(concurring in part and dissenting in part) :
I- fully agree that the findings of guilty here were based on ample evidence.
*39II
To my mind, however, my brothers have glossed over a flagrant attempt to exercise “command • influ- ence” with resultant serious risk to the integrity of the court-martial’s action in the case at bar. This may best be demonstrated, I believe, through a careful reading of approximately the first one-third of the extensive quotation from the record of trial set out in an early part of the principal opinion.
The language in which I am particularly interested was used during a voir dire colloquy held chiefly between the defense counsel and Lieutenant Colonel Clarence T. Cuthbert, a member of the court. It should be said that prior testimony had indicated that, shortly before the present trial, three members of the tribunal which tried Navarre had attended a “court-martial school” addressed by Colonel Roy A. Alford, head of the Kokura General Depot, and the commanding officer of the court members concerned. After animadverting on the previous specific “misconduct” of past courts-martial with respect to both findings and sentences, it appears that Colonel Alford offered an illustrative — and somewhat pointed — anecdote involving a court-martial member and an unidentified commanding officer from whom the former had received an unflattering efficiency report rating. It was to this parable that defense counsel referred when he mentioned the “little story,” which might aptly have been entitled “The Fable of the Luckless Lieutenant Colonel and the Low Efficiency Report.”
III
In United States v. Littrice, cited in the principal opinion, we directed a rehearing because of certain command comments addressed to the members of a court-martial, which remarks contained a reference to efficiency reports. There we denounced unqualifiedly the mention of efficiency ratings as a “veiled threat” and pointed out that “immediately preceding the reference to efficiency report entries is a criticism of the. sentences imposed by prior courts-martial.” In addition, Judge Latimer, in speaking for a united Court, aptly observed that:
“ Courts-martial are manned by officers whose opportunities for advancement and promotion are controlled largely by their commanding officers and it is no reflection on their honesty and integrity to conclude that they desire to make a fine record. When an officer is lectured on the policy of his commander and then told that if he performs his duties as a member of a courts-martial outstandingly, his record will reflect a high standard of performance, he is apt to be influenced to take action which might be highly regarded by the commander. At least he has more mental reservation than has an officer who has not been subjected to the influence of suggestion.”
True it is that the “instructions” with which we are concerned here were expressed more than two months prior to the trial of the instant case, whereas in Littrice the challenged conference took place not long before the trial. I considered a similar difference between two cases in my separate opinion in United States v. Isbell, also cited in the principal opinion. There I said:
“Perhaps the challenged members of the present court had forgotten . . . what in Littrice we characterized as . . . [a] ‘veiled threat’ . . . But what if they had not? Can this possibly serve as the basis for distinction? Can we afford to speculate in this setting with propriety ? It must be regarded as arguable respectively (1) that it cannot serve and (2) that we should not speculate. It does not strike me as unreasonable to suggest that if, say, X cannot be trusted to try an accused in the one case, then — if we are to be sure and the accused safe — we must say that he cannot in the other.”
So far as I am concerned — and quite without regard to whether Colonel Alford felt “compelled to take affirmative action to preserve the morale of his organization as well as its discipline”— unlawful “command control” was attempted here. In doing what he conceivably could have done properly; the *40Depot commander simply went too far. And because of this he ran afoul of the Code and the Manual. Our delicate problem in these so-called “command control” cases was well stated by Judge Latimer in his opinion in the Littrice case. There he said:
“ . . . The difficult test in this case is in determining whether the instructions given to the members of the court-martial unnecessarily impinged on the right of the accused to have his case heard by a court-martial unprompted by authority. Posed in a slightly different manner the question is: Did the instructions given by the acting commanding officer fall within the fair limits permitted by the Manual or were they of such a coercive nature that there was a violation of the Code restricttion against the exercise of improper influence upon the court-martial members ?”
