(concurring):
I concur.
I concur in the opinion and in the result, but I prefer to make a few brief comments on the second certified question.
There appears to be some uncertainty in the Services concerning the power of a board of review to disqualify a convening authority and direct that the record be submitted to a reviewing officer who has not previously participated in the case. The confusion, if any, finds its source in the principle that a board of review is a creature of statute, and therefore has only the authority specifically granted to it by Congress. No doubt that is a general statement of the law, but the principle is modified to the extent that a statutory body may exercise those powers reasonably implied within the grant. United States v Lanford, 6 USCMA 371, 20 CMR 87. Here, as I will later point out, unless Congress intended to saddle the Services with an almost unworkable legal system, it must have intended to permit boards of review to carry out their functions by sound legal methods even though these methods were not specifically enumerated.
As the author Judge states, reasonable men could conclude that the review of the Staff Judge Advocate was so ambiguous as to mislead the convening authority. The board of review so concluded and that determination was supported by documents which it was entitled to consider. Article 66 of the Uniform Code of Military Justice, 50 USC § 653, provides that a board of review may reverse a finding and sentence and grant a rehearing or dismiss, or it may affirm the findings or sentence, or such parts thereof, as it deems just and appropriate in light of the entire record. Certainly the review by the Staff Judge Advocate and the action of the convening authority are parts of that entire record and any error shown therein may be dealt with by the board.
Having found an error which it believed prejudiced the substantial rights of the accused, the board of review was faced with four possible avenues of correction, and I am of the opinion all would be within the powers which are necessarily expressed in or implied from Article 66 of the Code, supra. First, it could grant a rehearing and permit a retrial on the merits. In view of the fact that the error was post-trial, this procedure would be costly and time-consuming, and it should be adopted only in the event the effect of the error could not be cured by some action less favorable to one justly and legally found guilty of an offense. Certainly, if the board had the power to set aside the whole proceedings to reach a post-trial infirmity infesting the findings or sentence or both, and it did, it also had the authority to do something less prejudicial to the rights of the Government and less damaging to the orderly administration of justice. However, this possibility was available to it. Second, because it could do less, it could return the record to the convening authority who originally acted and direct that the record be reconsidered after a proper and unambiguous staff judge advocate report had been received. Third, if the board had good reason to believe that the original convening authority could not impartially and without bias review the record, it could direct that some other convening authority make the determination. Fourth, if the error was such that an approval of part of the findings or a portion of the sentence would purge the prejudice, it could proceed on that theory.
In this instance, the board of review chose the third method set out above, and I cannot say as a mat ter of law that it abused its discretion in so doing. I do, however, believe that when a convening authority acts on misinformation or on an ambiguous and uncertain staff *418judge advocate recommendation, it would be better practice not to disqualify him from again reviewing the record. We have in isolated instances directed the return of a record to a convening authority not previously connected with the case, but that was because the record indicated that the original reviewers had fixed views which were detrimental to an accused. In those instances, there was some indication of bias against a particular individual or against a class to which the accused belonged, and obviously it would be folly to permit a reviewing authority with a preconceived opinion as to the course he would pursue against an accused to again consider the record. Such a course would be certain to deny a fair and adequate review to the accused. In this instance, however, the sole ground for attack upon the action of the convening authority is that he was improperly advised by his own staff judge advocate. There is nothing in the record which would indicate that this convening authority would not act legally and properly if he was furnished with a report which fully and fairly advised him, unless it be found in a belief that having once affirmed the findings and sentence, the convening authority would be less likely properly to evaluate the record than would one who had no previous contact with the case. I do not regard this possibility as too weighty, and, in my opinion, it was not necessary for the board of review to oust this reviewing officer. However, as previously indicated, I cannot say that it abused its discretion by so doing.
One other matter bears mentioning. While this case does not go as far as some others I have seen, there has been a tendency on the part of boards of review to order staff judge advocate reports and actions of convening authorities to be withdrawn to prevent other authorities from noticing their contents. I doubt the power and authority of a board of review to order expunged from the record those entries which by statute are necessarily required to complete the proceedings. There may be occasions when matters may be ordered deleted if they are inflammatory, obscene, scandalous, in contempt of judicial forums, or fall in similar categories, but the mere commission of an error by one required to act does not justify stripping the record of evidence of the event. All appellate agencies are entitled to have all matters of record remain part of the transcript on appeal, and the fact that a second convening authority may learn of the action of a previous reviewer does not authorize deletion of documents, orders, or other action sheets. It is presumed that subsequent reviewers will perform their duties properly and not be consciously influenced by prior errors. If the law were otherwise, then many judicial or quasi-judicial bodies would always be precluded from reconsidering their action merely because an error had been committed by them. While I personally do not believe the record in this instance required the full extent of the order issued by the board of review, I am certain that the action taken by it falls safely within the limits of its discretion. I, therefore, join in the majority opinion.