(concurring in part, dissenting in part, and joining WISS’ dissent):
29. I agree with the majority opinion on the resolution of Issue I. The search here was a border search and, as such, is subject to a well-recognized exception to the requirements of the Fourth Amendment. See, e.g., United States v. Smith, 29 F.3d 270, 274 (7th Cir.1994).
30. I part company, however, with the majority and its resolution of the command-influence issue. On this record and in light of the unrebutted sworn statement of a service-member that there were numerous events indicating command influence, I cannot say that appellant’s approved sentence was free from command influence. I would affirm the decision below as to the findings but not as to the sentence because of defects affecting the action on the sentence. I further would remand this case for a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), on the issue of command influence in the post-trial proceedings.
31. I agree with Judge Wiss’ well reasoned analysis of the facts at issue here. I attach the affidavit of Specialist (SPC) Martin W. Slack to further illustrate the factual basis that undercuts the integrity of the sentencing in this case. 43 MJ at 305. I note again (¶ 30) the fact that the affidavit is not only unrebutted but it is from a service-member who would face criminal charges for false swearing if it was untrue, see Art. 134, Uniform Code of Military Justice, 10 USC § 934, since it is sworn and submitted in a court proceeding. For this reason, I place great weight on it pursuant to the precedents of our Court. United States v. Wood, 25 MJ 46, 48 (CMA 1987); United States v. Tipton, 16 MJ 283, 287 (CMA 1983).
I
CMR CREDIBILITY ASSESSMENT
32. The Court of Military Review held that a post-trial affidavit from “a friend of the appellant” is not sufficiently credible evidence to meet his burden of raising an unlawful command-influence issue under Article 37(a), UCMJ, 10 USC § 837(a). See 38 MJ 633, 634 (1993). A majority of this Court takes a different tack and holds that this affidavit fails to even state a claim of unlawful command influence. ¶28. I disagree with both these conclusions and the majority’s elevation of “the mantle of command authority” dicta1 of United States v. Stom*302baugh, 40 MJ 208, 211 (CMA 1994), see ¶ 21, to judicial precedent.
33. Turning first to the decision of the Court of Military Review, I conclude that it goes too far as a matter of law. It suggests that a post-trial affidavit by “a friend of the accused” is per se unreliable. It relies on the decision of this Court in Green v. Widdecke, 19 USCMA 576, 42 CMR 178 (1970), and Judge Cox’s concurring opinion in United States v. Levite, 25 MJ 334, 340-41 (CMA 1987). See 38 MJ at 634. I disagree that credibility of the affiant is an appropriate basis for an appellate court to resolve this post-trial claim. See generally United States v. Dykes, 38 MJ 270 (CMA 1993)(opinion of Sullivan, C.J., and Wiss, ,J.); see generally United States v. Day, 969 F.2d 39, 41 (3d Cir.1992); Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990)(court must accept truth of allegations in determining whether to order post-trial hearing under 28 USC § 2255).
34. Turning to this Court’s prior decision in Green v. Widdecke, supra, I note that it does not sanction the Court of Military Review’s individual-credibility determination. In that ease an accused generally asserted that he was denied due process of law because the commander who convened his court-martial also determined the membership of his court-martial. This Court said:
While volumes could be written on the subject of command control — the genesis of this contention — for present purposes it is sufficient to observe simply that, absent a showing of any specific basis for the allegation, the generalized form of contention is inadequate. Congress was fully aware of the possibilities for abuse arising out of the relationship. Indeed, this aspect of military trials consumed a large portion of its deliberations on the Uniform Code of Military Justice. It continued the provisions relating to appointment of court members and provided safeguards it considered adequate to prevent the abuses of command control. Moreover, this is a matter of deep and continuing concern to the Congress. See Congressional Record of July 1,1970, page S-10438. Our experience during the intervening years has established the basic soundness of this Congressional determination. See Annual Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury, 1960. As a review of our decisions will show, generalized, unsupported claims of “command control” will not suffice to create a justiciable issue.
