(concurring in the result):
The Uniform Code of Military Justice does not permit the deliberate selection of commanders only as members of a court-martial. See United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970). Article 25(d), UCMJ, 10 USC § 825(d), contrarily states:
(d)(1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.
(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.
(Emphasis added.)
This Court’s acceptance of a “commanders only” selection practice, under the euphemism of “the best and brightest” members, 48 MJ at 255, sounds the death knell of our past judicial overwatch to make sure juries are properly selected in the military. See generally United States v. McClain, 22 MJ 124 (CMA 1986). This is an unlawful command-influence question under Article 37, UCMJ, 10 USC § 837, and it is an impermissible selection-criteria question under Article 25(d). See United States v. Nixon, 33 MJ 433, 434-35 (CMA 1991); United States v. Hedges, 11 USCMA 642, 644-46, 29 CMR 458, 460-62 (1960)(Latimer, J., concurring).
Nevertheless, I agree that affirmance of appellant’s ease is appropriate because the *260factual record is insufficient to show such a practice in this case. In this regard, I rely on the decision of this Court in Nixon, supra. The convening authority in this, ease clearly articulated his understanding of Article 25(d) as allowing him to include his subordinate commanders as well as other eligible court members. His memorandum states:
MEMORANDUM FOR ALL GROUP AND SQUADRON COMMANDERS FROM 18WG/GC
Unit 5141, Box 10 APO AP 96368-5141
SUBJECT: Selection of Court-Martial Members
1. I regard the military justice system to be one of the key tools available to command to ensure the maintenance of good order and discipline. When a serious criminal offense is committed, the appropriate disposition of that offense is trial by court-martial.
2. The service of sharp, dedicated officers and NCOs as court members is essential if we are to have a fair and effective court-martial program. Article 25 of the Uniform Code of Military Justice tasks me with selecting those who “are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament” to serve as court members. This is a duty I take seriously.
3. The Air Force deserves a system composed of the very best people we have to decide the issues in our courts. We as senior leadership need to set the example in justice matters. Although I will make mission exceptions, I regard all my commanders, deputies, and first sergeants as available to serve as members on any court-martial at Kadena.
4. Each group is tasked on a quarterly basis to nominate staff officers and NCOs to serve as court members. I expect you to work closely with my legal office to ensure that the lists of personnel nominated to serve as court members are your best and brightest.
WILLIAM T. HOBBINS
Brigadier General, USAF
Commander, 18th Wing
(Emphasis added).
Although seven of nine members in this case were commanders, I see no commanders-only selection policy in the record of this ease.
As for the second issue, I concur in the result reached by the majority. Unlike the situation presented in United States v. Quil-len, 27 MJ 312 (CMA 1988), appellant was not questioned by a person in authority at the behest of the military. Accordingly, I agree Article 31, UCMJ, 10 USC § 831, is not applicable.