(concurring in part and dissenting in part) :
I concur in part and dissent in part.
Because this case involves principles of great moment to the military services and because there is a three-pronged approach to the final result, I will make some general observations concerning the views expressed by my associates and then develop my reasons for reversing the decision of the board of review.
I believe it ill-advised and unwise to apply the civilian concepts of freedom of speech and press to the military service unless they are compressed within limT its so narrow they become almost unrecognizable. Undoubtedly, we should not deny to servicemen any right that can be given reasonably. But in measuring reasonableness, we should bear in mind that military units have one major purpose justifying their existence: to prepare themselves for war and to wage it successfully. That purpose must never be overlooked in weighing the conflicting interest between the right of the serviceman to express his views on any subject at any time and the right of the Government to prepare for and pursue a war to a successful conclusion. Embraced in success is sacrifice of life and personal liberties; secrecy of plans and movement of personnel; security; discipline and morale; and the faith of the public in the officers and men and the cause they rep*532resent. In connection with this litigation, it is to be remembered that while we can discuss the principles involved in a time of temporary peace, that is the period during which we must prepare for war or other eventualities. A principle which interferes with preparing for war may interfere with its successful prosecution; and a privilege given unwittingly in peace may be a death knell in war.
So far as I have been able to discover, the United States Supreme Court has never passed on the precise question which now confronts us. It has, however, pointed out one rule which seems to be the golden thread running through all of its pronouncements. That rule, paraphrased from a number of opinions, is that while freedom to think is absolute of its own nature, the right to express thoughts, orally or in writing, at any time or place, is not. I need not take sides in the great debate as to whether the right of free speech occupies a preferred position which must be jealously safeguarded by the judiciary. Some opinions say it does, others are to the contrary.. Either view can be taken without detracting from the principle that in the armed services it must be subject to those restrictions which are necessary to successful operations. Time after time the Supreme Court of the United States has stated that the right to speak freely must be considered in the light of -attending facts and circum'sta-nces. That principle to me seems implicit in the “clear and present danger” concept. ¾ such is the case, then the rights of the man in the service must be proportioned by a more refined measuring rod than are those belonging to the man in the street. What may be questionable behavior in civilian life, and yet not present any danger to our form of Government, may be fatal if carried on in the military community. The substantial interest of society with which •-we deal must be weighed on scales adjusted to the necessities of the military service, and I believe they always have been. Unless the concepts under which this nation has waged war successfully are erroneous, then the exigencies of the military seyyipe demand circumscription of the right of free speech and suppression of publications which contain information detrimental to the morale, discipline, and security of the services. No officer or man in the armed forces has a right, be it constitutional, statutory, or otherwise, to publish any information which will imperil his unit or its cause. Neither does he have the right to make public confidential information he.receives by virtue of his military assignment which might impair seriously the efficiency of the military machine. It should require little imagination to visualize the havoc that would result if military authorities were denied the right to censor written communications or dispatches for national security purposes. One versed in the difficulties of maintaining secrecy in the armed forces can well imagine the holocaust if security had to be abandoned. Members of the press who have been foremost in pleading the cause of freedom to speak and write would hardly insist that the principles weighing in favor of freedom of expression outweigh those favoring national security. Their willingness to accept censorship on matters involving national security is proof of that statement. While the factors which must be considered in permitting military disclosures may appear to vary in peacetime and wartime, they are substantially the same. If all persons who are presently working in sensitive military or civilian plants could, without restriction, publish their knowledge, their thoughts, and the information they obtain by virtue of their employment, the probabilities that this country would survive as a nation would be considerably lessened, if not rendered nonexistent.
I have purposely approached the problem largely from the standpoint of security as that furnishes the firmest support in favor of control. But policy and propriety interests of the military likewise support regulation of public utterances. Briefly I will dwell on the reasons why I believe that to be necessary. At the heart of every successful military force are morale, discipline, and public support of the cause. An army which lacks those cannot hope to succeed. What I have previously stated *533in regard to security, applies in part to policy, and propriety. A wise policy, a fair sense of propriety, underlie morale and discipline. No man willingly lays down his life for a national cause which he is led to believe is unsound or -unjust. Yet implicit in military life is the concept that he who so serves must be prepared to do so. If morale and discipline are destroyed, our forces cannot be trained adequately, and the nation must necessarily fail in battle. A few dissident writers, occupying positions of importance in the military, could undermine the leadership of the armed forces; and if every member of the service was, during a time of conflict, or preparation therefor, permitted to ridicule, deride, deprecate, and destroy the character of those chosen to lead the armed forces, and the cause for which this country was fighting, then the war effort would most assuredly fail.