19 USCMA at 579, 42 CMR at 181 (emphasis added). Review of SPC Slack’s affidavit (see 43 MJ at 305-10) shows that it does not simply assert unlawful command control.
35. Moreover, Judge Cox’s concurring opinion in United States v. Levite, supra, offers little support for the Court of Military Review’s credibility determination in this case. There, he noted his personal opinion that “[cjertainly an appellant’s unsubstantiated assertion that unlawful command influence exists is not going anywhere.” 25 MJ at 341. No legal authority was offered by the Court of Military Review to extend this putative principle to friends of an accused. In any event, a detailed and specific affidavit was offered in this case which averred proof beyond “mere unsupported allegations.” See Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989); United States v. Leventopoulos, 834 F.Supp. 989, 995 (N.D.Ill.1993).
II
MAJORITY THRESHOLD HOLDING
36.. The bottom line of the majority opinion of this Court is that appellant failed to meet his burden to raise an issue of unlawful command influence in violation of Article 37. See United States v. Hamilton, 41 MJ 32, 37 (CMA 1994) (“[W]e conclude ... that appellant has not made out his case for command influence.”); United States v. Johnston, 39 MJ 242, 245 (CMA 1994)(“even if we accept *303appellant’s base assertions as true, he is not entitled to relief’). I disagree and would order a DuBay (¶ 30) hearing in this ease to address his post-trial claim of unlawful command influence.
37. The majority of this Court holds that SPC Slack’s affidavit does not sufficiently raise the issue of unlawful command influence in the post-trial processing of appellant’s case. It states: “What is missing from SPC Slack’s affidavit is evidence that anyone acting with the ‘mantle of command authority’ unlawfully coerced or influenced any of the officers or noncommissioned officers approached by SPC Slack.” ¶ 21. This rationale is fatally flawed. Article 37 prohibits unlawful influence of a court-martial or a reviewing authority by anyone subject to the code. It states in pertinent part:
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
(Emphasis added.)
38. Moreover, this Court has applied Article 37 to prohibit the coercion or unlawful influence of reviewing authorities by civilians not subject to the Code. See United States v. Doherty, 5 USCMA 287, 17 CMR , 287 (1954); see also United States v. Allen, 20 USCMA 317, 43 CMR 157 (1971); United States v. Estrada, 7 USCMA 635, 23 CMR 99 (1957); United States v. Fowle, 7 USCMA 349, 22 CMR 139 (1956). Although these civilians were in positions of authority in the military civilian hierarchy, they were not literally subject to the Uniform Code of Military Justice. Art. 2, UCMJ, 10 USC § 802. Accordingly, the majority’s hypertechnical construction of this important codal provision is unprecedented as well as unwarranted.2
39. The majority opinion also concludes that SPC Slack’s affidavit is defective because it does not aver that any particular person (command or not) actually influenced appellant’s former supervisors or co-workers from providing favorable material to the reviewing authority. ¶23. The suggestion here is that appellant is speculating that the absence of recommendations was caused by command influence rather than his own poor performance or the personal choice of his supervisors not to testify. Clearly, such a forbearance, if generated by command action, would violate Article 37. United States v. Thomas, 22 MJ 388 (CMA 1986), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). Moreover, such conduct, even if generated by excessive timidity of an individual soldier concerning his career, should not be condoned by this Court. In any event, the proffered affidavit avers that six potential witnesses including three officers all shared this belief at the same time in the same command concerning appellant’s court-martial review. Moreover, command contact with three enlisted witnesses concerning their career prospects is unrebutted.3 In my view, these averments as a whole constitute a sufficient circumstantial showing of unlawful command influence to require further investigation. See United States v. Thomas, supra.