In my view, Colonel Alford’s “instructions” distinctly did impinge on the court-martial’s function and did fall well without “the fair limits permitted by the Manual” — and, of course, the Code as well. Practices of this sort are downright dangerous to the spirit of the current dispensation, and this Court labors under no duty to speculate the proceedings of a court-martial into respectability.1
*41IV
It is to be observed that Colonel Cuth-bert, Colonel Bagley and Colonel Humphrey — the three court members who had attended the questionable “court-martial school” — all denied that they would be influenced in this, or any other case, by Colonel Alford’s efficiency report menaces. I am sure that each was genuinely convinced that he would perform his duties properly and in accordance with his oath — and felt that the only deficiency he need worry about was the possible “lack of exercising good judgment expected of an officer in the Army,” as one of them put it. Each was confident that he would not be guilty of misconduct so gross — and, therefore, that Colonel Alford’s parable had nothing to do with him.
The difficulty with this is, however, that the Colonel’s not unpurposeful anecdote may well have served to start the minds of court members running in a reprehended channel — that is, they may have begun to think of their commanding officer’s views and the results he desired. Also they could well have thought of their personal fates as being bound up in some measure with the outcome of specific litigation. I am certain that this influence, if any, would have been unconscious — but as has been pointed out judicially in cases of, say, jury tampering, it is often impossible for one to recognize the impact of an idea or an incident on one’s own mind. It has been said that “the devil himself knoweth not the mind of man”— and it may be added with assurance that man himself on occasion knows little more about the matter.
In the area of “command control” Congress was rightly concerned not only with conscious and recognizable influences, but with unconscious ones as well. A civilian juror is without any sort of worry on the score of efficiency reports, or anything remotely like them. Congress manifestly desired for the court-martial member — the military juror — a similar freedom. Colonel Alford impinged on that freedom — and reversal is required. Indeed, this result seems the only one consistent with this Court’s unanimous action in Lit-trice.
*42Y
It may be suggested that waiver plays a part in the drama of this case. The transcript makes abundant- ly clear to me, however, that there can have been no waiver here in the sense required by military law in this sort of case— this despite the fact that no express challenge, either peremptory or for cause, was entered by the defense against any member of the court-martial. Of course, I cannot know why Captain Bush, the defense counsel, followed the course he chose. I can be sure, however, that he did not desire to transmit a full account of Colonel Alford’s wishes and purposes in the premises — known previously to only a part— to all members of the court-martial trying his client, and thereafter to do nothing about the situation. It may have been that his decision not to challenge was based on some general notion that, by means of the action he took, he could fully protect the interests of Navarre, and at the same time serve the value of tact in the local scene. Or he may have been moved by a belief that the entire “panel” was in a large sense disqualified, and thus that he was confronted by the difficulty this Court adverted to in United States v. Adamiak, 4 USCMA 412, 15 CMR 412. Particularly if this latter was the foundation for his election, I would be inclined to question both his tactic and the premise on which it was founded. But all of this is none of my business. My job is to determine whether he meant to waive — and I am certain that he did not.
This is strongly suggested by the following comment of defense counsel found on page 10 of the record:
“Defense Counsel: I would be glad to hear it and also, if the court will permit, I would like to call Colonel • Alford to tell why he told' the story to the various members of this post. I understand that Congress is very interested and has called the judges of the Court of Military Appeals before them to tell whether the Commanding Officers were exercising undue influence over the court members. I would like to help Congress and the Court of Military Appeals. I would like to call Colonel Alford in to have him tell his story and I will also be glad to have the court members tell the story. If the court will permit Colonel Alford to be called, I will be glad to have you do so. I will let him repeat his lecture for the record.”
And also by the following colloquy between defense counsel and Lieutenant Colonel. Clarence L. Humphrey, a court member, found on pages 11 and 12 of the transcript.
“Colonel HUMPHREY: The question has been answered. I. will repeat it again for the record. I am a regular army officer. I am a major in the regular ■ army and to be questioned to this extent, I consider it to be irregular.
“Defense Counsel: Well, do you have anything further to say, Colonel?
“Colonel HumphRey: No, I have taken the oath.
