(dissenting):
I dissent.
By some method of reasoning, my as-*367sociales reach a result which is contrary to the Code, the Manual, United States v Watkins, 2 USCMA 287, 8 CMR 87, and other eases which have clothed a convening authority with broad powers to suspend sentences. Moreover, by judicial fiat they categorically extend an act of suspension to embrace remission and probation. There is no common denominator for the three different acts, and a hasty reference to any standard dictionary will show why there is no similarity. See also United States v Estill, 9 USCMA 458, 26 CMR 238. In addition, they mistakenly state, “Once a convening authority so empowered, undertakes to suspend [the execution of] any portion of a sentence, such suspension — without reference to the language employed or omitted — constitutes the accused a probationer whose status may be changed only after a full hearing.” Significantly, Article 72 (a), Uniform Code of Military Justice, 10 USC § 872, is, by its own terms, restricted in its application and does not require a hearing before suspension of all sentences may be vacated. See also Article 72(c) of the Code, supra. Manifestly, then, from the statute itself it is crystal clear that the term “suspended” is not at all “a word of art conveying the single meaning” ascribed to it by my associates. If it were, then the suspensions covered by Article 72(e) would also give rise to the status of probation, yet the unequivocal language there used by the Congress is obviously to the contrary. In fact, the majority concedes that the same “term of art” which they state conveys but a “single meaning” does not carry that meaning in subarticle (c). And even under sub-article (a), they admit that what they term a “technical suspension,” as commonly used by the Navy, does not carry with it a status of probation. I encounter great difficulty in comprehending how my associates reconcile their holding that suspension is a term of art with but one import — necessarily accomplishing a probationary status — • when they themselves acknowledge the same term in the same Article does not have that significance and that a convening authority can use that term in his action without effecting probation. And, although my brothers cite United States v Watkins, supra, as authority for their proposition, I am unable to find in that ease or in any other where we have ever equated the terms “probation” and “suspension.”
As a starting point for my presentation, I call attention to the fact that in the recent case of United States v Estill, supra, we reaffirmed the doctrine that a board of review does not have the power to suspend the execution of a sentence. In this case, then, the sole issue is whether the convening authority, by suspending the execution of the punitive discharge until completion of appellate review, placed the accused on probation. I say he did not, and in that connection I refer to Article 72 of the Code, supra, which provides:
“(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel if he so desires.”
It is to be noted this Article requires the officer having special court-martial jurisdictional over the accused to hold a hearing on the alleged violation of probation. That requirement presupposes that the suspension is one which is predicated upon conditions over which the accused has some control. That presupposition is in keeping with the concept that probation is a status whereunder a person convicted of an offense is allowed to go at large under a suspension of sentence,' during good behavior and generally under the supervision of some one designated by the court or by law. Congress certainly envisioned that status when it enacted Article 72, for it used the terms probationer and probation.
My associates quote at length from the Hearings on the Code and emphasize Mr. Larkin’s statement that the term “[probationer] most clearly de*368scribes the position of the person contemplated in this article.” However, they fail to note the language which immediately precedes the comments they quote from the Hearings. It tells us the identifying characteristic of this contemplated person, gives us the key to our entire discussion, and neutralizes their extensive quotations:
“This article is new. It applies where a sentence has been suspended pending good behavior of the accused, that is, where the accused is a probationer.” [Emphasis supplied.]
Hearings before the House Armed Services Committee on H.R. 2498, 81st Congress, 1st Session, page 1207.
A hearing on an alleged violation of probationary status would be absurd if there were not conditions imposed on an accused with which he was required to comply to escape punishment. A suspension of execution is only a temporary bar, and I defy anyone to suggest a way in which it can be shown sensibly that an accused has any control over an impediment which is automatically removed by the completion of appellate review. In the present instance, the condition was only one of time, that is, the suspension was in effect only until the conviction was finalized, at which time the bad-conduct discharge was to be executed. Now I ask, how would the accused either live up to or violate that term or condition? And, what possibly could the Government establish as the “alleged violation of probation?” The answers are obvious for, unless we reverse United States v Estill, supra, and hold that a board of review can suspend a sentence, or we change entirely the wording, nature, and legal effect of the convening authority’s act, the accused never becomes a probationer under any acceptance of that term. I know of no legal support for either alternative, and so I encounter great difficulty in understanding how terms, automatic remission, and restoration to duty can be read into an act of the convening authority which shows positively that those forms of clemency were not within his contemplation. Rather, they are, in fact and law, diametrically opposed to results he intended to reach. Of course, any given result can be reached if the prime objective of a statute is ignored or misunderstood. The sole-purpose of Article 72 is to prevent the arbitrai-y setting aside of a grant of clemency without proof that the grantee had broken faith with the grantor. But that is not involved in this case, for no representation was made that the convening authority was extending mercy which would be withdrawn only upon a showing by the Government that, due to accused’s subsequent conduct, it was not merited. The only consideration held out to this accused was that the punitive discharge would not be executed until a certain contingency had happened. When the contingency occurred, any benefit bestowed upon him automatically terminated without regard to his good or bad behavior. Even if his conduct was reprehensible, by law, the punitive discharge could not be executed until the designated time and, if his behavior was exemplary, that would make no difference either for the convening authority’s action directed execution of the discharge upon completion of appellate review.
