(dissenting):
I dissent.
This case appears to me to be an example of how a board of review and this Court can erect a com- plex and confused legal structure out of a very simple issue. I may not see clearly all of the ramifications that could be lurking in the background of this case, but what I do observe leads me to believe that the answer to the certified question is made most difficult by my associates. If they would turn to the Manual for Courts-Martial, United States, 1951, they would find that its framers anticipated that some reviewing authorities might conceivably issue ambiguous action orders and so they provided a simple procedure to meet that contingency. I, therefore, suggest that the easy and best way to dispose of this issue’ is to follow the Manual directive.
Before discussing the problem before us, it is advisable to state the facts chronologically and to draw a few preliminary conclusions. The accused was legally tried and sentenced, and so we are not concerned with any question of a fair trial. The convening authority affirmed the findings, but he modified certain parts of the sentence so as to benefit the accused. However, he only suspended the execution of the bad-conduct discharge until the accusedis release from confinement or the completion of appellate review, whichever was the later date. By statute it could not have been executed until the latter event had. occurred. The record was then referred to the officer exercising general court-martial jurisdiction, who affirmed the findings and sentence as approved by the convening authority. Implicit within his action is a finding that the findings were proper and the senteneé was appropriate. Had the second reviewing officer stopped at that point, the record would have been free from doubt, but he went on to suspend further the execution of the discharge, conditioned upon a finding that accused’s behavior was satisfactory to his then commanding officer. The Government is now penalized for that post-trial act of generosity on his part.
' II
If I were to accept the rationale of the board of review and my associates, that the act of the officer exercising general court-martial jurisdiction was void, I could not possibly reach their result. Concededly, all of the steps up to the point of suspension were legal, and the error, if any, arises solely out of the reviewing officer’s attempt to extend clemency to the accused. Whatever he did in that connection was done as a matter of grace, and not -as a mat*476ter of right. In that situation, his procedural error, if any, is not so important, for he has not hurt the accused, and was not bound to help him. Even if the error was important, it should be obvious that a void act is a nullity and, in law, there has been no action taken. The only way to remedy that deficiency is to require that he take appropriate action for he must perform his legal duty before any approval of the sentence can be effective. Until he has acted legally, the findings and sentence are not approved and no action of the board of review can be considered as an acceptable substitute. Assuming that the sentence is divisible and that part may be suspended, the portion dealing with the suspension cannot be dissected so that the suspension may be affirmed on appeal but the conditions rejected. Therefore, before the record below is complete, it must affirmatively appear that a punitive discharge has been approved and, if a stay of execution is intended, that a legal order suspending its execution has been entered. If the only order found in the record is void, there just is no reviewing officer’s action on a necessary part of the sentence.
Ill
My way of solving this problem narrows to this simple proposal. Here the sentence had been approved by both reviewing officers, but whether or not it was to be executed remained in doubt because the higher commander’s action was uncertain, ambiguous, and incomplete. All that was needed was to have the doubt removed by that functionary. The board of review, in a divided opinion, went to some length to find that his words, properly interpreted, delegated a nondelegable power. For my part, I see no point in struggling to reach that result, for he had to act again regardless of whether his order was void or merely ambiguous. I have already dealt with the former possibility, and if the order of suspension was shrouded in doubt to such an extent that the board of review was uncertain as to its legal purport and meaning, then the Manual specifically provides for the proper method of remedying that deficiency. Paragraph 95 of the Manual for Courts-Martial, United States, 1951, provides:
“When a record of trial by general court-martial, or a record of trial by special court-martial in which a sentence to bad conduct discharge has been approved, has been forwarded by a convening authority to higher authority and error of the kind mentioned in 86c and d is noted by the higher authority, the record will be returned to the convening authority (Art. 60) with directions for the correction of the record or revision of the proceedings.
“When, as an incident of the review of a record of trial pursuant to Articles 655, 66, 67, or 69, it is noted that the action of the convening authority or of a higher authority is incomplete, ambiguous, or contains clerical errors, the authority who took the incomplete, ambiguous, or erroneous action may be instructed to withdraw the original action and to substitute a corrected action therefor. See appendix 14 for a form of corrected action by the convening authority.”
IV
While the Court’s opinion says much about delegation of power, it does not properly answer that question. Certainly a convening authority cannot delegate to anyone his legally imposed duty to pass on the appropriateness of a sentence or his discretion to suspend its execution. However, a sentence can be suspended by him upon certain terms, and even though appellate agencies may not like the conditions imposed, they lack the power to change them. If the terms of probation are illegal, the whole suspension will fail, or the accused need not accept them, or upon remand they may be the subject of reconsideration by the officer who imposed them. But I know of no authority which permits a board of review to affirm an order staying the execution of a sentence on conditions different from those imposed by the reviewing officer.
When the action of this officer exercising general court-martial jurisdic*477tion is considered in its proper perspective, there is little real doubt about his purpose and intent. He was reviewing the findings and sentence of an accused who had five previous convictions, and he did not intend to suspend the execution of the punitive discharge if accused’s conduct between the date of trial and the date of his action did not justify such clemency. He could have delayed his action until he received a report from the commanding officer of the accused and, assuming it had been favorable, he could then have issued the order staying execution. The imposition of sentence in a civil court is quite often delayed until such time as a probation officer submits a report to the court. This was perhaps the preferable method. However, it is not unusual for a civilian judge to suspend a sentence, conditioned upon the defendant’s showing that he has complied with certain covenants or obligations placed upon him. Thus, in a larceny case, a suspension may be conditioned upon a defendant’s making proof that he has made restitution of the loss. By way of comparison, when I consider the latitude military law has granted to convening authorities, I find they have ample authority to go at least as far as their civilian counterparts and make suspensions dependent upon favorable information to be acquired subsequent to the order. My difficulty here arises simply because, while I believe this to be that latter type of suspension, the mechanics for perfecting the record have not been spelled out. For instance, I am unable to ascertain whether it was intended that the accused or the Government should carry the burden of supplying the information necessary to finalize the order, nor do I know who was to be informed. So far as the record shows, the information has not been obtained by either party, so the order is lacking in that degree of specificity necessary for legal efficacy.
For the foregoing reason, I would require a return of the record to the officer exercising general court-martial jurisdiction for appropriate action.