Opinion of the Court
Robert E. Quinn, Chief Judge:This is an appeal from a conviction by a general court-martial. Two assignments of error are presented for our consideration. Both concern the sentence.
We consider first the legality of part of the sentence action taken by the convening authority. The accused, an Air Force Technical Sergeant, was convicted of three specifications of larceny by check, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. After receiving extensive evidence in mitigation, the court-martial sentenced him to be discharged from the service with a bad-conduct discharge. The convening authority approved the findings and the sentence. However, he suspended execution of the discharge until September 1, 1958, v/ith provision for remission. He also directed that the accused be reduced to Airman First Class unless the suspension of the discharge was vacated, “in which event, the accused, at that time, will be reduced to the lowest enlisted grade without further action.” The accused challenges the reduction in rank imposed by the convening authority as an illegal increase in the sentence adjudged by the court-martial. On the other hand, the Government contends the reduction is justified by a provision in the Manual for Courts-Martial, United States, 1951, and Air Force regulations promulgated thereunder.
The starting point for our discussion is paragraph 126e of the Manual for Courts-Martial, supra, as amended by Executive Order No. 10652, January 10, 1956, 21 FR 235. In its amended form, the paragraph reads as follows:
“Unless otherwise prescribed in regulations promulgated by the Secretary of the Department concerned, in the case of an enlisted person of other than the lowest pay grade, a court-martial sentence which, as approved by the convening authority, includes: (1) dishonorable or bad-conduct discharge, whether or not suspended, (2) confinement, or (3) hard labor without confinement, immediately, upon being so approved, shall reduce such enlisted person to the lowest enlisted pay grade; provided, that the rate of pay of the person so reduced shall be commensurate with his cumulative service; and provided further, that any person so reduced shall have all rights, privileges, and property affected by such reduction restored if the sentence is subsequently set aside or disapproved, or if the sentence as finally approved does not contain any of the elements listed above.
“A court-martial is authorized to sentence an enlisted person to be reduced to an inferior or intermediate grade.”
Under supplementary Air Force regulations, the convening authority is authorized to retain the accused in the grade he is in at the time of trial or in an intermediate grade if the sentence adjudged by the court-martial “does not expressly provide for reduction to basic airman” and the discharge and confinement portions of the *232.sentence are suspended. AFR 111-15, March 18, 1957.
In United States v Flood, 2 USCMA 114, 6 CMR 114, we noted that there is a basic conflict between the first and second parts of the quoted portions of paragraph 126e. Indeed, if reduction to the lowest enlisted grade is automatic, as the first part of the paragraph indicates, it is meaningless in most cases to say that the court-martial is “authorized to sentence an enlisted person to be reduced to an inferior or intermediate grade.” We held that the Manual intended to indicate a court-martial could reduce an accused to an intermediate rather than to the lowest enlisted grade. This holding, of course, is consonant with the Uniform Code provisions to the effect that courts-martial may adjudge any sentence “not forbidden” by law and within the maximum limitations prescribed by the President. Articles 18, 19, 20, Uniform Code of Military Justice, 10 USC §§ 818, 819, 820. United States v Stiles, 9 USCMA 384, 26 CMR 164. We went on, in the Flood case, to consider the relation between the automatic reduction provision and the supplementary Navy regulation on the subject. Our discussion was based on the assumption that the Manual provision was consistent with the Uniform Code. That assumption is now specifically questioned. United States v Choate, 9 USCMA 680, 682, 26 CMR 681, footnote 1.
The Government contends that no enlisted member of the armed forces has any “vested property right in any particular grade, rate, or rank.” It contends that the President, as Commander-in-Chief of the armed forces, has unrestrained powers to “prescribe . . . for how long, an enlisted member . . . may hold any given grade, rate, or rank.” It argues that the President can, as “a consequence” of a particular sentence by a court-martial, reduce an enlisted person, whatever his former grade or rank, to the lowest enlisted grade. Such action, it maintains, is purely administrative in nature and outside the judicial operation of the courts-martial system. See United States v Gardner, ACM S-17239, October 8, 1958.
We do not desire, nor are we required, to examine the President’s administrative power to reduce enlisted persons in the armed forces. Our only concern is with judicial acts in the course of court-martial proceedings. Article 67, Uniform Code of Military Justice, 10 USC § 867. We have already pointed out that reduction in grade of an enlisted person is not forbidden by the Uniform Code and is expressly recognized as permissible punishment by the Manual for Courts-Martial, supra. Consequently, it is within the sound discretion of the court-martial to include a proper reduction to an inferior grade in its sentence. Once finally announced, the adjudged sentence cannot thereafter be increased by either the court-martial or by a reviewing authority. See United States v Castner, 3 USCMA 466, 13 CMR 22.
As we construe the Manual provision, it is intended to be an integral part of the review of a sentence adjudged by a court-martial. Executive Order No. 10214, February 8, 1951, 16 FR 1303, which prescribes the Manual, specifically says it applies “to all court-martial processes.” Manual for Courts-Martial, supra, page IX. The reduction provision itself is included within the discussion of punishments which may be imposed by courts-martial. The provision is so interwoven with the courts-martial process that it cannot be regarded as anything but judicial in purpose and effect. As a judicial act, it operates improperly to increase the severity of the sentence of the court-martial. We conclude, therefore, that the provision is invalid. Accordingly, the action by the convening authority reducing the accused in grade must be set aside.
The second error relates to certain comments by trial counsel in connection with the sentence. This was a rehearing. The maximum sentence that could be adjudged was that imposed at the previous trial, namely, *233bad-conduct discharge and confinement at hard labor for six months. Trial counsel observed that the period of confinement was sinall and had virtually expired. Consequently, he urged the court-martial to impose a bad-conduct discharge. He asked the court to consider that “any discharge from the service, other than a dishonorable discharge, may be . . . wiped off the record” by the board for correction of military records in Washington. Individual defense counsel objected to the statement; he argued that only the court could, and should, pass sentence, and only on the basis of the evidence it had heard. In reply, trial counsel said that he “concur [red] with the defense counsel,” but still he went on to say that even if the court adjudged a bad-conduct discharge, “it is not a permanent blot” on the accused’s character. Again defense counsel objected. On neither occasion did the law officer pass on the objection or advise the court-martial on the effect of trial counsel’s remarks.
The board of review considered the accused’s allegation of error and concluded that, in context, trial counsel’s remarks did not exceed the bounds of fair comment. In our opinion, it was highly improper for trial counsel to refer to possible ameliorative action by an administrative agency. Considered as a whole, his argument presents a fair risk of improperly influencing the sentence deliberations of the court-martial. There was no cautionary instruction by the law officer, and we cannot therefore conclude that the effect of the remarks was eliminated.
The decision of the board of review as to the sentence is reversed. A rehearing on the sentence may be ordered.
Judge Ferguson concurs.