(concurring in the result) :
I concur in the result.
I join with the Chief Judge in his result, but I reach my con-elusion by relying on principles which are slightly at variance with those announced by him.
There are two cases decided previously by us which present variations of the present question and while they bracket the problem, neither quite reaches the heart of this controversy.
In United States v Long, 4 USCMA 101, 15 CMR 101, the president of a general court-martial announced the sentence in open court. Immediately thereafter, the law officer called the court’s attention to the fact that the sentence was illegal because it contravened certain special limitations set out in the Manual. He directed the court to reconsider its action, and in attempting to make the sentence conform to the law, the court increased the severity of the punishment first agreed upon. In that setting, we concluded the sentence imposed on reconsideration was illegal.
In United States v London, 4 USCMA 90, 15 CMR 90, the law officer was called into the secret deliberations of the court-martial members to consult with them on the form of the findings. When the findings were inspected by him, he observed that the court had, by exceptions and substitutions, arrived at a finding which was directly contrary to his instructions, and one which, if announced, would be illegal. He thereupon had the court reopen, reread his instructions, and directed the members to reconsider their action. The new findings involved a more serious offense but we nevertheless affirmed the verdict.
In both of those cases reconsideration by the court effected an eventual increase in the punishment, but the results are not inconsistent with the law. In the Long case, we were faced with a situation where the announcement was made in open court. By military law, when a sentence has been announced in that manner, even though it is illegal, it is erroneous to bring it within legal limits by increasing the penalty unless it falls short of a mandatory sentence provided by Congress. In the London case, the law officer had a legal right to enter the closed session on the findings, and any error had to be found in the subsequent discussion. It was apparent to us that there was no error in the law officer’s statements about the contemplated verdict. In addition, by no stretch of the imagination could it be found that there was an announcement of the illegal findings. Therefore, in that instance, there was no legal reason to prevent the court-martial members from changing a finding that the accused was guilty of an offense not pleaded to one which was alleged in the specification.
There are two Articles of the Code and one section of the Manual which support the views announced in the two cited cases. Article 26(b) of the Uniform Code, 50 USC § 590, provides as follows:
“The law officer shall not consult with the members of the court, other than on the form of the findings as provided in article 39, except in the presence of the accused, trial counsel, *678and defense counsel, nor shall he vote with the members of the court.”
Article 39 of the same Act, 50 USC § 615, provides:
“Whenever a general or special court-martial is to deliberate or vote, only the members of the court shall be present. After a general court-martial has finally voted on the findings, the court may request the law officer and the reporter to appear before the court to put the findings in proper form, and such proceedings shall be on the record. All other proceedings, including any other consultation of the court with counsel or the law officer shall be made a part of the record and be in the presence of the accused, the defense counsel, the trial counsel, and in general court-martial cases, the law officer.”
The above-quoted Articles of the Code make it crystal clear that a law officer plays in character when he reviews a finding for form prior to its announcement. But Article 26 denies to him the same authority as to a sentence. Paragraph 76e of the Manual is more specific on his lack of power in that regard, as it is authority for the proposition that he must not communicate with the court about the sentence agreed upon until after it is announced. There we find the following direction :
“Announcing sentence. — As soon it has determined the sentence, the president will announce the sentence in open court in the presence of the law officer, the accused, and counsel for both sides. Only the required percentage of members who concurred in the sentence should be announced. If the law officer of a general court-martial notes any ambiguity or apparent illegality in the sentence as announced by the court, he should bring the irregularity to the attention of the court so that it may close to reconsider and correct the sentence. The court may not, however, reconsider the sentence with a view to increasing its severity after the sentence has been announced unless the sentence prescribed for the offense of which the accused has been convicted is mandatory (Art. 625). In a trial by special court-martial, an ambiguous or apparently illegal sentence may be called to the attention of the court by the trial counsel.”
From all the foregoing, it is apparent that the law officer errs if he becomes a sentence consultant. Previews of the sentence by the law officer are forbidden, and in order to arrive at a contrary conclusion, much of the Manual language would have to be disregarded, as among other things, it states, “the president will announce the sentence in open court.” That phrase must be interpreted to mean that the sentence must be orally stated, by the president, in an audible voice, which can be heard by officers and members of the court, and the accused and his counsel. More persuasively to the point is the following language, taken from the same paragraph: “If the law officer of a general court-martial notes any ambiguity or apparent illegality in the sentence as announced by the court, he should bring the irregularity to the attention of the court.” I find in that language a rather definite requirement that the law officer must learn of any irregularity in the sentence by hearing it announced in open court and not by having it secretly furnished to him.
