(concurring with the Chief Judge) ':
I concur with the Chief Judge.
This is a perfect case of waiver of the disqualification- of court members, - but I need not dwell on that is- sue. It is admitted by all members of the Court that i- there is ample evidence to establish the offense charged, so the only question before us is whether the'accused received a fair and just' trial by a court-martial uninfluenced by command control. I join th'e Chief Judge in his views that that vice is not shown by this record. However, I desire to make one short observation to further support my position. When a commander who is responsible for discipline determines, from his review of court-martial records, that justice in his command is not being administered equally, he is duty-bound to take action. Here, some three months prior to this trial, this commander assembled all of his officers for a two-hour course of instruction on military justice because of apparent injustices. Without dwelling on any particular case, he lectured them on the fundamental rule of law that all servicemen are entitled to equal protection before the court-martial, regardless of rank. His principal complaint was- that the lowest ranking enlisted man was being discriminated against and preference in findings and sentences was being given to officers and senior noncommissioned officers. By the use of a parable he advanced his policy of making an appropriate notation on the efficiency report of an officer who failed to carry out his responsibility by administering the law inequitably or in any other manner contrary to the Code. Any commander worth his salt would do the same and he should not be restrained from informing the officers of his command of his intent to downgrade those individuals who violated the spirit and intent of the law. Assuming, arguendo, the parable was in essence a veiled threat, it did not deny this private a fair trial. On the contrary, if it had any effect on his case, it would insure him the same treatment accorded all other members of the command from the highes commissioned officer to the lowest private. I cannot find fault with a commander who seeks to bring about that result. Bather than criticize him. I would offer him a commendation.