(dissenting);
I dissent.
The accused was found guilty of involuntary manslaughter, in violation of Uniform Code of Military Justice, Ar-tide 119, 10 USC § 919. Following the imposition of sentence, the convening authority approved the findings and penalty. A Navy board of review deemed the announced sentence ambiguous and, refusing to give effect to a purported certificate of correction, reduced it accordingly. Thereafter, The Judge Advocate General of the Navy certified to this Court the questions whether the board acted correctly with respect to the certificate of correction and properly interpreted the announcement of accused’s punishment. The Chief Judge concludes the board properly rejected the certificate of correction. With that assertion I unreservedly agree. United States v Nicholson, 10 USCMA 186, 27 CMR 260; Manual for Courts-Martial, United States, 1951, paragraph 86c. However, he also believes that the board of review erred in its construction of accused’s sentence, and reverses its decision. In this respect, I think he errs seriously, and I cannot join in that disposition of this case.
The operative facts are simple. Following receipt of matters in extenuation and mitigation, the law officer instructed the court members that the maximum sentence which they might impose was dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. The court was closed and the members deliberated in secret session. Upon reopening, the president announced the sentence:
“PRES: Glen D. Hollis, seaman apprentice, U. S. Navy, it is my duty as president of this court to inform you that the court in closed session and by secret ballot, sentences you: To three (3) years of hard labor, reduction to seaman recruit, forfeiture of pay and allowances and to be followed by a dishonorable discharge.
“LO: Was that forfeiture of all pay and allowances?
“PRES: Yes.
“TC: Was that sentence arrived at by two-thirds of the members present concurring?
“PRES: It was.
*239“PRES: The court will adjourn.”
[Emphasis supplied.]
The principal opinion expresses the view that the omission from the sentence of the words necessary to place the accused in confinement for a term of three years is no more than a technical nicety. It finds that the intent of the court-martial to adjudge the maximum sentence is reasonably to be inferred from the fact that the law officer instructed the members of the court-martial only on the maximum sentence which might be imposed and that he made no reference to lesser penalties. Implicit in this reasoning, of course, is the conclusion that the law officer is under a duty to set forth to the members of the court all the possible penalties which they might impose. I suggest that such is not the rule previously enunciated by this Court or any other military appellate body. On the contrary, we have held only that the law officer must instruct the members of the court-martial concerning the maximum limitations upon their power to punish. United States v Turner, 9 USCMA 124, 25 CMR 386. The rationale of that limited requirement certainly involves the concept that court members are sufficiently familiar with such penalties as hard labor without confinement, reduction, reprimand, restriction, and the like, that they need not be set forth by the law officer in inexhaustible succession.
Moreover, it is simply illogical to argue that only a maximum sentence could have been intended in view of the sentence instructions. As judges, we know that is the normal advice given to courts-martial. As judges, we also know it is the exceptional ease in which the severest punishment is awarded. Indeed, military policy is to the effect that maximum penalties will be reserved for the most aggravated eases. Manual for Courts-Martial, United States, 1951, paragraph 76a(2).
Finally, if we are to speculate from the matters contained in the entire record concerning the intent of the court-martial in imposing sentence, I suggest that some attention should be given to the extensive psychiatric testimony concerning accused s poor mental state and the fact that his delict was a proximate result of that condition. We should also recognize that evidence of his good character was introduced and that his remorse over his offense was such that some feared he would commit suicide. Certainly, it is logical to infer from these circumstances that the members of the court-martial felt confinement was unnecessary. More importantly, however, these facts demonstrate that interpretation of the announced sentence upon the basis of variant factors in the record is little more than a judicial guessing game, the result of which depends upon the emotional impact of the offense charged upon a majority of the Court. See the dissenting opinion of Mr. Justice Holmes in Northern Securities Co. v United States, 193 US 197, 24 S Ct 436, 48 L ed 679 (1904). I prefer the sounder approach dictated by the precedents decided in this Court.
In United States v Cuen, 9 USCMA 332, 26 CMR 112, we were required to pass upon a sentence “to be fined $65.00 a month for a period of 6 months.” The Government argued before us that it was obvious the members of the court-martial meant to impose upon the accused forfeitures rather than a fine. With respect to this contention, we stated, at page 337:
“ ... We cannot speculate that the imposition of a ‘fine’ rather than ‘forfeitures’ was due to inadvertence or ignorance on the part of the court members. . .
“The Government concedes that a fine ‘could have been adjudged by this court-martial’ but insists that is not what the court intended to do. We are unable to adhere to this contention. We merely look to the four corners of the sentence and if valid on its face we cannot permit inquiry into the intent of the court-martial which adjudged it. Cf. United States v Nedeau, 7 USCMA 718, 23 CMR 182.” [Emphasis supplied.]
In his separate concurring and dissenting opinion, Judge Latimer joined in the foregoing conclusion with the following declaration, at page 340:
"... I do not think it wise to *240delve behind the words given in open court. We should not speculate on what meaning a court intended when there is no ambiguity. The words used announce an unusual but recognized and legal sentence.”
Looking to the four corners of this sentence, it is at once apparent that the portion referring to “hard labor” adjudges a “recognized and legal sentence,” albeit for an excessive period. Hard labor alone has been recognized as a penalty by military law for many decades. Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 421, 486-487. It is expressly authorized under the current Manual for Courts-Martial. Manual, supra, paragraph 1267c. It is usually announced by informing the accused that he is “To perform hard labor for — (days) (months).” Manual, supra, Appendix 18, Form 5. Thus, it is clear that the sentence here involved a category familiar to all participating in the administration of military law. While the amount adjudged exceeded that authorized by the Manual, supra, this does not affect the validity of the classification of the punishment. It merely requires reduction of the qvantum to legal limits —an action already taken by the board of review, although based in part upon an erroneous interpretation of United States v Varnadore, 9 USCMA 471, 26 CMR 251. These considerations convince me the sentence is proper upon its face and that it should be interpreted as imposing dishonorable discharge, forfeiture of all pay and allowances, and performance of hard labor for three months.
In sum, I am of the opinion we should adhere to established principles in bringing certainty to the judgments of courts-martial. Otherwise, we fall into the trap of superimposing our personal views concerning an appropriate punishment upon those set forth by the members of the court and reviewing officials. The inevitable result is an ad hoc redetermination of sentence at this level. Congress has not conferred that authority upon us, and I prefer not to assimilate it under the guise of giving effect to the purported intent of a court-martial.
I would answer the certified questions in the affirmative and affirm the decision of the board of review.