In spite of vigorous arguments to the contrary, I cannot accept the theory that there was an announcement of the sentence. A peek at a proposed sentence is not an announcement, it is no more than an unauthorized preview. Neither do I accept the hypothesis that the passing of notes between the president and law officer may be equated to the entering of a closed session and participation in the secret deliberations of the court. In my opinion, this case must be catalogued with those involving improper communications between the law officer and members of the court. Regardless of who may have been the original transgressor in this instance, we have an unauthorized communication about a subject which is not open to consultation. The result of the improper communication was that the law officer obtained knowledge about the sentence at a time when he was with*679out authority to receive it. Not only did he receive the knowledge prematurely, but to avoid the proscription in the Manual, he caused the court members to modify the sentence they were prepared to announce. Certainly, the way in which he proceeded is frowned on by law and precedent. I, therefore, hold that he violated the terms of the Manual and committed error when he previewed the sentence before it was announced in open court.
It is contended that the construction I adopt violates certain canons of construction, in that it renders any curative action by the law officer meaningless. Conceding, arguendo, that it will eliminate the possibility of his intercepting an illegal sentence before its announcement, that, in and of itself, does not suggest that remedial action would be in vain. There is a difference between futility and beneficence. It may be that the only steps which may be taken will be helpful to an accused, but Congress willed it that way, and merely because an act will confer benefits on one convicted of an offense is not sufficient to demand a construction which will disregard its spirit, intent and wording.
The issue herein involved goes straight to the division of responsibility between the law officer and the court on the assessment of sentence. The law officer either has or has not the authority to superimpose himself between deliberations and announcement. There are factors which can be presented to favor either side of the controversy. In support of the power to review the court-martial’s proposed sentence before it is announced is the reasoning that it is better to prevent an error than it is to correct one after it has been made. Pursuing that line of reasoning one step further, it is argued that if the law officer is permitted to monitor all sentences before they are announced, mistakes will be avoided. Against this proposition is the concept that the sole responsibility for determining and imposing an appropriate sentence belongs to the members of the court, and intervention by the law officer would place him in a position where he could unduly influence the severity of the sentence. Undoubtedly, the likelihood that mistakes such as this would occur would be lessened by such intervention, but conversely, the potentialities for harm to an accused and to military justice would be far greater. Regardless of any policy considerations, the real important reason against adopting a rule which would permit intervention is that it is contrary to the expressed will of both Congress and the President. Apparently they have chosen the risk of illegal sentences as the lesser of two possible evils.
Merely because there was an improper communication between the court-martial members and the military judge does not require reversal. That only brings me to the next step of assessing its effect. Here I have no difficulty in finding that the accused was prejudiced substantially by the error of the law officer. It is to be noted that the court-martial members had arrived at what they believed to be a suitable punishment. Apparently the appropriate number had concluded that a bad-conduct discharge was inappropriate. Their reconsideration prior to announcement was not brought about because any one member believed the original sentence should be modified. Figuratively, the change was forced on them by the law officer. Undoubtedly, the court-martial members may reconsider a sentence prior to its announcement, if the reconsideration was not prompted by an outsider; but if the influence of an interloper is the reason for corrective action, the punishment finally imposed must not exceed that originally agreed upon. In this ease, had the law officer complied with the law, and permitted the events to flow in their prescribed sequence, the present sentence could not stand. For us to leave it in effect would place the Government in a position where it would prejudice the accused by violating the law it is directed to enforce. That should not be permitted.
I acknowledge the arguments that this interpretation may result in guilty defendants getting an undeserved preferment in their sentence through technicalities. I answer it by saying *680that Congress saw fit to leave with the court-martial members the power to assess a sentence without help from other court officials. I cannot question the wisdom of the legislation, but I do assert that a failure on the part of a law officer to stay within bounds in this particular area presents something more than a mere technicality.
I would, therefore, answer the certified question in the affirmative.