(concurring):
I write only to respond to Judge Gierke’s dissent. He is, of course, correct that the action of dropping an officer from the rolls of the Air Force is an “administrative action.” In that sense, the issuance of a Department of Defense (DD) Form 214 to an officer who has been dismissed by a sentence of a court-*91martial is an administrative action. Thus, the Secretary of the Air Force may not drop an officer from the rolls in this circumstance without a sentence to confinement nor can he issue a DD Form 214 showing dishonorable service without a sentence to dismissal. Where Judge Gierke’s opinion fails, in my judgment, is that he does not address the linkage between the sentence of the court-martial and the administrative action in the context of ex post facto laws. The only question presented by this case is whether the adoption of 10 USC § 1167 has ex post facto application to Major Goldsmith. Because it was enacted many months after his court-martial sentence had been adjudged, I concur with Senior Judge Everett that as to this appellant, the application of the statute is clearly ex post facto.
Judge Gierke’s opinion also raises significant questions in my mind. For example, if 10 USC § 1167 is purely administrative in nature, does the servicemember have recourse to the Air Force Board for Correction of Military Records to attack his court-martial conviction? Judge Gierke equates the action in this ease to “a decision to not promote the officer, to reassign the officer, to revoke the officer’s security clearance, or to administratively separate the officer.” Thus, I assume he would give the servicemember analogous remedies to correct administrative errors. On the other hand, perhaps Congress has created a situation where an officer is left totally exposed to the whimsical attitude of the Secretary concerned? My view is that Congress appropriately tied the Secretary concerned to the court-martial sentence with all of the attendant due process rights and judicial review.
The nexus between the court-martial process and the subsequent administrative action is so totally complete and intertwined that Congress clearly intended that the Secretary could only act under this statute pursuant to a proper conviction and sentence. Having said all of this, however, I am also convinced that once this Court has completed its review, the decision of the Secretary is totally discretionary. In this ease, our jurisdiction extends only to the Constitutional ex post facto question. I entertain no thought of venturing beyond the limits of this appropriate exercise of jurisdiction. See Unger v. Ziemniak, 27 MJ 349, 359 (CMA 1989) (Cox, J., concurring in part).