(dissenting):
I dissent.
In United States v Fowle, 7 USCMA 349, 22 CMR 139, a majority of the Court held that a policy pronouncement of the Secretary of the Navy, which forbade the retention of thieves in the Naval service, could not be brought to the attention of court-martial members at any time during the course of trial. I concurred in the result, being of the opinion that, absent any cautionary instructions, the members might have believed that the policy directive was binding on them in fixing sentence. However, I clearly indicated that if the special court-martial president had instructed to the effect that the policy statement was to be used only as a guide, and that the court member’s discretion was unfettered in determining sentence appropriateness, I would be unable to find prejudicial error in the proceeding.
The Secretary of the Navy Instruction 5815.2A, containing the questioned policy directive, has been substantially revised since the time of its inclusion in the Fowle reeord of trial. It still states that, as a general rule, thieves and other persons guilty of offenses involving moral turpitude should not be retained in the Naval service. However, it provides that the punishment awarded for larceny should depend upon the circumstances of the particular case, clearly implies that a punitive discharge is not usually appropriate for petty larceny, and goes on to say:
“d. Every case must be judged on its own individual merits. Accordingly, convening authorities, court-martial members, and reviewing authorities shall have full discretion to take such action or make such recommendations as they believe will best serve the ends of justice in the particular case.”
It is true that no cautionary instructions were given here, and that the policy directive was brought to the attention of the members. However, by its very terms, the directive purported to be only a guide, and left the members free to exercise their discretion in the case. It is argued that, in all probability, the latter had some impact on the court but, if so, that is precisely what a policy letter is intended to accomplish. Certainly one would be naive to suppose that a well-publicized declaration would not be considered by a court-martial member and, absent some facts which would take a case out of the usual run of the mill convictions, that it would not exert some influence. There would be no point in the Secretary.of a Department *640adopting a policy if the pronouncement was expected to have no effect. But I take the view that discipline requires that policy decisions in certain areas of military justice be made by the echelons of higher command and that the Secretary of the Navy in this instance did not offend against Article 37 of the Code, 10 USC § 837, by issuing his directive, for that Article only proscribes influencing courts-martial by unauthorized means. Here the method used by the Secretary of the Navy and the principles enunciated by him have been accepted as proper for over 180 years, and the present Code does not directly, or by implication, make the promulgation of such policy regulations illegal. Furthermore, trial counsel did not violate any law or regulation, for the doctrine enunciated in the letter can properly be told to court-martial members. It is substantially a restatement of a policy declared by the President who has been authorized by Congress to make rules and regulations in the sentence field, even to the extent of fixing the maximum punishment for practically all offenses. Certainly it appears illogical to me to say the court may be told the limits of punishment as fixed by the Chief Executive, but it may not be informed of his general policies governing the imposition of sentences. I take the position that his may be referred to, and if so, then reference to those promulgated by the Secretary in this instance is not prohibited, for a mere reference to the Manual for Courts-Martial, United States, 1951, will disclose the similarity in the declarations of the two officials.
It is a matter of record that many civilian witnesses appeared before the House Armed Services Committee when it was holding hearings on the Uniform Code of Military Justice. For the most part they sought, without success, to convince Congress that the commander should be stripped of his authority to administer military justice within his command. However, Congress stopped far short of the civilian demands because of the close connection between military justice and military discipline, and apparently both House and Senate members were satisfied that a commander should not be denied the right to inform court-martial members concerning many matters affecting military justice. True it is that they frowned on any unauthorized means of influencing court members, but those methods do not include mentioning to court-martial members the views of the Department as to what are regarded as appropriate sentences for designated classes of offenses. In that connection, it is worthy to note that Article 37 of the Code is merely a re-enactment of Article of War 88. The latter Article was enacted prior to 1949, and the framers of the Manual as of that date specifically authorized reference to sentence policy, for paragraph 87b of the Manual for Courts-Martial, U. S. Army, 1949, provides inter alia:
“. . . Such instruction may also present the views of the Department of the Army as to what are regarded as appropriate sentences for designated classes of offenses.”
That construction of Article of War 88 was notorious, and all Services published policy letters on the subject. In spite of the widespread knowledge of the policy and its probable effect on sentence, when Article 37 of the Code was proposed by the Code Committee and later enacted by Congress, it was couched in identical language with the predecessor article. Furthermore, those who prepared the Manual for Courts-Martial, United States, 1951, adopted the same construction, for the present Manual authorizes the commander to issue general instructions to court-martial members. Accordingly, as I have stated in previous opinions, I encounter no difficulty in concluding that an accused is not denied due process of military law merely because court-martial members were furnished information on sentence policies which should have been known by every member of the command.
One further factor which tends to substantiate my conclusion that court-martial members should be given information about sentence policies bears discussion. The state of discipline in a command is influenced for the better by speedy trials, appropriate punish*641ment for offenders, and orderly execution of sentences. Conversely, delayed trials, inadequate sentences, and long delayed enforcement of punishment have an adverse impact on good order. Therefore, a commander charged with maintaining discipline must have some latitude in advising his officers on deficiencies in the administration of military justice which need corrective action. Otherwise he cannot utilize one very effective agency for the maintenance of order. I do not accept the argument that the agency will over-sentence if its members are kept informed. Many fine jurists have advanced the principle that a jury in a civilian system will reach a correct result if given all the facts touching on the matter in issue and informed correctly on the law. I believe that that principle can be used effectively in the post-finding procedure in military law. Particularly is it important that court-martial members be furnished with such information on sentence as will permit them to help keep justice and discipline in balance. One or the other must suffer unless all agencies charged with determining the appropriateness of sentence possess sufficient information to keep the scales in equipoise. Once a sentence is imposed, it can never thereafter be increased, and so it is important that due consideration be given by the court-martial to the desirability of imposing a punitive discharge as part of the original sentence. Assuming for the sake of argument that weight is given to the declared policies of the Secretaries of the Services, I know of no good reason why consideration should not be given to them. Those officials occupy positions which permit them a broader view of overall necessities of the service than can be gathered by court members. In addition, I doubt that they can justly be charged with seeking to continue improper command control over the court-martial system, and I believe it fair to say that they are interested in maintaining a well-disciplined fighting force without depriving an accused of any necessary rights. It is not that those at the top should fix sentence, it is merely that they should furnish some guides to keep the military departments at the maximum operational level and free them from those individuals who bring them into disrepute. An accused will not suffer from such a procedure, for if the members of the court-martial are completely informed about and instructed properly on the use of the guides available to them, a just sentence will result. Here they were informed of certain policy considerations, but most important of all is this, they were told that every case must be judged on the merits and that appropriateness of sentence was their sole responsibility. In my book that was a permissible instruction.
In this line of cases I have tried unsuccessfully to have the Court follow the Manual and permit commanders to circularize the troops, including court members, on certain aspects of military justice. It is apparent that my associates have taken the view that in the trial court instructions on or discussions about general policies are prohibited. Therefore, in conclusion, all I can say is that from this time on policy letters on military justice have little, if any, value to the service. Perhaps the best solution would be to discontinue their promulgation.