(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with my associates that the failure of the president to instruct in accordance with Article 51 (c), Uniform Code of Military Justice, 10 USC § 851, requires that this ease be reversed. However, I cannot accept the conclusion of the principal opinion that a reviewing authority in the exercise of his mitigating powers may reduce a fine to a forfeiture. Neither can I follow the doctrine that a forfeiture is merely a lesser form of punishment than a fine, for there are so many unknowns with which each may be weighted, and they are so basically different, that any comparison is unrealistic.
The Manual for Courts-Martial, United States, 1951, lays down the rule that the changing of a fine to a forfeiture is not a mitigation but rather a commutation of sentence which can only be exercised by the President or Secretary of a Department. Manual for Courts-Martial, supra, paragraph 88c. I believe that to be a sound and logical principle, and I find no reason to reject it. In military law, the word “commutation” is a term of art meaning “the power to change a punishment to one of a different nature.” Manual for Courts-Martial, supra, paragraph 105. Mitigation, on the other hand, is a change only of degree within the same species. See United States v Goodwin, 5 USCMA 647, 18 CMR 271. The reviewing authority in the instant case, by changing the nature of the punishment, exercised a power which he did not possess and, therefore, the forfeitures which he imposed were illegal.
I have considered the argument of the board of review that United States v Bell, 8 USCMA 193, 24 CMR 3, is dispositive of this appeal as it was the intention of the court-martial to impose forfeitures rather than a fine. The Bell case, as my associates demonstrate, is clearly distinguishable. In the instant case, the sentence read in open court was susceptible of only one interpretation, and that interpretation was legal. Under such a factual situation, even though there is much to be said in favor of the contention that the court did not mean what it actually announced, I do not think it wise to delve- behind the words given in open court. We should not speculate on what meaning a court intended when there is no ambiguity. The words used announce an unusual but recognized and legal sentence.