(dissenting):
I dissent.
Although there can be no doubt that a board of review is clothed with the power to affirm such part of a sentence as- it deems appropriate, the effect of the decision of the Court is to invest *81the board with the right to refuse to affirm any sentence. The theory seems to be that the power to affirm part of a sentence begets a discretion not to permit any punishment. I cannot agree, for I am persuaded that the right of a board to determine the appropriateness of sentence does not embrace the power to forgive the accused from all punishment imposed by the court-martial. To the contrary, it is my understanding that Congress has the power to require punishment for crime and fix its severity; that the court-martial fixes the penalties within limits fixed by Congress and the President; that the authority to reduce has been delegated to boards of review; and that the right to forgive or entirely relieve belongs solely to the Chief Executive or to those officials designated by the Code. However, to reach my result, I need not wage a battle of semantics, for it matters not whether I consider the present refusal to affirm any sentence as being in the nature of a pardon, a total remission, commutation, or a perpetual respite of the sentence imposed by the court-martial. Boards of review are legislative appellate bodies, and the powers they exercise must be conferred on them by Congress either expressly or by fair implication. Unlike my associates, I am unable to find any statutory authority which authorizes those agencies to find that no punishment is appropriate when a court-martial finds otherwise and the conviction is affirmed by them.
Some suggestion is advanced that the act of the board of review in this instance is no different from an order by a Federal civilian judge placing a defendant on probation under the provisions of 18 USC § 3651. To me it is more akin to a suspension of the imposition of sentence, something in the nature of a permanent respite from punishment. If that is an apt analogy, then the proposition that Federal judges do not possess that power may be found in the decision of the Court of Appeals for the Ninth Circuit, in Collins v United States, 148 F 2d 338 (1945). The striking similarity of the circumstances of that case tb those presently before this Court is illustrated in the following quotation:
“. . « appellants were brought before the court for sentence, whereupon the court said: ‘It is the judgment of the court that the imposition of the sentence in this case will be suspended for one year for each of you. I think under all the circumstances of the case that you all have been punished sufficiently in the length of time the case has dragged out in the courts. I think that is punishment enough for anybody.’ ”
The court held that a judgment suspending the imposition of sentence without placing the defendants upon probation purports to do that which is legally impossible, and is void. The same reasoning applies here, for there were no strings attached to the accused’s release — his sentence was unconditionally set aside. Therefore, the action by the board of review exceeded even the scope of authority vested in civilian judges pursuant to the Probation Act, 18 USC § 3651.
But even if the present order could be likened to a suspended sentence, I point out that the power to place a defendant on probation is conferred on Federal civilian courts by statute, and prior to the enactment of the law which specifically authorized that form of proceeding, the authority had been denied them as the usurpation of an Executive function. In Ex parte United States, 242 US 27, 37 S Ct 72, 61 L ed 129, the' permanent suspension of sentence by court order was held to be void and a quotation from that case might be illuminating in this instance:
“So far as the courts of the United States are concerned, it suffices to say that we have been referred to no opinion maintaining the assertéd power, and, on the contrary, in the opinion in the only case in which the subject was considered, it was expressly decided the power was wanting. United States v. Wilson, 46 Fed. 748 (1891). It is true that in the District of Columbia the existence of the power was maintained. Miller v. United States, 41 App. D. C. 52 (1913). But the unsoundness of the grounds upon which the conclusion was based is demonstrated by *82wbat we have previously said; and, aside from this, as the subject was covered by an act of Congress conferring power of parol (Act of June 25, 1910, 86 Stat. at L. 864, chap. 433), the case requires no further consideration.”
Prior to the enactment of the Uniform Code of Military Justice, 10 USC §§ 801-940, boards of review had not been given any power to alter a sentence imposed for a valid conviction. United States v Goodwin, 5 USCMA 647, 18 CMR 271. In that case we traced the history of the authority to mitigate, commute, and remit sentences, and noted that the present powers of a board of review in these areas were derived solely from Article 66 (c) of the Code, 10 USC § 866. We concluded that boards did not receive therefrom the power to commute, and likewise I am sure that they were not thereby vested with the power of granting what is a release from the legal penalty or consequences of an offense. Reference to previous decisions of this Court bears out my belief. In United States v Freeman, 4 USCMA 76, 15 CMR 76, we outlined the courses available to a board of review in dealing with a “package sentence” after affirming a finding of guilt and we there stated as follows:
“At best the board had three possible alternatives. First, it could affirm the sentence as originally imposed; second, it could affirm the sentence and recommend that clemency action be exercised by those in whom such authority was vested; and third, it could direct a rehearing, if sentence could not be justified reasonably upon the affirmed findings.”
Likewise, in my concurring and dissenting opinion in United States v Voorhees, 4 USCMA 509, 16 CMR 83, which has been followed by my associates, my views in this matter are set forth. There, I indicated that where that ■ tribunal has affirmed findings of guilty against him, “the board of review would not be apt to leave the accused unsentenced nor should it do so,” and expressed my belief that, under the circumstances, ordering a rehearing was not only appropriate, but mandatory.
In neither of these cases is there any mention of the possibility that a board might affirm some finding of guilt, yet remit all punishment, for the simple reason that the power to impose sentence has been granted to the court-martial, and the authority to forgive has been delegated to only the President, a Secretary of the Department, or his designated Under Secretary or Assistant Secretary, and the convening authority. Now, however, my associates would allow the board that power, for the assigned reason that: “In exercising a choice between approving a part of the punishment or no punishment, the board of review must be guided by practicalities ; and it need not concern itself with triflings.” I question that the seizure of power which has not been delegated by Congress can be considered minutia, and of course for us to confer on the boards any authority not within the wording of the Code is not a trifling matter. Particularly is this case important, for under the present holding boards of review are clothed with powers equal to those possessed by the Chief Executive. Here by the simple expedient of saying no sentence is appropriate, the board has commuted a bad-conduct discharge to a restoration to duty without punishment. I suppose from that result it necessarily follows that if an officer is sentenced to dismissal, his conviction may be affirmed as correct in law and fact and yet he can be returned to his position of honor and trust by a board merely saying any punishment is inappropriate. When that happens, an act of grace exempting the officer from all punishment imposed by the court has been performed. In the sentence field, the President could do no more.
For the foregoing reasons, I would answer the certified question in the affirmative and return the cause to a board of review for further action.