(Dissenting):
First, I disagree with the conclusion in the principal opinion that United States v Keith, 1 USCMA 442, 4 CMR 34, holds that this Court cannot review a sentence. In the Keith case, Judge Brosman, who wrote the opinion for the Court, also said (pages 450, 451):
“. . . We prudently leave for future consideration the question of whether appropriateness — or its opposite — may be determined by us in a proper case as a matter of law.”
Later, writing for a unanimous Court, in United States v Field, 5 USCMA 379, 382, 18 CMR 3, Judge Brosman said:
“. . . We have repeatedly emphasized that we hold no warrant to determine the appropriateness of a court-martial’s sentence, although we have not denied the possession of power in a proper case to declare punitive action inappropriate as a matter of law. United States v Keith, 1 USCMA 442, 4 CMR 34; United States v Voorhees, 4 USCMA 509, 16 CMR 83.” [Emphasis supplied.]
Secondly, I disagree with everything in the principal opinion which either directly or by implication limits the power of a board of review to reduce a sentence of dismissal to a less severe punishment. See my dissenting opinion in United States v Goodwin, 5 USCMA 647, 18 CMR 271.
Turning to the case itself, in my opinion, a rehearing by a court-martial should have been ordered by the board of review. The offense set aside by the board of review was charged as a violation of Article 133, Uniform Code of Military Justice, 50 USC § 727 (Conduct unbecoming an officer and gentleman). Before enactment of the Uniform Code, it was the standard practice in the Navy for a court-martial to adjudge dismissal upon conviction of an offense of that nature. In the Army and the Air Force dismissal was absolutely mandatory. Article of War 95, 10 USC § 1567. See United States v Downard, 1 USCMA 346, 3 CMR 80. The Uniform Code ameliorated the rigors of the previous law, but it certainly did not minimize the obvious importance of an act charged as conduct unbecoming an officer. The charge is so serious that I cannot escape the conclusion that it substantially influenced the court-martial in adjudging the sentence that it did. As I said in my dissenting opinion in United States v Sippel, 4 USCMA 50, 61, 15 CMR 50: “If we are to guess at the reasoning used by the court in reaching its final sentence, we can just as easily and logically assume that the court decided to adjudge dismissal because of Charge I.”
True, the findings of guilty affirmed by the board of review support the sentence. However, the mitigating circumstances relating to these offenses are so substantial I doubt that the court-martial gave any consideration to these offenses in fixing the punishment. The situation here is very similar to that in United States v Best, 6 USCMA 39, 19 CMR 165. There the accused was convicted of premeditated murder, larceny, and a two-day unauthorized absence alleged as a violation of Article 86, Uniform Code of Military Justice, supra, § 680. The board of review set aside the findings of guilty on the murder charge. Since the offenses were committed in Korea, during a time when the Table of Maximum Punishments was suspended as to Article 86, the unauthorized absence charge legally supported a sentence which included imprisonment for life. On that basis, the board of review could have affirmed a sentence to life imprisonment, However, . the board of review recognized that the sentence adjudged by the court-martial was plainly predicated uj»on the *283major offense. As in the Best case, the facts here require “a primary rather than a ‘secondary and derivative’ redetermination of the sentence.” United States v Voorhees, 4 USCMA 509, 531, 16 CMR 83.