(dissenting):
I dissent. Appellant has not carried his burden of showing that there was unlawful command influence.
FACTS
After appellant’s court-martial, his commanding officer, Captain Staiger, twice recommended to the convening authority that appellant’s dismissal be suspended and that appellant not be administratively separated because “his retention ... would be in the best interest of his family and in the best interest of the Navy.” The defense claims that Captain Staiger later withdrew his recommendation, although there is no evidence of the withdrawal except for appellant’s statements in his sworn declaration.
Prior to the convening authority’s action, the Chief of Naval Personnel’s legal counsel, Captain Becker, USN, wrote a memorandum to the Deputy Chief of Naval Personnel located in Washington, D.C. In that memorandum, Captain Becker advocated that child molesters who engage in homosexual conduct with children and adolescents “fall under mandatoiy processing for homosexual acts.” The memorandum specifically mentions that appellant was expected to receive a “full commutation” from the convening authority.
The convening authority, Major General Reinke, based upon the pretrial agreement, suspended confinement for 2 years and ordered the execution of the sentence as adjudged with the exception of the dismissal and confinement. The convening authority was stationed at Camp Pendleton, California.
When appellant raised this issue, the convening authority provided an affidavit stating that he was “not influenced or even aware of’ the internal advisory memorandum to the Deputy Chief of Naval Personnel. He further stated that he never indicated he would be willing to suspend appellant’s dismissal if appellant’s commanding officer personally endorsed the action.
In an unpublished opinion, the Court of Criminal Appeals found that appellant offered only assertions and speculation of command influence. Unpub. op. at 2. That court affirmed the findings and the sentence.
DISCUSSION
It is axiomatic that command influence “strikes at the very heart of the system. Unlawful command influence undermines the integrity of the military justice system as well as of the commanders who are responsible for discipline within their units.” United States v. Weasler, 43 MJ 15, 16 (1995). As we stated in United States v. Ayala, 43 MJ 296, 299 (1995):
The defense has the initial burden of producing sufficient evidence to raise unlawful command influence. See Green v. Widdecke, 19 USCMA 576, 579, 42 CMR 178, 181 (1970) (“[Generalized, unsupported claims of ‘command control’ will not suffice to create a justiciable issue.”). As we said in United States v. Johnston, 39 MJ 242, 244 (1994), “[T]he threshold triggering further inquiry should be low, but it must be more than a bare allegation or *256mere speculation.” See United States v. Allen, 33 MJ 209, 212 (CMA 1991) (“Proof of [command influence] in the air, so to speak, will not do.”), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992).
“[A]n appellant must (1) ‘allege[ ] sufficient facts which, if true, constitute unlawful command influence’; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the proximate cause of that unfairness.” United States v. Stombaugh, 40 MJ 208, 213 (CMA 1994), quoting United States v. Levite, 25 MJ 334, 341 (CMA 1987)(Cox, J., concurring). “The burden of disproving the existence of unlawful command influence or proving that it did not affect the proceeding does not shift to the Government until the defense meets its burden of production.” Ayala, 43 MJ at 299.
Appellant has not met his burden in this case. He has not even met the first prong of the test for command influence. Specifically, the internal memorandum directed to the Deputy Chief of Naval Personnel in Washington, D.C. could not have influenced the convening authority located at Camp Pendle-ton, California. Appellant has not shown that the convening authority was even aware of the document. In his affidavit, the convening authority specifically denies knowledge of the memorandum. Perhaps appellant would have a closer case if the Deputy Chief of Naval Personnel and the convening authority shared an office or, at least, a base, but they do not. As it stands, appellant has not even shown the appearance of unlawful command influence. Unless appellant can show that the convening authority’s office somehow obtained that memorandum (for example, by someone faxing it to them, etc.), the facts are simply not sufficient to meet the first prong of the command-influence test.
Further, appellant alleges that Captain Staiger was pressured by command influence to withdraw his recommendation to the convening authority. Appellant submits he was told, “in essence,” that internal pressures and political and media interests resulted in a change in the commanding officer’s recommendation. Regardless whether this is true, there is no indication in the reeord that Captain Staiger withdrew the two letters of recommendation. In fact, the convening authority, Major General Reinke, specifically states in his affidavit that he considered Captain Staiger’s recommendation to suspend the dismissal. The letter is attached to the staff judge advocate’s (SJA) recommendation, and there is no mention of withdrawal of this document. Again, appellant has not alleged sufficient facts to meet the first prong of the command-influence test.
Even if appellant had met the first prong (and assuming the convening authority saw the memorandum), appellant is unable to meet the second prong of the test. The proceedings were not unfair. The memorandum was not addressed to the convening authority and, while it did address particular policies regarding homosexuals in the military and did speak of appellant’s case, it did not add up to “command influence.” The letter was to a captain in the Navy JAG Corps. The convening authority was a major general in the Marine Corps. Further, the convening authority approved the SJA’s recommendation.
Appellant’s sentence was extremely light considering his offense — sexual abuse of his 16-year-old son. Admittedly, there was overwhelming evidence of appellant’s remorse and remarkable response to therapy. However, dismissal for this offense is not inappropriate or unfair or even uncommon. It would be a great surprise if the convening-authority did not approve a dismissal, considering the obvious seriousness of appellant’s offenses.