Moreover, overlooked entirely is the fact that in this type of suspension, if the period extends beyond the time appellate review is completed, the Government does not contend that during the time from affirmance of sentence until the end of the period, an accused is not entitled to a hearing before the punitive discharge can be executed. The Government concedes, so long as the suspension is operative, the provisions of Article 72 must be complied with and the accused is afforded his statutory right. However, when, by its terms, the suspension expires and is no longer in effect, then there is nothing to be heard. The convening authority’s grant of clemency has been fulfilled by the Government, and the conditions of the suspension are merely endorsed. It is under those circumstances that the Government asserts — and I believe rightly — that no hearing is necessary.
At times, it may be necessary to ex*369tend the meaning of words and phrases to give effect to the intent of Congress, but here there is no necessity to go that far. As we stated in United States v Watkins, supra:
“. . . The Code and Manual contain no specific restrictions as to the reasons which may motivate a suspension. Certain considerations which are intended to be influential in limiting such action are proposed, but the tenor of the paragraphs dealing with the subject denotes a discretionary power in this regard. Certain it is that we should not graft on any limitation not expressed in the Code or Manual.”
There is neither a need to convert every suspension into an automatic remission nor to create a probationary status. In civilian courts, the execution of a sentence may be suspended for a variety of reasons, such as to permit a defendant to perfect his appeal or to arrange his business affairs — this despite the statement of piy associates that “Even the most callous of disciplinarians would reject such a notion.” That is not to say, however, that the delay granted by the court places the defendant on probation for all time. The device of probation is a means of placing an accused in a preferred status and fitting the punishment to the crime after time has allowed him to exhibit traits of character which prove he has some value and is a worthwhile subject for rehabilitation. In the military, the privilege is only bestowed upon those accused persons who have some potential value to the service. The power to create the status of probationer in the lower military echelons is vested in the convening authority, and obviously the grant is discretionary with him as an accused has no statutory or constitutional privilege to that form of mercy. Certainly, when one possessing the authority affirmatively shows in his order that he does not intend to place an accused on probation, a board of review exceeds its authority when it creates that status out of his order. Here, the action of the convening authority shows the punitive discharge is to be executed in all events unless found inappropriate on appeal, and I find no legal basis for a board of review to interfere with his order in the manner herein attempted.
In passing, I point out that while several cases are cited in the base opinion for the proposition that a suspension of sentence cannot be revoked without hearing, in each of those cases the situation is one where a convicted person had been granted liberty upon fixed conditions for a breach of which his liberty would be revoked. If such was the posture of the case at bar, the difficulties I encounter would be greatly reduced, but manifestly it is not, and to my mind the cases are useless additions which do not aid my brothers.
Contrary to the present holding, the framers of the Manual — and at least their construction was contemporaneous with the Code — envisioned a suspension which did not create the status of probation, for paragraph 88e(2)(6) provides in part:
“. . . However, the convening authority may suspend the execution of the dishonorable or bad conduct discharge until the release of the accused from confinement without providing for an automatic remission of the suspended portion. In such a case, when the accused is released from confinement, the necessary administrative action may be taken to effect the punitive discharge without the publication of further court-martial orders and without a hearing under the provisions of Article 72. To avoid the possibility in such a case of the inadvertent execution of the punitive discharge prior to completion of appellate review, the action should provide for the suspension of the punitive discharge until the accused’s release from confinement or the completion of appellate review, whichever occurs later.”
Much as my associates prefer to invalidate the Manual provisions, Article 71(d), Uniform Code of Military Justice, 10 USC § 871, authorizes a convening authority to suspend the execution of any sentence except death, and his power to set the conditions is *370not limited. Pretermitting the question with which we were concerned in Watkins, supra, the Manual is in no way contrary to the codal provision, nor is it at variance with civilian law. Why then, I ask, do we cast it aside and saddle a convening authority with the restriction under which he can suspend any part of a sentence, but when he does, conditions contrary to those he comprehended are superimposed on his action ? Congress did not say every suspension brought an accused under the coverage of Article 72(a). In fact, the codal provision is exactly to the contrary, and the effect of the Court’s opinion is to ignore and rewrite the law.
