, albeit summarized in his record of trial, is more

substantive.       The defense called four witnesses, ranging in rank

from Sergeant First Class to Captain, who had known SSG Cochrane

at different locations and times during his 10-year career.

Captain Sargent, who was serving as a troop commander in the

Third Armored Cavalry Regiment at the time of his trial

4
    See Charles Dickens’s Oliver Twist (1838).


                                        12
United States v. Durant, No. 00-0664/AR


testimony, described SSG Cochrane’s duty performance as

“outstanding in every facet.”   He added: “SSG Cochrane’s

military character and professional demeanor was impeccable as

far as appearance, soldier skills, everything that counts as

being a soldier.”    Command Sergeant Major (CSM) Carey, the CSM

of a Ranger training battalion at the time, testified to SSG

Cochrane’s exemplary military character and noted that SSG

Cochrane “accomplished all missions.”     Significally, all of the

active duty soldiers testifying on SSG Cochrane’s behalf said he

had either good or outstanding rehabilitative potential.

     SSG Cochrane’s wife and three children were also present in

court.   Mrs. Cochrane testified and begged the members not to

send her husband to jail.   Finally, SSG Cochrane testified that

he would welcome a second chance to return to the Army at any

rank.    In his own summarized words, “there would not be a better

soldier if given a second chance.”

     Our review is limited to the legal questions whether the

cases are “closely related,” whether the sentences are “highly

disparate,” and if so, whether there is a “rational basis” for

the difference.   Lacy, 50 MJ at 288.   Having assumed that the

cases are closely related and the sentences are highly

disparate, the differences in mitigation evidence reviewed above

demonstrate that there is a rational basis for the differences




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United States v. Durant, No. 00-0664/AR


in sentences.   Therefore, we must, as a court of law, decline to

grant relief on the basis of Lacy.

     While the mitigating evidence in the two cases may well

explain why appellant and SSG Cochrane received different

sentences, it does not answer appellant’s claim that his

sentence is neither uniform nor appropriate.   Sentence

uniformity and appropriateness are matters exclusively within

the providence of the Courts of Criminal Appeals.   In light of

all the evidence, we conclude that the Court of Criminal Appeals

did not abuse its discretion in reviewing appellant’s sentence

for appropriateness and uniformity.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                14
United States v. Durant, 00-0664/AR




    SULLIVAN, Judge (concurring):


    The Uniform Code of Military Justice provides that an accused

may be tried by a court-martial of members or a court-martial

composed of a military judge alone.   Article 16, UCMJ, 10 USC §

816.   This optional procedure alone may lead to court-martial

sentences in closely related cases which are not the same, and

that is what happened in this case.   Appellant’s confederate

received from a court of members a sentence consisting of a

reduction from E-6 to E-3 and a fine of $4,200.     Appellant

received from a military judge a sentence of a dishonorable

discharge, confinement for 30 months, and reduction from E-5 to

E-1.   The convening authority, pursuant to a pretrial agreement,

reduced this sentence to a bad-conduct discharge, confinement for

12 months, and reduction to E-1.


    The Court of Criminal Appeals is statutorily required to

ensure that a military accused receives a correct and appropriate

sentence.   Article 66(c), UCMJ, 10 USC § 866(c).    In United

States v. Lacy, 50 MJ 286, 287-88 (1999), we recognized that the

Court of Criminal Appeals is primarily responsible for ensuring

at least “relative uniformity” in sentencing.   We said:


              The power to review a case for sentence
            appropriateness, including relative
            uniformity, is vested in the Courts of
            Criminal Appeals, not in our Court, which
            is limited to errors of law. Compare Art.
United States v. Durant, 00-0664/AR


           66(c) with Art. 67(c), UCMJ, 10 USC §
           867(c)(1994); see United States v.
           Christopher, 13 USCMA 231, 236, 32 CMR
           231, 236 (1962). With respect to
           reviewing the actions of the Courts of
           Criminal Appeals on issues of sentence
           appropriateness, our review is limited to
           preventing “obvious miscarriages of
           justice or abuses of discretion.” United
           States v. Dukes, 5 MJ 71, 73 (CMA 1978);
           see United States v. Henry, 42 MJ 231, 234
           (1995).


    Nevertheless, in Lacy, we further delineated when our Court

could find an abuse of discretion by the appellate court below.

We said:


             Our review of a decision from a Court of
           Criminal Appeals in such a case is limited
           to three questions of law: (1) whether the
           cases are “closely related” (e.g.,
           coactors involved in a common crime,
           servicemembers involved in a common or
           parallel scheme, or some other direct
           nexus between the servicemembers whose
           sentences are sought to be compared); (2)
           whether the cases resulted in “highly
           disparate” sentences; and (3) if the
           requested relief is not granted in a
           closely related case involving a highly
           disparate sentence, whether there is a
           rational basis for the differences between
           or among the cases.


Id at 288.   If evidence exists in the record from which the

service appellate court could conclude that a rational basis

existed for a “highly disparate” sentence in a closely related

case, we must affirm the Court of Criminal Appeals denial of

sentence relief.