By way of illustration, in this particular instance, General MacArthur had been in command of the United Nations Forces in Korea. For the purpose of testing the principle, I can assume he was still in command at the time the manuscript was placed in circulation. One of the chapters of the book was devoted to his utter disregard of the fundamentals of military secrecy. It is not difficult to comprehend that an officer assigned to the position occupied by this accused could, by virtue of his assignment, and through false and misleading statements, destroy the faith and confidence of the people of the free world not only in the leadership of General MacArthur, but also in all other American officers. It matters little whether the published comments were true or false because the effect on the public would be the same and the cause would be weakened. It seems to me to be doubtful reasoning to suggest that, if false, the General might institute court-martial proceedings to punish the offender. His major task is to fight a war, not a lawsuit. Criminal sanctions may be adequate in civilian circles, but preventative measures must be taken in the military. It is too late to apply criminal sanctions after the battle is lost. A concept that a commander is not entitled to have the faith and confidence of his men and the support of the American people uninfluenced by false and unjustified accusations is fundamentally false. Hypothetical cases of every type could be developed to prove that, unless Army policy and standards of propriety were respected by members of a command, chaotic conditions would result. It might well be that, under certain peacetime conditions, all officers could be held up to ridicule and contempt by members of their command; but if they were, I have good reasons to assert that such unbridled accusations would have a measurable impact on the discipline and morale of the unit in particular and the service as a whole. Stated hypothetically, I can well imagine what might happen in Korea if, at the present time, an American officer there on duty were to publish an article in a national publication that the commanding general of the American troops in that area was collaborating with the communists. It is to be remembered that military personnel are not without recourse if they have cause for complaint or suspicion as other channels have been provided through which any member of the armed forces may, in confidence, air allegations of any nature.
Congress must have realized the potential harm in permitting unbridled expressions of opinions by service personnel as Article 88 of the Uniform Code of Military Justice, 50 USC § 682, proscribes the use of contemptuous words against certain enumerated public officials. If an attack on those officials can be made the basis for criminal prosecution, and I assume it can, then a scurrilous publication about a commander should not be considered less serious. Certainly, the latter clashes head-on with other Articles of the Code and the customs of the service, and has a greater tendency to bring discredit on the military service and to interfere more with its assigned mission. Furthermore, Congress has prohibited the publication of articles which interfere with the proper waging of war, and the Supreme Court has upheld the statutes. In the oft-cited case *534of Schenck v. United States, 249 US 47, 63 L ed 470, 39 S Ct 247, the defendants were convicted of publishing articles which had a tendency to obstruct recruiting. Mr. Justice Holmes, speaking for the Court, stated:
“But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 US 454, 462, 27 S Ct 556, 51 L ed 879, 10 Ann Cas 689. We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 US 194, 205, 206, 25 S Ct 3, 49 L ed 154. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove & Range Co. 221 US 418, 439, 31 S Ct 492, 55 L ed 797, 34 LRA NS 874. The question in every ease is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be-endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
If it is necessary for survival that this country maintain a sizeable military establishment, and under present conditions that must be conceded, then I have a great deal of difficulty in following an argument that those who serve should be entitled to express their views, even though by so doing they may destroy the spirit and morale of others which are vital to military preparedness and success. I have no disposition to deny the validity of the argument that the benefits derived from free expression by civilians may be worth the risk of endangering the future of the Republic. That concept, however, fits civilian society where conditions permit full debate and full development of both sides of the controversy. Full and complete information is essential to the proper solution of problems which face a democracy during periods of tranquility. Ideas for com-batting false ideals and misguided ideologies can germinate in that climate, and informed discussion is desirable. That method of meeting false charges is characteristic of a democratic form of Government, but it presupposes time in which the public can be fully informed on the merits and demerits of each contention and a delay in the solution is not of grave importance. However, a military organization cannot be governed by those processes. In training a civilian army, time is of the essence. A war cannot be won in the halls of debate, and conditions do not permit meeting lies with the truth. A syndic preaching syndicalism to servicemen can hardly be neutralized by a patriot teaching patriotism. But even assuming he could, that process places a burden on the service which, during times of stress, it should not be required to carry. In a time of peace, those who voluntarily or involuntarily work to protect our nation should not be required to toil in contention and strife engendered from within. It is enough that they might be required to labor while being critically assailed from without. A citizen, within certain limits, may circularize his cause, be it noble or ignoble, as there is little danger to a constitutional form of Government in an ordinary crusade. But one false rumor, timed properly, may destroy an army. Assuming arguendo that the privilege of free speech is a preferred right, we *535should not prefer it to such an extent that we lose all other benefits .of our form of government. A demoralized and undisciplined military service could cost us all those we possess, and hostility to prior restraints on communications should not be permitted to endanger our nation.
