Opinion of the Court
Homer Ferguson, Judge:After over seventeen years of commendable service in the Navy, which included an exemplary war record, accused stands convicted of various offenses, in violation of Articles 92, 127 and 134 of the Uniform Code of Military Justice, 10 USC §§ 892, 927 and 934, respectively.
This Court granted an appeal on the following issues :
1. Whether the convening authority’s action in approving that portion of the sentence relating to a bad-conduct discharge, and rejecting the court’s suspension thereof was illegal.
2. Whether the law officer erred to the material prejudice of the accused by failing to instruct the court that the suspended portion of the sentence was a nullity.
3.Whether the law officer erred in overruling the defense motion to dismiss the charges and specifications on the ground of inadequacy of the pretrial proceedings.
The facts, insofar as they are pertinent to the present appeal, are as follows: At the Article 32 investigation (Code, supra, 10 USC § 832) the prosecution produced five witnesses. Four of these, each of whom was cross- examined by civilian defense counsel, gave testimony linking the accused to the offenses for which he was subsequently tried and found guilty with the exceptions of specifications 4, 5, and 6 of Charge IV (one specification alleging the opening of a letter addressed to a named recruit, and two alleging gambling) . Upon the completion of the examination of these witnesses, the investigating officer offered the statements of some fifty-eight other witnesses. *209These witnesses had been transferred from the area and with one exception the investigating officer’s report showed that each witness was at a station more than 100 miles away.1 Of the statements civilian defense counsel read only three. She then rejected all the statements and objected to the investigating officer’s considering them. The reasons for her action are substantially as follows:
(1) That the statements were obtained by experienced investigators from young recruits who “were promised nothing would happen to them.”
(2) That the statements were not “volunteered” by the witnesses and were obtained “by goodness knows what means.”
(3) That the accused was not accorded an opportunity to be present at the taking of the statements.
(4) That the evidence was “complete hearsay” and not “direct evidence.”
At trial, defense counsel moved to dismiss the charges on the ground that the investigating officer had considered the statements of the unavailable witnesses.2 On the argument of the motion there was some discussion as to whether or not the accused had requested the witnesses be produced. Defense counsel could not “in all truthfulness” recall whether such a request was made. But she conceded she knew “that they couldn’t produce them there because he himself [the investigating officer] told me that they were all over Bremerton, Washington, Pensacola, Florida, and what have you.” However, she later twice asserted, without contradiction, that she had requested the presence of the unavailable witnesses “at the outset.” Ultimately, the law officer denied the motion because the record of the pretrial proceedings did not show a “request that these witnesses be called.” He reserved decision on that part of the motion which challenged the investigating officer’s right to consider the statements over defense counsel’s objection, apart from the availability of the witnesses. This part of the motion was later denied.
The court encountered grave difficulty in the wording of the sentence. During the sentencing considerations the president of the court stated that it desired to give the accused an opportunity to repay his “ill-gotten monetary gains” and to afford him the opportunity of making the Navy his career. After several false starts and a considerable number of suggestions from the law officer, the court-martial finally announced the sentence as follows:
“To be reduced to the grade of seaman; to forfeit fifty dollars ($50) per month for thirty-six (36) months; and to be discharged from the naval service with a bad conduct discharge, the bad conduct discharge to be suspended for a period of three (3) years during good behavior. At that time, unless the suspension is sooner vacated, the suspended portion should be remitted without further action.”
The law officer at no time instructed the court-martial that the suspended portion of the sentence was a nullity. The convening authority specifically rejected the suspension of the bad-conduct discharge proposed by the court-martial and thereafter approved a bad-conduct discharge providing suspension thereof for either the period of confinement or completion of appellate review. See United States v Trawick, 10 USCMA 80, 82, Footnote 3, 27 CMR 154. The board of review, except for the dismissal of one Charge of which the accused had been found guilty, approved the findings and sentence.
The first issue.