                                 2
United States v. Durant, 00-0664/AR


   Turning to the evidence of record in this case, I note that

appellant did not request to remain in the Army, but his

confederate did.   Compare Record at 98 (appellant’s unsworn

statement) with Cochrane Record at 32 (SSG Cochrane’s unsworn

statement).   Appellant also had a record of military performance

that was obviously inferior to his confederate.    Compare Record

at 85 (appellant’s first sergeant noted that he would try to

replace appellant as Supply Sergeant if his company went to war)

with Cochrane Record at 28 (SSG Cochrane’s Command Sergeant Major

stated, “SSG Cochrane’s duty performance during that time [in

Hawaii] was excellent.   SSG Cochrane’s military   character was

exemplary. . . . SSG Cochrane explained what he did about

stealing government property.    I believe SSG Cochrane has good

rehabilitative potential.   I know he can still do great things

for the Army.”).   Appellant also stole merchandise worth more

money than SSG Cochrane did.    Compare Record at 20-21

(stipulating that appellant stole goods valued at at least

$30,000) with Cochrane Record at Charge Sheet (charging SSG

Cochrane with theft of property worth $4,144.44).    Finally, SSG

Cochrane offered powerful mitigation witness testimony which

appellant did not.   See, e.g., Cochrane Record at 26 (SSG

Cochrane’s supervisor at the Casualty Mortuary Affairs Office

noted his “excellent” duty performance and “positive” attitude,

even in light of a pending court-martial).    Based on this

evidence in the record, I conclude that there is a rational basis



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United States v. Durant, 00-0664/AR


for the disparity between the sentences of appellant and SSG

Cochrane, per our holding in Lacy.




    Finally, I personally share Judge Effron’s view that

articulation by the Court of Criminal Appeals of the basis for

its conclusion that highly disparate sentences in closely related

cases are rational will promote the interests of fairness in the

military justice system.   Nevertheless, as I said before, I am

“aware of no requirement of law that appellate courts in general

or a court of military review in particular must articulate its

reasoning on every issue[.]”   United States v. Matias, 25 MJ 356,

363 (CMA 1987).    And I refuse to do so under the circumstances in

this case today.   Accordingly, I affirm.




                                  4
United States v. Durant, 00-0664/AR


EFFRON, Judge (dissenting):

     As noted in the majority opinion, our decision in United

States v. Lacy, 50 MJ 286 (1999), provides that the issue of

sentence appropriateness raises three questions of law:   (1)

whether the cases are closely related; (2) whether the sentences

are highly disparate; and (3) whether there is a rational basis

for the disparity.

     There is no dispute that appellant’s case was closely

related to that of his coactor.   The highly disparate nature of

the sentences is reflected in the fact that the coactor received

no discharge, no confinement, a reduction to E-3, and a fine of

$4,200, while appellant’s sentence included a punitive discharge

and confinement for 15 months.

     With respect to the question of whether there is a rational

basis for the disparity, the responsibility for making such a

determination under Article 66, UCMJ, 10 USC § 866, rests with

the Court of Criminal Appeals, not with this Court.   I agree

that the Courts of Criminal Appeals are not required to

articulate reasons for their sentence-appropriateness

determinations in all cases.   When there are closely related

cases involving highly disparate sentences, however, it is

particularly critical for the lower court to provide some

explanation of its decision on the question of a rational basis

for the disparity.   This is not an unduly onerous task; there
United States v. Durant, 00-0664/AR


are relatively few cases involving coactors, and even fewer

involving highly disparate sentences.

     In such a case, a Court of Criminal Appeals possesses a

unique expertise that places it in an ideal position to

determine whether there exists a rational basis for the sentence

disparity.   This special expertise is derived from a number of

factors, such as the regularity with which the Courts of

Criminal Appeals examine cases for sentence appropriateness,

relative to the small number of sentence-appropriateness cases

decided by our Court; and the active-duty status of most judges

on the Courts of Criminal Appeals, which typically affords them

recent field experience, including exposure to a broad range of

courts-martial and alternative dispositions not within the

routine jurisdiction of our Court.

     A Court of Criminal Appeals might properly determine that a

sentence adjustment is not required where the sentence at issue

is found to be objectively appropriate and where it finds that

the disparity is largely the result of the coactor’s relatively

lenient sentence.   We cannot assume that the Court of Criminal

Appeals made such a determination in this case, particularly in

view of factors that heighten concerns about the disparity

between appellant’s sentence and that of his coactor.   For

example, factors such as the status of the coactor as the more

senior noncommissioned officer —— and the fact that the coactor


                                 2
United States v. Durant, 00-0664/AR


was the person who initiated the crime —— underscore the need

for a reasoned explanation of the already significant disparity

between the sentences.   In such as the present appeal,

confidence in the fairness of the military justice system

requires an articulation by the Court of Criminal Appeals of its

reasons for affirming appellant’s sentence.   I respectfully

dissent, and would remand this case to the Court of Criminal

Appeals.




                                 3