“Defense Counsel: I understand that you might consider it irregular and, Colonel, if I was a regular army officer remaining in the Army I wouldn’t question you this way or any other officer because the next time I appear before you, you will be trying me instead of the accused. However, I am lacking five months of being a civilian. I feel that in many instances the Commanding Officers have taken undue prerogatives in talking with court members and for that reason I have questioned you because you said you were present. I will do any court that way in which I am charged as defense counsel. I am sorry if you are offended. Believe me, I will not carry it outside of the courtroom. Believe me, even if you were offended, I would do it again if I was called upon to defend any accused in which a question of undue influence on the part of the Commanding Officer might arise.”
To my mind these two passages convincingly shatter any contention that the accused’s assigned military counsel chose to waive his right to preserve for *43the consideration of the board of review and this Court the dubious and unhealthy matters he brough out on voir dire. He may well have made use of an inartificial — a suggestive and circuitous, rather than a direct — means of accomplishing his objective. However, in my opinion, his conduct was distinctly characterized by a special purpose, and he intended a result antithetically opposed to waiver. Of course, if we are to take the unyielding position that, in a setting of this sort, an accused simply waives in the absence of challenge, then that is the end of the matter. However, I am unwilling to take this position.
Much more might be offered in explanation of Captain Bush’s tactics but —in view of the reasons relied on by the majority — I have no wish to labor the matter. Suffice it to say that we are here engaged in no game in which defense counsel is the player and the accused a pawn. Instead, we are dealing with a problem of such overwhelm* ing importance in the scheme of military justice that it may be said to lie at the very core of the Code. It is my profound conviction indeed that, in the absence of this problem, literally there would have been no Uniform Code off Military Justice and no Court of Military Appeals. Does it not follow then that, save in the clearest cases, we must not permit ourselves to be insulated from its consideration?
Had this cause been tried in a civilian criminal court, the trial judge— had he deemed appropriate — might lawfully have excused the three questionable jurors of his own motion. Indeed —granting that the present is a proper ease — he would doubtless have received the castigation of an appellate court had he failed to do so. To say the least, there is distinct uncertainty in military law administration concerning the exercise of this important power and function. Who in a court-martial — that is, what element of the body — is responsible for the supervision of its integrity, more specifically of the qualifications of its “jurors”? In the answer to this inquiry, I believe I find substantial support for the position I urge here. Is the law officer so responsible? Could he of his. own motion have, excused the three officers here? . I cannot, find, that he has been given this power — certainly in this sort of case. Does the responsibility rest in the membership of the court-martial itself? In many cases— yea, the present one — this particular reed is frail indeed, for it will be noted here that the qualifications of three members of a court of five have been questioned. Can it be with the convening authority? Not so far as “command control” questions are concerned, I am sure, for in this area he is more often than not allegedly the villain of the piece. Perhaps it lies with the upper appellate agencies of the military justice systém to assume this demanding role.
We are concerned here with much more, I believe, than the protection of an accused person named Navarre. In United States v. Walters, 4 USCMA 617, 16 CMR 191, this Court said:
“ . ... In addition to the specific prohibitions, and other regulations, set forth in the Manual for Courts-Martial and -in the Uniform Code, there exist certain' basic principals which underlie the conduct of trials by court-martial — or any other sort of tribunal. Not the - least of these is that the court’s actions and deliberations must not only be untainted, but must also avoid the very appearance of impurity. Cf. United States v. Johnson, 318 US 189, 87 L ed 704, 63 S Ct 549; United States v. Atkinson, 297 US 157, 80 L ed 555, 56 S Ct 391; Ryan v. United States, supra. When such an unhappy appearance is present, proper judicial administration often requires rever-sive action.”
A judicial system operates effectively only with public confidence — and, naturally, this trust exists only if there also exists a belief that triers of fact act fairly and without undue influence. Regardless of the merits, what general confidence is likely to be reposed in findings of guilty returned by a court-martial three of whose five members have been subjected to threats — and with ef*44fective teeth — of reprisals unless more accused persons are convicted and severer sentences imposed.
VI
It must follow that T would reverse the decision of the board of review here and direct a rehearing.
