This is a habeas corpus proceeding in which petitioner, a soldier, attacks the validity of a sentence of 20 years he is now serving as the result of his conviction by an Army court-martial of the offense of attempted rape. While serving in the United States Army in Korea, he was found guilty by a general court-martial of the separate offenses of premeditated murder and attempted rape of a Korean woman. He was given an aggregate sentence of life imprisonment for both offenses. The Army board of review found 'incorrect in law and fact' the court-martial finding of guilty on the murder charge, but it approved the guilty finding for attempted rape. As to the sentence, the board found 'that only so much of the approved sentence as provides for dishonorable discharge, total forfeitures, and confinement at hard labor for 20 years is correct in law and fact.' As so modified, it approved the sentence. United States v. Fowler, 2 C.M.R. 336. The petitioner makes no attack on his original conviction on the attempted rape charge and its affirmance by the board. But he attacks the sentence of the board alleging that 'the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.' The District Court denied the writ and discharged the rule to show cause, Jackson v. Humphrey, 135 F.Supp. 776, holding that the board of review on reversing the murder conviction, properly modified the sentence and was not required to order a new trial or to remand the case for resentencing by the general court-martial. The Court of Appeals, in a unanimous opinion, affirmed. Jackson v. Taylor, 3 Cir., 234 F.2d 611, 612. It held that the board of review upon affirming the attempted rape conviction was authorized to 'affirm * * * such part or amount of the sentence, as it finds correct,' citing Article 66(c) of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653(c), 50 U.S.C.A. § 653(c). We believe the sentence must stand.
Petitioner was tried with two other soldiers and each was convicted of the same offenses, premeditated murder and attempted rape. Each was also sentenced to life imprisonment. The record of the trial was then forwarded to the convening authority where the convictions and sentences were approved. In accordance with military procedure, the record was then forwarded with the convening authority's approval to a board of review in the office of the Judge Advocate General of the Army. That board, as already stated, found the murder convictions unsupported by the record and set them aside, but sustained the convictions for attempted rape and modified the sentences. The soldiers then sought further review by petition before the United States Court of Military Appeals. No question regarding the authority of the review board to modify the sentences was raised and the petition was denied without opinion. United States v. Fowler, 1 U.S.C.M.A. 713. The soldiers, having started to serve their sentences, were held in different prisons. Each filed a writ of habeas corpus in the district in which he was imprisoned and each raised the same issue of the authority of the board of review to sentence in the manner described. A conflict between the Circuits has resulted and we granted certiorari, limited to the gross sentence question, not only to resolve this conflict but to settle an important question in the administration of the Uniform Code. 352 U.S. 940, 77 S.Ct. 266, 1 L.Ed.2d 236.
Petitioner claims no deprivation of constitutional rights. He argues only that under military law the board of review should have ordered either a rehearing or that he be released because it was without authority to impose the 20-year sentence.
The review board derives its power from Article 66 of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653, 50 U.S.C.A. § 653(c). We are concerned more particularly with subsection (c) of that section. It provides:
'(c) In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.'