*30440. In sum, a bare or unspecific allegation of unlawful command influence is not sufficient to raise that issue post-trial. ¶ 19. Moreover, evidence of the mere failure of officers and enlisted men to submit recommendations to support appellant before the reviewing authority does not raise an issue of unlawful command influence under Article 37. However, evidence that such conduct was motivated by expressed concerns of a large number of service-members for their own careers or loyalty to command is an entirely different matter. See United States v. Thomas, supra. Finally, since it appears from the post-trial affidavit in this case that these service-members could have provided relevant and favorable information to the reviewing authority, I would hold that a sufficient showing of unlawful command influence has been made to warrant a DuBay (1130) proceeding. In my view, the majority once again makes a grave mistake with regard to this most critical issue of military law. United States v. Weasler, 43 MJ 15 (1995).
41. In the instant case, the unrebutted affidavit from a service-member submitted in the judicial process gives me pause to affirm the decision below as to sentence. Too many questions have been raised about the specific actions of too many individuals to say with certainty that justice was free from command influence here. I am from Missouri, and, like President Harry S. Truman, I must be shown.4
*305APPENDIX A
IN THE UNITED STATES ARMY COURT OF MILITARY REVIEW
UN ITED. STATES, Appellee ) V Private First Class JOHN D. AYALA, 524-06-0417, United States Army, ) Appellant
AFFIDAVIT
ACMR 9102598
I, Specialist Martin W. Slack, do swear that the following statements are true and correct to the best of my knowledge:
1. I was a witness at trial for both the prosecution and the defense. After the trial, I stayed involved with the case because PFC Ayala is a good friend.
2. About a week after the trial, I met with PFC Ayala's trial defense counsel, Captain Rogers, to see what I could do to help PFC Ayala. He told me that he would be submitting a memo to ask for the lightest sentence possible for John and that I could try to gather letters of recommendation [hereinafter LOR] to submit to the convening authority to try to get the sentence reduced. During the course of the conversation, he told me that he would help me all that he could given his caseload, but once the trial was over and John signed the appellate rights form and left the courtroom, his job was over. He said that by regulation he didn't have to do anything else on the case.
3. I saw Captain Rogers a few more times when I was bringing him LORs that I had gotten, but he never really showed an interest in the case or indicated that he was getting out of the Army. I informed him about the things going on with the chain of command that are discussed below, but he just blew it off like everything *306else.
4. After Captain Rogers left the Army, I asked to see the supervisor in the office and was referred to Major Mark Henderson.
He referred me to Captain Eugene Ingrao. Captain Ingrao truly seemed interested in the case but he didn't know anything about it. He even told me that Captain Rogers had not discussed the case with him, so I had to brief him on everything about the case that was not contained in the record of trial.
5. Captain Ingrao said that he really couldn't do anything about the chain of command and the events at trial, but that I should just keep track of all these things and let John's appellate attorney know about it. I was never contacted by John's attorney until this date.
6. While trying to secure letters of recommendation for the Private First Class John D. Ayala, for consideration of mitigation in his court martial, found a continued pattern of resistance from PFC Ayala's chain of command. I requested letters of recommendation from Staff Sergeant Uzziel, PFC Ayala's first line supervisor; Sergeant First Class Penner, PFC Ayala's mess chief; Command Sergeant Major Lockwood, PFC Ayala's BN SGM during Desert Shield/Storm; Command Sergeant Major Bates, PFC Ayala's BN SGM after Desert Shield/Storm; CPT Gavien, PFC Ayala's company commander during Desert Shield/Storm; CPT Ott, PFC Ayala's company commander after Desert Shield/Storm; and LTC VanHorn, PFC Ayala's BN commander.
