(concurring in part and dissenting in part) :
While agreeing generally with the majority opinion in its treatment of the substantive issues before us, I differ as to the proper disposition of the case.
In United States v Voorhees, 4 USCMA 509, 16 CMR 83, a ease of first impression in this area, we enunciated a general principle which was subsequently crystallized in United States v Stene, 7 USCMA 277, 22 CMR 67, as follows:
“. . . When an accused is found guilty of a number of offenses and the board of review affirms only one which is a technical violation of a minor nature and an infinitesimal part of the combined findings supporting the original sentence, a rehearing by a court-martial is an appropriate means of correcting an injustice when the board of review is without the power to take other corrective action.”
In my opinion, the instant case falls outside the ambit of that rule. Here, the accused was convicted of fourteen bad check specifications and three specifications of dishonorable failure to pay his debts. Intermediate reviewing authorities set aside the convictions on the check offenses but affirmed those which concerned the dishonorable failure to pay debt crimes. For reasons which will hereinafter ^appear, I fail to see how those prior dispositions render the remaining offenses technical violations of a minor nature and an infinitesimal part of the combined findings supporting the original sentence.
As in the Stene case, supra, the offenses affirmed by the board of review were serious breaches of military law. In addition, the bad check specifications concerned rather small sums of money, and they totaled up about one-seventh of the amount involved in the dishonorable failure to pay offenses. But the important point is that all the transactions arose out of a refusal by the accused to conform to the financial requirements expected of an officer in the service, and the particular offenses affirmed were the most serious aspects of his misbehavior. In United States v Kirksey, 6 USCMA 556, 20 CMR 272, we specifically considered the grievous effect upon the military community of such dishonorable conduct, and we did not hesitate to brand it as service-discrediting. Therefore, I am inclined to believe these affirmed offenses constituted a substantial part of the unlawful conduct considered by the court-martial when it determined the appropriateness of sentence, and they were the sole basis for the finding by the board of review that the sentence should be affirmed.
In the early case of United States v Keith, 1 USCMA 442, 4 CMR 34, we had this to say about the appropriateness of a sentence:
. . if an accused is properly found guilty under any one of several counts, the sentence will not be disturbed on appeal if it is legally justified and appropriate for that count. This concept was, we think, properly applied to a court-martial conviction in Carter v McClaughry, 183 US 365, 46 L ed 236, 22 S Ct 181. In that case, the accused had been convicted by general court-martial under four charges with specifications under each. The President, as reviewing *719authority, had disapproved certain of the specifications. One of the contentions made on appeal was that the sentence had ceased to be the sentence of the court-martial because of the disapproval' of certain specifications by the President. The Court referred to the Claassen ease, supra, for a statement of the applicable general principles, and held that the action of the President would not be disturbed. This holding appears to have been based on the ground that the President as a reviewing authority — in the language of the Court, ‘a court of last resort’ — had determined that the sentence was appropriate for the valid findings of guilty. We quite agree that if a military judicial agency empoioered to do so has determined that the original sentence is appropriate for a single valid conviction in a case involving several specifications, we are powerless to disturb that determination on review.” [Emphasis supplied.]
Clear beyond dispute is the fact that Congress has given boards of review the authority to determine the appropriateness of sentence, and that was precisely what was done here. In concluding its opinion, the board of review stated:
“In view of the disaffirmance of the findings of guilty of the worthless check specifications a rehearing may be ordered but the Board believes that this is not necessary under the circumstances in this case. Affirmance of the remaining findings of guilty, and the sentence, which the Board has considered in the light of the findings disaffirmed and the error above mentioned, and deems appropriate nevertheless, is considered by the Board to be in accordance' with the dictates of justice.”
Finally, it is to be noted that the board of review considered a rehearing on the check charges to be a permissible alternative, but it did not make that disposition because it affirmed the sentence. Therefore, if the sentence is not approved and the record is returned for a rehearing, the accused should stand trial on those specifications set aside by the board of review.
For the reasons previously enumerated, I would affirm the decision of the board of review.