In summation of this portion of my opinion, I conclude that the armed services have the power to limit the right of free speech of their personnel, but the power must be considered in two ways: First, for the power to regulate the flow of information and, second, for the authority to suppress or prohibit its publication. They, in one sense, blend as there is no absolute free speech or free press if permission must be obtained from an official in the service before publication. His arbitrary refusal to clear may be tantamount to prohibition and officials can be tyrants, but that alone does not justify uncontrolled disclosure. While the principles which govern the right to regulate communications, and the right to prohibit them may differ, I believe the armed services could require submission of any and all writings. That is not to say they could prohibit the publication of those which have no reasonable relationship to security, army policy, or military propriety; but they could require an inspection to make certain those matters were not violated. The question in the instant case is whether the Army did so with sufficient certainty and legality to support the conviction.
Now to the core of this case. I must concede that Judge Brosman has much the better of the argument on the construction to be given the provisions of AR-360-5, dated October 20, 1950, and Secretary of Defense Johnson’s letter. I reach the same result as he, but I arrive at my conclusion in a slightly different manner. It is a cardinal principle of construction that words in a regulation are to be interpreted in their ordinary acceptation, significance, and the meaning commonly attributed to them. I see no necessity for departing from that principle in this case. For many years the Army has considered policy and propriety to be isolated from security. A violation of the latter may offend against the former but the converse is not equally true. Many matters of policy and propriety do not involve security except in a remote and indirect manner. I recognize another general principle of construction that writings dealing with the same subject matters should, if possible, be construed so as to be harmonious. However, I find no way in which the wording of this regulation can be tortured into being consistent with the letter. Of course that construction may be arrived at by discarding their recognized meaning, by ignoring the administrative construction given the words over the years, and by refusing to accept the meaning attributed to them by the officers of the reviewing section. As for the construction over the years, I need not go back into early military literature and historically develop the Army interpretation as I believe it sufficient to show that AR-600-700, dated May 24, 1945, recognized that the terms were not used synonymously. That regulation, which is the immediate predecessor to AR-360-5, marked out two separate areas for clearance. Security clearance applied to anyone who released information pertinent to the military establishment. Propriety clearance was limited to military personnel. The present regulation makes the same distinction as it requires security clearance in some instances and policy and propriety in others. Finally, the Johnson letter recognizes the disassociation by retaining security review and at the same time eliminating clearance for other reasons. When considered in the light of those matters, I find the two documents irreconcilable.
That brings me to the effect of the Johnson letter. I must accept the concepts announced by the board of review and by the Chief Judge that the Secretary of Defense had authority at the time that letter was written to limit the scope of Army Regulations then in effect. The Army was a subordinate department to the Department of Defense, and, in the event of inconsistency, the latter’s regulations would be eon-*536trolling. 'The Secretary of Defense narrowed the then existing Army Regulations, and limited those enacted subsequently, by requiring that review be restricted to matters touching on security. In the state of the nation, at that time, there may have been some good reason to let down the control bars, but that is a question which I do not resolve as it deals with policy matters which belong rightly to another department of the Government. I can say, however, that so long as that letter is in effect, the services are not authorized to go beyond its fair confines and prosecute personnel who have met its requirements. If it has opened the floodgates too far, some enactment from the same or higher headquarters would be necessary to close them. Government counsel contend that the memorandum issued by President Truman on December 5, 1950, as supplemented by the Department of Defense Directive No. 5230.1, dated July 27, 1951, had that effect. The argument, however, cannot be supported by either the memorandum or the directive. In essence, the prohibitions contained in both refer to public speeches, press releases, or public statements dealing with the foreign or military policy of the Government. The memorandum was to military and nonmilitary officials and was intended to cover a field connected only remotely, if at all, with our problem. The purpose, as stated in that memorandum, was not to prohibit the flow of information to the people of the United States. I must, therefore, conclude that its purpose was to prevent the discussion of major military policies by officials which would have some direct effect upon our relationship with other members of the United Nations, and the clearance required by the Department of Defense Directive was limited to communications which fell within those fields. If we were concerned with a publication which trespassed in the intended areas, a different problem would be presented; but, at most, the memorandum would only rescind the Johnson letter where there was a conflict in their requirements. Both documents required security review, but neither overruled the Army Regulation that articles dealing with military subjects must be submitted for clearance. Assuming arguendo that there might be some slight inconsistency, it would not be relevant to the ease at hand. I can arrive at that conclusion because under the Presidential memorandum, the Johnson letter, and Army Regulations, the accused was required to forward his manuscripts for clearance which, in part, he did, and his present conviction is supported only by the release which he failed to submit.
