(concurring in the result) :
I concur in the result.
It is not necessary for me to express an opinion on the rationale of the majority opinion for I prefer to base my concurrence upon a much more fundamental issue. In this instance, I find a trial and procedural climate which *96was so permeated with the potentialities for prejudice to one accused of any act which savored of resistance to a program initiated by the convening authority, that I believe a reversal is required.
The offenses of which the accused stands convicted arose as an incident to a weight-reducing project initiated by General Thomas Watlington, Commanding General, Eighth Infantry Division, Fort Carson, Colorado. It was during January 1956 that General Wat-lington announced the program which had as its purpose the reduction in weight of obese officers and men in order to shape up his Division as a more effective fighting force. In February, he ordered all overweight persons to be examined by a doctor who would prescribe a schedule for the loss of weight. As the plan progressed, personnel who lagged in meeting the requirements began to find themselves punished under Article 15, separated by administrative discharges, or hailed before courts-martial. Figuratively speaking, the plan was not only “the talk of the town,” it was the military death knell for those who fell by the wayside. It was the brain child of the convening authority in this case and I have no doubt but that he had more than an official interest in its success.
Unfortunately the issue was not raised at trial and I am immediately confronted with the legal question of what I may properly consider to support the conclusions I reach. Generally speaking, I have frowned upon the raising of issues at appellate levels when they should have been decided prior to trial and I still do. But the rule is not one of rigidity and this case offers a peculiar situation in that all court-martial personnel were inculcated with the doctrine that their commander had an objective which they must help him reach. However, I need not pursue that thought further, for on a number of occasions a majority of the Court has taken a position opposite to my concepts and in United States v Ferguson, 5 USCMA 68, 17 CMR 68, it was specifically held that pretrial influence by a commander could be raised for the first time on appeal. Therefore, that case offers precedent for reaching the present issue.
With that as a beginning, I am still faced with the problem of what evidence I can consider to shed light 0n the question of influence in this instance. Perhaps it is necessary for me to break the heap of facts into two bundles. One is composed of evidence in the record and contents of official documents which were published by the Army. The second consists of printed articles widely circulated which, in fairness to the Government, would not be used to support a position that the convening authority was an accuser had they not been tacitly accepted as true by the parties. However, I am certain that because they were mentioned and argued before the board of review and this Court without question, the Army could not and would not care to dispute them.
Principally I rely on official records as the base to substantiate my position because the Government does not question their authenticity and in its brief concedes their validity. In that setting, the recitations of The Judge Advocate General’s letter and the Department of the Army policy letter, hereinafter referred to, are matter which could properly be judicially noticed. Those documents of themselves are sufficient to support an inference that the plan was personally conceived, carefully nurtured, strictly enforced, and ruthlessly administered by the convening authority.
I do not evaluate the information published in a national magazine but I mention it as supporting evidence which shows the notoriety of the program and the probability that the General had a very intimate relationship with his overenthusiastic venture. Accordingly, when the facts from all sources are consolidated, pictures emerge clearly of a personalized undertaking by the convening authority and trial obstacles by the court-martial.
I first quote the Department of the Army message number 448708, dated August 22, 1956, which was dispatched to all major commands:
“Recent newspaper articles con*97cerning the trial of individuals at Fort Carson, Colorado for excess weight introduce a legal question into the problem of failure to lose weight.
“The Judge Advocate General has ruled that it is appropriate to order an overweight person to report to a medical officer with a view to entering upon a prescribed weight reduction program and to bring him to trial for refusal or failure to report. If an overweight person reports as ordered but objects to entering upon a prescribed program, action under par 24, AR 600-10 with a view toward punitive action is appropriate. The Judge Advocate General has further ruled that it is illegal to take disciplinary action simply because an individual has failed to lose weight.”
From that message I deduce that there had been considerable publicity about the trial of individuals who were not wholeheartedly helping the General reach his goal. That message was dated August 21, 1956, and this accused was convicted six days prior to that time. The short time lag between the publications and action by The Judge Advocate General would strongly suggest that the newspaper accounts had made this unique venture a cause celebre before this trial was held. But the General was not to be deterred and according to his published views, all violators had to be punished.
