(concurring in the result) :
I concur in the result.
I concur in the result, but my reasons for so doing are so fundamentally different from those announced by the majority that I feel a short explanation is necessary.
In United States v Olson, 7 USCMA 242, 22 CMR 32, we concluded that trial counsel had the right to argue, within the fair confines of the record, the appropriateness of sentence. With that issue disposed of, the only question of moment in this instance is whether a reference by trial counsel to a well-known policy of the Naval Service was an error which requires a reversal of the decision of the board of review. I answer the question in the affirmative, but only for the reason that the president of the court failed to advise its members that the policy declaration was not a mandate which must be followed in assessing sentence. Experience has indicated that uncertainty exists in that area, and so the failure to instruct the court members that they are not bound to enforce the policy may have caused them to assess a sentence which they deemed inappropriate in light of the facts before them.
In a number of instances we have passed on the right of a commander to issue general instructions concerning discipline within his command and the methods to be employed in improving it. We have also recognized what every serviceman knows, that the presence of thieves in a unit has a disturbing influence and a direct impact on its discipline and morale. In United States v Isbell, 3 USCMA 782, 14 CMR 200, *353we held that a circular which set out a policy that the retention of thieves in the Army was undesirable was a publication which did not offend against the law. Furthermore, we well knew in that case that the court members were apprised of the policy, for on voir dire they were interrogated concerning their knowledge of the course being pursued to reduce thievery, and, for the most part, they acknowledged their familiarity with the circular. The instructions of the Secretary of the Navy with which we are presently concerned go no further. It thus follows that the formulation and publication of such a policy to the command is not contrary to the Code, the Manual, or our decisions.
In United States v Littrice, 3 USCMA 487, 13 CMR 43, and United States v Isbell, supra, we recognized that the timing of such a publication was a factor which must be considered, and here the policy was mentioned during the presentence proceedings. However, I find that to be of little importance in this setting. The subject was not mentioned as a means of forcing the court members to yield to a supposed master. It was given and accepted as information. To liken this case to United States v Littrice, supra, is to equate a molehill to the mountain. It appears absurd to me to hold that the publication of circulars setting out general policies on sentences is proper, and then hold it to be error to call them to the attention of the officers at the time they should be considered. If that is to be the law, we are indeed preaching unique military doctrine, for members of the armed forces should know the contents of publications of higher headquarters. In addition, by law and by decree of this Court they are legally charged with such knowledge. Here my associates are caught in the inconsistent position of saying officers cannot be told what legally they must know. This record alone bears testimony to the incongruity of the Court’s holding. When trial counsel sought to state the policy of the Navy Department, the president of the court stopped him with the terse comment, “You can omit that — • we are all aware of it.” What, then, did trial counsel do to deny this accused an appropriate sentence? In the light of the president’s statement, he was doing no more than reminding the court members of information they already possessed. Parenthetically, I might ask, why should members of a Service be kept in ignorance of proper policy directives? If it is wrong for them to know, the Service should be enjoined to remain silent. If it is right, the whole military world should know. If officers of the Services are not permitted to be informed of the contents of memoranda, regulations, or circulars dealing with discipline and punishment, then the solution is for the Services to cease publishing policy declarations. But the trouble with that prophylactic is that it strangles the commander’s most effective means of maintaining discipline. Rather than support a rule which would reduce the dissemination of proper information, I would advocate one which spreads that knowledge. I must assume that a court-martial does its duty to both the accused and the Government when it is well informed, and injustices are more apt to result from too little knowledge than from too much. That leads me to my complaint here, which is, that this court-martial was not sufficiently informed.
In United States v Doherty, 5 USCMA 287, 17 CMR 287, this Court considered a Naval policy concerning sex perverts. We did not reverse that case because the members of the court, the convening authority, and appellate agencies were cognizant of Naval regulations which declared a general policy of separating homosexuals from the Service. What we did there was to hold that the case should be returned to the convening authority because he affirmed a bad-conduct discharge when he be-lived it inappropriate, under a mistaken belief that he had no alternative. Of course, he was not bound by the policy, and the case was reversed to afford him an opportunity to pass on the appropriateness of the sentence with full knowledge that he had the right to exercise his discretion. Had he been well advised, that error would not have occurred. Much as we seem to try, *354we cannot close the minds of court members to matters which they know by virtue of experience and wisdom. However, we can require them to use the knowledge legally.
In this instance, defense counsel sought to make the points that the policy was general and need not be applied in any given case; that it was not binding on the court members if they concluded it to be inappropriate; and that they could make an independent determination in this case. He alerted the president of the court to the proper principle, but the latter failed to inform the court-martial members that such was the law. It is this failure which I believe constituted prejudicial error. Had an instruction been given to the effect that the policy referred to was no more than a guide, and that the court members were entitled to exercise their own discretion as to the appropriateness of sentence, I would find no wrong.
My associates seek to discredit that concept by labelling instructions a simple expedient with little or no effect. If so, then every American jurisdiction seems to be out of step but this Court and one of the most essential rights granted by the Uniform Code of Military Justice is of little avail. Rather than join my associates in that doctrine, I follow the rule often announced by us that instructions are an essential part of military due process of law. In addition, I subscribe to the principle that we presume the court-martial members followed the instructions given by the law officer or the president of the court. When I do that I must conclude that if the court-martial members were informed of the policy concerning a bad-conduct discharge, and then told it was discretionary with them as to whether it should be imposed in this case, they would impose it as a penalty only if they believed it appropriate. I have a conviction that officers of an armed service have the courage and fortitude to follow the dictates of their own conscience when they 'understand they are at liberty to do so. That is the reason why I believe an instruction would serve a valuable purpose in this and any criminal case.
Because of what I believe to be a prejudicial error, I join with my associates in reversing, and, as stated by them, the only way the error can be cured is by either disapproving the bad-conduct discharge or granting a rehearing. I agree, therefore, that this case must be returned to the board of review for further action.