(dissenting):
I dissent.
There are two reasons why I believe the Court’s opinion reaches the wrong result. First, the particular limitations with which we are dealing, prescribed in the Manual for Courts-Martial, United States, 1951, as modified by the Naval Supplement to that Manual, do not limit the court-martial in the sentence it may impose. Second, if it were to be conceded that they do, then that portion of the sentence imposed in this case which is in direct conflict with the law must fall. I shall develop briefly both reasons in the order stated.
Paragraph 126e of the Manual provides as follows:
“For the maximum limits of punishment for certain offenses committed by enlisted personnel, see 127. Unless otherwise prescribed in regulations promulgated by .the Secretary of the Department concerned, in the case of an enlisted person of other than the lowest pay grade, a sentence which, as ordered executed or as finally approved and suspended, includes (1) dishonorable or bad conduct discharge, whether or not suspended, (2) confinement, or (3) hard labor without confinement, immediately upon being ordered executed or upon being finally approved and suspended, shall reduce such enlisted person to the lowest enlisted' pay grade; provided that the rate of pay of the person so reduced shall be commensurate with his cumulative service.”
*118Section 0122 of the Naval Supplement to the Manual for Courts-Martial, United States, 1951, promulgated by the Secretary of the Navy provides:
“Reduction to Lowest Pay GRADE when Sentenced to Confinement OR Punitive Discharge. — The reduction of an enlisted person to the lowest pay grade as provided in paragraph 126E, MCM, will not be effected until the sentence has been finally approved as required in the particular case.
“a. Limitation. — Such reduction will he effected only when the sentence, as finally approved and ordered executed, includes either an unsus-pended dishonorable or bad conduct discharge or an unsuspended sentence to confinement for a period in excess of three months. Such reduction will not be effected in connection with a sentence of hard labor without confinement.
“b. ‘Finally approved’ defined.— A sentence is ‘finally approved’ within the sense of this section when:
“(1) Approved by the supervisory authority (Sec. 0107) in the case of a special court-martial where the approved sentence does not involve a bad conduct discharge, or
“(2) Promulgated by the Navy Department after final appellate action in all other general and special courts-martial cases.” [Emphasis supplied]
I do not understand that there is any dispute concerning the authority of the courts-martial to impose any one of the three separate punishments. That is, it could impose separately a bad-conduct discharge, confinement or intermediate reduction. The illegality in the present sentence, if any, is in including the particular combination of the three. I shall, therefore, test the authority of the court-martial to impose the particular sentence.
A reading of the Naval regulations leads me to conclude that the limitations placed on the combination of the punishments are inapplicable until the commanders or agencies in the appellate review system have taken action on the sentence. There are two methods by which an enlisted man may be reduced: one by the sentence of a court-martial and the other by operation of law. It,is to be noted that when reduction to the lowest grade is effected by operation of law, certain other penalties must be included in the sentence and the reduction does not take effect until final approval of the sentence. In this case, the automatic reduction cannot be imposed until the orders are promulgated by the Department of the Navy after final appellate action. That date is still sometime in the future.
I, of course, have no way of determining what the court-martial intended to impose in the way of sentence except by reading the sentence announced. I cannot tell by doing that which punishment it considered of paramount importance but I am led to believe that it concluded a bad conduct discharge and confinement of ten months were essential. In order to reach the result obtained, the Court relegates those to punishment of lesser importance. This then poses the question as to why we should interpret the regulations to overturn the sentence of the court-martial when it can be upheld within their provisions. I know of no reason why we should reconstruct the sentence unless it cannot be sustained on any legal theory. I suggest that if we measure it by the regulations we must conclude there is no necessity for casting it aside. I propose the following test to determine legality: assume the same sentence and assume any authority, with powers to do so, suspended the execution of the bad-conduct discharge and the confinement, could not the remaining portion of the sentence be approved and' executed by higher reviewing authorities without violating Naval regulations? If so, why is the original sentence illegal? The reduction by operation of law would not be required and the intermediate reduction included in the sentence would be unassailable. To hold as the Court has done, is in effect to say that the power to impose a given sentence, is not tested by the authority of the court passing sentence but rather by some subsequent action taken by a reviewing authority. *119My understanding is that if a sentence is legal at the time it was imposed, limitations which may subsequently be created by a contingency do not revert back and render it illegal. Even assuming they might, we are on questionable ground to hold a sentence illegal before the time in which the contingency may happen has not expired.
As to the other ground, if the limitation found in Naval regulations is intended to restrict the court-martial in imposing sentence, then that portion of the sentence which attempts to do what the regulation' states may not be done, is illegal. The automatic reduction hinges clearly on an unsuspended bad-conduct discharge and an unsus-pended period of confinement in excess of three months. The reduction is mandatory and not permissive. The court-martial has no discretion. If it intended what it said when it included in the sentence a bad-conduct discharge and ten-months’ confinement, it made a mistake.in law when it attempted to provide that reduction to the lowest possible grade should not be automatic. The regulations provide otherwise and a court cannot substitute its judgment for mandatory requirements. If any portion of a sentence must yield because it is contrary to law, it is that part which is illegal. If I were to conclude the limitation applied to the court-martial, I would further conclude the intermediate reduction was void as being contrary to the Manual and Naval Supplement.