7. SSG Uzziel expressed to me in a very strong manner that he felt *307that PFC Ayala had been punished too harshly for the crime for which he had been convicted. Furthermore, SSG Uzziel stated that PFC Ayala was an outstanding soldier in peer leadership skills, tactical proficiency and common task skills. SSG Uzziel expressed great interest in aiding PFC Ayala by writing a strong letter of recommendation for him. SSG Uzziel assured me that he would have a strong letter of recommendation for PFC Ayala as soon as possible. Upon returning to secure this letter of recommendation, SSG Uzziel told me that he had spoken with CSM Bates, who instructed him to review PFC Ayala's counselling file. SSG Uzziel stated that after reviewing the file with CSM Bates, he concluded that, in good conscience, he could not write the letter of recommendation. When I suggested that he write the letter in a manner that recognized PFC Ayala's shortcomings as well as his strong points, SSG Uzziel simply refused.
8. SFC Penner had been supportive of PFC Ayala since PFC Ayala's assignment to his mess hall. He instructed me to write as strong a letter of recommendation as I could while stili acknowledging-his weaknesses. When I returned with the letter of recommendation, SFC Penner stated that he had been advised by the HHC 1SG, whose name I can't recall, against signing such a letter of recommendation because it was not a wise career move. Since he felt so strongly about the case though, he agreed to sign it anyway. SFC Penner was transferred to Korea shortly thereafter.
9. CSM Lockwood was reassigned to 20th ENG. BDE shortly after returning from Desert Storm. Upon tracking him down, I personally • *308requested a letter of recommendation for PFC Ayala. He stated, in so many words, that this would not be a problem. Upon returning to collect the letter of recommendation, CSM Lockwood stated that unless X could get a letter of recommendation from PFC Ayala's current BN SMG, he was unwilling to write a letter of recommendation for PFC Ayala. When I inquired into the change of attitude, he stated that he had not had sufficient interaction with PFC Ayala to be able to write a letter of recommendation. I then asked CSM Lockwood to write the letter of recommendation on the basis of their limited interaction. X pointed out that generally if a soldier has not been in sufficient trouble to attract the attention of the BN SMG, that he is probably a pretty good soldier. CSM Lockwood still declined, stating the same reasons.
10. I also made a request for a letter of recommendation from CSM Bates. I made it clear that I knew PFC Ayala was not a perfect soldier and that all I wanted was a letter of Recommendation that stated that PFC Ayala deserved the lightest sentence possible. CSM Bates took me into his office and told me that he was unwilling to write such a letter and that what was happening to PFC Ayala was beyond his control or influence. Moreover, CSM Bates advised me, in a very carefully worded manner, that some things were better left alone. CSM Bates made it clear that he understood that I felt a sense of loyalty to PFC Ayala, but that I was putting myself at risk career-wise by pushing things for PFC Ayala, and that I should weigh the risk against the limited amount of- good that I could do and the importance of my career.
*30911. CPT Gavien had been transferred to BN staff and given separate duty to attend college pending a permanent transfer shortly after his return from Desert Storm. CPT Gavien was supportive of PFC Ayala to the point that he had expressed interest in giving PFC Ayala an Article 15 for his offense. I only spoke to CPT Gavien once on the phone. He declined to write a letter of recommendation based on the fact that it would be inconsistent with the chain of command.
12. In a similar manner CPT Ott declined to write a letter of recommendation because it might be considered contrary to the chain of command.
13. LTC Van Horn, who refused to see me, also refused to consider my request for a letter of recommendation for PFC Ayala. I was informed by SSG Whalen, the legal NCO for 307 ENG BN ABN, that LTC Van Horn would not write a letter of recommendation for PFC Ayala because of LTC Van Horn's support of the chain of command and that any letters of recommendation from him for PFC Ayala would be contrary to that support. He said that even though LTC Van Horn had said prior to trial that any punishment beyond that of a BCD-Special court-martial would be too harsh, the precedent had been set by the chain of command going to a. general court-martial and he would not speak out against the chain of command now despite his personal feelings about the case.
14. A lot of time has passed since these conversations and I cannot remember the precise words of each person that I talked to. The meaning was clear to me though. Everyone in the chain of command *310felt restrained from recommending clemency even though they felt John's sentence was too harsh. Only SFC Penner, however, had the nerve to actually make the recommendation.
