(concurring in the result):
I concur in the result.
While I agree generally with the discussion of the assigned errors and the disposition ordered, I am disturbed by the implication of the principal opinion that a board of review may average out the “sentences finally approved in over a hundred other military cases . . . of unpremeditated murder” in determining the quantum of the penalty which should be approved in this case.
Uniform Code of Military Justice, Article 66, 10 USC § 866, provides pertinently :
“(c) In a case referred to it, the *170board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” [Emphasis supplied.]
The legislative history makes it clear that it was the congressional purpose in enacting the foregoing section of Code, supra, Article 66, to insure that a board of review might set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate. It was also contemplated that this power would be exercised to establish uniformity of sentences throughout the armed forces. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1137; House Report No. 491, 81st Congress, 1st Session, page 31; Senate Report No. 486, 81st Congress, 1st Session, page 28. However, it is equally certain that inclusion of the phrase “on the basis of the entire record” has some meaning. See United States v Lanford, 6 USCMA 371, 20 CMR 87. In my opinion, it at least forbids the boards from utilizing the approach of a computing machine In assuring uniformity of sentences, for that desirable quality must be attained in light of the equally important injunction that the quantum of punishment be fixed as it is specially suited to the circumstances of accused’s case. United States v Atkins, 8 USCMA 77, 23 CMR 301.
Moreover, the apparent conflict in the desire for uniformity and individual treatment can be reconciled within the terms of the quoted section of Code, supra, Article 66. I am certain that mathematical calculation is not the type of uniformity which Congress deemed desirable. It seems more likely to me that it was envisioned that members would utilize the experience distilled from years of practice in military law to determine whether, in light of the facts surrounding accused’s delict, his sentence was appropriate. In short, it was hoped to attain relative uniformity rather than an arithmetically averaged sentence. Thus, I would conclude it to be improper for a board of review to refer solely to statistical data in determining the sentence to be approved.
Be that as it may, I am certain the board of review in this case did not fall into error in judging the appropriateness of accused’s penalty. While their memorandum of opinion adverts to the average sentence for unpremeditated murder in over one hundred military cases, they proceeded to affirm a substantially smaller period of confinement in view of the particular circumstances involved. The Code commands no more than that, and I, accordingly, join in affirming the board’s decision.