(concurring in part and in the result):
I agree with the majority’s resolution of Issue II and the disposition of this case but disagree with respect to the majority’s analysis of Issue I, which concerns the selection of members to serve on appellant’s court-martial panel. Because two distinct statutory provisions govern the selection of a court-martial panel, it is important to distinguish at the outset between the relevance in this case of unlawful command influence under Article 37, UCMJ, 10 USC § 837, and the de facto improper influence that results from deviating from the panel selection criteria under Article 25, UCMJ, 10 USC § 825.
Unlawful command influence under Article 37 involves improper influence by the command on the selection of the panel members or on their deliberations. United States v. Hilow, 32 MJ 439, 441 (CMA 1991). Structural processes have been built into the system to guard against the exercise of unlawful command influence and to provide public confidence in the military justice system.
There is no issue of unlawful command influence under Article 37 in this case. The record contains no evidence that the convening authority’s preference for commanders was motivated by an improper purpose, such as an intent to affect the outcome of the court-martial. For example, appellant has not offered statistics in conjunction with other objective evidence that could circumstantially establish an improper motive, such as a history of acquittals or light sentences by non-commander panels. To the contrary, the evidence indicates that the convening authority considered court-martial service to be an important duty and wanted the members of his command to view it as such.
Although non-commanders were underrepresented in a handful of courts-martial, I find no ill motive for the preference on the part of the convening authority. See, e.g., Hilow, supra (purposeful selection by deputy adjutant general of commanders and supporters of a command policy of hard discipline); United States v. McClain, 22 MJ 124, 130-31 (CMA 1986) (purposeful exclusion of ranks below E-7 with a view to heavier sentences).
With respect to Article 25, there is an ever-present potential for improper command influence in its implementation because the Article expressly grants to the convening authority the extraordinary and unusual power to select court-martial panels. Because the panel selection process in the military deviates significantly from the impartial selection process guaranteed in civilian trials by the Sixth Amendment, strict compliance with the formalities and constraints of Article 25 is a matter of critical importance to ensure that there is neither the actuality nor the appearance of improper influence.
As evidence of improper panel selection, appellant has pointed to the composition of 5 court-martial panels over a period of 6 months, along with the relative numbers of commanders and non-commanders at Kadena Air Base. While I do not rule out the possibility that a longer history of commander-dominated panels could establish that non-Article 25 criteria were considered in the selection process, I do not find that appellant’s limited statistical showing raises the issue of “court packing” or supports a conclusion that this commander established or countenanced a process that had as its purpose or primary effect exclusion of non-commanders from consideration as court-martial panel members. Cf. United States v. Loving, 41 MJ 213, 286-87 (CMA 1994) (discussing deficiencies in appellant’s statistical showing), aff'd on other grounds, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996); United States v. Lewis, 46 MJ 338, 341-42 (1997).
In my view, in order to establish a violation of Article 25, appellant must present *259either: (1) direct evidence of improper intent on the part of the convening authority to appoint commanders qua commanders as an improper shortcut application of the criteria under Article 25; or (2) a stronger statistical history of practice (e.g., a greater number of courts-martial in a short period or a consistent practice over a longer period), from which an inference of such improper intent could be drawn and which would negate the inference drawn from the convening authority’s memoranda that the high number of commanders was due to a pendulum effect (i.e., over-correcting the shortage of commander-members on prior panels).
Two aspects of the majority opinion are of particular concern. First, I disagree with any suggestion by the majority that it would be permissible to equate command, status and the Article 25 selection criteria. 48 MJ at 255. Because Article 25 is a unique exception to the Sixth Amendment right to an impartial jury, it must be strictly construed and applied. Although command experience may be an appropriate factor for consideration in determining whether a particular individual is “best qualified” to serve on a court-martial panel, it would be inappropriate to infer that, as a general matter, commanders as a class are “best qualified” to serve on court-martial panels simply because “selection for command is competitive.” 48 MJ at 255. In that regard, I note that, even though promotion to grade E-7 is competitive, we held in McClain that the blanket exclusion of ranks below E-7 was impermissible under Article 25. The majority opinion seemingly would justify a preference for commanders based solely on their selection for command and command experience, without regard to the specific criteria of Article 25. I do not support such a deviation from the requirements of Article 25.
Second, I do not agree with the majority’s suggestion that the convening authority’s “guidance is inconsistent with appellant’s claim that non-commanders were systematically excluded from consideration.” 48 MJ at 255. On the contrary, the memoranda circulated by the convening authority indicated his concerns about court-martial panel service by commanders. It would not be surprising, in a military environment, for subordinates to implement that guidance in a manner that impermissibly excluded non-commanders. Although the statistical proof in this case is insufficient, that is different from suggesting that appellant’s argument is inconsistent with the convening authority’s guidance.