That brings me to AR-360-5, published on October 20, 1950. There are reasons which could be advanced as to why those regulations, which were published after the Johnson letter, were intended to be broader in scope than the provisions of the letter. It would be the work of supererogation to mention them all. I will, therefore, content myself with suggesting one. At that time, the authority of the Secretary of Defense to legislate on such matters might have been open to question. I have only set up a possibility, but, regardless of the reason, the regulation was drawn in conflict with the letter and it could not extend beyond the limits set out by the Secretary of Defense. To the extent that it exceeded the scope of his memorandum, it is unenforceable. I, however, find no restriction by the Secretary on the power to require submission. All I discover is that he denies public information officers the right to require deletion of matters touching on policy or propriety. To that extent the documents are inconsistent and the officers in the review section exceeded their authority by demanding policy and propriety deletions. The board of review decision, however, reversed the findings which were supported by that improper ruling and thus cured the error.
I do not encounter the same difficulty with AR-360-5 as do some of the other officials who have participated in this litigation. Much has been said about the necessity of submitting a manuscript covering “the love life of a rattlesnake.” I find no such requirement. The Army Regulation is entitled “Public Information” and its general provi*537sions well limit its purpose and scope. Paragraph 2 defines public information as follows:
“Public information is defined as any undertaking conducive to public understanding, confidence, and support through factual interpretation of the Army to the American people. It includes continuous dissemination of information and professional opinion to the public, participation in community life, and a line of conduct by uniformed personnel which will contribute to public understanding and consequent appreciation of the military service.”
As I will later point out, all provisions of the regulation deal with public information as it is defined, and. I fail to appreciate how a dissertation “on the love life of a rattlesnake” would contribute to a public understanding and consequent appreciation of the military service. I gather from the arrangement of parts, the contents, the specific subjects disclosed, and the objective of AR-360-5 that it deals solely with military information. It places the responsibility for properly informing the public about the military service on certain commanders. Those officers include the Chief of Information Section; Chief of Army Field Forces; Continental Army Commanders; Commanding General, Military District of Washington; Commanders of Class 2 installations and activities; and overseas commanders. In all instances their authority is narrowed to information which deals with military subjects. Public information officers are special staff officers who have certain assignments and duties. They are assigned to the staff of all commanders down to and including the regiment or comparable unit. Their authority could not surpass that of their immediate commander who is charged with reviewing for security, under established policies, all communications concerning the local military command and situation which is to be disseminated to the local public through local information media.
Section 4, which includes paragraph 15, is particularly relevant to our discussion. It is entitled “Release of Military Information.” That section states that the writing of articles, books, and related materials intended for publication on topics of military or professional interest or general interest concerning the Army, or in the interest of national defense, is desirable. Again, it is only dealing with military information, and that is the reason that paragraph 15 requires the submission for review. The material parts of that paragraph are as follows;
“b. Public information officers normally perform the (Juties of security review. This function is limited to the deletion of classified matter and review for accuracy, propriety, and conformance to policy. Specific violations of security directives, policies, or regulations will be brought to the attention of the person submitting material for review.
“e. Personnel of the Army Establishment are personally responsible for their writings and public statements. Personnel on active duty will submit their writings and public statements to the appropriate security review authority. Retired personnel and civilian personnel employed by the Army Establishment will submit their writings and public statements to the appropriate security review authority when the material concerns military subjects. In no instance should the material be submitted to a publisher prior to clearance. Civilian component personnel who have written material intended for public release which concerns military subjects should submit the material to appropriate security review authority when there is any doubt concerning its security or propriety.”
Unless we desire to charge officials of the Army with a desire to control thought on every conceivable subject and take unto themselves a burden clearly outside the scope of their own publication, it is absurd to contend that matters of a nonmilitary nature, which have nothing to do with the armed services, need be submitted for accuracy, propriety, and conformance to policy. One misinterpretation by an officer of a section does not fix the law, and if it *538be contended that the Office of the Chief of Information interpreted the regulation erroneously and the accused was convicted on the misinterpretation, we would be required to reverse. However, the short answer to this is the accused wrote about military matters and as to them the requirement to submit was clear and positive.
While much has been said about the vagueness of AR-360-5, I believe it is irrelevant for our pur poses. While the word “propriety” and the phrase “conformance to policy” may be indefinite, uncertain, and all-inclusive, it is not necessary that this particular regulation be complete in itself. Other regulations and directives can be issued which limit the interpretation of those terms and which give content and body to their meaning. I would have no difficulty if an Army directive stated it was contrary to the policy of the Army to have military personnel advocate publicly that enlisted men should desert to find that one charged with violating Army Regulation 360-5 by publishing articles exhorting men to do so would be furnished with sufficient standards to permit him to prepare his defense. However, any discussion of that matter at this time is academic. If and when regulations requiring review and deletion on those matters are in effect, the issue may become relevant.
