(concurring):
I fully concur in the opinion of the Chief Judge. Certainly I agree with him that there are differences between the present one and the Coulter case.
*281II
I am sure that we do not find here an instance which falls within the purview of the statement found in my concurring opinion in Coulter to the effect that a convening authority is in no way limited as to sources of information concerning an accused, but properly may obtain the opinion of the trial counsel — or that of any other person for that matter — on the question of the desirability of clemency action.
Flying Training Air Force Regulation 111-3 expressly provides that “where a punitive discharge has been adjudicated, the Wing Staff Judge Advocate or one of his assistants” at the station where the hearing was held shall conduct a post-trial interview with the accused — and requires as well that a report thereof shall accompany the record of trial during all of its subsequent travels. Major Delafield, the trial counsel, was also the Wing Staff Judge Advocate at Ellington Air Force Base, Houston, Texas, an installation under the command of the convening authority, who was the Commanding General, Flying Training Air Force, headquartered at Waco, Texas. The report of the personal interview with the accused held by Major Delafield was prepared pursuant to FTAF Regulation 111-3, and it is clear that the interview itself was conducted by reason of the latter’s assignment as Wing Staff Judge Advocate. Certainly the detailed report of “Post-Trial Interview,” demanded by Regulations and accomplished by this ■officer, would have constituted an unusual measure indeed if it sought merely to voice the opinion of the trial counsel who had prosecuted the accused. Moreover, the review of the convening authority’s staff judge advocate in Waco refers to Major Delafield only as Wing Staff Judge Advocate — and never as trial counsel.
In Coulter I emphasized the importance of the clemency aspect of a staff judge advocate’s review and recommendation. The United States Air Force lias consistently — and commendably— recognized the importance of post-trial •clemency information, and the need for furnishing to reviewing authorities a complete picture of the accused. See Conference of the Judge Advocate General, United States Air Force, Bolling Air Force Base, April 9-10, 1951, pages 36-37; Military Justice Circular, United States Air Force, Sec. 502(3), July 31, 1953. Indeed, the importance of the post-trial interview is deemed so substantial in this Armed Service that “no review will'be considered complete unless it contains information reflecting such an interview or explaining why it could not be accomplished.” Military Justice Circular, idem. FTAF Regulation 111-3 simply implements for the command with which we are concerned the directive language of the Military Justice Circular.
The importance attached to the post-trial interview signifies to me that — as in Coulter — we cannot permit its accomplishment by the very officer who prosecuted the accused, and who may suffer from a certain natural, understandable, and quite unconscious bias connected with that role. It must be evident that I impute no sort of impropriety or concealment to Major Dela-field, nor any necessary element of unreasonableness to his evaluation of the accused. Instead, I simply cannot bring myself to approve a practice which operates to place a judge advocate officer in what may be inconsistent positions. The officials located at Flying Training Air Force headquarters enjoyed no opportunity to meet and observe the accused, and did not possess the basis for judgment in this area which only personal contact can afford. Rather, both the personal interview and its evaluation were accomplished by one who had previously occupied a role antagonistic to Clisson. It may be noted too that, in addition to the effect of this official antagonism on the interviewer, there exists more than a slight possibility that the accused may also be affected subjectively. Indeed, he may be incapable of complete communication to his erstwhile prosecutor.
Ill
In light of the foregoing, I do not feel that the present instance is one in which the accused has received that full and fair review of his case intended *282by the Code and the Manual for Courts-Martial. In addition, his case did not secure the full consideration contemplated by the two directives which governed the Air Force personnel who dealt with the case. Both the Military Justice Circular and FTAF Regulation 111-3, which implemented it, sought to assure a complete and fair post-trial interview, wholly free from risk of bias. Their purpose would in large measure be defeated if such interviews are to be conducted by persons who, by reason of prior contacts with the case, may have prejudged clemency prospects. Accordingly, I consider that the practice reflected in the present case violates as well the appropriate Air Force directives.
Admittedly my views may place a modest additional administrative burden on far flung commands like the Flying Training Air Force — at some of whose smaller installations few lawyers may be stationed. However, I am sure that, if a post-trial interview was worth providing in the first place — a question on which I entertain no doubt whatever — then it must be conducted under conditions which preserve its value. It should not serve as a basis for review of the sentence by the convening authority, by a board of review, by The Judge Advocate General, and even by the Secretary of the Department concerned unless it is — as it purports to be — a fair and untainted appraisal of the advisability of clemency action made after personal consultation with the accused.
IV
Because there is error here affecting the substantial rights of the accused, it is manifest that I can- not agree to affirming the decision of the board of review. Yet it will be noted that there has been no suggestion in this case that either the findings or the sentence — as the latter came from the court — were touched by error as a result of the questioned post-trial interview. Under such circumstances, service boards of review have, on occasion, provided that the infected staff judge advocate’s review be superseded by one free from suspicion. United States v. Eisenhard [CM 372982], 16 CMR 315; United States v. Bryant [ACM 8270], 16 CMR 747. Finding nothing in the nature of the error here which merits more severe reversive action, I am willing to adopt a like alternative in this case. After all, I cherish no wish to throw out the baby with the bath water. Accordingly, I concur in the opinion of Judge Quinn.