(concurring):
28. In my judgment, the interjection of the special court-martial convening authority into the process, between the servicemember and the general court-martial convening authority, provides a greater assurance of reliability and fairness than does the traditional judge-probationer hearing. Cf. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The Uniform Code of Military Justice provides the necessary framework to protect the servicemember from a vindictive revocation of a suspended sentence. Arts. 72(a) and 23(b), UCMJ, 10 USC §§ 872(a) and 823(b), respectively.
29. To me, the situation is analogous to the Anglo-Saxon, common-law tradition. There, the judge who imposes the probationary sentence is often called upon to decide if the probationer has violated the terms of probation. If there is reason to recuse oneself because of bias, prejudice, or pecuniary interest, ^ then the judge cannot sit. The same rule applies to each special court-martial convening authority. Arts. 72(a) and 23(b) of the Code.
30. I agree with the majority that the special court-martial convening authority who conducted the vacation proceedings here was not disqualified. Accordingly, I concur.