(dissenting):
I dissent.
This case involves a variation from the principles set out in United States v. Coulter, 3 USCMA 657, 14 CMR 75; United States v. Crunk, 4 USCMA 290, 15 CMR 290; and United States v. Clisson, 5 USCMA 277, 17 CMR 277. However, the facts bring it more nearly within the scope of United States v. Crunk, supra, for the reason that the reviewing officer reviewed the entire *390record for the purpose of ferreting out any legal errors that might have been committed during the course of the litigation. When that situation confronts us, we have the disqualified officer placing his stamp of approval on his own trial craft, and under those circumstances there might be good reason to grant a rehearing. Here the necessity for that action is avoided by reason of the fact that the accused judicially admitted his commission of both offenses. When considered in the light of his own confessions of guilt from the witness stand, it would be ridiculous to grant him a rehearing on the issue of guilt or innocence.
I have dissented in the previous cases involving only post-trial clemency reviews by officers who might fall within an excluded class. I now accept as the law of this Court the principles announced by my associates in those instances. However, I call attention to the peculiar facts and circumstances of this case, and I point out the futility of requiring a new staff judge advocate’s review on the sentence. Here, as in Clisson, we find the sentence subject to attack because the post-trial clemency interviewing officer was trial counsel. But here, unlike as in Clisson, the officer who conducted the clemency interview was not the trial counsel in this case or in the affiliated case. It might be of some importance to a proper disposition of this case to weigh the fact that Captain Hudson did not interview the accused or furnish the foundation for the convening authority’s action. In this instance, the interview was conducted, and a report furnished, by an officer who did not try either this or the allied, case. I quote from that portion of Captain Hudson’s review which deals with clemency:
“The distance between this headquarters and the place of confinement of the accused is such as to prohibit a personal interview by this reviewer and consequently the report of the interview conducted by the Staff Judge Advocate of the accused’s organization is incorporated herein.”
Then there follows, in the Captain’s Staff Judge Advocate’s review, seven paragraphs of information quoted from the report of the actual clemency interviewing officer. I quote the latter’s conclusion :
“The interviewer sees no reason why the dishonorable discharge should not be executed.”
The Staff Judge Advocate merely echoed those sentiments, and I am not surprised, as there was no other action that any reasonable person would take. The accused had been convicted of serious offenses which permitted the court-martial to impose a sentence of confinement for ten years, a dishonorable discharge, and total forfeitures. The court-martial imposed only a sentence of one year in confinement, dishonorable discharge, and accessories. Without powerful extenuating facts and circumstances, or without some evidence that the accused was the indispensable man, any reviewing officer worth his assignment would not recommend the modification of that sentence. It would take only a peek' at this record to find a total absence of any reasons for clemency. Moreover, a convening authority is required to exercise his own independent judgment and in the light of these offenses and the lack of extenuating factors, he could hardly be influenced by a recommendation for leniency. I venture to suggest that every officer who has studied this record, and who had power to influence a sentence, reached an independent conclusion that the sentence as imposed should be executed.
For the reasons I have advanced, I conclude that it is an act of sheer futility to return the cause to a convening authority for review by a disinterested staff judge advocate. Without interest on his part, the recommendation will be the same as the one rendered by the first disinterested interviewer.