At the time of the Johnson directive, which was issued June 7, 1949, AR-600-700, dated August 16, 1946, was in force and effect. That regulation was not complete in setting out the mechanics for clearance; but when interpreted in the light of military tables of organization and customs of that service, there were certain matters made crystal clear. These were as follows: That there was a public relations officer appointed on the staff of each regiment or higher unit; that he was to review, under established policies, all material to be disseminated to the public; that military persons were limited in making public pronouncements; and that within the limits of security and propriety, officers and men were encouraged to express their views. It appears implicit in the regulation that, if officers and men were to be circumscribed by propriety and security, someone in the military must clear their public utterances for those purposes, and obviously that would be the appropriate public relations officer. No difficulty should be encountered in identifying that officer. Illustrated militarily, if the author was a member of a regiment, the public relations officer of that particular regiment would consider the manuscript for clearance. If the author was assigned to a divisional organization, then the officer on division staff would be the appropriate authority. If the writing covered subjects which were outside their spheres of responsibility, or clearance was doubtful, then there were channels of communication by which the document could reach top level authorities.
The present regulation varies the procedure in obtaining clearance little, if any, from its predecessor. Public information officers are appointed on the same staffs. Appropriate security review officers are provided for and they are readily identifiable. Channels of communication have not been changed. One seeking to obtain clearance can always comply with the present directive by submitting his article to the commander who is first in the chain of command. If processing there is deemed inadvisable, the writing or the proposed speech would be forwarded through appropriate military commanders. Other correspondence has for years been processed in that manner without too much difficulty, and I see no reason why a manuscript poses obstacles which are insurmountable. This should answer the contention that the present regulation is so vague that accused was not apprised of the person to whom he should submit his various articles. But there is more to be offered to answer the contention. The Chief Judge, in his opinion, meets persuasively the assertion by analyzing the pertinent provision of the regulation. Furthermore, the accused had occupied a sensitive position on the staff of Headquarters, Eighth Army, in Korea. He was familiar with the principles governing censorship and with requirements for *539clearing writings. An officer with little or no experience could have ascertained the appropriate security review officer. In short, the accused would have encountered no difficulty in getting his manuscript to those authorities who had the authority to clear the subject matter about which he wrote had he been so inclined. His knowledge of the channels of communication was not so limited as to cause him any serious difficulty about clearance. Therefore, pretermitting the question not here in issue, namely, whether the terms “policy,” and standards of “propriety” are so vague and indefinite as not to warn fairly the accused of the nature of the offense he must defend against, I find only the Johnson letter which renders AR-360-5 unenforceable. As previously stated, that affects only the scope of review.
Applying my views to the individual charges and specifications, I reach the same result as the Chief Judge and concur with most of what he states. In the interest of clarifying my concurrence, I will discuss my views briefly. The first specification of Charge I alleges a violation of Lieutenant General Swing’s order to withdraw the manuscript. Obviously, if the Office of Public Information, Department of the Army, did not possess the power to refuse accused' the right to publish his writings until he had deleted certain passages, claimed to be contrary to its views on policy and propriety, it did not have the authority to order withdrawal. It could not accomplish indirectly what it could not do directly. General Swing, commanding a subordinate army organization, could not within his authority direct withdrawal. His authority would be no greater than the authority of the Department of the Army, and both were proceeding on the theory they possessed powers which had been denied them by the Department of Defense. The accused has a right to disobey an order at his peril and while it is presumed to be legal, in this instance the presumption is dispelled by the evidence. I, therefore, conclude the first specification of Charge I was reversed properly.
The specification laid under Charge II alleged a violation of AR-360-5, dated October 20, 1950, by sub mitting a manuscript to the publisher without obtaining prior Army clearance. The specification alleges the date of the offense as June 15, 1952. I glean from the record that the theory of the Government was predicated on accused’s submission of the manuscript sometime after he and the Army authorities became involved in a controversy over the right to publish. Otherwise, I cannot account for the date chosen by the pleader, to set out the offense, and the one relied on by the law officer in his instructions. The preliminary negotiations appear to have commenced on or about December 1, 1951, and it is entirely possible that submission was completed on or about that time; but the facts do net spell out the precise time with certainty. The accused is entitled to be informed of the date of the offense with some degree of certainty and the Government, having elected to allege the date of the offense as June 15, 1952, cannot now rely on events happening on a date that is not encompassed fairly within that time. Had it sought to amend the specification after the evidence was completed, the accused, if he desired, could have made certain motions to protect his rights but they are not now available. In testing the evidence for insufficiency, I must look to the transaction which I believe the Government used to support the charge at the trial level. The record establishes that on or about March 4, 1952, the nonfietional chapters of the manuscript were submitted to the Office of Public Information, Department of the Army. That office took the position that, although no security violation was involved, the material could not be approved for publication. On May 10, 1952, the accused discussed with officers of the Department the modifications which might be made to obtain clearance. A mutual agreement was not arrived at and on or about June 20, 1952, he wrote the publishers authorizing them to proceed. The foregoing facts establish that the accused had submitted his manuscript for review and *540it was cleared for security purposes prior to the time the offense alleged in the specification was committed. No other clearance was required. Accordingly, the facts do not sustain the offense alleged and I concur with the holdings of the board of review and the Chief Judge that the finding must be reversed.