The next official document of importance is a letter of the Military Justice Division, Office of The Judge Advocate General, which states:
“Problem: In January, 1956, the Commanding General, Fort Carson, Colorado, announced a policy whereby all overweight military personnel were to reduce. In February, he ordered all overweight persons to be examined by a doctor who would prescribe rates for the loss of weight. Calorie charts to be followed were provided for each man. In May and June, punitive action was initiated against persons who failed to reduce at the prescribed rate. Current statistics indicate that fifty individuals had been punished under Article 15, Uniform Code of Military Justice; six persons had been eliminated by board proceedings; one officer had been convicted by general court-martial of making false official statements regarding his weight; and fourteen enlisted persons had been tried by special or summary court-martial. In the latter group, two were found not guilty, four were convicted with the convictions being upheld upon appellate review, and eight were convicted with the convictions being set aside because of insufficient evidence. Charges under which these individuals had been tried were: Failure to obey a lawful order; to wit, failure to report to a medical installation as directed, and failure to lose weight at a specified rate. On 22 August 1956, a message to all commands was dispatched setting forth the views of The Judge Advocate General contained in the Conclusion, infra. As a consequence of this message, the Commanding General, Fifth Army, directed that no further punitive action with respect to the weight reduction program be taken at Fort Carson. He also instituted a review of those actions previously taken.
“Comment: An order must relate to military duty and be one which the superior officer is authorized under the circumstances to issue to the accused. A person cannot be convicted if the order was illegal, but an order is presumed to be lawful and is disobeyed at the peril of the subordinate.
“Conclusion: It is appropriate to order an overweight person to report to a medical officer with a view to entering upon a weight reduction program and to bring him to trial for refusal or failure to report. If an overweight person reports as ordered, but objects to entering upon a prescribed program, action under paragraph 24, Army Regulations 600-10 (Refusal of medical treatment) with a view toward punitive action is appropriate. This regulation requires medical board action and review thereof by the Surgeon General before court-martial action is instituted or discharge or retirement initiated. However, it is illegal to take disciplinary action simply because an in*98dividual has failed to lose weight.” [JAGJ 1956/7014, September 7, 1956.]
The foregoing document was published less than three weeks after this accused was convicted and about one week subsequent to the time the convening authority acted on the findings and sentence. At the time of the latter’s action, seventy-one members of the command had been punished and by this time it was painfully apparent that throughout this entire program the General would brook no interference with the purposes he intended to accomplish. If the civilian publications do not depict him as an officer who was conducting a remedial enterprise with a vengence, these prosecutions do.
In spite of the storm flags posted by the communications from The Judge Advocate General of the Army, which ought to have been sufficient to discourage a commander supporting an official experiment, the General was so personally interested in his cause that he refused to yield. For example, Life Magazine, a well-known periodical of national circulation, published an article entitled, “A General Thins .His Ranks,” in which it quoted General Wat-lington as saying, “I cannot and will not tolerate a fat soldier.” Life described the program in the following manner:
“When Maj. General Thomas Wat-lington took command of the 8th Infantry Division at Fort Carson, Colo, last winter he looked over his 20,000 men and came to an appalled conclusion: too many of them were too fat for duty. Unless they slimmed down, he warned the fat soldiers, they would have to be left behind when the unit moved this fall to Germany.
“Most of the 822 men who were found overweight quickly lost enough excess poundage to stay on the roster. But this month 50 of them were still too heavy for the general and some were court-martialed for their failure to lose weight. A few protested to the White House, the Pentagon and their congressmen, and legal officers overruled the general’s approach because there is no Army regulation which makes fatness a crime. But the general did not give up. ‘Every man must be a front-line soldier,’ he ruled, and, shifting his legal ground, said that some of his fat men would still face court-martial on charges of failing to diet as ordered.” [Life, Volume 41, No. 11, at page 87, September 10, 1956. See also Army Times, April 19, 1953 (Eastern edition) , pages 8, 10, column 1-2.]
