(concurring in the result):
I agree with the majority that appellant’s case may be affirmed under our case law. Nevertheless, I conclude that one must step closer and take a harder look at the facts of this case in order to reach this just result. See generally United States v. Drayton, 45 MJ 180, 183 (1996) (Sullivan, J., dissenting).
This is an important case. It is really about fairness in the military justice system and the concern of Congress that military prosecutions be perceived as fair by service-members and the American public. Art. 37, Uniform Code of Military Justice, 10 USC § 837. Appellant challenges as unfair the decision of military authorities to prosecute him for adultery and related offenses while not prosecuting two fellow officers in his flight training class for similar offenses. At first glance, the difference in treatment may be justified by the Government on the basis of appellant’s continued adultery in violation of his squadron commander’s “no-eontact” order. However, questions concerning the validity of this order and the propriety of the actions of the staff judge advocate (SJA) with respect to the pretrial investigation under Article 32, UCMJ, 10 USC § 832, of this case must be squarely faced. On these key issues,. I am concerned that the conduct of the SJA may have unnecessarily jeopardized public confidence in this prosecution.
“Facts do not cease to exist because they are ignored.” United States v. Hoggard, 43 MJ 1, 9 (1995) (Sullivan, J., dissenting). Here, two facts are largely overlooked by the majority opinion, but I am sure they will not be overlooked by critics of this system of justice. First, the base SJA as well as his subordinate attorneys who were called as witnesses during the pretrial investigation were all factually involved with the issuance of the “no-contact” order. Second, the SJA himself was the subject of the pretrial investigating officer’s additional inquiry into whether the witnesses at the investigation (Captain (Capt) Knapp and Lieutenant Colonel (Lt Col) Gilbert) were unlawfully influenced in their testimony. In this light, the SJA’s conduct during the pretrial investigation cannot on the surface be considered benign (cf. United States v. Caritativo, 37 MJ 175, 180 (CMA 1993)); nor can a perceived manipulation of a military justice proceeding be considered an appropriate func*465tion of an SJA. See United States v. Miller, 19 MJ 159,163 (CMA 1985); see generally H. Moyer, Justice and The Military § 3-180 at 712-13 (1972) (Judge Ferguson’s testimony that the SJA, not the commander, may be the real source of trouble on tampering with courts-martial).
More particularly, Major (Maj) Bloom was the SJA of the special court-martial convening authority who ordered the pretrial investigation. He also was directly involved in the matter which was the subject of the pretrial investigation. The record * shows:
Maj Bloom advised Lt Col Gilbert on the issuance of the “no-contact” order to appellant. (R. 46, 49)
Maj Bloom participated in the subsequent command investigation of appellant for the violation of the above order. (R. 57, 60) Maj Bloom received the sworn charges from Lt Col Gilbert, the accuser of appellant, and signed the order for another commander designating Capt Feliciani as the pretrial investigating officer.
Maj Bloom discussed with his assistant staff judge advocates (Capts Welsh and Knapp) their expected testimony regarding factual and legal issues concerning the “no-contact” order prior to the investigation. (R. 285-87)
Maj Bloom made ex parte contact with the pretrial investigating officer (Capt Felieia-ni) advocating the legality of the “no-contact” order and also received copies of his subordinates’ testimony. (R. 290, 337)
Maj Bloom made ex parte contact with the pretrial investigating officer (Capt Felicia-no concerning the need to reopen the pretrial investigation to investigate unlawful command-influence questions concerning his own conduct. (R. 288-89)
Maj Bloom contacted a judge advocate (Capt Knapp) in his office regarding his expected testimony concerning the unlawful command-influence questions to be investigated. (R. 289)
Maj Bloom conducted a “performance feedback session” with his deputy staff judge advocate (Capt Knapp) after the Article 32 Investigation but before trial which in some way addressed the latter’s testimony at the Article 32 Investigation.
(This is not a quotation.)
If viewed harshly by a member of the public, the above actions may indicate that (1) there was an intrusion of a senior military attorney (a major) on the quasi-judicial duties of the Article 32 investigating officer (a captain); and (2) the major’s discussions and questioning of two subordinates (both captains) before the pretrial investigation and one after he testified constituted an attempt to influence the outcome of the pretrial investigation. These perceptions of unfairness are not unreasonable; yet, they do not require reversal where, as here, no reasonable possibility of prejudice exists.
The process of a criminal prosecution may be viewed as a plant that grows in the soil of justice. The majority here has looked at this case only as to the results which are above ground — the referral of the case for trial, the trial, and the appeal. The majority has declared this referral, trial, and appeal fair and valid, and I agree. However, my view also goes beneath the ground to critically look at the main root of this criminal process — the pretrial investigation (the military equivalent of the grand-jury process). If this root is rotten, then the entire plant will eventually fail and die. I find the root damaged by the interference of the SJA, but the damage is not fatal.
Basically, the pretrial investigation did uncover the truth of the matter — appellant did commit adultery and he did repeatedly disobey a valid and lawful order to cease contact with his partner in adultery. Any attempt by the SJA to insure that the pretrial investigator would find the “no-contact” order to be lawful in the first instance was unnecessary. The commander had a legitimate reason for keeping appellant away from a fellow officer’s wife and, in the flight-training circumstances of this case, the need for such an order was obvious. See generally United States v. Frazier, 34 MJ 194 (CMA 1992) (sexual conduct of officer may impact command). Furthermore, it was the repeated disobedience of that order which substantially distinguished appellant’s case from his fel*466low officers. Accordingly, I would affirm the decision below upholding his court-martial conviction, although I take a less-traveled path to the affirmance.
These are not direct quotations, but a list of factual summaries of the actual record in this case.