I am somewhat disturbed by the accolades — the “commendation” — my brothers propose for Colonel Alford. This is not to say that I am at all opposed to the ideal of equal justice for members of the military service regardless of rank. Indeed, to foster that very conception of justice I propose merely that one subject to the Uniform Code be tried and' — if found guilty — sentenced only in accord with the evidence heard by the members of the court-martial and the independent judgment of those members after hearing that evidence. That precept I find violated by my brothers’ views.
An identical sentence for every accused regardless of rank — which -in practice, as opposed to theo- ry, generally gravitates. in - ■ , the direction of the maximum for the offense — is not always equal justice. Defense counsel in the instant case effectively made this point in the court of his voir dire examination. Adapting the example he used, I shall assume that a master sergeant and a private first class are each tried by a special court-martial for routine failures to go to an appointed place of duty, in violation of Article 86 of the Uniform Code, 50 USC § 680.- An identical sentence of reduction to the lowest enlisted grade would not at all connote similarity of result. The private first •class would be losing that which he might regain in a few months; the master sergeant would be losing that which would take years to reacquire. In a typical case the master sergeant — who might well have several persons dependent on him — would be reduced in pay 'scale from $206.00 to $91.00 monthly. The private first class would be reduced from $107.00 per month to $91.00. It may be argued, of course, that the master sergeant merited greater punishment because he enjoyed greater responsibility. But this decision, I think, the court members, who hear the evidence, should make — not the convening authority.
Even if the approach commended so highly by my brothers be applied to findings, its inadequacy is also apparent. It is generally assumed that, in the usual instance, high military grade reflects the efficient performance of military duties, and at least a passable character during an extended period of service. Thus, in military law “evidence of military record and standing” is always admissible to create an inference of innocence. Manual for Courts-Martial, United States, 1951, paragraph 138/ (2). It therefore stands to reason that in many instances a master sergeant will be the better able to produce evidence of good character than a mere private. Thus, if evidence of good character has its permissible effect on the members of a court-martial, is it not probable that the varying availability of such evidence may ultimately reflect itself in the findings? This is not to say that, as a general proposition, a master sergeant possesses a better character than a private; it simply means that the former is frequently more favorably situated with respect to the production of convincing character evidence for use before a court-martial. Thus, a lack of uniformity in findings may sometimes reflect no more than the inherent inequities in the rule that evidence of good character is admissible— *41and no one, so far as I know, has suggested that this rule be abolished, although it may well operate to benefit a master sergeant more frequently than a private.
Furthermore, high rank after long military service bespeaks á satisfactory adjustment to ' military life — one not made by all who wear the uniform. Rehabilitation prospects for one holding such rank would, therefore, often appear to be better than for another convicted of the same offense, but lacking a past record of satisfactory military adjustment — or perhaps even with a record of unsatisfactory adjustment. These differences, too, may reflect themselves in a court-martial sentence.
In addition to rehabilitation possibilities, it is quite likely that one with a certain amount of military grade — and therefore usually equipped with military skills and experience — may be of greater value to the Armed Forces than one wanting in such experience. Conceivably there is here an element of unfairness to the. individual who lacks skill, often with no fault on his part. Yet the circumstance of value to the military service is, I am sure, one which has been traditionally considered by courts-martial in assessing sentences ■ — and I find no pronouncement either in the Code or the Manual that this factor is no longer to be considered. In fact, in a combat situation where men are sorely needed, I would greatly doubt the feasibility — perhaps even the wisdom — of attempting to rule this consideration out of the court’s mind.
My fear is that Colonel Alford sought to oversimplify something which cannot properly be simplified — and which was not intended by Congress to be simplified. Sentencing is a highly complex matter, and it cannot conceivably have been within the legislative intendment that it be handled by rule of thumb. In fact, neither Congress nor the Presi-, dent has provided a minimum sentence, save for a few especially grave offenses. Yet henceforth a convening authority, under the guise of an attempt to promote uniformity of sentence, can place court-martial members in an extremely narrow box. And should they seek to escape, he can “downgrade” them back into it — and terminate the tour with a “commendation” for having done so! Is this safe doctrine?