The next charge alleged, in substance, that the accused violated AR-360-5, dated October 20, 1950, by submitting certain material to the publishers of the magazine entitled “Argosy” without obtaining prior Army clearance. The evidence discloses that the material submitted to support this charge consisted of photostatic copies of pages taken from the manuscript which formed the base for the charge previously discussed. The date of the submission of the photostats was on or about June 20, 1952. The finding on this charge must be reversed for the reasons which required a reversal on the other charge. The manuscript from which the copies were taken had been cleared for security purposes, and if there was no offense committed in submitting the entire book to one publisher, there could be no offense for submitting certain parts of the book to another publisher at a later date. Accordingly, the finding on this charge must fall.
I can now pass by the findings on Additional Charge II as this appears to have been decided factu ally by the board of review. That brings me to the last offense and the finding which the board of review affirmed. In this specification the accused is charged with submitting certain articles to the New York Journal-American without obtaining prior Army clearance. The Chief Judge sets forth his reasons for affirming the findings and I concur therein. As stated by him, the accused admitted the violation and sought to justify his acts because: (1) they were necessary to meet the publication deadline; (2) his actions were in accord with established custom in such cases; and (3) he questioned the right of the Army to control what a writer might do with his manuscript prior to actual publication. These alleged defenses cannot be sustained for the reason that the first is not a defense to the charge, even if established. There is no evidence to sustain the second; and the third is controlled by our holding that the Army can require clearance before submission. I have not overlooked the contention that there was no submission within the fair meaning of that term, but the Chief Judge has answered that contention. I subscribe to his views and I support him in his holding that the finding on this charge is sustained by the evidence.
One more issue is presented for resolution. Accused assails with determination the action of the board of review in affirming only one finding and then affirming the sentence imposed by the court-martial. This argument has considerable merit and must be resolved in his favor.
At the time the court-martial members deliberated upon the sentence they were charged with the duty of fixing an appropriate sentence for the commission of three offenses of major import and two others which by comparison were of secondary importance. The first offense involved the willful disobedience of the written order of the commanding general of one of the continental armies. The issue between Lieutenant General Swing and the accused had been drawn clearly by the specification and the head-on clash between the two was magnified by the evidence presented at trial. The General had sought to compel compliance with what he had cause to believe was a proper request from higher headquarters by reinforcing that directive with the authority of his office and his person. The dignity and significance of a personalized military order such as this is exceedingly great, and it would be overlooking the realities of the military service to minimize it. We have emphasized the seriousness of wilfully disobeying a command and Colonel Winthrop is an authority for the concept that “Obedience to orders is the vital principle of the military life —the fundamental rule, in peace and in war, for all inferiors through all grades from the General of the Army to the newest recruit.” Winthrop’s *541Military Law and Precedents, 2d ed, 1920 Reprint, pages 571-572. Undoubtedly the officials of the Army realized that the most effective way to compel obedience to its policy and propriety declaration was to position the accused so that he must either comply with an order or suffer the severe penalty flowing from the wilful flouting of the authority of a senior commander. The challenge, if it may be so characterized, was accepted by the accused, deliberately, and with no attempt to retreat. The order was given and the accused, an officer of considerable experience, flatly refused to obey. It cannot be denied that a finding of guilt on that offense would have an all powerful influence on the sentence imposed.
