(dissenting) :
I dissent.
I dissent from the result reached by my associates in the opinion of the Court and, if they are branching out into the fields of staff concepts, I disassociate myself from the view that, because a legal officer does not have command responsibility, he must measure a record of trial by the standards of his commander. Such a concept overlooks entirely the relationship between the commander and his legal consultant. While the superior can set generally the manner in which he desires his counselor to perform, the former does not expect the latter to cut all the cloth by his measurements for, if he did, he would find little use for his adviser on the law. Commanders vary in their method of operation, and one convening authority may want his expert on the Code to limit his advice to legalistic concepts, leaving to the commander the responsibility of making all final decisions required by law, regulation, and customs of the service. If the commander operates in that manner, the staff judge advocate must confine his reviews within the minimum requirements of the Code and the Manual. On the other hand, a commander may operate in such a way that he may allow his legal subordinates much greater latitude and solicit help and advice on matters which go far beyond strictly legal limits. In that event, the legal expert may expand his views and offer helpful recommendations in many areas. However, regard*171less of the manner of operation used by the convening authority, it has always been my belief that, to be of any value as an adviser, a legal officer’s recommendations must be based on his own judgment and not on any yardstick carved out by his immediate superior. And I belffeve that was the concept envisioned by Congress and the President when they enacted the Code and promulgated the Manual.
Article 61 of the Uniform Code of Military Justice, 10 USC § 861, in relevant part provides:
“The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.”
That Article is augmented by paragraph 85b of the Manual for Courts-Martial, United States, 1951, which prescribes the form and content of the review. It provides as follows:
“The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority. The review will include a summary of the evidence in the case, his opinion as to the adequacy and weight of the evidence and the effect of any error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion and the recommendation will be stated. The convening authority may direct his staff judge advocate or legal officer to make a more comprehensive written review or supplementary oral or written reviews or reports.”
It is to be noted that the Manual provision — which is not inconsistent with the Code — calls for the opinion of the legal officer on the weight and adequacy of the evidence. That requirement may call for two standards and, in arriving at a decision on evi-dentiary matters, a staff judge advocate ought to have some discretion in selecting the words he chooses to convey his thoughts to his superior. I believe it entirely proper for him to say that as a matter of law the evidence is sufficient to sustain the findings, and then if he desires, to go on and say that recognizing the court saw and heard the witnesses, he could find no basis for concluding the findings were not supported as a matter of fact. So long as he gives his reasons for reaching a decision, the commander will not be misled into believing that the standards used by the lawyer must necessarily be used by him. However, if we are to hamstring all legal advisers by allowing them no latitude in their method of presentation and by being hypercritical of the tests they use, we are going to force them to abandon individualized review of records and compel commanders to request the minimum amount of information.
In the case at bar, the reporting staff officer chose one method of setting out his recommendations and the reasons underlying them, and the Court finds fault with his manner of approach. I take the opposite view, for I find nothing wrong with a staff judge advocate writing like a lawyer, using legal standards to measure the record, and freely expressing his opinion as to why he — not the convening authority— would affirm or reverse a conviction or lessen the punishment. Part of the difficulty I encounter in finding prejudice in post-trial reviews is that the words and phrases found in a staff judge advocate’s review are merely advisory and they are considered by the commander as such. They seldom, if ever, reflect the thought and consideration given to the case by the officer who has the authority to act. Therefore, I see no good reason to interpret the language used with such rigidity that all common sense is forced out. Nor do I find any justification for treating the review as a verbatim transcript of all that transpires between the commander and his staff consultant. There are such things as personal conferences, and I am reasonably certain that most commanders converse frequently with their legal advisers on general court-martial convictions and that many matters not appearing in the reviews or not fully developed therein *172are discussed informally. Sometimes there is unanimity of opinion between the two on both the law and the facts, while in other instances there may be disagreement on either or both; but if a legal counselor must obtain the guideposts for his review from his superior, there is little chance for an objective opinion. Perhaps I can rephrase the old adage by saying that two heads are no better than one if they are compelled to read the record with the same pair of spectacles.
