(dissenting):
I dissent.
Slight extensions from case to case often turn good principles into bad law. That result necessari-iy follows when, as here, we extend our holdings to further interfere with the post-trial clemency activities of reviewing authorities. I make that observation for the reason that the effect of the principal *227opinion may be to dissuade a conscientious staff judge advocate from conducting any independent inquiries when he may have personal doubt as to the credibility of the witnesses used by the Government. In the case at bar, testifying against the two accused who were convicted by the court-martial was one of their associates in crime, whose testimony no doubt was a contributing factor leading to their conviction. The staff judge advocate in the substantive portion of his review at least three times states that the evidence of record was sufficient to find the accused guilty beyond a reasonable doubt. However, pursuant to Army procedure, he held a post-trial interview with the accused, during which they vigorously contended that the Government witness, Buckle, had committed perjury. No doubt- the zeal with which they asserted this fraud upon the court prompted the staff judge advocate to make his own investigation as to the veracity of the Government’s witnesses. As the evidence of record was more than sufficient to support the accused’s conviction, it was only through a possible confirmation of the perjury allegations that the staff judge advocate might have found some reasonable basis for recommending reversal. Having embarked upon this investigation for the benefit of the accused, he had a duty to fully inform the convening authority of the results of his mission. This is substantially what a unanimous Court espoused in United States v Massey, 5 USCMA 514, 18 CMR 138, wherein we quoted with approval the following language from United States v Pratts-Luciano, 15 CMR 481:
. . That is to say, we believe, that the authority of a convening authority to approve findings and sentence is conditioned by the evidence of record and the law of the case, whereas his authority to disapprove is conditioned only by his discretion. Where, as in this case, there is brought to the attention of a staff judge advocate a matter extraneous to the record that indicates disapproval may be warranted in the interests of justice, it is the staff judge advocate’s duty to cause the matter to be investigated and reported to the convening authority with appropriate advice. The fact that his advice with respect to the extraneous matter may be adverse to the accused does not impeach his recommendation and the pursuant action of the convening authority on the record of trial proper. To hold otherwise would be to circumscribe the convening authority in the exercise of his discretion under Article 64 of the Code and would induce, rather than prevent, miscarriages of justice.”
As I understand the principal opinion, it overturns the law as stated in Massey, supra, in the interest of accused persons. But paradoxically, in the long run it may redound to their prejudice, since most legal functionaries will find little use in engaging in a “one-way street” investigation. But more detrimental in this instance is the erroneous concept that information obtained by the staff judge advocate was used to support the findings. On review a witness is assumed to be credible unless within the confines of the record he is impeached and, of course, that did not happen here. Had the staff judge advocate been content to rely on the record, all would have been well, but he went further to protect the rights of the accused. He satisfied himself, and so reported to his superior, that the court and the defense had not been imposed upon by a perjurer. In what manner the appellant was harmed by that extra-record consideration remains a mystery to me. That there was abundant evidence to support the findings may be gathered from the staff judge advocate’s repeated reference to the evi-dentiary support of the findings and his statement that the “case against Wilson is made out by Williams without Buckle’s testimony.” Therefore, the interview with Buckle could not be a factor which influenced his opinion on the weight of the evidence. All that it did was resolve any doubt raised in his mind by his conversation with the accused — a doubt which had no reflection in the record and would never have been raised had the staff judge advocate not listened *228sympathetically to the accused and acted in their behalf.
Accordingly, I would affirm the de-cisión of the board of review.