*64Opinion of the Court
HomeR Ferguson, Judge:The accused were convicted by general court-martiai of conspiracy to commit escape from confinement, and escape from confinement, in violation of Articles 81 and 95 of the Uniform Code of Military Justice, 10 USC §§ 881 and 895, respectively. One of the prosecution witnesses was Airman Oiler who testified as to accused’s and his own participation in the offenses in return for a grant of immunity. The witness, Oiler, testified that he did not initiate action looking toward a grant of immunity. The pretrial papers reflect that the immunity was recommended by the staff judge advocate to the convening authority in his pretrial advice, and approved by the convening authority. The document embodying the grant of immunity was signed by the staff judge advocate, “For the Commander.”
The two granted issues in the case are dwarfed by the l’eal issue involved. Both issues were phrased in terms of bias or prejudice on the part of the convening authority, arising out of the grant of immunity. Assuming, without deciding, that the errors raised by appellate defense counsel have merit, they go only to the validity of the convening authority’s action in the case. We prefer to consider his action on the basic underlying issue of whether the convening authority, by granting immunity to the witness, Oiler, is thereby precluded from acting further in the case. We find that he is. A comparable question as to a staff judge advocate was before this Court in United States v Albright, 9 USCMA 628, 26 CMR 408. There, it was decided that a staff judge advocate, who had been instrumental in inducing a co-conspirator to testify against the accused, and who had personally assured the witness that he would recommend a sentence reduction, was disqualified to review the record of trial of the accused. We said in part:
“. . . The fact that the staff judge advocate here was instrumental in prevailing upon the witness, Cates, to testify against the accused leaves no doubt that his action had the earmarks of advocacy and zealous prosecution. He was precluded from rendering an unbiased and unimpas-sioned review as required by the Code. We hold, therefore, that the staff judge advocate was disqualified to review the record of the trial of the accused. As we said in United States v Renton, 8 USCMA 697, 25 CMR 201, ‘the very fact of being called upon to condemn or countenance one’s own workmanship cannot create a healthy outcome and less so when the outcome concerns the accused’s denial of substantial rights.’ ”
It is but necessary and logical to apply the same rule to the convening authority himself. There is even greater need to do so. While the staff judge advocate merely presents his opinion to the convening authority (Article 61 of the Code, supra, 10 USC § 861), it is the convening authority who is by law empowered to act on the record (Articles 60, 62, 63 and 64, of the Code, supra, 10 USC §§ 860, 862, 863 and 864). Whether the fact is that the convening authority actively sought out the witness or the staff judge advocate did so with his concurrence, the grant of immunity was given by the convening authority. This involves him in the prosecution of the case to an extent where there is at least some doubt of his ability to impartially perform his statutory duty. He must weigh the evidence, pass on the credibility of witnesses and satisfy himself from the evidence that the accused is guilty beyond a reasonable doubt. It is asking too much of him to determine the weight to be given this witness’s testimony since he granted the witness immunity in order to obtain his testimony. This action precludes his being the impartial judge he must be to properly perform his judicial functions. As we said in United States v Hill, 6 USCMA 599, 20 CMR 315:
. . [I]n the interests of justice, the appearance of evil should be avoided as well as the evil itself.”
The disposition of the case need detain us only briefly. Under the facts of *65this case, there was nothing to preclude the convening authority from referring the charges to trial. Whether under different circumstances a convening authority might be precluded from referring a case to trial where he grants immunity, we need not decide. The grant of immunity here was given after the Article 32 investigation (Code, supra, 10 USC § 832), upon which the decision to refer the case to trial was made. The convening authority, by referring the case to trial, was not placed in the position of passing judgment upon his prior action. The inability of the convening authority to act, therefore, under the circumstances of this case, extends only to his post-trial action.
The record of trial is returned to The Judge Advocate General of the Air Force for post-trial review by a different staff judge advocate, and action by a different convening authority.
Chief Judge Quinn concurs.