(concurring):
I concur in the views set out in the principal opinion.
II
As the Chief Judge has observed, a distinction has long been drawn between the taking of steps to rectify inappropriateness of sentence, on the one hand, and, on the other, clemency action. For instance, the suspension of a sentence — which lies beyond the power either of a court-martial or a board of review — traditionally has been deemed to fall solely within the ambit of clemency. Yet, as I have previously pointed out, it is frequently almost impossible to differentiate between the two sorts of action. See, e. g., my concurring opinion in United States v Coulter, 3 USCMA 657, 14 CMR 75. Insofar as review of quantum of sentence is concerned, I am in entire accord with Judge Quinn that a board is under no compulsion to limit itself by some dichotomy of theory between clemency and mitigation.
At the same time, there is one matter which, I think, deserves clarification. Let us suppose that — despite an absence of evidence of aggravation — a court-martial imposes a quite severe sentence. Later, however, extensive matter in aggravation comes to light- — - some of which, say the presence of a civilian police record, has to do with events antedating the trial, and the remainder, say an attempted escape, with those which followed it. May such circumstances lawfully be utilized, either by the convening authority or the board of review, to uphold a sentence which would appear harsh if related only to the evidence before the court-martial which rendered it?
I gather that the Chief Judge would return an affirmative answer to this inquiry. In any event, to my mind such an answer is compelled by decisions such as United States v. Clisson, 5 USCMA 277, 17 CMR 277, and United States v Coulter, supra. In them this Court — which is empowered to review “the record” only — examined the manner in which the staff judge advocate’s *387review was prepared; and this required, of course, the consideration of the contents of that review. Certainly a board of review — which under Article 66 (c) of the Code, 50 USC § 65S, is directed to approve such a sentence as it “determines, on the basis of the entire record, should be approved” (emphasis supplied) — enjoys the power to consider the contents of the staff judge advocate’s review.
Further, the Code does not seem to differentiate between the contents of the review which are favorable to the accused and those which are the reverse; and so I see no basis now for any such distinction in defining the powers of a board. Thus, any event— pre- or post-trial in chronology — reported in the review of the staff judge advocate would appear to form a permissible basis for sentence action either by the convening authority or the board of review; and this may include the approval of punishment which would seem inappropriate were it predicated solely on the evidence available to the trial court when the accused was convicted.
In a sense the review of the staff judge advocate will encompass in this connection the area covered by the probation officer’s report in civilian practice — although there, of course, such a report will have been available to the trial judge who imposed the original sentence. In my view, an accused can find no significant cause for complaint in the circumstance that such a review may contain adverse information. After all, the initial sentence may not lawfully be increased, and — as the Chief Judge has pointed out — the Congress might permissibly have left the accused wholly at the mercy of the trial court. Indeed, this is what occurs in civilian life, where no appellate review of sentence lies. Cf. Sobeloff, The Sentence of the Court: Should There Be Appellate Review? 41 American Bar Association Journal 13.
Ill
Of course, as provided in Article 38 (c), 50 USC § 613, the accused’s trial lawyer may attach to the record a brief recording such items as he feels should be considered in the accused’s behalf at the time the sentence is reviewed. This brief may include any sort of fact which might tend to lessen the sentence. On occasion, of course, these data will have been unknown to the defense at the time of trial. Sometimes, too, although known, they will not have been presented at that level because of counsel’s fear that to have done so would have opened a floodgate of evidence in aggravation. At all events, the opportunity to submit briefs containing information of aid to the accused assists in assuring that the staff judge advocate’s review will not serve as a vehicle for upholding harsh sentences through ex parte presentations of background information concerning the accused.