(dissenting): I dissent.
While the result reached by the Court’s opinion does not seriously influence the administration of military justice, it appears to me to be an unwarranted limitation on the powers of the boards of review to affirm such portion of a sentence as they deem appropriate. I am inclined towards leaving them unhampered so long as they do not approve a sentence which is in conflict with the Code or the Table of Maximum Punishments.
The determination of this question is to me one of Congressional intent as I do not believe that the policy considerations subsequently provided for in the Manual should be grafted on the Code so as to modify its expressed terms. I concede to and accept the concept that the sentence policy prescribed by the Manual is binding on us insofar as it extends. But, we need not enlarge its coverage to include boards of review. That is what the Court does by its holding in this case.
During the hearings on the Uniform Code of. Military Justice before the Armed Services Committees of Congress one of the objections most strongly urged against Article 66 was that it conferred on boards of review unlimited latitude in modifying sentences. In spite of this objection the Article was adopted as proposed. I would assume from that and the broad language of the Act that Congress intended to grant wide powers to adjust sentences downward. I, therefore, pass to the provi*54sions of the Manual to determine whether they should be construed to limit the Congressional grant.
It is to be noted that the framers of the Manual, in considering the limitations with which we deal, applied them only to courts-martial and the convening authorities. When they considered the powers of the boards of review no limitation was imposed. I have every reason to assume this was intentional and if so it clearly indicates an intent on their part to leave the boards untrammeled. I find no good reason to discard the doctrine that by affirmatively applying the limitations in two instances and omitting them as to a third, an intent to exclude the latter is inferred.
The only phrase in the Act which can possibly justify the construction adopted by the Court is “as it [board of review] finds correct in law.” There are two reasons which argue against that construction. First, the provisions of the same section delegate to the boards of review the right to determine from the entire record (facts and law) the sentences they deem appropriate. If possible, effect should be given to each word and phrase of the section and if a limitation is read into the section then even though a board of review determines, factually, that a certain' portion of a sentence should not be affirmed it is limited by a constructive restriction imposed on it. A conflict is thus created. Second, the phrase is susceptible of a construction which would not diminish the authority conferred by Congress. The Code makes certain sentences mandatory; in other instances it authorizes such sentences as a court-martial may direct, subject to the power of the President to set maximum punishments for each offense. He has acted within that authority by approving the Table of Maximum Punishments as found in the Manual. I would, therefore, reason that when Congress used the particular phrase in the Act, it intended to restrict the board, in law, only to the extent that the sentence as affirmed must be within the limitations prescribed by the Code and the maxima set by the President. The sentence affirmed in this case is well within the limits of both.
In applying the two divergent constructions I find that under the Court’s theory a board of review could approve a sentence as imposed, but it is circumscribed in affirming it in part. Without any express limitation by Congress or the President, the power to affirm all does not include the power to affirm part. Under my interpretation, if a board could affirm the sentence, as passed, it could affirm any part. This is the authority which I believe Congress intended to confer on boards of review and we should not, by judicial interpretation, diminish the grant.