(dissenting):
I dissent.
I am unable to concur with my brothers in their belief that the findings of guilty and sentence should be affirmed in this case. True it is that our grant of review was limited to the question whether the president participated in the closed session deliberations of the court-martial upon his own challenge, but when our scrutiny of the record discloses errors which affect the substantial fairness of the proceedings, I believe that we should go beyond our grant and accord relief where it is due. In brief, we should note plain error in any trial and reverse accordingly. Moss v United States, 132 F2d 875 (CA 6th Cir) (1943); Jackson v United States, 221 F2d 883 (CA DC Cir) (1955).
In announcing that the challenge was overruled in this case, the “president” stated:
“Pres : The court in closed session and upon secret written ballot with the majority vote, voted to have Captain I-IildeRBRANDT as senior member of this court. The rights of the accused were no way prejudiced by having Captain HlLDERBRANDT sit on the *508court-martial which occurred approximately four months ago. The president named in the appointing order will continue to sit as president on this court-martial.”
Conceding that the affidavits filed by defense counsel establish that Captain Hilderbrandt did not participate in the closed session discussion on the challenge against him, we are left to speculate concerning the manner in which the next senior member, who acted as president in announcing the result of the voting, obtained information concerning “the court-martial which occurred approximately four months ago.” These specifies appear at no other place in the record. Thus, it is clear to me that, accepting the conclusion that Captain Hilderbrandt was absent from the closed session, it necessarily follows that the members in denying the challenge relied upon extra-record information. We have repeatedly condemned that course of action. United States v Solak, 10 USCMA 440, 28 CMR 6; United States v Wolfe, 8 USCMA 247, 24 CMR 57; United States v Webb, 8 USCMA 70, 23 CMR 294.
I need not, however, predicate my belief that reversal is required upon a single peg, for an examination of the entire record discloses many other matters which compel the conclusion that the accused received the sort of paternalistic justice which the Uniform Code sought to abolish. I regard as particularly unfortunate statements by the court which evinced a belief that accused had fabricated a defense while in pretrial confinement; the restrictions which were placed upon defense counsel’s cross-examination; the adverse comments regarding counsel’s ability; and the president’s declaration that his-“questions, statements, or talk is a little bit out of line.” While I do not believe that any party to the trial sought, deliberately to create an atmosphere hostile to the accused, the total effect of the circumstances delineated in this record is one of casually according an ex parte hearing to an individual whose guilt is well known to all those present. This may be nothing more than the natural result of convening special courts-martial in small, closely-knit units. It is nevertheless an attitude entirely foreign to the adversary scheme envisioned by Congress. Under the circumstances, I am convinced that this, record depicts a trial completely at odds with our concept of military justice. Accordingly, I must disagree with the contrary view of the majority.
I would reverse the decision of .the board of review and authorize a rehearing.