Paragraph 85c of the Manual seems to support a view that differences of opinion on questions of fact and law may be anticipated. The paragraph provides as follows:
“Ordinarily, the convening authority should accept the opinion of his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceedings, as to the adequacy of the evidence, and as to what sentence can legally be approved. However, it is within the particular province of the convening authority to weigh evidence, judge the credibility of witnesses, determine controverted questions of fact that may have been raised in the record, and to determine what legal sentence should be approved. In those unusual cases in which a convening authority is in disagreement with his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceedings, as to the adequacy of the evidence, or as to what sentence can legally be approved, the convening authority may transmit the record of trial, with an expression of his own views and the opinion of his staff judge advocate or legal officer, to the Judge Advocate General of the armed force concerned for advice. In any case which is forwarded to the Judge Advocate General, if the convening authority takes an action different from that recommended by his staff judge advocate or legal officer, he should state the reasons for his action in a letter transmitting the record to the Judge Advocate General (91a).”
It is of particular importance to note' that, while the convening authority is advised to accept the opinion of his staff judge advocate, he need not do so. It appears that the thrust of that principle is toward acceptance of the staff judge advocate’s recommendations on matters of law but, significantly enough, this provision is silent as to the weight of the evidence. The converse would seem to be true in the field of facts and credibility, for in those areas the commander appears to reign supreme. Even a cursory reading of the provision will establish that it is within his particular province to weigh evidence, judge the credibilty of witnesses, and determine controverted questions of fact. No such authority is delegated to the staff officer, and the grant of that power to the convening authority is in keeping with the military concept that the commander must personally make the final decision on whether he should approve or disapprove the findings and sentence returned by a court-martial. Certainly the officer saddled with the nondelegable duty of deciding the question can, in a large measure, dictate the particular fields in which he desires to be advised. Furthermore, it should be assumed he is competent to interpret words according to their ordinary use, and when a legal adviser uses the phrase “the undersigned may not disagree with the court-martial” in his review, he is speaking about the author’s limitations and not those of the addressee.
While every convicted person in the military service is entitled to a fair review, this accused is being afforded another opportunity, which may give him a more favorable result, without any real justification therefor. The improper measuring rod which is used as the vehicle for reversal is interpreted from certain language which to me states clearly a legal position which may be taken logically by any staff judge advocate. In his analysis of the sufficiency and adequacy of the evidence, this reviewing lawyer states that there is a direct dispute between the witnesses for the prosecution and the accused. He thereupon reasons that, since there is presented a question of *173credibility of witnesses which the court-martial resolved against the accused, he may not disagree with that conclusion. He is not saying that the convening authority may not believe or disbelieve a witness or otherwise determine the credibility of witnesses, he is merely announcing a proposition that he, in his advisory capacity, should not do so. Perhaps he might have chosen more appropriate language or again he might have announced his disagreement with the findings of the court, but it was not incumbent upon him to do so. He does not have to disagree with the verdict of a court-martial and he is unfettered in saying he will give weight to their findings. That is a well-understood legal principle which is not foreign to military law. In that connection, it is to be remembered that the court-martial must weigh the evidence and find the accused guilty beyond a reasonable doubt and all the reviewer is saying is that so long as the sentence reaches that quantity and quality, he ought not to substitute his judgment for that of the court members. Those articles of the Code which clothe the convening authority and boards of review with fact-finding powers also admonish them to give due consideration to the fact that the court-martial saw and heard the witnesses. That is primarily a caveat that the credibility of witnesses may be determined better by those triers of fact who observed them while they were on the witness stand. Not only is that a sensible rule, but to anyone who has read a record of appeal, it is founded on logic and experience.
Unless I misunderstand the Court’s holding, the denial of a fair review must arise out of the speculative conclusion that the convening authority was misled in two particulars. First, he was led to believe he did not have the authority to disagree with the findings of the court-martial. Second, he did not understand that he must conclude the evidence established guilt beyond a reasonable doubt. If that is the basis of the holding, then I submit that the foundation underlying it is supported by nothing but the rankest conjecture. If we are to trespass in that field, I would hazard a guess that every military commander with general court-martial authority has had instruction in military law and is familiar with the duties imposed on him by law and particularly his obligation to exercise his fact-finding powers in acting on findings. I have no hesitancy in saying that military commanders know they should not affirm findings of guilt unless they personally believe that the evidence established the guilt of the accused beyond a reasonable doubt. The law so provides and, absent any showing in the record to' the contrary, I am willing to presume they have been informed about and know the law and the duties of their office. Furthermore, I believe they are well versed and thus cognizant of the military and legal principle that their discretion is unfettered by the views of their subordinates.