(dissenting):
I dissent.
For reasons which will hereinafter appear, I do not concur with the result reached in this case or the reasons supporting the reversal. I take the view that the record should be restored to its proper state before we attempt to review the findings and sentence. I am convinced that the present state of the record denies the parties a legal and adequate review.
In United States v Papciak, 7 USCMA 412, 22 CMR 202, just recently decided, I called attention to the possibility that error might flow from a decision by the board of review which directs that certain official documents be expunged from the record. In my concurring opinion I stated:
“. . . 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on the part of boards of review to order staff judge advocate reports and actions of convening authorities to be withdrawn to prevent other authorities from noticing their contents.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.”
This case furnishes support for the announced earlier fear that we might be unable to consider errors allegedly committed by reviewing authorities if the record was stripped of essential entries. In considering the action to be taken here, the board of review undoubtedly concluded that the accused would be benefited very little, if at all, by its mandate unless a blindfold was placed over the eyes of the second staff judge advocate and his reviewing authority. The difficulty with the position taken is that the blind spot has never been eliminated, and any possibility of a proper review of part of the appellate proceedings at this level is thereby defeated. In addition, such a concept covertly suggests that the record must be mutilated because the officer selected-by the board of review to cure an earlier error would disregard any instructions by it not to consider or be influenced by the prior review. Assuming that contingency poses some slight risk, it is one which must be taken, or a substantial part of the right to an appeal to this Court is impaired.
The first problem in the case at bar arose when the board of review issued what it designated as a preliminary opinion. The title is unimportant, but the gist of the decision seems to be the thought that the board of review was entitled to retain control of the case until the proceedings before the last reviewing authority were completed and returned, and only then would it be necessary to act on the findings and sentence. I do not subscribe to that principle because the action of the first reviewing authority was not void and the second officer exercising general *727court-martial authority could not act unless the first action was set aside. The board of review did not expressly make that order, but that result is implicit in the decision.
The point of importance, however, revolves around the utter impossibility of this Court ascertaining the reason for, the logic of, or the prejudicial effect to the accused of, the action taken by the first reviewing authority. We are told by the board of review’s preliminary decision that the first staff judge advocate to review the record used certain evidence outside the record to benefit the accused, and other evidence, also aliunde the record, to prejudice the accused. We are further informed that the first convening authority reduced the findings from rape to the lesser included offense of assault with intent to commit rape, that he reduced the confinement from twenty years to two years, and that he suspended the execution of the dishonorable discharge. But all the evidence to support those assertions has been deleted from the record. I am unable to ascertain what evidence or information was used by the staff judge advocate and the convening authority. Under the present posture of this case, the accused may have been prejudiced by the' preliminary ruling of the board of review, yet he cannot support any argument to that effect because the record has been stripped of all supporting data. Furthermore, although it is asserted that the first convening authority suspended the execution of the dishonorable discharge, we are unable to ascertain whether it was merely for the purposes of appeal, which is largely provided for by statute, or whether it perhaps included a provision for remission as well. In short, what must be in the record for the ultimate protection of the accused has been deleted. One could hardly dispute the proposition that if the action of the convening' authority is to bind all subsequent proceedings, his action, with its supporting data, cannot be tossed aside as if- it had never happened. I would, therefore, set aside the finding and sentence, return the record to The Judge Advocate General of the Army for reference to the board of review, direct the board to take the necessary steps to rehabilitate the record, and then have a proper review by a convening authority.
Because my associates have approached this problem with a belief that the merits of the contro- versy should be considered, I will set forth my views on the binding effect of the reduction of the findings and sentence by the first convening authority in his action.
In United States v King, 5 USCMA 3, 17 CMR 3, a majority of the Court offered the gratuitous advice that the maximum sentence imposable in the event of a rehearing was that in effect when the record reached this Court. The reasons for the restriction were not developed, but I assumed that the limitation was imposed because the convening authority had reduced the original sentence from ten years confinement to five years, with appropriate accessories, and the board of review had concluded that the punishment, as affirmed by the convening authority, was appropriate for the offense committed. At that time I noted my disagreement with the limitation, but did not state my reasons because the question was not properly before us. The same situation faces us in this instance, but if my views on the inadequacy of the record do not state the law of the Court, then the issue is relevant.