We held in United States v Marshall, 2 USCMA 342, 8 CMR 142, that the *210court-martial, as a jury, could not suspend a sentence. See also Zeigler v District of Columbia, 71 A2d 618 (DC Mun App) (1950), to the effect that:
. . Since the decision of the Supreme Court in Ex parte United States, 242 US 27, 37 S Ct 72, 61 L Ed 129, LRA 1917E, 1178, Ann Cas 1917B, 355, it has been established that, in the absence of statutory authority, there is no inherent right in any court of the federal judicial system to suspend execution of sentence in a criminal case.
**. . . The court had the power to impose the sentence and the void suspension does not void the sentence.”
We therefore hold that the convening authority’s action was within his power if the sentence was otherwise valid.
The second issue.
The pertinent circumstances are grounded on the following colloquy, in the course of which, as a result of the law officer’s suggestions, the court-martial arrived at its final verdict:
“PRESIDENT: Henry DeWitt Samuels, boatswain’s mate first class, U. S. Navy, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken concurring, sentences you:
To be reduced to the grade of seaman; to forfeit fifty dollars ($50) per month for thirty-six (36) months; and to be discharged from the naval service with a bad conduct discharge, the bad conduct discharge to be held in abeyance for a period of three (3) years during good behavior.
It is the opinion of this court, in view of the long and previous honorable service of the accused, that he be afforded the opportunity to repay to society his ill-gotten monetary gains. This sentence enables him, if his stated desire to make the Navy a career is sincere, to continue toward that end.
“LAW OFFICER: The law officer will declare a recess at this time for fifteen minutes, during which time he will ask the court reporter to reduce the sentence — transcribe the sentence so that he may study it as to its legality. The court is recessed for a period of fifteen minutes.
“The court recessed at 1533 hours, 15 August 1957.
“The court opened at 1550 hours, 15 August 1957.
“LAW OFFICER: It appears to the law officer that the sentence is somewhat ambiguous, not being drafted according to one of the familiar forms of sentences — which is quite understandable under the circumstances since the court did not have the Manual with it during its deliberations. The law officer would like to inquire the intent of the court in the phrase ‘the bad conduct discharge to be held in abeyance for a period of three years during good behavior.’ Was it the intention of the court to suspend operation of the discharge for three years providing that during that time the accused’s behavior was satisfactory to his commanding officer or commanding officers during that period?
“(The president conferred with the members of the court.)
“PRESIDENT: Will the reporter please re-read the question of the law officer. Read it slowly, please.
“The reporter complied.
“PRESIDENT: I think the court had better be closed for a short while. The court will be closed.
“PRESIDENT: In answer to the law officer’s last question before the court was closed, the court wishes to say that the answer is yes, with the following clarification: —does the law officer wish to hear the clarification?
“LAW OFFICER: Yes.
“PRESIDENT: If at the end of the three-year period the suspension *211has not been vacated, the BCD will be remitted.
“LAW OFFICER: In other words, the court intended to include ‘unless the suspension is sooner vacated, the suspended portion shall be remitted without further action’?
“PRESIDENT: That is correct.
“LAW OFFICER: It is suggested that the court close and rephrase the sentence so that the ambiguity will be removed. It is possible to interpret it, as it is now worded — in fact, it would be almost necessary to interpret it, as now worded, that he would serve three years and then the sentence would be executed, and the law officer felt that that might not be the intent of the court.
“PRESIDENT: The court apologizes for the ambiguity, and will the law officer please read that last phrase.
“LAW OFFICER: ‘At that time, unless the suspension is sooner vacated, the suspended portion shall be remitted without further action.’ It is the law officer’s feeling that this cures any ambiguity and in no way increases the severity of the sentence and that, therefore, the change to implement the original intention of the court is proper.
“PRESIDENT: I think the court should close at this time. The court will be closed.
“PRESIDENT: The court has completed the draft. Would the law officer like to look at it?
“LAW OFFICER: The law officer, unfortunately, is not permitted to look at the draft before the sentence is announced.
“PRESIDENT: Would you like it re-read ?
“LAW OFFICER: Yes.
“PRESIDENT: Henry DeWitt Samuels, boatswain’s mate first class, U. S. Navy, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken concurring, sentences you:
To be reduced to the grade of seaman; to forfeit fifty dollars ($50) per month for thirty-six (36) months; and to be discharged from the naval service with a bad conduct discharge, the .bad conduct discharge to be suspended for a period of three (3) years during good behavior. At that time, unless the suspension is sooner vacated, the suspended portion should be remitted without further action.