The second offense went to the heart of the controversy which led to this trial. Briefly, the Army high command believed that it had the authority under its regulations to censor manuscripts for propriety and conformance to policy. Voorhees concluded to test that power. The evidence is clear that the Army never formally cleared the manuscript in question; that “policy” and “propriety” objections were the cause of withholding its imprimatur; that accused was well aware of the official view taken by the military officials; that he was given many opportunities to accede to the directions of the Office of the Chief of Information; and that the questioned portions of the manuscript were published unchanged. If it is accepted as a premise, as it apparently was by the members of the court-martial, that the Army officials are directed by regulations to exercise a propriety and policy censorship, then it follows that the accused was guilty of a substantial criminal offense. His failure to obtain policy and propriety clearance was deliberate; and he chose to make a top ranking officer in the Army the principal object of his criticism. No prosecution would have resulted had the accused made the changes requested by the Office of the Chief of Information. His failure to do so was the source of all the important alleged offenses. Surely then, the submission by the accused of this manuscript to his publisher, contrary to his specific instruction, weighed heavily on the court-martial members in assessing sentence.
What I have said with regard to the second offense applies with equal force to the third offense of which the accused was found guilty. The same subject matter was the object of dispute. While a different publisher was involved, this would only tend to aggravate the matter for the author’s views were more widely circulated in a magazine of national distribution. This, then, was a third finding of guilty of a major offense which would have a measurable impact on the severity of the sentence.
By one specification, and the proof to support it, the accused was convicted of wrongfully communicating directly with the Office of Public Information, Department of Defense, rather than proceeding through channels. This conviction was disapproved by the board of review because of insufficiency of evidence. Therefore, the sentence, as approved by that agency, must be measured without consideration of this finding. Here, just as with the offense subsequently discussed, we have what was a technical violation minor in character. However, we must accept the premise that this violation operated to influence in some degree the sentence adjudged by the court-martial.
The one delict considered by the court-martial, and affirmed finally on appeal, concerned the submission of several articles by the accused to the New York Journal-American without obtaining prior Army clearance. This allegation is supported by the record of trial and has been affirmed on review; but of all the offenses charged, this is one of the two of least importance. It was made plain at the trial that these articles did not offend against the standards prescribed by the Office of the Chief of Information; that the articles were never published; and that neither the accused nor the newspaper contemplated publishing the articles prior to obtaining the necessary clearance. The file establishes that the accused notified the publisher not to publish the article until clearance had been obtained. Granted that we have one violation of a pertinent regulation in the overall issue *542in this litigation, it is a minor violation at best; and we can say, in the light of the more serious breaches considered by the court-martial, that it was a factor of little importance in fixing an adequate sentence.
In summation of the offenses, and viewed through the spectacles of the court-martial members, this accused was found guilty of three major offenses, one of which amounted to an affront to the dignity of both the office and the person of his commanding general. The other two principal crimes were deliberate violations of Army regulations which are regarded by the military community as offenses of more than passing significance. Two other “makeweight” offenses were mixed in to the finding-base which was used to support the sentence. What was deemed to be an appropriate sentence was then adjudged. Before the board of review and before this Court, the base was demolished, the accused was vindicated as to the three major offenses and one of the minor offenses, and all that remains is a minuscule support. If the penalty fixed by the members of the court-martial was an appropriate reparation for the wrong believed done, then it is impossible for a reviewing court to determine, even within broad limits, what sentence would have been meted out by them for the single picayune valid conviction. Moreover, unless the board of review was misled as to its authority, it is difficult to understand how an accused can win on so many substantial findings and end up with the same harshness in sentence. It must be remembered that the presumptions in regard to sen tences in the civilian courts do not apply in the. military courts-martial. In United States v. Keith, 1 USCMA 442, 447-448, 4 CMR 34, we stated:
. . While a civilian judge is presumed to be learned in the law, the members of a court-martial cannot realistically be assumed, required, or expected to be familiar with technical legal rules. Thus, while there may be basis in reason for holding that the court in the civilian area shall be deemed to comprehend the procedural complexities of the situation,- and to award judgment and sentence on the valid count only, the same presumption cannot be indulged logically in the military system. Indeed, the presumption there would seem to point in an antithetically opposed direction.”
In United States v. Brasher, 2 USCMA 50, 52, 6 CMR 50, we had occasion to make an observation which is singularly apt here:
“In a special and peculiar sense the sentence of the law for adjudged misconduct — military or civilian — is the product 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.”
The Government argues that the sentence of the court-martial, founded on all the specifications, can be sustained by the one affirmed because the board of review, after considering the modified findings, affirmed it as appropriate. In the usual situation, this Court would be powerless to interfere wth a sentence, affirmed by the board of review but here that tribunal was faced with a predicament. Under the Code and our previous opinions, it has no power to commute a sentence of dismissal or death, where that sentence is legal. Article 71, Uniform Code of Military Justice, 50 USC § 658; United States v. Bigger, 2 USCMA 297, 304, 8 CMR 97. That power has been delegated by Congress to certain officials of the executive department. Thus, in so far as its own power to deal with this sentence is concerned, the board could only affirm the sentence adjudged or disapprove the sentence in its entirety. Having affirmed one finding, the board of review would not be apt to leave the accused *543unsentenced nor should it so do. To all intents and purposes, the restriction thus made the sentence, mandatory on the board of review which decreases to a vanishing point its obligation to affirm only such parts, or amount of sentence, as it finds correct in fact and law and determines on the entire record should be approved. Article 66, Uniform Code of Military Justice, 50 USC § 653.