Apparently one of the reasons for casting out the Manual provision is because of possible abuses by military authorities. That reasoning I cannot follow. It should be crystal clear from the legislative development of Article 72 set out in the Court’s opinion and the Committee hearings prior to its enactment that Congress intended simply to safeguard the rights of an accused once he had been awarded a probationary type suspension. No one has suggested when that status is created, corrupt practices are indulged in. The only possible vice has to spring out of denying a hearing to a person not intended to be placed on probation. The principle that accused persons receiving this form of suspension are probationers is, of course, entirely dependent for its validity upon the Court’s original thesis —a thesis that, in my opinion, remains yet to be demonstrated. How, with any logic, it can be said a procedure which allows a convening authority to vacate this form of suspension without hearing is “a spawning ground for ungoverned and ungovernable sharp practices” when, at the time the order is entered, the accused is deemed unworthy of probation, when there is no intent on the part of his superiors to grant such a benefit, and when he is deprived of nothing to which he is entitled but in order to give him one last chance a convening authority has decided to delay the final day of judgment, is beyond my comprehension.
A simple understanding of the operations of this form of suspension would make it unnecessary for my associates to conjure up possible abuses. The Code automatically bars the execution of a punitive discharge until the completion of appellate review. In a great many instances, the period of confinement has not expired when that contingency occurs, and the convening authority, by providing for suspension until release from confinement, has given an accused additional time to prove his worth to the service and avoid his separation from the service under dishonor. Once a punitive discharge is executed, there may be both legal and administrative complications in restoring an accused to duty and clearing his military record of his punitive discharge. This form of suspension avoids that possibility and, even assuming an accused may lose a “penny” or do a few days hard labor, he gets a chance to escape the most serious punishment. Surely, when a convening authority acts and grants an accused some benefit to which he is not entitled, even assuming it infinitesimal — which I do not — I fail to see how the grant of such clemency can be catalogued as a sharp practice. Furthermore, for some seven and one-half years we have tacitly approved the procedure used by the services and, to my knowledge, no abuse of this process has been called to our attention.
Moreover, the impact of this piece of judicial legislation merits some comment. When an accused person is a fit subject to become a probationer, the convening authority usually provides for suspension and automatic remission. We are not here faced with persons of that character. However, in connection with suspension under the Manual provision, my colleagues pose the question “What ... is the point of suspending execution of a punitive discharge?” and imply that accused persons are victims of some monstrous conspiracy of the services whereby otherwise uncollectible forfeitures are extracted or hard labor as a sentenced prisoner exacted. They, however, characterize the money involved as a pittance and, indeed, although unsentenced *371prisoners cannot be made to perform hard labor, certainly they are not allowed to remain idle and their incarceration can hardly be considered a vacation. Moreover, it should be borne in mind that the punishments involved result from the lawfully adjudged sentence for accused’s criminal conviction on his plea of guilty, which has been affirmed on review. It would seem, then, that the impact against an accused brought about by the suspension is not nearly so onerous as the majority implies, and apparently they choose to ignore the plain fact that suspensions of the instant type hold out to serious offenders the opportunity of restoration — an obvious and substantial benefit which those persons will, no doubt, no longer be accorded in light of my associates’ holding in the case at bar. For myself, I take the view that from this kind of suspension a definite advantage redounds to offenders. I cannot find any harsh impact against convicted persons, and hence it is most difficult — and I for one am unwilling — to impute to military authorities a desire to extract from accused persons the last pound of flesh. If they were guided by that principle, convening authorities would merely affirm every finding and sentence without a suspension of any kind. As I have endeavored to demonstrate earlier, there is no sound basis upon which to conclude the Manual provision under which the services operate is illegal, and certainly I must register my disagreement with a holding which, in invalidating it, strips from offenders the prospect of a very substantial benefit.
One other error in the Court’s opinion is apparent. If this controversy hinges on giving the accused a hearing pursuant to Article 72 before the punitive discharge can be executed, the Court is ruling prematurely. A hearing on a vacation of a suspension is no part of a sentence, and it raises no issue until such time as the Government seeks to proceed without complying with the law. If, as my colleagues contend, every suspension automatically makes an accused a probationer under the last-mentioned Article, then when the Court interferes before appellate review is complete so that any hearing is required, the accused is the beneficiary of a right which has not yet accrued. Criminal processes ought to be orderly, and anticipatory breaches have no place in the scheme of things. Merely because a ruling benefits an accused does not make it legal.
I would answer the certified question in the negative and reverse the decision of the board of review.