(dissenting):
I share the majority’s instinctive concern with the challenged portion of the trial counsel’s sentencing argument. However, because I believe the majority goes too far in concluding the argument amounted to unlawful command influence, I respectfully dissent.
The legislative history of Article 37, UCMJ, reflects the effort to address direct unlawful command influence over the military justice process.1 That was a logical focus, given Congress’ concern with the “commander-dominated”2 military justice system operating under the Articles of War.
As military jurisprudence has developed, our superior court has recognized that unlawful influence can occur by commanders and other participants in the process — those with “some mantle of command authority” in the alleged unlawful activity. The actors have been convening authorities, commanders, and staff judge advocates. When the officiality of command has been established, we have applied a very stringent standard and burden on the Government. Stombaugh, 40 M.J. at 211. The majority cites Stom-baugh in concluding that the trial counsel’s comments in the appellant’s case “bore a ‘mantle of authority,’ ” but to do so stretches Stombaugh beyond its intended meaning. Stombaugh involved an allegation of direct unlawful influence: witness tampering. The seven representative cases cited in Stom-baugh as having “some mantle of command authority” all involved direct, out-of-court conduct by either a convening authority, a commander other than a convening authority, or a staff judge advocate. The majority concedes there is no evidence that a convening authority or other commander encouraged the trial counsel in the appellant’s ease to argue as he did.
I read Article 37(a), UCMJ, Stombaugh, and other seminal unlawful command influence cases3 to reach and condemn direct improper involvement in the military justice system, in essence “actual” unlawful command influence.4 Since I find no evidence to support a conclusion of direct improper involvement by a convening authority, commander, or other participant in this case, in the Stombaugh context, I cannot agree with the majority’s conclusion that the trial counsel’s comments “bore a ‘mantle of authority’ ” and constituted unlawful command influence on that basis.
Improper argument cases are tough to categorize because they are less “actual.” Typically, there is no involvement by a convening authority or commander in the arguments *766made at trial, and, very frequently, even the supervisory staff judge advocate does not ask the trial counsel to preview his or her argument prior to trial. Given that reality and the conduct Article 37, UCMJ, was designed to proscribe, it is understandable that our superior court has been reluctant to explicitly conclude that a prosecutor’s argument, even if improper, amounts to unlawful command influence. See e.g. United States v. Barraza-martinez, 58 M.J. 173 (C.A.A.F.2003) (reference to the President’s “war on drugs” framed as issue of improper argument under R.C.M. 1001(g)); United States v. Kropf, 39 M.J. 107 (C.M.A.1994) (not plain error for trial counsel to refer to Navy’s “zero tolerance” drug policy); Sparrow, 33 M.J. at 139 (error for trial counsel to refer to the convening authority by name in sentencing argument, citing R.C.M. 1001(g), but no prejudice to the substantial rights of the accused); Grady, 15 M.J. at 275. Of these cases, only Grady involved comments sufficiently egregious to warrant reversal: the assistant trial counsel pointedly referred to Strategic Air Command’s drug policy and argued, in part, “I think you are somewhat bound to adhere to those policies in deciding on a sentence.” Grady, 15 M.J. at 276. But even in Grady, our superior court did not conclude that the improper argument amounted to unlawful command influence.
While these cases generally are east in improper argument terms, a heightened improper argument standard is applied when unlawful command influence is raised. Instead of assessing for plain error,5 alleged unlawful command influence receives stricter scrutiny,6 presumably through application of the burden assigned to the government for assessing any unlawful command influence raised on appeal — but in the context of what constitutes improper argument under R.C.M. 1001(g). The government may carry its burden: (1) by disproving the predicate facts on which the allegation of unlawful command of influence is based; (2) by persuading the appellate court that the facts do not constitute unlawful command influence; or (3) by persuading the appellate court that the unlawful command influence had no prejudicial impact on the court-martial. Biagase, 50 M.J. at 151.
Using the Biagase framework, the predicate facts exist, in the sense that there is no dispute the trial counsel referred to a commander’s call in his sentencing argument. The mere mention of a commander’s call in a government argument probably has become a red flag sufficient to raise the specter of command influence (Id.), the presence of an “appearance of evil” (Thomas, 22 M.J. at 397), or the possibility the comments would be considered “susceptible of [a] sinister interpretation” (Sparrow, 33 M.J. at 141).
However, I part company with the majority on whether the predicate facts (the argument by trial counsel) constitute unlawful command influence, or whether the comments are improper at all under R.C.M. 1001(g). The appearance of command influence found by the majority at most shifts the burden to the government; it does not amount to unlawful command influence condemned by Article 37, UCMJ. To be clear, I think the trial counsel’s commanders call comments were poorly conceived and obviously not influenced by common sense or critical thought. But a bad argument is not necessarily an improper one.
When assessing an allegation that comments by a trial counsel amounted to unlawful command influence or were otherwise improper, the comments must be considered in the context of the entire court-martial. Carter, 61 M.J. at 33. The following facts are important: the trial counsel’s commander’s call analogy was hypothetical (about an unnamed commander at an unidentified command level) — unlike the body of case law addressing either conduct surrounding an actual command briefing or a trial counsel’s reference to an actual convening authority, commander, or command policy; two of the members had command experience, including the panel president (a colonel), and were not likely to be improperly swayed by the trial counsel’s stilted hypothetical; the trial counsel explained the hypothetical as his way of “trying to think about how could I articulate *767the need for deterrence”; he had offered his specific sentence recommendation long before the questionable portion of his argument was made; there was no objection by the trial defense counsel or contemporaneous instruction by the military judge; the military judge gave the standard instructions to the members that it was their responsibility to determine sentence, and that arguments of counsel “are only their individual suggestions and may not be considered as the recommendation or opinion of anyone other than that counsel”; and, the members did not impose the term of confinement the trial counsel recommended (18 months).
Based on that trial context, I cannot conclude the trial counsel’s comments constituted unlawful command influence or were tantamount to it. And, I cannot conclude the comments were improper under a plain reading of R.C.M. 1001(g): the trial counsel did not “purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge.” For these reasons, I must respectfully dissent.
. See, for example, the prepared statement of Professor Edmund M. Morgan Jr., Chairman of the Department of Defense Committee appointed by Secretary of Defense James Forrestal to draft the Uniform Code of Military Justice, in which Professor Morgan explained the committee's overall effort to strike the balance between providing functions for command and the administration of justice: "[W]e examined ways and means of restricting the commander to his legitimate functions. We have tried to prevent courts martial from being an instrumentality and agency to express the will of the commander.” Uniform Code of Military Justice: Hearings on S. 857 and H.R. 4080 Before the Comm. Of Armed Services, 81st Cong., 1st Sess., 38 (1949) (testimony of Professor Edmund M. Morgan Jr., Chairman of the Department of Defense Committee).
. Brigadier General (Retired) John S. Cooke, Introduction: Fiftieth Anniversary of the Uniform Code of Military Justice Symposium Edition, 165 Mil. L.Rev. 1, 3 (2000).
. See e.g. Thomas, 22 M.J. at 388; Invite, 25 M.J. at 334.
. I use "actual” to mean direct involvement (including attempts) by command authorities, recognizing that others may categorize "actual” unlawful command influence differently. Allen, 31 M.J. at 590.
. Carter, 61 M.J. at 30; Baer, 53 M.J. at 235.
. Sparrow, 33 M.J. at 141.