Opinion of the Court
Homer Ferguson, Judge:The accused was charged and tried by a special court-martial of two specifications alleging larceny, in violation of Article 121, 50 USC § 715. He pleaded guilty to the first specification, and a motion for a finding of not guilty was sustained as to the second. He was sentenced to a bad-conduct discharge, partial forfeitures, confinement at hard labor for three months, and reduction to grade of electronics field, seaman recruit. The convening authority reduced the confinement and forfeitures to two months. Higher reviewing authorities have affirmed the action of the convening authority. We granted review limited to the issue of whether a presen-tence discussion on Navy policy prejudiced the accused.
After the accused pleaded guilty to and was convicted of the first specification of Charge 1, the trial counsel insisted upon bringing to the court’s attention Secretary of the Navy Instruction 5810.8, which states in substance that it is the Navy policy to separate persons from the service “convicted of larceny or any other offense involving moral turpitude.” That portion of the *351record relating to the Instruction is recited below:
“TC: The prosecution would like to read to the court SecNav Instruction 5810.8, from the Secretary of the Navy, to all ships and stations — - subject: Larceny and other offenses involving moral turpitude — policy concerning.
“PRES: You can omit that — we are all aware of it.
“TC: 1 would just like the court members to be aware of the fact that it is the policy to separate persons who have been convicted of offenses involving moral turpitude.
“DC: In answer to the statement of the trial counsel, for the accused’s benefit, the SecNav instruction 5810.8 does not take the discretion away from the members of the court-martial board as far as sentencing is concerned and if you do not desire to implement this policy you do not have to do so. I would just like to state that a nineteen year old boy— in the Navy but a few months and coming from a good family — going home with a Bad Conduct Discharge is a stiff stigma to bear for the rest of his life. If this offense had taken place in civilian life, the code of punishment or the standards on which the civilian courts judge petty larceny of $9.00, are much less than the Navy standard. I don’t envy your position. You are in a position to send this boy back to civilian life with a BCD for petty larceny. I think this offense was based on his immaturity and not from a basic criminal drive. If this would take place in a civilian court the judge would award a suspended sentence, so while we are aware of this SecNav policy, I think you will agree it is a rather stiff one. If you feel that there is a chance that the accused might be redeemed through retraining you are in a position to make that possible.
“TC: I would just like to state that I can see no reason for not implementing the SecNav instruction.
“PRES: The court will be closed.” [Italics supplied.!
The convening authority found as a matter of fact that the accused was prejudiced by the action of the trial counsel, and he attempted to purge any prejudice resulting therefrom by reducing the confinement and forfeitures from three to two months.
At the outset the accused contends that the trial counsel is prohibited from making an argument dur- ing the presentence stage of the proceedings. This Court rejected that contention in United States v Olson, 7 USCMA 242, 22 CMR 32. We there concluded that counsel for either side may present an argument for an appropriate sentence; however, we cautioned that such an argument should be based upon the evidence of record.
The problem with which we are here confronted is the effect of the trial. counsel’s statements to the court that the members thereof should “implement” the instruction. In United States v Littrice, 3 USCMA 487, 13 CMR 43, we remarked that it is one thing to make known in a command an overall service policy and quite another matter “to use that principle to influence the finding and a sentence in a particular case.” The Court recognized the need in the service for a broad regulatory authority for the maintenance of discipline in United States v Hawthorne, 7 USCMA 293, 22 CMR 83. We added, however, that when commanders extend their authority into forbidden areas, we must strike down such action.
A policy directive may be promulgated to improve discipline; however, it must not be used as leverage to compel a certain result in the trial itself. In United States v Isbell, 3 USCMA 782, 14 CMR 200, we held that a circular which recited a policy respecting the undesirability of retaining thieves in the Army did not violate the law, but we did not hold expressly or impliedly that such a policy statement could be brought into the courtroom to influence the members of the court — irrespective of the particular merits of the case-to assess a punitive discharge. A1-, though we are here faced with a secretary rather than a command directive, *352the former, emanating from the Secretary of a service, would be even more persuasive and bring more pressure to bear upon the members of the court than the latter type directive. Nor do we believe that once the trial counsel insists that the policy respecting a punitive discharge be “implemented” with regard to an accused that the prejudice can be removed by the simple expedient of having the president or law officer remind the members of the court that they are not bound by the policy declaration. If everyone is presumed to know that as a general rule thieves should be separated from the service, why parade such information before the members of the court and then turn around and instruct them that they are not bound thereby, if the purpose is not to influence the court to adjudge a punitive discharge? It was against this sort of command influence that the Code was initially directed. Reasonable men must conclude that once the Secretary of a service enters into the restricted arena of the courtroom, whether the members of the court are conscious thereof or not, he is bound to exert some influence over them. A trial must be kept free from substantial doubt with respect to fairness and impartiality. “A judicial system operates effectively onl^ with public confidence— and, naturally, that trust exists only if there also exists a belief that triers of fact act fairly.” United States v Stringer, 5 USCMA 122, 17 CMR 122. This appearance of impartiality cannot be maintained in a trial unless the members of the court are left unencumbered from powerful external influences.
We cannot nicely gauge the precise quantum of error here; however, such a calculation is not required for the convening authority has found as a matter of fact that the accused was prejudiced by the trial counsel’s remark to the court and we do not say as a matter of law that such a finding was erroneous. We disagree, however, with the convening authority that the error in this case could be purged by reducing the confinement and forfeitures by one month. The prejudice found by the convening authority necessarily re-suited from the instruction’s demand that persons convicted of larceny be separated from the service. The error would, therefore, go to the punitive discharge adjudged. Accordingly, the board of review’s decision is reversed and the record is returned to The Judge Advocate General of the Navy for a reconsideration of the sentence by a board of review.
Chief Judge Quinn concurs.