(dissenting):
I dissent.
I do not disagree with that portion of the SECNAV directive quoted in the majority opinion.
However, the majority opinion fails to mention that later in this SECNAV Instruction, while providing that “every case must be judged on its own individual merits,” it is also specified that:
“(3) a reviewing authority who suspends the punitive discharge for a probationary period shall include in his form action a statement of the reasons therefor.
“c. In complying with SECNAV Instruction 5810.6, clemency recommendations to the Secretary of the Navy relative to restoration to duty for a person convicted of larceny or any other offense involving moral turpitude shall clearly set forth the factors considered, and reasons for deviation from this policy.” [Emphasis supplied.]1
Under the Uniform Code of Military Justice, a convening authority can set aside a conviction and sentence for any reason or for no reason. Article 64, Code, supra, 10 USC § 864; United States v Massey, 5 USCMA 514, 18 CMR 138. In my opinion, the instruction imposes a limitation upon the convening authority’s statutory right to exercise an unfettered discretion. The situation before us is not unlike that considered by the Superme Court in Winston v United States, 172 US 303, 19 S Ct 212, 43 L ed 456 (1899). Congress had provided that in cases of murder and rape, the jury could qualify its verdict by adding “without capital punishment,” yet the trial judge instructed the jury that it could not qualify its verdict unless there were mitigating circumstances. The Supreme Court held the instruction to be erroneous and prejudicial in that it circumscribed the exercise of the jury’s discretion. To require reasons from the convening authority for the exercise of an act of clemency by him is to define and circumscribe his discretion. United States v Doherty, 5 USCMA 287, 17 CMR 287.
In this area Congress has given the convening authority an absolute discretion. A service policy, or even a regulation, cannot deprive him of that *618discretion. Command control can come from any one with superior rank or authority above the accused.
,- -Tn addition, the majority opinion also fails to note that SECNAV Instruction '5815.2A (March 12, 1956) also contains ¿hp recommendation that persons convicted of theft and other offenses involving moral turpitude be dismissed from the service which we condemned in United States v Estrada, supra.
It would appear obvious that a commanding officer invoking the provisions of the Instruction would read it in its entirety. In Estrada, supra, we said:
“Certainly the Congress announced its opposition to any such improper influences when it enacted Article 37 of the Uniform Code of Military Justice, 10 USC § 837, which provides in part:
‘ ... No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any mem-her thereof, in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to his judicial acts.’ . . .” [Emphasis partially supplied.]
In my view, improper command control can be exercised at appellate, as well as at trial, levels. I would set aside the decision of the board of review and vacate the action by the convening authority, and return the case for a new convening authority’s review.
For full text of the SECNAV Instruction see United States v Estrada, 7 USCMA 635, 23 CMR 99.