For the purposes of argument, I am willing to concede that the service cases decided prior to the Uniform Code of Military Justice promulgated the rule that the sentence as affirmed by the convening authority fixed the maximum punishment that could be imposed by the court-martial on rehearing. That concession necessarily forces me to consider the rule of statutory construction to the effect that prior administrative interpretations are entitled to consideration, in construing a statute, when we are seeking to ascertain the true intent of Congress. Now, that rule is rooted in the belief that Congress intended to incorporate the pre-existing decisions into the statute; and, if I were of that belief here, I would concur in the Court’s opinion, but I find many *728straws in the wind which indicate the Code was enacted to bring in a modern set of laws and cast away much of the old order. Personally, I prefer to break with the past and modernize military procedure where that is possible without doing violence to the Code. The early concept that the court-martial was an arm of the commander and subject to his every whim is obsolete and has been discredited by the Code, but it is the framework for the views advanced by my associates. Winthrop, in his Military Law and Precedents, 2d ed, 1920 Reprint, page 447, expressed the doctrine underlying what I believe to be the basis for the view that the original sentence includes affirmance by the convening authority:
“While the function of a court-martial is, regularly, completed in its arriving at a sentence or an acquittal, and reporting its perfected proceedings, its judgment, so far as concerns the execution of the same, is incomplete and inconclusive, being in the nature of a recommendation only. The record of the court is but the report and opinion of a body of officers, addressed to the superior who ordered them to make it, and such opinion remains without effect or result till reviewed and concurred in, or otherwise acted upon, by him. This superior, sometimes referred to as the Approving or Confirming Authority, but more commonly known in military parlance as the Reviewing Authority or Officer, is, as will presently be more fully indicated, the official — military commander or Commander-in-chief — by whom the court was originally constituted and convened, or — where there has been a change in the command since the convening — his successor therein.”
Of course, if the above concept is accepted, the rule announced by the majority follows naturally, but if the reason underlying the concept is no longer sound or logical, the principle should be discarded. It is my conviction that Congress purposely moved away from the idea of indivisibility between the court and the commander and intended to divorce the convening authority from the court-martial. Under the present Code, his statutory duties place him in a compartment separate from the one occupied by the court-martial. Each is the sovereign in their respective fields, and little good will be gained from keeping them inextricably united on findings and sentence. True it is that no sentence can be executed until affirmed by the reviewing or convening authority, but others performing similar review functions must also affirm —if the sentence is of the required severity — and their action on the sentence most certainly should not revert back to, and become part of, the original sentence. If it is, then in all cases except when there is no original jurisdiction, any commutation, suspension, remission, or reduction by any reviewing authority becomes finally embedded in the case and must be honored in all subsequent proceedings, regardless of the ultimate disposition, and without regard to any error in the proceedings. That is a doctrine to which I do not subscribe, for there is a difference between the original sentence and the ultimate punishment, and an accused does not have an untouchable right to any clemency exercised by reviewing officers or agencies.
The framers of the Manual must have had some appreciation of the problem, for they framed their language so as to invoke different sentence limitations, depending upon whether the subsequent hearing is pursuant to an order for rehearing or one for a new trial. In fixing the maximum sentence to be adjudged on rehearing, Article 63 of the Code, 10 USC § 863, states, “no sentence in excess of or more severe than the original sentence may be imposed.” The language of the Manual is identical, Manual for Courts-Martial, United States, 1951, paragraph 81d, page 132, but it is different on a motion for new trial. When that form of remedy is granted, paragraph 109g(2), page 179, of the Manual provides, “no sentence in excess of or more severe than the original sentence as approved or affirmed shall be adjudged.” It would thus appear that some thought was given to the content of the phrase “original sentence,” and apparently the architects of the Manual concluded it did not in-*729elude the action taken by the convening authority, for otherwise there would have been no reason for mentioning the later acts of affirmance or approval. If I had any doubt as to the thinking of the Manual draftsmen on the subject, I need only turn to the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 79, where they said, in speaking of rehearing:
“One provision that is new to all the forces is that which permits the trial counsel to advise the court of the sentence adjudged at the original trial. This advice is necessary since the court may not adjudge a sentence in excess of or more severe than that adjudged at the original hearings (Art. 63).”
I believe the interpretation made by the framers of the Manual is sound, and share it, and I therefore conclude that the term “original sentence” means the sentence adjudged by the court-martial, and does not include the subsequent action of the convening authority. Necessarily, then, I believe that the sentence which may be adjudged on rehearing is limited only by that originally adjudged by the court-martial. The day when the court-martial’s findings and sentence was considered to be merely an inchoate recommendation to the convening authority has long since passed, and I, for one, am willing to recognize that fact.
One other matter of some importance should be noted. Even if the principle that the convening authority’s action is part of the original sentence is to be the law of the military, nevertheless the accused should not prevail in this instance. Here, the first opinion of the board of review holds that the original convening authority erred when he acted on the findings and sentence. I assume, therefore, that so long as that decision is not reversed, his action was invalid and there were no legal findings and sentence. When that matter reached the board of review the first time, the accused did not defend the ruling of the reviewing officer. On the contrary, he argued before the appellate agency that the clemency extended by the convening authority had rendered the findings and sentence unsupportable in law and that a rehearing was necessary. He was successful in part, but now he contends that the board’s ruling, which he sought as a shield to protect him from prejudice, is a sword with which he can smite the Government. I am not particularly impressed with that argument for the accused cannot have it both ways. Either the findings and sentence were legal and binding on both parties, or they were illegal and both parties should be restored to the positions they occupied prior to the commission of the error.