(dissenting):
I dissent.
Although I am in accord with some of the principles set out in the majority opinion, I am unable to concur in the conclusion that the court understood its obligation to adjudge an appropriate sentence. The Manual for Courts-Martial provides that a recommendation for clemency should be predicated upon matters other than those presented to the court, and such mitigating circumstances as could not otherwise be taken into consideration in determining the sentence. Paragraph 77a, page 125. Here, the recommendation is based on exactly the same evidence presented in open court; Even more significant is the fact that the recommendation is not only for a suspension of the punitive discharge, but for an unqualified remission of it.
The recommendation is undated. However, there are strong indications that it was initiated by the court, contemporaneously with the imposition of sentence. It is typed on the identical paper used in making the transcript of the record; and, quite unmistakably, it was prepared on the same typewriter. It would, therefore, seem that it was dictated to the court reporter immediately after the sentence was announced and the trial concluded.
Unqualifiedly, I would not sanction any curtailment of the absolute freedom of a court to make recommendations for clemency. Moreover, when such a recommendation is made, it should not subject the court to the risk of having its sentence set aside. But, the inconsistency here between the court’s action in imposing a bad-con*297duct discharge and its contemporaneous and unanimous recommendation for its complete remission is so striking and so unusual as to indicate that the court labored under a misapprehension of' the full scope of its sentence power. The basis for its misunderstanding appears in the Navy policy against retention of homosexuals.
The majority attempt to dilute the influence of the Navy policy by assuming that the court members would construe it as imposing no limitation on their power to adjudge a sentence in a case of this kind. Paradoxically, the majority hold that the convening authority misunderstood its effect. Contrariwise, I believe that, if the convening authority, who presumptively is much more familiar with the nature and operation of policy matters, was misled, it is at least equally as likely that the court was misled. Consequently, I would return the record to the convening authority for the direction of proceedings in revision, if practicable, or, in the alternative, for a rehearing. Cf. United States v. Bound, 1 USCMA 224, 2 CMR 130.