(dissenting):
I dissent.
Although I disagree with a number of statements made in the majority’s opinion, I need not detail my objections. I strongly dissent from its con-elusion that a board of review cannot reduce a sentence of dismissal to punishment in a lesser amount when on the basis of the entire record it deems it appropriate to do so. Article 66, Uniform Code of Military Justice, 50 USC § 653. I find the majority’s conclusion objectionable as a matter of law and as a matter of common sense.
I am convinced that the board of review has the unqualified power, and the duty, to change a dismissal sentence which, on the basis of the whole record, it considers not to be appropriate punishment. Certainly a major purpose of the Code was to remove any influence of command control from a court-martial. This objective extends to the sentence as well as to the findings, and Congress was fully aware of that fact. See Hearings before the House Committee on Armed Services, 81st Congress, 1st Session, on H. R. 2498, pages 627, 640, 647, 722, 729, 785. Its awareness is clearly evidenced by its creation of the board of review as an integral part of the appellate procedure. The board’s power extends not only to the law, but to the facts and the sentence. Article 66 provides that the board of review is to review each case before it, and affirm the “sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.”
The majority restricts the power of ■the board of review to affirm a sentence by limiting it to affirmance of the whole or part of the sentence. In so doing, it completely excludes from consideration the authority of the board to affirm any “amount” of the sentence. If these words are not to be arbitrarily ignored, they must have some meaning; and if the meaning is purposeful, it must be different from the immediately preceding portion which reads, “or such part” of the sentence. Consequently, I am persuaded that Congress intended to confer upon the board of review the power to approve a sentence which, while not necessarily a part of the whole, .is lesser in amount than that adjudged by the court and approved by the convening authority. A reference *660to the hearings before the Congressional Committees serves to emphasize that intention.
From the record of the Congressional hearings, it appears that at least two of the services believed that the power over sentence procedure which was to be conferred upon the board by the proposed bill was so sweeping as to correspond to that previously exercised by the confirming authorities. The statement of Major General Green, The Judge Advocate General of the Army, submitted to the Senate Committee reads as follows:
“. . . The powers which article 66 gives them have heretofore been exercised by the confirming authority, i.e., the President, the Secretary, or the Judicial Council and the Judge Advocate General. . . .
“I urge you to leave the power to commute and consider nonlegal matters with a confirming authority. . . .” [Hearings before Senate Committee on Armed Services, 81st Congress, 1st Session, on S. 857 and H. R. 4080, pages 258-259.]
See also: Statement and testimony of Admiral Russell, ibid, pages 285, 287. Yet, in spite of the service efforts to limit the scope of the board’s power to review a sentence, the broad language of the bill was retained when enacted into law as Article 66 of the Uniform Code.
Even if substitution of loss of numbers for dismissal amounts to commutation of a sentence, it does not mean that a board of review is without authority to make such substitution in a given case. In United States v. Bigger, 2 USCMA 297, 8 CMR 97, we emphasized the cardinal rule that a statute should be construed so as to give force and effect to each of its separate provisions. Applying that rule to Article 66 I have no doubt that a board of review can reduce dismissal to a loss of numbers on the basis of its power to affirm a sentence which is lesser in “amount” than that approved by the convening authority.
Paradoxically, I am confirmed in my opinion by the effect of the conclusions reached by the author of the majority opinion. Thus, he has previously held' that one of the alternative courses of action open to a board of review, if it finds in a particular case that dismissal is too severe a punishment, is to order a rehearing. United States v. Voorhees, 4 USCMA 509, 16 CMR 83. See: United States v. Freeman, 4 USCMA 76, 15 CMR 76. This impresses me as being a recognition of the authority of the board of review to do by indirection exactly what he says it may not do directly. Implicit in the order for a rehearing is a mandatory direction that, on such rehearing, the sentence to be adjudged must be less than dismissal. If such direction is not implied, what is the board of review to do if, on the rehearing, dismissal is again imposed? Will it once more order a rehearing? Will it continue to do so until some court-martial adjudges a sentence less than dismissal? Or will the case be referred to another board of review for a possible change of result?
The appellate process is no game of “sudden death.” Congress clearly intended to provide a definitive appellate review of the sentence. The board of review was constituted as the authority to determine the appropriateness of any sentence, whatever its nature, and to cut down that sentence in any amount, if it determined that the adjudged sentence was too severe. We should not circumscribe that power by any empty procedural ritual. See United States v. Walker, 1 USCMA 580, 5 CMR 8.
The real issue in this case is not to distinguish between commutation and mitigation, but whether loss of numbers is a punishment which is a lesser “amount” than dismissal. See United States v. Kelley, 5 USCMA 259, 17 CMR 259. Plainly, it is. However, even if the question is considered from the standpoint of the. difference between commutation and mitigation, the action taken by the board of review is proper.
In Mullan v. United States, 212 US 516, 53 L ed 632, 29 S Ct 330, the same problem was presented to the United States Supreme Court. There the accused, a commander in the Navy, was *661tried and convicted of drunkenness and drunkenness on duty. The court-martial sentenced him to dismissal and the Secretary of the Navy approved the dismissal. Later, the President substituted for the dismissal, a reduction in numbers so that the accused would be placed at the foot of the list of commanders, suspension of rank and duty, and loss of one-half pay for five years. It was contended that the President’s action was illegal in view of the provisions of Article 54, § 1624, of the Revised Statutes which read as follows:
“Every oificer who is authorized to convene a general court-martial shall have power, on revision of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court which he is authorized to approve and confirm.”
The United States Supreme Court rejected the claim. In an unanimous opinion it said:
“The court of claims was of opinion that this section did not apply to the action of the President of the United States. If it be conceded for this purpose that it is applicable to the President (§ 1624, arts 38 and 53, of the Revised Statutes), we are of the opinion that the President’s action did, in fact, mitigate the previous sentence of the court-martial as approved by the Secretary of the Navy. It may be conceded that there is a technical difference between the commutation of a sentence and the mitigation thereof. The first is a change of a punishment to which a person has been condemned into one less severe, substituting a less for a greater punishment by authority of law. To mitigate a sentence is to reduce or lessen the amount of the penalty or punishment. 1 Bouvier’s Law Diet. 374; 2 Id. 428.
“When the President otherwise confirmed the sentence of the Navy Department from absolute discharge from the Navy to reduction in rank and duty for the period of five years on one-half sea pay, he did what in terms he undertook to do; and, by the lessening of the severe penalty of dismissal from the Navy, approved by the Department, reduced and diminished, and therefore mitigated, the sentence which he was authorized to approve and confirm against the appellant, or mitigate in his favor.” [Mullan v. United States, supra.]
The majority maintain that the law has been changed since the decision of the Supreme Court in the Mullan case. Admittedly, the particular words have been changed, but the substance of the statutes is unaltered. If it was not commutation to change dismissal to reduction in numbers, at the time of the Mullan case, it is not commutation here.
I would, therefore, affirm the decision of the board of review.