“LAW OFFICER: And that represents the original intention of the court?
“PRESIDENT: That does.”
In view of the remarks by the president of the court-martial, made against the backdrop of the ae-cused’s commendable naval record, if the court-martial had been advised that the sentence was void and that the attempt to suspend the bad-conduct discharge was not binding upon the convening authority, it may well have adjudged a sentence which did not include a bad-conduct discharge.
We said in United States v Linder, 6 USCMA 669, 20 CMR 385, that:
“. . . [T]he members of a court-martial are not presumed to know the law. Their source of knowledge of the law is the law officer.”
Obviously, the law officer erred to the material prejudice of the accused by failing to instruct the court that the suspended portion of the sentence was a nullity.
The third issue.
The evidence upon which specifications 4, 5, and 6 of Charge IV have been predicated must have been gleaned from statements of some of the unavailable witnesses. The question with which we are confronted is whether or not prejudicial error occurred when the investigating officer considered these statements.
Article 32(b) of the Uniform Code, supra, provides in part:
“. . . At that investigation full opportunity shall be given to the accused to cross-examine witnesses *212against him if they are available.
It is apparent that the Article serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against base-less charges. See Manual for Courts-Martial, United States, 1951, paragraph 34, page 45. It is judicial in nature. United States v Nichols, 8 USCMA 119, 23 CMR 343; cf. Wood v United States, 128 F2d 265 (CA DC Cir) (1942); United States v Zerbst, 111 F Supp 807 (ED SC) (1953). But it is ex parte in that the Government is not formally represented as a party. Article 32, Uniform Code of Military Justice, and paragraph 34, Manual for Courts-Martial, both supra; see Feld, Manual of Courts-Martial Practice and Appeal, § 23, page 40 (1957). It is also a preliminary proceeding, not a trial on the merits.
As we have noted, the record here shows that certain witnesses did not appear before the investigating officer who considered them to be unavailable. Upon the question of availability, the hearings before a subcommittee of the Committee on Armed Services of the House of Representatives, 81st Congress, 1st Session, on H. R. 2498 (the Uniform Code of Military Justice), discloses the following limited colloquy:
“MR. ANDERSON: Now, to what extent do the services go to insure the fact that the witnesses will be available ?
“MR. SMART: It is subsequently prescribed in article 49(d) (1) that more than 100 miles may be construed as a reasonable distance.”
We need not now decide whether or not distance and the grounds set out in Article 49 of the Uniform Code, supra, 10 USC § 849, constitute the only guideposts upon the question of unavailability. However, we add the caveat that the investigating officer should set out the circumstances upon which the conclusion of the unavailability is predicated.
The fundamental question which now confronts us is how the statements of the unavailable witnesses come before the investigating officer. In other words, the inquiry is whether the investigating officer is bound by the same rules of evidence that apply at the trial itself. Cutting through defense counsel’s confusion of ideas, it appears that this is part of the question she attempted to raise by objecting to the investigating officer’s consideration of the statements.
A great deal of attention was given to the problem by Professor Wigmore in his eminent work on Evidence. After reviewing the history and purpose of the rules of evidence, he concluded they were “devised for special control of trials by jury.” They are not “supreme end [s] in themselves” but merely “tools for truth.” He contends, therefore, that they are inappropriate in preliminary proceedings in which the decision of the judge is not final, the determination is discretionary, and there are “no opponents” as such to invoke the rules. Relying upon Professor Wigmore’s text, the Supreme Court of the United States has said: “The ordinary rules of evidence are generally not applied in ex parte proceedings.” Brinegar v United States, 338 US 160, 175, 69 S Ct 1302, 1310, 93 L ed 1879, 1890, footnote 12. Speaking specifically of a preliminary examination by a magistrate, the Supreme Court of Kansas said: “Proceedings in a preliminary examination are not expected nor required to be as regular and formal as in a final trial. The same strictness as to the admissibility of evidence is not as necessary where probability of guilt is at issue as when actual guilt is the matter on trial.” McIntyre v Sands, 128 Kan 521, 278 Pac 761. It has been said that: “Preliminary examination affords, and is designed to afford, general information to the person held to answer respecting what he must meet.” State v Powell, 120 Kan 772, 777, 245 Pac 128, 131.
