(concurring) :
I concur in the result, but I prefer not to bottom the Court’s holding on the bald and unamplified ground that the board of review “was in effect increasing the sentence imposed by the court-martial.”
The trial court here imposed an inconsistent and illegal sentence, both branches of which cannot stand. Two courses are open to an agency of review in its effort to arrive at a determination of action. One is to observe flatly, and quite accurately, that — given the sentence to confinement imposed— the intermediate reduction in grade is without warrant in law. This approach would, of course, require that the attempted intermediate reduction be set aside, and that the accused be reduced to the lowest enlisted grade. The other path involves an attempt to ascertain the intention of the members of the court-martial who tried the accused —or with greater accuracy perhaps, to discover what would have been their intention had they been required to make an informed choice. This second course seems to me to be more nearly consistent at once with the spirit of the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951, as derived from their four corners, and with the opinion of this Court in the case of United States v. Brasher (No. 499), 6 CMR 50, decided October 20, 1952, in which we said:
“In a special and peculiar sense the sentence of the law for adjudged misconduct — military or civilian — is the *117product of a trial court. It alone, of all agencies of the law, is authorized to ‘adjudge’ the law’s penalty. True it is that review agencies are empowered to take varying sorts of action with respect to this phase of the trial court’s task, but their function in this particular is secondary and derivative. They merely ‘approve’ or ‘disapprove,’ ‘affirm’ or ‘reverse.’ The trial court, on the other hand, ‘imposes’ — it determines as an original, a basic, and a primary proposition.
“. . . In determining the legality of a juristic penalty we are forthwith remitted, therefore, to its primary source — the court-martial. We are required, we believe, to think of the matter in terms of the original, the fundamental act — that of imposition. . . .”
Viewing the problem through the spectacles of court-martial intention, which portion shall we consider controlling? I believe that, on the basis of military justice experience, we should accord the greater weight to the attempt to effect an intermediate reduction in grade. It is the unusual, the positive, the striking, the less frequent and normal, phase of the sentence, and thus should be deemed to have preponderated in the tribunal’s thinking. In my opinion it should prevail — and I choose not to believe that I am attributing to myself special powers of divination in reaching this conclusion. In this special sense, therefore, the board’s action may perhaps be said to have increased the sentence imposed on the accused.
If it be thought, however, that I have assumed psychic insight in purporting to discern the court-martial’s intention, let it be said that I wholly agree with the implication of the majority that in such a ease as this we should resolve reasonable doubts in favor of the accused person. I agree, too, with the further implication of the majority opinion, that at this stage of the proceedings, the action provided by this Court is the only one which may be taken with effectiveness and propriety. See Manual for Courts-Martial, United States, 1951, paragraph 86d.
Although I much.prefer the result reached in this case by the Chief Judge, I am anxious to avoid the danger of being haunted by a flat rule — all of the implications of which I cannot now envision — declaring that a board of review is powerless to set aside as illegal a portion of a sentence' if the action “in effect increases” the sentence adjudged in any way directly.or indirectly. In vacuo I do not believe that action of this nature necessarily “increases” anything. It merely declares something to have been done without warrant of law.