Opinion of the Court
COX, Chief Judge:Pursuant to his pleas, appellant, a naval officer and dentist, was convicted by a military judge sitting as a general court-martial at Camp Pendleton, California, of committing oral sodomy upon his son, a child under the age of 16 (2 specifications), taking indecent liberties with his son by showing him pornographic movies, and committing indecent acts upon his son, violations of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. He was sentenced to a dismissal and 3 years’ confinement. Pursuant to the terms of a pretrial agreement, the convening authority suspended the confinement but approved the dismissal.
Appellant appealed his approved sentence to a dismissal to the Court of Criminal Appeals, claiming that the post-trial procedures were tainted by unlawful command influence. The Court of Criminal Appeals rejected appellant’s argument and affirmed his sentence. Regarding the issue of unlawful command influence, the court, in an unpublished opinion dated January 31,1996, stated:
Having reviewed the record, the affidavit from the appellant, and the affidavit from the convening authority, we conclude that the issue of command influence has not been raised. We find that the complained of circumstances in the appellant’s affidavit are either, (a) not relevant to *254post-trial administration of the court-martial; (b) do not establish actual or apparent unlawful command influence if true; or, (c) are directly refuted by the convening authority’s affidavit. In effect, the appellant makes “assertions or speculation without some supporting evidence____” United States v. Allen, 31 MJ 572, 590 (NMCMR 1990), aff'd 33 MJ 209 (CMA 1991), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992).
Unpub. op. at 1-2.
We respectfully disagree with the court below. This is a most unusual case. While appellant was pending trial by court-martial, his commanding officer, Captain J.L. Staiger, DC, USN, knowing the nature and extent of the charges against appellant, recommended to the convening authority, Major General R.D. Lynch, USMC, that any adjudged dismissal be suspended. Later, after appellant’s conviction and sentence on December 6, 1993, Captain Staiger -wrote the Chief of Naval Personnel on March 25, 1994, urging that appellant not be separated from the service because “his retention ... would be in the best interest of his family and in the best interest of the Navy.”
Following these events, two apparently unrelated events took place. First, on May 13, 1994, Captain Becker, USN, legal counsel to the Chief of Naval Personnel, wrote a memorandum for the Deputy Chief of Naval Personnel concerning the Navy’s policy of processing homosexuals for discharge. Significantly, this memorandum seems to confirm that the convening authority was going to remit or suspend appellant’s sentence to a dismissal. Captain Becker said that “full commutation is expected” of appellant’s sentence. This confidential memorandum was made public by an anonymous fax from a Department of Defense telephone number to the Washington Blade, a newspaper supporting rights for homosexuals.
The second event which took place was a change of convening authorities. Major General C.W. Reinke, USMC, assumed command from Major General Lynch in the summer of 1994, prior to action on appellant’s court-martial.
A third event took place after the convening authority’s action. According to appellant’s unrebutted affidavit, he was told by his executive officer that his commanding officer, Captain Staiger, was pressured by “top down negative influences” to reverse his original position. Appellant also avers that Major General Reinke was open to a suspension of his dismissal, but that such action would require the support and endorsement of Captain Staiger, which was not forthcoming.
Thus, what we are left with in this record is at least the unrebutted, reasonable inferences that on or about May 13, 1994: the decision had been made by the original convening authority to commute (or suspend) appellant’s sentence; this decision was not supported by superior command; a new convening authority entered the scene unaware of the prior decision to commute (or suspend) the sentence; appellant’s commanding officer withdrew his support because of “top down command pressures”; and appellant’s sentence to a dismissal was thereafter approved.
We believe that the inferences to be drawn from these uncontested facts are sufficient to require that appellant be afforded the opportunity to make his case that the decision to approve his dismissal was inappropriately influenced. United States v. Thomas, 22 MJ 388 (CMA 1986).
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for a hearing to determine the facts and circumstances required to resolve the issues raised herein. See United States v. DuBay, 17 USCMA147, 37 CMR 411 (1967).
Judge EFFRON concurs.