If — and I only accept this as a possibility — the quoted article from Life states accurately the mental attitude of the General, then it is apparent he was determined that all resistance must be crushed and that both administrative and judicial measures would be employed to bring about that result. If at that late stage he was not going to give up, it seems reasonable to suppose that his attitude in the early stages was as adamant. All this smacks of an intense feeling for his objective and we must consider the facts in this case in the light of that attitude. The accused was a member of his command and, as my previous discussion indicates, the charges laid against him were enmeshed intricately with the weight-reducing program. Yet the General issued the order which appointed the accused’s court-martial and also acted as convening authority upon the post-trial review. Thus, he was closely connected with all aspects of the legal action which was directed against the accused from the convening of the court-martial until the case reached the board of review level. Where a self-conceived plan is being enforced— either directly or indirectly — which has become synonymous with the name of a commander, prudence suggests that he avoid participating actively in the proceedings against the offender. I am not casting personal aspersions against General Watlington; I am merely suggesting that his enthusiasm for a project, which undoubtedly had a meritorious purpose, together with his expressions, actions, and methods of operation, show a vital interest in compelling subordinates to bend with his will. Under these circumstances he was so closely connected with the prosecu*99tions that any reasonable person would conclude he had a personal interest in their outcome. As we said in United States v Gordon, 1 USCMA 255, 2 CMR 161:
“. . . Furthermore, we do not believe the true test is the animus of the convening authority. This undoubtedly was the early rule, but as we view it, the test should be whether the appointing authority was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter. . . . Convening officers should remember that there are easy and adequate means to have a court appointed by one entirely divorced from the offense and if there is any doubt about the propriety of the selection it should be resolved in favor of the accused.
“What we have said about the first question applies with equal force to the second. There are, however, one or two additional reasons which might be added. In a general court-martial the convening and reviewing authorities are the same and if the officer is disqualified from convening he should not be qualified to review. The reviewing authority is vested with great power over the proceedings of a court-martial. He is at liberty to approve or disapprove the finding of guilty or to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of the lesser included offense, and he has the power to approve or disapprove the whole or any part of a sentence. Such power should not be vested in a person who is interested in the litigation.”
The case at bar was factually contested and a finding of not guilty was a possibility. Furthermore, an impersonal convening authority might have concluded not to resort to court-martial proceedings in this instance. To fix with any degree of certainty the General’s personal interest in this prosecution is impracticable for he alone knows his mental' attitude. But from what has been previously stated, this record is sufficient to cast serious doubt on the Government’s contention that he had only an official interest in the outcome of this case.
To complete my presentation, I must face up to two further problems. It is argued that assuming the General was an accuser in prosecutions flowing directly from violations of his orders in furtherance of the plan, he would not have a personal interest in charges involving a false official statement. As a corollary proposition, it is asserted that any interest he might have in the matter would not prejudice the accused because officers sitting as court members who might not feel free to act in those cases which involved a breach of the program itself, nevertheless would have perfect liberty of thought on a charge of this kind. I concede that the farther the offense is removed from an open violation, the less personal interest the General would have and his open support of his primary objective would have less impact on the court-martial. But such arguments really overlook the practicalities of the situation and in answering the assertions I will consider them in the reverse order.
The members of the court-martial who were to decide the facts, counsel, and the law officer were living in an atmosphere which would hardly be favorable to those who opposed the authority of the creator of the project. I am reasonably certain they would have some mental reservations about not supporting the senior commander and, in a sense, courts under him would revert to the old system of being one of his arms to administer punishment to those who failed along the way. Certainly, when he publicly announced a program to court-martial all offenders he must have created in the minds of his officers his own determination to enforce the program at all costs and the number of hearings bear out that conclusion. When seventy-one hearings growing out of an extraordinary undertaking are ordered in a short period of time, it makes a command conscious of the creator’s interest. I am certain from all of the forgoing that the men in the Eight Infantry Division, and particularly those who manned the courts, would pay careful heed to the General’s *100wishes, for they were well aware of the fact that the project was of paramount importance to him. In this instance, those who were selected were unhappily situated, for a finding of not guilty would have been a direct rebuff to the General, who had ordered the accused to stand trial for violations in connection with his specially cherished project.
The fact that this offense was collateral to the General’s project makes him no less an accuser. This official statement arose solely out of, and was so closely tied in with, weight reduction that it is impossible to isolate one form of resistance from another. A false official oath, as an affirmative act of resistance, would have more of a tendency to raise the ire of the General than would a mere failure to lose weight. The former is an act of commission taken to defeat the success of the plan while the latter is only an act of omission. I dare say that in the eyes of the General this offense would be the most serious type of any rebellious opposition, and the record supports that inference, for this incident was the only one out of seventy-one violations which was referred to a general court-martial for trial. When confronted with his pretrial decision, the General was in an inconsistent position. A decision not to order this case to trial would have been a self-defeating gesture and that fairly well makes the issue personal.
In summation of this aspect of the case, I can only say that when I place .the act of submitting a false official statement in the perspective of the convening authority’s weight-reducing project, I am still convinced that a reasonable person would conclude the convening authority had a personal interest in the prosecution. So that the court-martial may labor in a healthier atmosphere, a rehearing ought to be granted. My brothers have so ordered and I join them in their result.