MARTiN/W. SLACK SP<£, Jí. S. Army
Sworn to and subscribed before me this 21st day of June, 1993.
FRAN W. WALTERHOUSE Major, JA
*311HARRY S. TRUMAN
INDEPENDENCE, MISSOURI
August I, 1958
Dear Judge:
Thank you for your good letter of July 28th. I appreciated It.
Nothing in the world could have pleased me more than your willingness to send the Library a set of the Reports of the United States Court of Military Appeals.
You know how interested I have always been in that Court and its guaranteeing justice to the ordinary fellow which, from my experience, he rarely received in military courts.
Sincerely yours,
/s/ Harry S. Truman
Hon. Robert E. Quinn United States Court of Military Appeals Washington 25, D. C.
*312HARRY S. TRUMAN INDEPENDENCE, MISSOURI
October 15, 1958
Dear Mr. Commissioner:
Your letter of September 17th was highly appreciated, and I apologize for taking so long to answer it. I have been traveling around the country most of the time since then and have failed behind in my-personal correspondence.
The 'arrangement of the United States Court of Military Appeals was gone into with much effort and detail on my part. I wanted men on that court who not only.understood the military approach to courts martial but who also understood justice under the Constitution of the United States and English common law. I believe that is what we succeeded in getting.
Judge Quinn sent me a complete set of the Reports of the United States Court of Military Appeals which I am very proud to add to the other papers and documents housed here in my Library.
I have been a member of courts martial, and I know exactly what the action is. I remember that in one instance the commanding general of the brigade tried to force our court to change its verdict, but we were contrary National Guard officers from Missouri, and, of course, we didn't do it. Those experiences formed my attitude about the ordinary court martial.
Sincerely yours,
Is! Harry S. Truman
Hon. Benjamin Feld, Commissioner United States Court of Military Appeals Washington 25, D. C.
. That decision was expressly based on a harmless-beyond-a-reasonable-doubt standard. We stated:
"Regardless of our characterization of the unlawful influence directed at the two defense witnesses, we agree with the Court of Military *302Review and are satisfied beyond a reasonable doubt that any unlawful command influence on either of the two witnesses did not affect the findings or sentence.”
United States v. Stombaugh, 40 MJ 208, 214 (CMA 1994).
. An additional flaw exists in the "mantle of command” theory of unlawful influence, referenced in United States v. Stombaugh, supra. Even if such interference by non-command personnel does not violate Article 37(a), Uniform Code of Military Justice, 10 USC § 837(a), Stombaugh suggests that such interference with court-martial witnesses raises constitutional questions under the Fifth and Sixth Amendments. Accordingly, the Supreme Court cases cited in Stombaugh (40 MJ at 212) also would require the Government to prove such interference was harmless beyond a reasonable doubt. See United States v. Weddell, 800 F.2d 1404 (5th Cir.1986). See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It is well established that a servicemember at a court-martial is protected by the Due Process Clause of the Fifth Amendment. Weiss v. United States, — U.S.-, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); Middendorf v. Henry, 425 U.S. 25, 43, 96 S.Ct. 1281, 1291, 47 L.Ed.2d 556 (1976).
. It should not be overlooked that the affidavit avers that Sergeant Penner, who actually signed a letter of recommendation despite "not a wise career move” advice from a "HHC 1SG,” was "transferred to Korea shortly thereafter.” (See 43 MJ at 307.)
. President Truman was keenly interested in the military justice system and was proud of his role of signing into law the Uniform Code of Military Justice. I attach two personal letters of the former President to illustrate this. See 43 MJ at 311,312. I believe that the military justice President Truman was talking about in these letters and the present system of justice are different. Justice in the military has come a long way and is a world class system today. But still there are instances (like the present case) where we must see the justice. A system of justice must not just be fair, it must appear to be fair.