One other avenue remained open to the. board of review to correct any inequities in this litigation. A rehearing before the court-martial could have been ordered to permit a sentence to be adjudged in the light of the offense committed, if a finding of guilty on the one specification resulted. The board of review elected not to pursue that method and, for reasons which I will hereinafter set forth, I feel the board of review thereby abused its discretion. On previous occasions when redetermination of the appropriateness of the sentence became necessary, we have been content to remand the case to a board of review for reassessment. This we have done because remand to the trial forum is seldom necessary to achieve a fair and just determination of the sentence. But that is not to say that such a proceeding may not be adopted when the only choice left to a board of review is to affirm the sentence or free an accused. That we have previously sought to make clear. United States v. Keith, supra. See our action in United States v. Field, 3 USCMA 182, 186, 11 CMR 182. Here, the findings to support the sentence were so blended together that they could not be disassociated to the extent they were without pulling the understructure out from beneath the sentence. Moreover, the board of review could not compensate by a reduction in sentence for those findings it reversed, had it been prone to adopt that procedure. Under those circumstances, a rehearing by the court-martial was not only appropriate, but to my mind it was mandatory.
It is asserted that the board of review made an independent de termination that this sentence was appropriate; that such a determination lies exclusively within the province of that board; and that, as such, that determination may not be reviewed by us. In the. limited area where sentences become unalterable, I cannot accept that argument for two reasons. First, I am not certain the board of review was cognizant of the fact it had the power to grant a rehearing where the only vice in the record infested the sentence. The board of review may have concluded that, because the Secretary of the Department or the President could exercise powers of commutation, it was foreclosed from granting any relief. I do not believe, however, that Congress intended the military judicial system should be without power, in its own sphere, to correct an obvious miscarriage of justice even if it runs only to a sentence. In a fixed sentence, field corrective measures are nonexistent so that a rehearing must be considered as an appropriate method of correcting an obviously unfair sentence.
Second, if the board of review considered the possibility of granting a rehearing, but nevertheless concluded the sentence was appropriate and was uninfluenced by its lack of purging power, then, by my standards, it abused its discretion. So that I will make my point clear, I do not contend the approval of this sentence, in and of itself, would be beyond the power of the board of review. But what I do contend is that, having no power to change the type or nature of the sentence, and being precluded from making the punishment fit the crime, the board should have refused to pass on the appropriateness of the sentence until some military judicial body with the authority to consider all forms of sentence should have had an opportunity to fix a reasonable sentence. It is to be remembered that in this type of case the court-martial freezes the sentence into a package form which is untouchable until it passes from control of the military judicial channels to administrative sources. The only method of melting the solidity of the sentence is by starting the proceedings anew. When a sentence package, such as confronts us here, is passed to the board of review, it must accept or reject it in its entirety. Obviously, if *544the findings remaining after the board of review has acted have any reasonable resemblance to the quantity and quality of those considered by the court-martial, then an acceptance of the sentence might be considered appropriate. But when what remains is but an insignificant part of the original, justice and a fair trial demand some tailoring of the punishment imposed by the court-martial. When, by law, the body with power to reverse findings is precluded from adjusting a sentence so as to make it appropriate to the conviction, one method of correcting the wrong is by the grant of a rehearing. Here the board of review chose not to follow that course which, under the peculiar facts of this case and the limitations placed on boards of review, is to me against logic, reason, and justice. The decision fails to disclose the exercise of a sound, legal discretion in the light of the entire record.
Many a reader will pause to wonder why I do not recommend that the case be returned to the board of review for further consideration of the sentence. If I am correct in my premise, to follow that course of proceedings would be futile. It may be that the board would grant a rehearing, but that leaves untouched the other possibility. If it were to again affirm the sentence, I would be compelled to hold it erred. With no more foundation than one relatively unimportant finding to support the decision, I do not believe life can be sustained in the present sentence. It needs the cure of a retrial and we can grant that without taking the unnecessary step of requiring action by the board of review. This does not mean that, if the case is retried and the same sentence imposed, the board of review or this Court must interfere. The extent to which I go is that the final sentence must be determined by some judicial body which is not shackled so tightly it does not have a free choice of an appropriate sentence.
I would, therefore, reverse the sentence and findings and grant a rehearing.