(dissenting):
I dissent.
The decision of my associates is unsound in at least three respects. First, it should be noted that the *463charges were withdrawn before arraignment, and in connection with the withdrawal the majority opinion quotes the provisions of paragraph 56b, Manual for Courts-Martial, United States, 1951 — which apply after the taking of testimony has started, after arraignment — when subsection d — applicable before arraignment — should be considered. See also paragraph 37c (1) of the Manual, where, in discussing a similar matter, it is stated that, ■“Any unarraigned case which is pending before the old court may be withdrawn from it and referred to the new court.” A more strict rule after the taking of testimony has commenced is not surprising, for otherwise the Government has an opportunity to save a lost cause. Second, the accused has no right to a particular court-martial prior to arraignment and in this instance he shows no reason for relief. Third, the disposition ordered seems to give to the accused no more than the right to present evidence in mitigation and extenuation to an unbiased court, and that is precisely the same privilege accorded him at the second hearing.
The first aspect of the case needs no comment, and my views on the second will be short. Appellate defense counsel concedes that a convening authority may, prior to arraignment, change the composition and membership of a court or refer a case to a new court. In the case at bar, however, the defense contests the motive for the change. But there is no relevant or competent evidence that the convening authority withdrew the accused’s ease from the first court-martial because he believed the sentences were not appropriate. There is included in the record a letter signed by the accused which includes this statement:
. . At the time of adjournment both the President and my appointed Defense Counsel were informed that this curtailment of the day’s trials was considered necessary since the sentences adjudged in the cases of those accused already tried were consistently too lenient.”
That is the rankest sort of hearsay but, even if we elevate it to the level of evidence, who made the statement and who considered the prior sentences inadequate remains cloaked in secrecy. Notwithstanding, an accused has no privilege to a lenient court-martial any more than a defendant has the right to a merciful jury, and if a convening authority is convinced that the court-martial is not performing its duties properly, he can order it disbanded. If he does, every person being held for trial who had not been arraigned is not entitled to have it reconvened or his subsequent hearing barred. The vice, if any, in a case of this sort is not in denying the accused his trial before the first court but in the possibility that the subsequent court-martial members might be influenced to increase the sentences of those who come before it if they learned that the convening authority was directly or indirectly seeking to influence their actions adversely to the accused. Significantly, there is not the slightest suggestion in this record that the court members who sentenced the accused knew of the prior proceedings, and even defense counsel who had challenged the prior proceedings did not seek on voir dire to ascertain if the members had heard of any act or expression by the convening authority which touched on their freedom to sentence as they willed. Command control, if used as a vehicle for reversal, should in some manner affect the findings or sentence or impair a pretrial privilege of the accused which is reflected in his subsequent conviction or sentence. Accordingly, unless the accused could demand that the court first appointed remain in session until his cause was heard, he has no right or privilege which was impaired. Since time immemorial the convening authority has had the power to withdraw charges prior to trial over the objection of the accused, and if the latter has any legitimate complaint, it cannot be based on a claim that he was denied a court of his choice.
Last, the disposition ordered by the Court shows the futility of this re*464versal. My associates, concluding that the charges against accused “were withdrawn from the original court-martial because of a fear on the part of legal personnel that it would not adjudge an ‘adequate sentence,’ ” hold the withdrawal to be prejudicial error. Inasmuch, however, as their decision leaves accused’s conviction affirmed, it is obvious they do not consider the matter jurisdictional. Thus they merely authorize a rehearing on sentence. Manifestly, such rehearing cannot be before the supposedly “lenient” original court. Even assuming it was possible to reconvene that court at this date, nevertheless, implicit in the majority’s opinion is a finding that when it convened with accused present and his case properly referred to it for trial, a “hearing” had commenced even though he had not yet been arraigned. Accordingly, the original court members are proscribed by law from sitting on the rehearing. Article 63(b), Uniform Code of Military Justice, 10 USC § 863. It is apparent, therefore, that the proceedings authorized by my brothers must be held before a new court-martial. Yet, as I have pointed out hereinbe-fore — and my colleagues do not dispute the contention — there is not the slightest indication the court which sentenced accused even knew of the prior proceedings or was in any other way prejudiced against him. Under these circumstances, I encounter difficulty in perceiving in what fashion a rehearing on sentence before a new court will serve to remedy any alleged error pointed out by my associates. Certainly, there is no reason whatever to suspect a third court-martial can better serve fairly and impartially; to impose appropriate punishment; against accused than did the court' that sentenced him.
Further, I wonder just what accused, who this decision seems to benefit, will really gain. The record in this case shows him to be a recidivist absentee who has three prior convictions to be considered by a court in imposing sentence. They involve multiple specifications, and the record shows other delicts. Altogether — and apart from non judicial punishment for three unauthorized absences and another offense — accused has been punished by court-martial for five prior violations of Article 86 and four other minor crimes. The offense herein involved is a 79-day absence, obviously not merely a failure to report on time. With that sort of military record, it is easy to understand the sentence adjudged by the court-martial and the action by appellate authorities on review. In fact, I suggest it will be amazing if, upon the rehearing — and the maximum sentence imposable there will be the same as that which could have been levied on the original trial — accused ends up with a better result, for the confinement imposed has already been served, so the only question of moment concerns the punitive discharge. Thus, although it appears on the surface that accused emerges from this appeal a winner, I am constrained to conclude that any victory is indeed hollow for, except for the unlikely contingency that the bad-conduct discharge will be eliminated on rehearing, he will in fact realize little by this reversal.