In Ex parte Hollingsworth, 49 Idaho 455, 289 Pac 607, the defendant challenged the legality of his detention on a charge of arson by a committing magis*213trate. The question before the court was the admissibility at the preliminary hearing of a statement by a witness concerning the accused’s alleged implication in the crime. At the hearing, the witness appeared and testified. He admitted making the statement, but said that it was entirely false. The Supreme Court of Idaho held that the witness’s written statement was properly considered by the committing magistrate. The court said the statement constituted a “positive statement of direct knowledge” by one who knew of the crime, and that it was “too technical to hold [it] inadmissible upon a preliminary hearing.” See also McCurdy v State, 39 Okla Crim 310, 264 Pac 925.
In our opinion, Article 32 does not require the investigating officer “to decide difficult legal questions.” See United States v Zerbst, supra; People v Lightstone, 330 Mich 672, 48 NW2d 146. Nor does it require him to adhere to the strict rules of evidence.
While unavailability affects the accused’s right to cross-examine, it does not preclude the investigating officer from considering the statements of the witnesses.3 The question remains as to whether there is any limitation as to the statements which may properly be so considered by the investigating officer.
Both Article 32 and the Manual point to at least one limitation, namely, that the statement must be made under oath or affirmation. In a judicial proceeding the sanctity of the oath or the force of the affirmation, and, we may add parenthetically, the penalties of law that accompany a violation of either, give initial assurance as to the truth of the testimony. Since Article 32 is an inquiry into the “truth” of the charges, some assurance is required to insure the witnesses do speak truthfully. The single circumstance which in the first instance permits us to regard information as true is the fact that it is given under oath or affirmation. In that connection, paragraph 34d of the Manual, supra, expressly provides that witnesses “who give evidence during the investigation should be examined on oath or affirmation.” The requirement of an oath or affirmation is further suggested by the constitutional requirement in the related preliminary proceedings for the issuance of a warrant of arrest. Under the Fourth Amendment to the United States Constitution no warrant can issue, “but upon probable cause, supported by Oath or affirmation.” We are, therefore, led to the conclusion that the statement of a witness may be considered by the investigating officer only if it is supported by oath or affirmation.
Here, the record affirmatively shows that the statements of the unavailable witnesses were signed but were not under oath or affirmation. Consequently, when objected to by defense counsel, they should not have been considered by the investigating officer. True, defense counsel did not pinpoint the basis of her objection to the investigating officer’s consideration of these statements at the pretrial level. However, her objections clearly included an assertion that the statements were not entitled to consideration by the investigating officer. She, therefore, sufficiently put him on notice that the statements should not be the subject of his scrutiny because of their unreliability. The error was thus preserved for appropriate relief at the trial. See United States v Phillips, 3 USCMA 557, 13 CMR 113.
Consequently, we hold that the law officer erred in failing to grant appropriate relief as to this part of the defense motion.
The findings of guilty as to specifications 4, 5, and 6 of Charge IV and the sentence are set aside. The record of trial is returned to The Judge Advocate .General of the Navy for remand to a competent convening authority. In his discretion, the convening authority may direct an Article 32 investigation of said specifications and if justified by the evidence therein order a rehearing as to the said specifications and the sen*214tence, or dismiss the specifications and order a rehearing on the sentence alone, or reassess the sentence on the basis of the remaining specifications, without, however, including a bad-conduct discharge.
Chief Judge Quinn concurs.In the exception the location of the witness was listed as “unknown.”
The record of the proceedings does not contain the statements but the parties have stipulated that none of them were taken under oath or affirmation and that only ten are presently on file in the Office of Naval Intelligence, Washington, D. C.
This does not mean that the accused cannot question the witness at all. There is still open to him the deposition proceedings provided by Article 49. In this way he may examine the witness on direct or cross-examination.