(concurring in the result):
The result reached by my brothers in this case strikes me as sound, for I am sure that there was at least one punishment — other than a bad-conduct discharge — legally imposable by the court-martial which tried the accused. I am afraid, however, that they have •gone somewhat further than I can accompany them. Certainly they have gone further than they need.
II
I agree with the majority that paragraph 88c of the Manual — to the effect that a convening authority may not litigate a bare punitive discharge sentence to any other punishment — furnishes no useful analogy here. This restriction does not necessarily apply to the action of a court-martial on rehearing — for it is evident that a convening authority lacks certain of the powers possessed by any court-martial appointed by him. For example, he would not be permitted to utilize the Table of Equivalent Punishments — and thus he would lack at least one prerogative possessed by a military court in the first instance.
A much closer analogy, it seems to me, is implicit in the discussion found at page 125 of the current Manual’s Legal and Legislative Basis. There it is pointed out that a convening authority, “unless he is the Secretary or the President (Art. 71), has no power to commute a sentence.” But it is added that “If the sentence adjudged by the court is not divisible (e. g., death, dismissal), but the convening authority determines that the sentence, although legal, is too severe, he may return the record to the court for revision proceedings or he may recommend in his action that the sentence be commuted by the proper authority. See Form 37, Appendix 14c.” (Emphasis supplied.) It seems manifest then that, in a revision proceeding, a change in sentence, not open to the convening authority, may be accomplished by a court-martial. A similar notion seems to have been applied by Judge Latimer in his Voorhees concurrence — for I believe his remand there was made with a view to the rendition of some sentence less severe than dismissal. See United States v. Voorhees, 4 US CM A 509, 541, 16 CMR 83. An earlier precedent pointing in somewhat the same direction is United States v. Sippel, 4 USCMA 50, 15 CMR 50, which is cited in the majority opinion.
How, though, may one determine what constitutes a sentence no more severe than a previously adjudged punitive discharge? The need for fixing a boundary definition is important, it seems to me, for the reason that a court-martial might well request — and be entitled to receive — an instruction in this particular. And the law officer — absent necessary guidance from this Court— would find himself in a difficult position in seeking to perform his duty to supply appropriate advice. Under the majority’s approach — as I understand it — he would have no alternative to a response which would run about as follows: “Gentlemen, I am quite unable to advise you on this subject — beyond, of course, assuring you that there are numerous sentences less severe than one providing for a punitive discharge. You can do no more than guess — -and subsequent reviewing agencies will set you right in due course, if needs be. Of course, they too will be required to guess seriatim — with the authority of last resort exercising the final choice.” This — in the language of the story— *264seems an unfortunately loose “way to run a railroad”!
Of course, I am sure that all reasonable men would agree that the loss of one day’s pay must be regarded as a lesser punishment than separation from a military service by means of a bad-conduct discharge. But what of ten days? Or thirty? Or six months? And the same is true of confinement at hard labor for one day. But what of thirty days? Or six months? Or six years ? Where is the line to be drawn ? And is it enough that it may not be drawn in a particular instance with assurance until the case reaches this Court?
Ill
It strikes me — and quite tentatively —that all punishments imposable by a court-martial must fall roughly under one or the other of five heads. The first of these is loss of life. Next comes loss of reputation — and archtypical of this category is the punitive discharge. The third takes the form of loss of money— usually pay and allowances — and the fourth consists of loss of physical freedom. Loss of military grade sounds in both income and reputation — but, since it differs from each of the related categories, it must be set down as a fifth class. It would seem to follow that it is open to a court-martial to find punishments, if any, no more severe than that previously adjudged within each category — but that its members may not go outside that category’s limits. And why? For the plain reason that, as a logical proposition, one may not — one simply cannot, save for the roughest sort of practical purpose —compare chalk with cheese.
For purposes of administrative simplicity, therefore, I believe that no effort should be made here to equate wholly different types of penal action. For example, I doubt that any sort of confinement — or even restriction— should be viewed as no more severe than a punitive discharge, because of the impossibility of making any sort of accurate comparison between the two varieties of punishment. And the same may be said of fines or forfeitures. With respect to reduction in military grade, two comments seem apropos. As to officer personnel, no dismissal may be altered on rehearing to reduction in rank — for the reason this action would have been illegal had the court-martial taken it in the first instance, Article 71 (6), 50 USC § 658. In the case of Army and Air Force personnel, reduction to the lowest enlisted grade will always constitute a penal alternative on rehearing, for — in the absence of a departmental regulation to the contrary, like that found in the Navy — such a result is implicit in the original sentence to discharge. See United States v. Castner, 3 USCMA 466, 13 CMR 22. For the latter service, however — the one with which we are concerned in the present case — I would incline to believe that reduction in grade should not be deemed a punishment no more severe than a punitive discharge, and that it could not properly be adjudged under circumstances like those found here— no sentence to reduction having been imposed in the first instance.
Reference was made earlier to the presence of at least one lesser punishment available to the court which reheard the charges against the accused. This I believe to be a reprimand — which manifestly sounds in loss of reputation. I need go no further than this to agree with my brothers’ result. I do not at all regard their broader approach as unreasonable. Viewed realistically and practically, I doubt that scarcely any punishment is more severe than a punitive discharge. However, I hesitate to commit the military establishment to the task of applying the concept they propose. They have elected to use the spectacles of realism and a rough-and-ready sort of practicality, while I have chosen those of logical analysis and what I believe to be a more orderly administration. I know of no reagent which can serve to determine which of us is correct. It may come down to a matter of whether one prefers chocolate or vanilla.